Silva v Minister for Home Affairs
[2024] FedCFamC2G 357
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Silva v Minister for Home Affairs [2024] FedCFamC2G 357
File number(s): MLG 2019 of 2019 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2024 Catchwords: MIGRATION – application for judicial review – application for judicial review – Student (Class TU) (Subclass 500) visa - where Administrative Appeals Tribunal affirmed decision not to grant applicant visa as applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal did not have regard to relevant circumstances – where oral submissions raised by applicant seek impermissible merits review - found Tribunal had regard to all relevant considerations and prescribed matters – found no jurisdictional error on behalf of Tribunal - application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 359(2), 474, 476, 499
Migration Regulations 1994 (Cth) cl 500.212 sch 2
Ministerial Direction No. 69
Cases cited: Craig v South Australia (1995) 184 CLR 163
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Kaur v Minister for Home Affairs [2019] FCA 2026
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 4 April 2024 Place: Melbourne Solicitor for the Applicant: Mr Bandara of PLS Lawyers Solicitor for the First Respondent: Mr Simpson of Clayton Utz The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2019 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LADDU POSON SELAKA SILVA
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Amended Application filed 8 March 2024 is dismissed.
3.The Applicant pay the First Respondent’s cost in the amount of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 8 March 2024, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 30 May 2019. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Class TU) (Subclass 500) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a citizen of Sri Lanka.
The applicant arrived in Australia on 8 October 2014 on a Student visa (TU 573).
On 23 June 2017 the applicant applied for the Visa.
On 4 August 2017, the Delegate refused to grant the Visa on the basis that the applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of Schedule 2 of the Regulations requires the Delegate to be satisfied the applicant was a genuine temporary entrant.
On 22 August 2017, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 23 August 2017, the Tribunal sent the applicant confirmation of receipt of his application. The applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 17 January 2019, the Tribunal invited the applicant to provide information about his proposed course of study and his entry and stay in Australia as a student pursuant to s 359(2) of the Act. The Tribunal provided the applicant with a ‘Request for Student Visa Information’ form (Request Form) to be completed by the applicant, and a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69). The applicant provided a response on 31 January 2019 (Request Form Response).
On 30 January 2019, the applicant appointed a registered migration agent as his authorised recipient for the Tribunal.
On 21 February 2019, the Tribunal emailed the applicant’s migration agent enclosing an invitation for the applicant to attend a hearing on 8 March 2019 at 10.30am with an information sheet attached. The Tribunal requested the applicant provide the following documents within seven days of receipt of the invitation: a copy of his current Confirmation of Enrolment (COE); documents evidencing his past studies in Australia; and a written statement addressing the issue of whether he was a genuine temporary entrant (GTE). The hearing invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On that same day the applicant’s migration agent provided a response to the hearing invitation. A written statement from the applicant addressing the issue of whether he was a GTE was provided to the Tribunal on 7 March 2019.
On 8 March 2019 the applicant attended the hearing before the Tribunal with the assistance of an interpreter in the Sinhalese and English languages. The applicant was assisted by their registered migration agent.
On 30 May 2019 the Tribunal affirmed the decision of the Delegate to refuse to grant the applicant the Visa.
Tribunal’s decision
On 31 May 2019, the Tribunal sent a copy of the decision record to the applicant’s migration agent. The Tribunal identified that the issue was whether the applicant was a genuine applicant for entry and stay as a student, as provided for in cl 500.212 of sch 2 of the Regulations.
The Tribunal stated that it had considered the applicant’s GTE statement in his Visa application, the applicant’s Request Form Response and had regard to his written submissions and all written material provided to the Tribunal.
In considering whether the applicant satisfied cl 500.212 of sch 2 of the Regulations, the Tribunal had regard to Direction 69. The terms of Directions 69 required the Tribunal to have regard to factors including the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the applicant’s course to his future, and his immigration history.
