Singh v MIBP
[2018] FCCA 3423
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3423 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – student (temporary) (class TU) subclass 572 visa – Ministerial Direction No. 53 – whether the Tribunal was obliged to consider all of the factors specified in the Direction – whether the Tribunal did consider all of the factors specified in the Direction. |
| Legislation: Migration Act 1958, s.499 |
| Cases cited: He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206 |
| Other materials: Ministerial Direction No. 53 made under s.499 of the Migration Act 1958 |
| Applicant: | GURINDER PAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1119 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 27 July 2018 |
| Date of last submission: | 27 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the first respondent: | John Maloney |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | DLA Piper |
ORDERS
The decision of the Administrative Appeals Tribunal made on 4 May 2017 in matter number 1509812 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1119 of 2017
| GURINDER PAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a student (temporary) (class TU) subclass 572 visa.
The matter was listed for a show cause hearing on 14 May 2018. On that occasion, the applicant sought an adjournment to enable him to obtain legal representation. That application was refused, for reasons given orally at the time.
At the show cause hearing, an issue arose as to whether the Tribunal had considered all of the factors as required by s.499 of the Migration Act 1958 (“the Act”) and Ministerial Direction No. 53. That Direction applies to the determination of whether an applicant is a genuine temporary entrant as a student. I considered that there was an arguable point about whether the Tribunal had considered all of the necessary factors, for reasons given orally at the time. Consequently, the court adjourned the matter for final hearing.
For the purposes of the final hearing, both parties were permitted to file further written submissions. The Minister did so, but the applicant did not.
Although the applicant, by the time of the final hearing, had had over two months to find legal representation, he again appeared in person at the final hearing.
The applicant’s study history
The applicant arrived in Australia on 1 June 2009. Since arriving in Australia, he:
a)studied an ELICOS course, briefly;
b)completed a Certificate II in Food Processing (Bakery) by June 2010, which qualified him as a baker;
c)did a Diploma of Management;
d)did an Advanced Diploma of Management, which he completed in June 2012;
e)did a Certificate III in Painting and Decorating, which was completed in January 2014;
f)did a Diploma of Business until February 2015;
g)did a Diploma of Marketing;
h)did a Diploma of Building and Construction; and
i)at the time of the Tribunal’s decision, was enrolled in a Bachelor of Business.
The current visa application
The applicant lodged the visa application that was the subject of the Tribunal’s review on 2 April 2015, after completing the Diploma of Business and before completing the Diploma of Marketing.
The Minister’s delegate refused the application on 8 July 2015, on the basis that the applicant did not genuinely intend to stay temporarily in Australia.
The Tribunal affirmed the delegate’s decision for the same reason.
The Tribunal’s reasons
The Tribunal gave oral reasons for decision on 4 May 2017. Those reasons were reduced to writing on 24 May 2017.
The Minister summarised the Tribunal’s reasons for decision in his written submissions filed on 30 April 2018 as follows:
11. The AAT had regard to the courses completed by the applicant as listed above, and his present enrolment in a Bachelor of Business (Management) ([14], [18]). The AAT had regard to the applicant’s stated intention of opening a bakery or café in India ([18]). The AAT considered that the applicant had gained the skills to open a bakery but had not returned to India and had instead enrolled in other courses ([19]). The AAT also considered that the applicant's studies in painting and decorating and building and construction management were not relevant to this stated intention ([20]).
12. The AAT noted that at the hearing the applicant gave evidence that he wished to get a good job in management, which was inconsistent with his stated intention of opening a bakery ([22]). The AAT did not accept that the applicant had any business plan as a basis for his studies ([23]).
13. The AAT concluded that the applicant had enrolled in a range of unrelated, relatively inexpensive courses at the VET sector level and had not followed any pre-determined academic path, in order to maintain residence in Australia ([21]).
14. The AAT acknowledged that the applicant had family in India but was not satisfied that this provided a strong incentive for him to return ([25]).
15. The AAT was not satisfied that the applicant was a genuine student who intended to stay temporarily in Australia, and found that he did not satisfy clause 572.223(1)(a) ([26]).
Ground 1
The first ground of review in the application filed on 29 May 2017 (“the application”) is:
While making decision on student visa application both DIBP and AAT have failed to consider all my circumstances and my visa history.
The court, on an application such as the present, is not permitted to review the delegate’s decision, so I disregard the complaint about the “DIBP”.
Section 499 of the Act provides as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
…
(emphasis added)
Ministerial Direction No. 53 was made under s.499 of the Act and states that:
4.Preamble
…
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:
(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
This Direction provides guidance to decision makers on the factors that should be considered in weighing up: the applicant’s circumstances; the applicant’s immigration history, the intentions of a parent, legal guardian or spouse of a minor applicant, and any other relevant matter to determine whether the applicant genuinely intends to stay in Australia temporarily. This Direction is binding on all decision makers.
Decision makers must take a balanced approach between the need to make a timely decision on a Student visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily.
…
Part 2
Directions
ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION
1. Decision makers should not use the factors specified in this Direction as a checklist. Rather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2. Decision makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b. taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).
…
THE APPLICANT’S CIRCUMSTANCES
6.Decision makers must have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of subclass 570, 571, 572, 573, 574, 575 and 576 Student visas, decision makers must also have regard to the value of the course to the applicant’s future.
8. Weight should be placed on an applicant's circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9. In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
…
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers must have regard to the following factors:
…
Value of the course to the applicant’s future
12.Decision makers must have regard to the following factors in considering the value of the course to the applicant’s future:
…
THE APPLICANT’S IMMIGRATION HISTORY
13.An applicant’s immigration history refers both to their visa and travel history.
14.In considering the applicant’s immigration history, decision makers must have regard to the following factors:
…
IF THE APPLICANT IS A MINOR – THE INTENTIONS OF A PARENT, LEGAL GUARDIAN OR SPOUSE OF THE APPLICANT
15.If the primary or secondary applicant for a subclass 570, 571, 572, 573, 574, 575 or 576 visa is a minor, decision makers must have regard to the intentions of a parent, legal guardian or spouse of the applicant.
ANY OTHER RELEVANT MATTERS
16.Decision makers must also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
(emphasis added)
The court was concerned at the show cause hearing that the Tribunal’s decision in the present matter may have fallen foul of the explanation of the law in He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206, albeit that He deals with a different statutory scheme. In He, the Full Court of the Federal Court said:
78. The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages. Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.
79. The Tribunal’s findings upon the matters set out in reg 1.15A(3) are made in the course of making a decision as to whether it is satisfied that the visa applicant and the sponsor are in a “married relationship” within s 5F of the Act. It must be emphasised that there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act: … The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to “consider” all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3). (citations omitted)
Whether the Tribunal failed to make necessary findings
80. In the present case, the question is whether the appellants have demonstrated that the Tribunal failed to make findings upon the matters they rely upon, namely the extent of pooling of financial resources (reg 1.15A(3)(a)(iii)), living arrangements (reg 1.15A(3)(b)(ii)), and evidence of others attesting to the relationship (reg 1.15A(3)(c)(ii)). If the Tribunal failed to do so, then it failed to consider circumstances required to be considered in the evaluation of whether there was a “married relationship”.
81. The Tribunal observed in its reasons that it was required to “have regard to” each of the matters set out in reg 1.15A(3). The Tribunal expressly identified the four principal matters set out in reg 1.15A(3) and stated that these were matters to which, along with all the circumstances of the relationship, regard must be had. The Tribunal noted that evidence produced by Ms He and Mr Xu, if accepted at face value, would support a finding that they were in a married relationship. That evidence concerned their intertwining of financial affairs, their joint bank account, their claim that they cohabitated and their claim that they provide each other with companionship and emotional support and that their relationship is a long-term one. The Tribunal also noted that there was material from family members and others attesting to their relationship. The Tribunal then went on to examine evidence and circumstances which appeared to contradict the evidence relied on by the appellants, before concluding that it was not satisfied that Ms He and Mr Xu were in a married relationship.
82. The Tribunal’s reasons were not structured in a manner that formulaically addressed each of the relevant matters in turn, but they did not have to be: see Zhang at [20]. Further, as Charlesworth J said in Singh at [20], the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons, and, further, such reasons are not to be construed minutely and finely with an eye attuned to the perception of error.
83. As to whether the Tribunal made findings upon the extent of any pooling of financial resources, the Tribunal discussed Ms He’s and Mr Xu’s claims to have an intertwining of their financial affairs, finding that they had a joint bank account. The Tribunal referred to what it called “curious financial transactions”, including a withdrawal by Mr Xu of $21,000 in cash shortly after Ms He was granted a provisional partner visa. The Tribunal said that the financial arrangements appeared to be consistent with a scenario where Mr Xu was paid money for his part in the visa application, but went on to say that the financial transactions when taken in isolation did not prove that the relationship was contrived. The Tribunal must be understood to have concluded that it was unable to decide whether the intertwining of financial affairs was designed to ensure that Mr Xu would be paid for a sham marriage. The Tribunal also mentioned some aspects of the evidence relevant to the pooling of financial resources which it did not make findings upon. However, the Tribunal was not required to refer to or make findings upon every piece of evidence: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46], Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [80], Yusuf at [9]-[10], [77]. Rather, it was required to make findings upon the matters prescribed in reg 1.15A(3). In our opinion, the Tribunal’s reasons demonstrate that it did make findings upon, and therefore considered, the extent of the pooling of financial resources, as was required under reg 1.15A(3)(a)(iii).
84. Regulation 1.15A(3)(b)(ii) requires the Tribunal to consider the persons’ living arrangements. This imports a requirement to consider to their living arrangements throughout the marriage, so far as is revealed by the material before the Tribunal. The evidence of Ms He and Mr Xu was that they had cohabited throughout their marriage. The Tribunal considered that evidence. The Tribunal rejected Mr Xu’s explanation as to why, in his incoming passenger cards, he gave addresses other than the address of the nominated marital home. Further, the Tribunal found that the home visit revealed little evidence that Mr Xu lived there. The Tribunal said it was not prepared to find that Ms He and Mr Xu were credible witnesses. In view of these findings, the Tribunal rejected the appellants’ case that Ms He and Mr Xu had cohabited throughout their marriage.