In its decision, the Tribunal considered the following factors in its reasons for finding the applicant did not satisfy cl 500.212 of sch 2 of the Regulations:
·whether the applicant needed to complete further tertiary/degree level study in Australia to pursue his stated ambition of managing a hotel in Sri Lanka, particularly given he had completed an Advanced Diploma in Management;
·whether the applicant's economic circumstances in Australia presented a significant incentive not to return to Sri Lanka;
·weight to be given to the prolonged amount of time the applicant had stayed in Australia and did not consider the applicant's family would serve as a significant incentive for him to return to Sri Lanka; and
·the applicant’s numerous formal qualifications that should allow him to action his claimed goal of managing a hotel in Sri Lanka.
The Tribunal was concerned the applicant was using the student visa program primarily in order to maintain ongoing residence in Australia. As a consequence of the above factors, the Tribunal was not satisfied the applicant intended genuinely to stay in Australia temporarily, and found that the applicant did not meet cl 500.212 of sch 2 to the Regulations, and affirmed the decision not to grant the Visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 26 June 2019. The applicant has been legally represented throughout the duration of the proceeding.
The Amended Application filed on 8 March 2024 contains the following grounds for judicial review (without amendment):
1.The Administrative Appeals Tribunal erred in law when in exercising its discretion not to grant Student (Temporary) (Class TU) student (Subclass 500) visa in that it did not have regard to all the relevant circumstances including but not limited to matters identified in the department’s policy guidelines and as such the decision of the Administrative Appeals Tribunal was a denial of procedural fairness and breach of natural justice, relevantly including but not limited to the following;
a.The purpose of the Applicant’s travel to and stay in Australia. The Applicant was in Australia primarily on Subclass TU573 (Higher Education Sector) Diploma of Information Technology and later lodged a Student (Temporary) (Class TU) student (Subclass 500) as he decided to change his studies to Bachelor of Information Systems with an idea of managing a hotel of his relative Sri Lanka
b.that the Applicant had satisfied all the requirements to be granted a visa to study in Australia
c.The degree of hardship that may be caused to the Applicant and his family members. The Applicant had invested a lot of money and time in coming to Australia to further his education. He had completed his Diploma Information Technology in Australia. He was entitled to be granted a visa to complete his next level of Bachelor of Information Systems in Australia
d.The applicant’s past and present behaviour towards the department. The Applicant had been and was and is a visa holder without issues with the Migration Department. He complied at all times with all his visa conditions that he had. He never breached any conditions of his visa deliberately or by his own acts or omissions.
2.The Administrative Appeal Tribunal erred in law and/or in fact fell into jurisdictional error when despite the warnings it gave to itself, it considered the direction the Minister made under s.499 of the Migration Act 1958 which set out certain factors guiding decision makers in assessing whether an applicant for a visa “intends genuinely to stay in Australia temporarily” as a check list and/or as a mandatory and/or binding checklist.
The Minister filed a Response on 15 July 2019. The Response sought orders that the Application be dismissed and orders as to costs on the ground that the Tribunal’s decision is not affected by jurisdictional error.
The Hearing
The hearing took place on 4 April 2024.
Mr Bandara, solicitor, appeared for the applicant.
Mr Simpson, solicitor, appeared for the Minister.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
The Regulations and Direction 69
Clause 500.212 of Schedule 2 of the Regulations provides as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii)if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In accordance with s 499 of the Act, Direction 69 sets out the factors that the decision maker should have regard to when assessing cl 500.212(a) of sch 2 of the Regulations for student visa applications.
The preamble to Direction 69 provides as follows:
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a. the applicant’s circumstances; and
b. the applicant’s immigration history; and
c.if the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Direction 69 states that an application for a Student visa should be refused if, after weighing up “the applicant’s circumstances, immigration history and any other relevant matter” the decision maker is not satisfied the applicant genuinely intends a temporary stay in Australia.
In relation to the applicant’s circumstances paragraph 6 of Direction 69 provides that decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia. Paragraph 8 of Direction 69 provides that for primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
In relation to the applicant’s circumstances in their home country paragraph 9 of Direction 69 relevantly provides that decision makers should have regard to:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant's personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant's circumstances relative to the home country and to Australia;
In relation to the applicant’s potential circumstances in Australia paragraph 11 of Direction 69 relevantly provides that decision makers should have regard to:
a.The applicant's ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
In relation to the value of the course to the applicant’s potential future paragraph 12 of Direction 69 relevantly provides decision makers should have regard to:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student's past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
In relation to an applicant’s immigration history paragraph 14 of Direction 69 relevantly provides that the decision maker should have regard to:
·the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
·the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification.