85. It is true that the Tribunal set out no express finding as to whether Ms He and Mr Xu were cohabiting at the time of the decision. However, an inference is available from the Tribunal’s reasons read as a whole that the Tribunal did make such a finding upon this matter as part of its mental process in making its decision. As we have said, the Tribunal rejected the evidence of Ms He and Mr Xu that they had cohabited throughout their marriage. The appellants advanced no case that Ms He and Mr Xu had lived together for a time, and then separated for a time, but had resumed living together by the time of the hearing before the Tribunal. The Tribunal was not required to speculate about that prospect. The Tribunal was not satisfied that there was ever a genuine and continuing marital relationship. The Tribunal must be understood to have found that it was not satisfied that they had lived together at any time. The Tribunal did consider Ms He’s and Mr Xu’s living arrangements as at the date of its decision as was required under reg 1.15A(3)(b)(ii).
The Minister argued that He was distinguishable, because it concerned a regulation whereas the present matter concerned a Ministerial Direction. I do not consider that there is any merit in that argument. The Act provides in s.499 that a relevant person or body must comply with a direction made by the Minister under that section. Direction No. 53 was made under s.499 of the Act. Direction No. 53 says that decision makers must consider various matters. It seems to me that it is immaterial that He concerned matters that were required by a regulation to be considered whereas the present matter concerns matters that an Act of Parliament required to be considered, albeit that those matters were listed in a Ministerial Direction.
The Minister argued that Direction No. 53 expressly stated that it was not a checklist. The Minister argued that the consequence of that was that the Tribunal did not need to refer to every factor mentioned in Direction No. 53. However, that is not what is meant by saying that the Direction is not a checklist. A checklist is a list of things that are required. For example, a checklist for a pilot would list matters to be checked before take-off, such as that there was adequate fuel, that the navigational instruments were working, that the aeroplane’s lights were working and so on. All of the items mentioned on a pilot’s checklist should be satisfactory, or the aeroplane should not take off. The factors mentioned in Direction No. 53 are not a checklist in that sense. They are all matters for the decision-maker to think about and weigh up, but they do not necessarily all have to be satisfied to any particular degree for a person to be found to be a genuine temporary entrant.
The Minister also relied on the decision of this court in Brar v Minister for Immigration and Border Protection(No.2) (2017) 322 FLR 81; [2017] FCCA 1538. In Brar, Judge Lucev said at paragraph 22(c)(ii) of his reasons for decision that it was sufficient that the Tribunal:
made findings in relation to the factors that had practical relevance to Ms Brar’s circumstances and evidence: Singh v Minister for Immigration & Border Protection [2016] FCA 74; Maudhoo v Minister for Immigration & Anor [2015] FCCA 1741 at [17] per Judge Emmett; Khadgi at [60]-[62] per Stone, Foster and Nicholas JJ; Sharma v Minister for Immigration & Anor [2015] FCCA 575 at [18] per Judge Vasta.
Brar, Maudhoo v Minister for Immigration & Anor [2015] FCCA 1741 and Sharma v Minister for Immigration & Anor [2015] FCCA 575 are decisions of this court and cannot prevail over a decision of the Full Court of the Federal Court.
Singh v Minister for Immigration & Border Protection [2016] FCA 74 is a decision of a single judge of the Federal Court. It cannot prevail over a decision of the Full Court of the Federal Court. In any event, in Singh, the Federal Court said at [28] that:
Direction 53 is a direction issued by the Minister under s 499(1) of the Migration Act. The Tribunal’s decision records that, at the hearing, among other things, it outlined the relevance of that Direction to Mr Singh. Then, in the “Consideration of claims and evidence” section of its decision, the Tribunal set out the terms of Direction No 53 and observed (at [27] and [28]) that “the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole …”. At two points thereafter in its decision, the Tribunal stated that it had had regard to the factors specified in that Direction (at [29] and [30]). Whether or not the Tribunal specifically mentioned every factor in Direction No 53 in its decision, I consider it is clear it took account of the two matters Mr Singh appears to claim in his particulars above that it did not, namely his lack of family ties in Australia and his intention to return to India after his studies. It did that at [37] of its decision, as follows:
The Tribunal accepts that the applicant has no relatives in Australia and wishes to marry a girl from India. However, the Tribunal does not consider the applicant’s family being in India or his wish to marry an Indian girl to indicate a strong intention on the part of the applicant to remain in Australia temporarily or intention to return to India. …
As can be seen from Singh, the Federal Court considered that the Tribunal in that case specifically took into account the two matters that the applicant said it had not. That was the operational part of the decision in Singh. Consequently, the balance of Singh was, strictly speaking, obiter.
In Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; (2010) 119 ALD 26; (2010) 274 ALR 438; [2010] FCAFC 145, the Full Court, considering different provisions of the Act, said that:
The Relevant Principles
57.Section 109(1)(c) of the Act obliges the Tribunal to “have regard to” the prescribed circumstances set out in reg 2.41. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s 109. In order to comply with that prerequisite, the decision-maker must engage in what has been described as “an active intellectual process” in which each of the prescribed circumstances receives his or her “genuine” consideration: Tickner at 462 (per Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (p 540) (per Gleeson CJ and Gummow J).
58.In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.
59.Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] (p 512) (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.
60.In some cases it may be apparent that amongst the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. This was true of the particular matter referred to by Mason J in The Queen v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 338. As his Honour’s reasons in The Queen v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”. But the converse is also true. The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [57] (p 164) (per Sackville J).
It seems to me that Khadji, although it concerns a somewhat different statutory scheme, stands for substantially the same propositions as He. Therefore, it is necessary to consider which of the factors specified in Direction No. 53 the Tribunal in the present case considered expressly, and which it may have considered impliedly, or by findings of greater generality or in some other way.
Direction No. 53 states that:
THE APPLICANT’S CIRCUMSTANCES
6.Decision makers must have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of subclass 570, 571, 572, 573, 574, 575 and 576 Student visas, decision makers must also have regard to the value of the course to the applicant’s future.
8. Weight should be placed on an applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.
(emphasis added)
Direction No. 53 then sets out more specifically various matters that the Tribunal is required to consider in relation to the applicant’s circumstances. The first bundle of factors is under the heading, The applicant’s circumstances in their home country, and is as follows:
9. In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
a. Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives as 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 they 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. This may include consideration of the applicant’s circumstances relative to the home country and to Australia.
d. Military service commitments that would present as a significant incentive for the applicant not to return to their home country.
e. Political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
(emphasis added)
The Minister argued that the Tribunal dealt expressly with item 9(a) at [24] of its reasons for decision in the following terms:
When asked why you do not do your studies at home in India, your only answer is that study in Australia is highly regarded. The tribunal accepts this and notes you have studied in Australia for eight years. The tribunal does not believe it makes economic sense for you to remain studying in Australia at a College when the same course is available at the highly regarded Punjab University close to where you live.
Item 9(a) required consideration of whether the applicant had sound reasons for not studying a similar course at home in India. The applicant submitted that he preferred to study in Australia because it is highly regarded. The Tribunal said in its reasons for decision that it accepted that studying in Australia is highly regarded. That would seem to be a sound reason for studying in Australia.
However, the Tribunal then went on to say that it did not make economic sense to study in Australia when the applicant could study the same course at Punjab University, which is also highly regarded.
The Tribunal presumably meant that Australia being highly regarded as a place to study is not a sound reason for not studying a similar course at a highly regarded educational institution in India, given the economics of studying in Australia. Leaving aside the issues of how the Tribunal knew Punjab University is highly regarded, and how it knew about the relative economies of studying in Australia or at the Punjab University and whether the Tribunal complied with s.424A of the Act in relation to that information, I infer that the Tribunal considered the issue it was required to consider by item 9(a).
The Minister argued that the Tribunal dealt expressly with item 9(b) at [25] of its reasons for decision in the following terms:
While I acknowledge you have family back home, I am not satisfied this provides strong incentive to return and does not outweigh the issues we have discussed and you also say you have a brother who has been here for longer than you, you say he studied cookery and worked in a restaurant you don’t know what sort of a visa he is on but you do not believe that he has PR yet but is here and working. Your immigration history is that you have been here for 8 years and now seek to stay at least a further 2 years which indicates you perceive significant incentive to remain in Australia.
Item 9(b) required consideration of the extent of the applicant’s personal ties to India and whether they served as a significant incentive to return there. The Tribunal acknowledged that the applicant had family in India, but considered that his family did not provide a strong incentive to return there.
The Tribunal was not required to consider whether the applicant’s ties to India would serve as a strong incentive to return to India. It was required to consider whether the applicant’s ties would serve as a significant incentive to return. A significant incentive is somewhat less than a strong incentive. Consequently, the Tribunal imposed a higher standard than Direction No. 53 required, and did not consider the correct question. It thereby fell into jurisdictional error.
The Minister conceded that the Tribunal did not expressly consider items 9(c), (d) or (e). However, the Minister argued that it could not be inferred that the Tribunal had failed to consider those items because the applicant had not put forward any evidence going to them. That argument is not consistent with item 2 of Part 2 of Direction No. 53. Item 2 of Part 2 provides that:
Decision makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b. taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).
That is, under item 2(a), the Tribunal must consider the applicant against all the factors specified in Direction No. 53. In addition, under item 2(b) the Tribunal must consider any other evidence or information provided by the applicant. The Minister’s argument proceeds on the assumption that items 2(a) and (b) are alternatives. They are not. The Tribunal is required to consider the matters in both item 2(a) and in item 2(b). That is, the Tribunal must consider the various factors in Direction No. 53 and the matters put forward by the applicant. That conclusion is reinforced by item 16, which specifically requires the Tribunal to have regard to any other relevant information provided by the applicant, whether beneficial or unfavourable to the applicant.
The Minister then argued that items 9(c), (d) and (e) were not material to the Tribunal’s decision. That cannot be right, when s.499 of the Act and Direction No. 53 made them mandatory considerations.
Item 9(c) required consideration of:
Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. …
The Minister did not suggest that the court could infer that the Tribunal had considered this factor, unlike in He at [85], where the Full Court was prepared to infer from the Tribunal’s reasons that it had considered a necessary matter. Nor did the Minister argue that the Tribunal made findings that subsumed the matters required to be considered by item 9(c).
In the present matter, the Tribunal did not set out in its reasons for decision the matters it was required to consider under Direction No. 53. However, the Tribunal referred to Direction No. 53 by name a number of times in its reasons for decision. The Tribunal also claimed in paragraph 26 of its reasons for decision that it had considered the issues in Direction No. 53.