CONSIDERATION
Construction of clause 500.212 and Direction 69
It is useful to first address the construction to be given to of sch 2 of the Regulations and Direction 69.
In Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 the Full Court of the Federal Court considered the correct construction to be given to cl 500.212. At paragraph [35] their Honours Jagot, Bromwich and Lee JJ said:
In summary, the authorities may be distilled into the following four mutually inclusive propositions:
(1)An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of “any other relevant matter” pursuant to subcl (c): Inderjit (at 535 [31]); Eros (at [8]–[9]); Sanjel (at [18]).
(2)Subclauses (a), (b) and (c) address separate matters and require separate analyses: Eros (at [14]–[15]); Vidiyala (at [28]).
(3)It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly: Eros (at [22], [30]–[33]).
(4)An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa: Sanjel (at [18]); Vidiyala (at [28]). If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the “whole idea or conception” contained in cl 500.212: Eros (at [8]).
Accordingly, if a decision maker is satisfied that an applicant does not meet the criterion in either subclause (a) or (b), they need not proceed further to consider the other criteria of cl550.212
As to Direction 69, in Kaur v Minister for Home Affairs [2019] FCA 2026 (Kaur) Steward J said at [29]-[31]:
…What the Tribunal must ultimately do in a case concerning an application of cl 500.212(a) is make a finding of fact about whether an applicant does or does not intend genuinely to stay in Australia temporarily. For that purpose, it must apply the four factors prescribed in cl 500.212(a) of the Regulations (set out above).
Then, for the purpose of applying those factors, the Minister has made a Direction which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a “guide” in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a “checklist”; rather they are to guide a decision-maker “when considering the applicant’s circumstances as a whole”. In other words, a decision-maker is not required to check each identified factor in the Direction…
In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v. Minister for Home Affairs [2019] FCAFC 135; SZSSC v. Minister for Immigration and Border Protection (2014) 142 ALD 150 at 172-176 [75]-[81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v. Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v. Minister for Immigration and Border Protection (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ.
Ground 1
Ground 1 asserts the Tribunal did not have regard to all of the relevant circumstances. There are four sub-paragraphs to Ground 1, which will be considered in turn below.
Ground 1(a)
By Ground 1(a) the applicant asserts the Tribunal did not have regard to the applicant’s purpose of travelling to and staying in Australia, or that he decided to change his studies with an idea of managing a hotel of his relative in Sri Lanka.
In written submissions, the applicant stated that at the hearing before the Tribunal, the applicant “submitted a commitment to further study and evidence of potential capacity to undertake another course” and that these “these indications of willingness and capacity” were sufficient basis for the Tribunal to be required to remit the matter to the Department of Home Affairs.
In oral submissions, the applicant submitted that because the applicant was already in Australia, enrolled in a course and had not breached his visa conditions there was no basis upon which the Tribunal could have concluded that the applicant did not meet the GTE criteria. The applicant also submitted that the only change in circumstances from 2014 when the applicant was granted a visa was that he had changed course and University and that the Tribunal had failed to consider this.
In oral submissions the applicant also submitted that matters considered in paragraphs [18] – [28] of the Tribunal’s decision were not relevant. The applicant specifically identified paragraphs [18] – [20].
For the reasons that follow, those submissions must be rejected.
Firstly, the applicant’s submissions as to the GTE criteria were somewhat confused and were often directed to whether the applicant was a genuine student. That was not the issue before the Tribunal. The issue before the Tribunal was whether the applicant met the GTE criteria.
Secondly, most of the applicant’s oral submissions did no more than express disagreement with the Tribunal’s decision and invite the Court to engage in impermissible merits review. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ (Liang).