The Tribunal included in paragraph 8 of its reasons for decision a summary of a few of the matters mentioned in Direction No. 53. Paragraph 8 is as follows:
As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. They were detailed in the primary decision and they include:
·Your circumstances
·The value of your course/s to your future
·Your Immigration history
·Your incentive to stay in Australia or return home
·If you are using the student visa programme to maintain ongoing residence in Australia
·Any other relevant matters
On any view, that is a very superficial summary of Direction No. 53. It did not include any reference to the matters required to be addressed by item 9(c), among others. In circumstances where the Tribunal’s summary of Direction No. 53 was so superficial, and where, as discussed below, the Tribunal has not considered a number of the matters it was required to consider, it is not possible to infer from the Tribunal’s mention of Direction No. 53 by name and the Tribunal’s claim that it had considered the issues in Direction No. 53 that it was actually aware of the detail of the contents of that direction.
As the Tribunal did not find that there were economic circumstances that would present as a significant incentive for the applicant not to return to India, I infer that the Tribunal implicitly found that there were no economic circumstances that presented as a significant incentive for the applicant to return to India. Consequently, the Tribunal should have considered whether to take that matter into account as a factor supporting the applicant’s claim to be a genuine temporary entrant. By failing to do so the Tribunal fell into jurisdictional error.
Items 9(d) and (e) concerned military service commitments and civil and political unrest respectively. The Minister conceded that the Tribunal did not expressly consider those items, and did not suggest that the Tribunal impliedly considered them or disposed of them with findings of greater generality.
The Minister submitted that items 9(d) and (e) were of no relevance. I do not accept that submission. Direction No. 53 made items 9(d) and (e) relevant.
It may be the case that the applicant had no military service commitments in India, and that there was no relevant civil or political unrest in India, which would operate as disincentives for the applicant to return there. However, in those circumstances, Direction No. 53 required the Tribunal to consider whether to weigh those matters in the balance in support of the applicant being a genuine temporary entrant. That is, the fact that the applicant was not required to undertake military service in India, and the fact that there was no relevant civil or political unrest in India, tended to suggest that the applicant was not attempting to stay in Australia to avoid those things. The Tribunal did not consider whether to weigh them in the balance, contrary to Direction No. 53, and thereby fell into jurisdictional error.
Item 10 is not a mandatory consideration, because it expressly states that decision makers may have regard to certain matters. Consequently, it was not a jurisdictional error for the Tribunal not to have any regard to it.
The next bundle of factors that the Tribunal was required to consider in relation to the applicant’s circumstances was under the heading, The applicant’s potential circumstances in Australia, and is as follows:
11.In considering the applicant’s potential circumstances in Australia, decision makers must have regard to the following factors:
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 program is being used to circumvent the intentions of the migration program.
c.Whether the Student visa is being used to maintain ongoing residence.
d.Whether the primary and secondary applicant(s) have entered into a relationship of concern for Student visa purposes. Where it has been determined that an applicant and dependant have contrived their relationship for Student visa purposes, the decision maker can find that both applicants do not satisfy the genuine temporary entrant criterion.
e.The applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
(emphasis added)
Item 11(a) required the Tribunal to consider whether the applicant’s ties with Australia would present as a strong incentive to remain here. The Minister submitted that item 11(a) was expressly considered in paragraph 25 of the Tribunal’s reasons for decision, which is as follows:
While I acknowledge you have family back home, I am not satisfied this provides strong incentive to return and does not outweigh the issues we have discussed and you also say you have a brother who has been here for longer than you, you say he studied cookery and worked in a restaurant you don’t know what sort of a visa he is on but you do not believe that he has PR yet but is here and working. Your immigration history is that you have been here for 8 years and now seek to stay at least a further 2 years which indicates you perceive significant incentive to remain in Australia.
The Tribunal’s mention of the applicant’s family in India did not address the question of the applicant’s ties with Australia. The Tribunal noted that the applicant has a brother in Australia. However, the Tribunal did not actually consider in paragraph 25 of its reasons for decision whether that circumstance presented as a strong incentive to remain in Australia. The Tribunal noted that the applicant’s brother did not have “PR”, which presumably means permanent residence. Consequently, it appears that the Tribunal was of the view that the applicant did not have strong ties with Australia. The Tribunal then noted that the applicant was seeking a further visa for two years, which the Tribunal considered to be an indication that the applicant perceived incentives to remain in Australia. However, the fact that the applicant was seeking a further visa for two years cannot fairly be characterised as a tie with Australia.
All in all, in paragraph 25 of the Tribunal’s reasons for decision, the Tribunal did not expressly consider whether the applicant had ties with Australia which would present as a strong incentive to remain here. Nor did the Tribunal consider this factor implicitly or in findings of greater generality. Consequently, the Tribunal fell into jurisdictional error by not considering item 11(a).
Items 11(b) and 11(c) required the Tribunal to consider whether there was any evidence that the student visa program was being used to circumvent the intentions of the migration program, and whether the student visa was being used to maintain ongoing residence. The Minister submitted that the Tribunal considered those questions in paragraph 21 of its reasons for decision, which is as follows:
The Tribunal finds you have enrolled and studied a range of unrelated, relatively inexpensive courses at the VET sector level not following any pre-determined academic path, but to maintain residence in Australia[.]
I accept the Minister’s submissions in this regard. The matter required to be considered by item 11(c) was expressly considered in paragraph 21 of the Tribunal’s reasons for decision, and the matter required to be considered by item 11(b) was impliedly considered in that paragraph.
Item 11(d) required the Tribunal to consider whether the primary and secondary applicants had entered into a relationship of concern for student visa purposes. The Minister argued that item 11(d) only applied where there was a secondary applicant, so it was not material to the present application.
I accept that submission. That is, there was no secondary applicant in the present case, so item 11(d) had no application.
Item 11(e) required the Tribunal to consider:
The applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
The Minister submitted that the Tribunal dealt with these matters in paragraphs 18, 24 and 25 of the Tribunal’s reasons for decision, which are as follows:
18. They are statements made in support of your visa application in April 2015 a date that is reasonably important because you came to Australia on 1 June 2009 and after a brief ELICOS you studied:
Certificate II in Food Processing (Bakery) up until June 2010, when you had finished that course and qualified as a Baker you decided to do a Diploma of Management which you say you did because you believe management is important. You then did an Advanced Diploma of Management which you completed in June 2012.
Then surprisingly you started a, Certificate III in Painting and Decorating. When asked why you did painting and decorating you say it gives you other skills if you don’t want to be a baker all your life. So you finished studying painting and decorating in January 2014 and then study a Diploma of Business until February 2015. You then start a Diploma of Marketing. With your visa about to expire, you lodged this visa application in April 2015, after you’ve done management, baking and painting and decorating and you make the statement that I will read: “My intentions are to complete my education and start my own business as a bakery/fast food cafe on my return to India”. It goes through explaining that you believe bakery is such a good business.
So you finished the Diploma of Marketing and then did a Diploma of Building and Construction which you have completed and now you are enrolled to study a Bachelor of Business.
Completed courses
·Certificate II in Food Processing (Bakery)
·Diploma of Management
·Advanced Diploma of Management
·Certificate III in Painting and Decorating
·Diploma of Business
·Diploma of Marketing
·Diploma of Building and construction
…
24. When asked why you do not do your studies at home in India, your only answer is that study in Australia is highly regarded. The tribunal accepts this and notes you have studied in Australia for eight years. The tribunal does not believe it makes economic sense for you to remain studying in Australia at a College when the same course is available at the highly regarded Punjab University close to where you live.
25.While I acknowledge you have family back home, I am not satisfied this provides strong incentive to return and does not outweigh the issues we have discussed and you also say you have a brother who has been here for longer than you, you say he studied cookery and worked in a restaurant you don’t know what sort of a visa he is on but you do not believe that he has PR yet but is here and working. Your immigration history is that you have been here for 8 years and now seek to stay at least a further 2 years which indicates you perceive significant incentive to remain in Australia.
The Tribunal did not expressly address the question of the applicant’s knowledge of living in Australia. However, I infer from the Tribunal’s finding that the applicant had lived in Australia for eight years that the Tribunal accepted that the applicant had a substantial knowledge of living in Australia.
The Tribunal did not expressly address the questions of the applicant’s knowledge of his intended course of study, which was a Bachelor of Business, or his knowledge of his proposed education provider, which was Cambridge College. Nor did the Tribunal expressly address the questions of the level of research the applicant had undertaken into his proposed course of study. I cannot discern anything in the Tribunal’s reasons for decision from which it could be inferred that the Tribunal had impliedly considered those matters or dealt with them in findings of greater generality. The Tribunal thereby fell into jurisdictional error.
As the Tribunal was obviously aware that the applicant had lived in Australia for eight years, it may be inferred that the Tribunal was satisfied that the applicant had undertaken a high level of research into his proposed living arrangements.
The next bundle of factors in relation to the applicant’s circumstances is under the heading, Value of the course to the applicant’s future, and is as follows:
12.Decision makers must have regard to the following factors in considering the value of the course to the applicant’s future:
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.
b.Relevance of the course to the student’s past or proposed future employment either in their home country or a third country.
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.
The Minister submitted that the Tribunal considered items 12(a) and (b) in paragraphs 18 to 25 of its reasons for decision. Those paragraphs are as follows:
18. They are statements made in support of your visa application in April 2015 a date that is reasonably important because you came to Australia on 1 June 2009 and after a brief ELICOS you studied:
Certificate II in Food Processing (Bakery) up until June 2010, when you had finished that course and qualified as a Baker you decided to do a Diploma of Management which you say you did because you believe management is important. You then did an Advanced Diploma of Management which you completed in June 2012.
Then surprisingly you started a, Certificate III in Painting and Decorating. When asked why you did painting and decorating you say it gives you other skills if you don’t want to be a baker all your life. So you finished studying painting and decorating in January 2014 and then study a Diploma of Business until February 2015. You then start a Diploma of Marketing. With your visa about to expire, you lodged this visa application in April 2015, after you’ve done management, baking and painting and decorating and you make the statement that I will read: “My intentions are to complete my education and start my own business as a bakery/fast food cafe on my return to India”. It goes through explaining that you believe bakery is such a good business.
So you finished the Diploma of Marketing and then did a Diploma of Building and Construction which you have completed and now you are enrolled to study a Bachelor of Business.
Completed courses
·Certificate II in Food Processing (Bakery)
·Diploma of Management
·Advanced Diploma of Management
·Certificate III in Painting and Decorating
·Diploma of Business
·Diploma of Marketing
·Diploma of Building and construction
19. You claim to have come to gain the skills to open a bakery, yet having completed those studies you have not returned but have enrolled in other courses.
20.You say you need to learn other elements of business before opening your bakery but then you studied the unrelated Painting and Decorating and Marketing. While you still say you wish to open the bakery, you then studied building and construction and now say you want to do a business degree.