Thirdly, it is clear that the Tribunal did have regard to the matters the applicant contends it did not. The Tribunal had regard to the applicant’s commitment and capacity to undertake further studies. At paragraph [14] of its decision, the Tribunal notes the applicant has been enrolled in numerous courses since his arrival as outlined in his Request Form Response. That response identifies the applicant’s change of course and University. The Tribunal further noted at paragraph [16] of its decision the applicant’s oral testimony that he had initially enrolled in a Bachelor of Business (Leadership and Management) but had not continued because it was “too hard for him”, that in June 2017 he made plans to work in a hotel in Sri Lanka owned by a relative after completion of his Diploma of Information Technology and that in September or October 2017, he decided he needed to complete some studies in management as he “thought this would assist him manage the hotel for his relative in the future”. At paragraph [17] of its decision the Tribunal records the applicant’s evidence that he had recently completed an Advanced Diploma of Leadership and Management in January 2019, whilst on a bridging visa.
Fourthly, the Tribunal explicitly stated at paragraph [15] that it had taken into consideration the value of the course the applicant is currently enrolled in (being a Bachelor of Business (Leadership and Management)). At paragraph [18], the Tribunal found it was not satisfied there was a need for “the applicant to complete further tertiary/degree level study in Australia to pursue his stated ambition of managing a hotel in Sri Lanka, particularly now he has complete the Advanced Diploma of Management earlier this year”. It further observed there was “limited evidence available to the Tribunal regarding the job opportunity raised by the applicant with the Tribunal”.
Fifthly, I accept the submission of the Minister that, in light of the applicant’s study history, it was open to the Tribunal to find that it was not satisfied the applicant needed to complete further study to pursue his stated ambition of managing a hotel in Sri Lanka. The weight to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] (Lee).
Accordingly, the Tribunal had regard to the applicant’s studies in Australia, considered his purpose for travelling to and studying in Australia, and his aim to manage a hotel in Sri Lanka.
As to the submission that the matters considered by the Tribunal in paragraphs [18] – [28] were not relevant, that submission is entirely misconceived. Paragraphs [18] – [25] address matters specifically identified in Direction 69 as matters the Tribunal should have regard to. Paragraphs [26] and [27] are conclusionary and paragraph [28] records the Tribunal’s decision. With specific reference to the paragraphs emphasised by the applicant at hearing:
Paragraph [18] addresses the matters referred to in paragraph 9(a) and 12(b) of Direction 69;
Paragraph [19] addresses the matters referred to in paragraph 9(c) of Direction 69;
Paragraph [20] addresses the matters referred to paragraph 9(b) and (c) of Direction 69.
It follows that Ground 1(a) discloses no jurisdictional error on the Tribunal’s behalf.
Ground 1(b)
Ground 1(b) is a bare assertion that the Tribunal did not have regard to the circumstances that the applicant ‘had satisfied all the requirements to be granted a visa to study in Australia’. This ground is entirely unparticularised and is not expanded on in the applicant’s written submissions filed on 8 March 2023.
In oral submissions, the applicant submitted that he had complied with his visa conditions and that the Tribunal failed to consider this. It did not appear contested that the applicant’s compliance with visa conditions are matters that go to sub-cl 500.212(b). In this context, the applicant submitted that the Tribunal had to consider all of sub-cls (a), (b) and (c) of cl 500.212 and that a failure to do so amounted to jurisdictional error. This submission must be rejected. Having concluded that the applicant did not meet the GTE criteria in subclause 500.212(a), the Tribunal was not required to consider subclause 500.212(b): Dait.
It follows that Ground 1(b) discloses no jurisdictional error on the Tribunal’s behalf.
Ground 1(c)
By Ground 1(c) the applicant asserts that the Tribunal did not have regard to the degree of hardship that may be caused to the applicant and his family members.
That submission must be rejected.
Firstly, the degree of hardship that may be caused to the applicant and his family is not a matter described in cl 500.212 of sch 2 of the Regulations that the Tribunal is required to consider, nor is it a matter described in Direction 69 that the Tribunal should have regard to.