21.The Tribunal finds you have enrolled and studied a range of unrelated, relatively inexpensive courses at the VET sector level not following any pre-determined academic path, but to maintain residence in Australia
22.You said on a number of occasions that your ultimate goal is to return and to open a bakery but at today’s hearing you claim you wish to finish a business degree so that you can return and get a good job in management.
23.The tribunal does not believe that you have any business plans either to open a bakery or any specific plans to go into business. The tribunal does not believe you have a business plan as the basis for your studies.
24.When asked why you do not do your studies at home in India, your only answer is that study in Australia is highly regarded. The tribunal accepts this and notes you have studied in Australia for eight years. The tribunal does not believe it makes economic sense for you to remain studying in Australia at a College when the same course is available at the highly regarded Punjab University close to where you live.
25.While I acknowledge you have family back home, I am not satisfied this provides strong incentive to return and does not outweigh the issues we have discussed and you also say you have a brother who has been here for longer than you, you say he studied cookery and worked in a restaurant you don’t know what sort of a visa he is on but you do not believe that he has PR yet but is here and working. Your immigration history is that you have been here for 8 years and now seek to stay at least a further 2 years which indicates you perceive significant incentive to remain in Australia.
In relation to item 12(a), I am unable to discern anywhere in the Tribunal’s reasons for decision where it considered, expressly, impliedly, or by findings of greater generality, whether the applicant was seeking to undertake a course that was consistent with his current level of education. The Tribunal noted that the applicant claimed at the hearing that he wished to finish a business degree. However, the Tribunal did not attempt to assess that fact in relation to his existing diploma of business.
It would seem that the applicant was seeking to undertake a course that was consistent with his current level of education, because he had a Diploma of Business and he was seeking to study a Bachelor of Business. This is a matter that could have contributed to a finding that the applicant was a genuine student. By failing to consider whether to weigh that matter in the balance, the Tribunal fell into jurisdictional error.
Nor did the Tribunal consider whether the course the applicant proposed to study would assist the applicant to obtain employment in India. The Tribunal thereby fell into jurisdictional error. The Tribunal found that the applicant did not have a business plan, but that is a different question. It concerned whether the applicant intended to obtain work in India, not whether the course could assist him to find work in India.
In relation to item 12(b), the Tribunal did not expressly consider whether the applicant’s proposed business degree was relevant to his proposed future employment in management. Nor did the Tribunal weigh that circumstance in the balance, either implicitly or by findings of greater generality. Rather, the Tribunal went directly to a finding that the applicant did not have a business plan. The Tribunal should have acknowledged that the applicant’s proposed Bachelor of Business was relevant to his proposed employment in management in India. The Tribunal could then have said, for various reasons, the applicant’s proposed employment was not his genuine intention. By failing to consider the relevance of the applicant’s proposed course to his proposed employment, the Tribunal fell into jurisdictional error.
In relation to item 12(c), regarding remuneration, the Minister submitted that the item was not relevant because the applicant had put no evidence before the Tribunal about the remuneration he could expect to receive in India or a third country using his proposed Bachelor of Business compared with the income the applicant could expect to receive in Australia. I do not accept that item 12(c) was not relevant. It was a mandatory consideration. It was necessary for the Tribunal to consider it, whether the applicant put on evidence about it or not. By failing to do so, the Tribunal fell into jurisdictional error.
The next bundle of factors that the Tribunal was required to consider is under the heading, THE APPLICANT’S IMMIGRATION HISTORY, and is as follows:
13.An applicant’s immigration history refers both to their visa and travel history.
14.In considering the applicant’s immigration history, decision makers must have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which they were refused.
ii. If the applicant has previously applied for visas to other countries, whether they were refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i. if 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.
ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances.
iii. the amount of time the applicant has spent in Australia and whether the Student 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.
iv. if the applicant has travelled to countries other than Australia, whether they complied with the immigration laws of that country and the circumstances around any non-compliance.
(emphasis added)
The Minister conceded that the Tribunal had not expressly considered item 14(a)(i). However, the Minister maintained that the Tribunal had demonstrated an awareness of the applicant’s visa history in paragraph 18 of its reasons for decision, which is set out above. I do not accept that submission. Paragraph 18 of the Tribunal’s reasons for decision mostly canvasses the courses the applicant has studied. In addition, it mentions that the applicant came to Australia on 1 June 2009, and made a visa application in April 2015. However, paragraph 18 of the Tribunal’s reasons for decision does not record any further information, such as whether the applicant had previously been granted visas, and, if so, how many, or whether the applicant had previously been refused a visa.
The Minister submitted that item 14(a)(i) did not arise in the present case, because the applicant had not previously been refused a visa. However, that submission fails to recognise that item 14(a)(i) also requires consideration of whether any previous visa applications were granted. It is clear from the delegate’s decision (CB73) that the applicant had held at least three Australian student visas prior to the application that the Tribunal considered.
The Minister’s submission fails to recognise that the very facts that the applicant had previously been granted visas, and had not previously been refused a visa, were potentially positive circumstances that could have assisted the applicant’s claims, if the Tribunal had considered them. The Minister appears to have equated immaterial with not supportive of a visa refusal. However, obviously, immaterial means supportive of neither a visa refusal nor a visa grant. By not considering the matters in item 14(a)(i), the Tribunal fell into jurisdictional error.
The Tribunal was not required to consider item 14(a)(ii), because it begins with the word if, and there was no evidence that the applicant had previously applied for visas to other countries.
In relation to item 14(b)(i), regarding whether the applicant had complied with the conditions of his previous visas, the Minister acknowledged that the Tribunal had not expressly considered this matter, but submitted it was not material. It was made material by Direction No. 53. In addition, the fact that the applicant had not previously failed to comply with the conditions of his visa is a matter that could have assisted the applicant. The Tribunal’s failure to consider that matter was a jurisdictional error.
In relation to 14(b)(ii), regarding the cancellation of previous visas, the Minister made the same submissions. However, again, the issue was a material consideration and the fact that the applicant had never had a visa cancelled could have assisted him. The Tribunal’s failure to consider that matter was a jurisdictional error.
In relation to 14(b)(iii), regarding whether the applicant might use the student visa to maintain Australian residence, the Tribunal clearly considered that matter in paragraph 21 of its reasons for decision.
In relation to item 14(b)(iv), regarding whether the applicant had travelled to other third countries and complied with the immigration laws of such countries, the Minister conceded that Tribunal made no express reference to this issue and submitted that it was immaterial. Item 14(b)(iv) begins with the word if. In the absence of any evidence that the applicant had lived in a third country, there was no need for the Tribunal to consider that issue.
The next factor the Tribunal was required to consider was under the heading, IF THE APPLICANT IS A MINOR – THE INTENTIONS OF A PARENT, LEGAL GUARDIAN OR SPOUSE OF THE APPLICANT, and is as follows:
15.If the primary or secondary applicant for a subclass 570, 571, 572, 573, 574, 575 or 576 visa is a minor, decision makers must have regard to the intentions of a parent, legal guardian or spouse of the applicant.
It is clear that the applicant was not a minor at the relevant time, so item 15 did not need to be addressed by the Tribunal.
The final factor to be considered by the Tribunal was under the heading, ANY OTHER RELEVANT MATTERS, and is as follows:
16.Decision makers must also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant's intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
The applicant claimed, in ground 5 of his application to this court, that the Tribunal failed to consider a number of matters. Ground 5 is as follows:
Considerable factors were ignored when deciding my application like my financial situation, my family overseas, completion of studies undertaken, lack of breach of any visa condition.
With his student visa application, the applicant submitted a number of documents relating to his financial situation. The Tribunal appears not to have considered them. However, it is not apparent that they had any relevance to the question of whether the applicant was a genuine temporary entrant. Therefore, it was not necessary for the Tribunal to consider those documents.
Contrary to the applicant’s assertion, the Tribunal noted and took into account the fact that the applicant had family overseas, and noted and took into account the fact that the applicant had completed a number of courses. The weight to be given to those issues was a matter for the Tribunal.
As discussed above, the Tribunal did not consider or take into account the fact that the applicant had not previously breached any of his visa conditions.
For these reasons, ground 1 is made out.
Ground 2
The second ground of review in the application is:
I have followed all my visa conditions till date and have completed all the course undertaken.
The fact that the applicant had complied with all of his visa conditions was a matter that the Tribunal was required to consider under item 14(b)(i). The Tribunal failed to take that factor into account, and thereby fell into jurisdictional error. Ground 2 is therefore made out.
The fact that the applicant had completed all of the courses that he had previously undertaken was acknowledged by the Tribunal at paragraph 18 of its reasons for decision. I infer that the Tribunal took that circumstance into account. The weight to be given to that circumstance was a matter for the Tribunal.
Ground 3
The third ground of review in the application is:
DIBP failed to consider my course progress including Certificate III, Diploma, Advanced Diploma and my current enrolment in a Bachelors degree which is neither a short course or inexpensive.
This ground challenges the decision of the delegate, which this court is not able to review. If the applicant intended to challenge the decision of the Tribunal, I do not accept that the Tribunal considered the applicant’s course progress. The applicant, at the time of the Tribunal’s decision, was enrolled in a Bachelor of Business, which was a higher level of course than the Diploma of Business and other courses that he had previously undertaken.
It is important to note in relation to this ground that Direction No. 53 specifically states in item 12(a) that:
… Decision makers should allow for reasonable changes to career or study pathways.
This ground is made out.
Ground 4
The fourth ground of review in the application is:
DIBP has incorrectly and unfairly assessed the value of the enrolled course and which has led the decision maker to consider me a non-genuine applicant.
This ground challenges the decision of the delegate, which this court is not able to review. If the applicant intended to challenge the decision of the Tribunal, it seems to also be directed to the fact that the applicant at the time of the Tribunal’s decision was enrolled in a Bachelor’s degree. This matter is discussed above.
Ground 5
The fifth ground of review in the application is:
Considerable factors were ignored when deciding my application like my financial situation, my family overseas, completion of studies undertaken, lack of breach of any visa condition.
This ground overlaps with ground 1. The relevant issues are discussed under that heading.
Conclusion
As the Tribunal has made a number of jurisdictional errors in this matter, its decision will be set aside and the matter will be remitted to the Tribunal for determination according to law. I will hear the parties on the question of costs.
I should add that I have not considered this case on the merits because I am not permitted to do so. It may be that the issues that the Tribunal mentioned in its reasons for decision could properly have overwhelmed the other factors that the Tribunal was required to but did not consider under s.499 of the Act and Direction No. 53. However, the fact remains that the Tribunal was required to consider the other factors and did not.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 23 November 2018
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