Secondly, whilst Direction 69 states the decision maker should consider “any other relevant information provided by the applicant”, even if it could be shown that such information was relevant to whether the applicant met the GTE criteria, there was no evidence or information of any such hardship in the documentary material submitted to the Tribunal, nor any suggestion in the Tribunal’s reasons that such hardship was raised in the applicant’s oral evidence. At the hearing the applicant conceded that no such claim was made to the Tribunal. The matters the Tribunal must take into account are those which have been the subject of substantial and clearly articulated claims made by the visa applicant or which are apparent on the face of the material before it and which engage with the factors contained in Direction 69: Kaur v Minister for Home Affairs [2019] FCA 2026 at [31] (Kaur).
In circumstances where there was no substantial and clearly articulated claim made about the hardship that may be caused to the applicant and his family, the Tribunal was not required to consider the matter.
It follows that Ground 1(c) discloses no reasonably arguable jurisdictional error by the Tribunal.
Ground 1(d)
By Ground 1(d) the applicant asserts that the Tribunal did not have regard to the applicant’s past and present behaviour and compliance with his visa conditions.
The applicant submitted that the applicant was and is a visa holder “without issues with the Department” and had at all times complied with his visa conditions.
As set out above, the applicant’s record of compliance with visa conditions is a matter that goes to sub-cl 500.212(b). As also set out earlier, having concluded that the applicant did not meet the GTE criteria in sub-cl 500.212(a), the Tribunal was not required to consider sub-cl 500.212(b): Dait
For completeness, paragraph [14] of Direction 69 provides that when considering the applicant’s immigration history, decision makers should have regard to factors including “if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications…were granted”.
Should it be contended that the applicant’s prior compliance with visa conditions goes to considerations under paragraph [14], on the material before the Court the applicant’s compliance with visa conditions was not raised in the applicant’s written material submitted to the Tribunal nor does the Tribunal’s decision record that the applicant raised this in oral evidence before the Tribunal. Further, where relevant, these matters were otherwise considered by the Tribunal. For example, at paragraph [14] of its decision the Tribunal refers to the applicant being enrolled in various course since his arrival in Australia in 2014, and completing an Advanced Diploma in Management whilst on a bridging visa at paragraph [17] of its decision.
Ground 1(d) discloses no jurisdictional error on the Tribunal’s behalf.
Ground 2
By Ground 2 the applicant asserts that the Tribunal erred in treating the factors in Direction 69 as a checklist, or as a mandatory or binding checklist.
The applicant submits that whilst the Tribunal warned itself that the factors specified in Direction 69 should not be used as a checklist, the Tribunal “went ahead and analysed the application for review against those factors using those factors as a checklist to refuse the student visa application…”.
I reject that submission.
It is clear that the Tribunal was mindful that the factors specified in Direction 69 were intended to guide decision makers and not to be used as a checklist; it explicitly draws attention to this at paragraph [13] of its decision. I accept the Minister’s submissions that the Tribunal considered the factors in Direction 69 that were clearly raised by the applicant in written and oral submissions or which clearly emerged from the materials. The requirement that the Tribunal not treat the factors in Direction 69 as a checklist does not allow the Tribunal to ignore matters in Direction 69 that are the subject of clearly articulate claims or that otherwise arise from the materials before it.
I consider the approach taken by the Tribunal to the claims made by the applicant and the application of the factors in Direction 69 to be entirely orthodox and discern no error on the Tribunal’s behalf.
In oral submissions, the applicant submitted that the Tribunal ‘went looking for a ground to refuse the visa’. I reject that submission. Firstly, as set out above, I consider the approach taken by the Tribunal to the claims made by the applicant and the application of the factors in Direction 69 to be entirely orthodox. Secondly, if it be contended by Ground 2 that the member ‘looking for a ground to refuse the visa’ amounts to apprehended bias, such an allegation must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. Further, I do not consider there is anything before the Court which would lead a fair-minded and appropriately informed lay observer to reasonably apprehend that the Tribunal might not bring a fair, impartial and independent mind to the determination of the applicant’s case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].
It follows that Ground 2 also discloses no jurisdictional error on the Tribunal’s behalf.
DISPOSITION
For the reasons set out above, the Application discloses no jurisdictional error on the Tribunal’s behalf.
The Application must therefore be dismissed.
The Minister seeks the applicant pay their costs in the fixed amount of $7,467, being the scale amount applicable at the date at which the Application was made. I shall order accordingly.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2024
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