Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 1189
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1189
File number(s): MLG 3903 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 14 December 2023 Catchwords: MIGRATION – application for judicial review – Student (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that applicant was not a genuine applicant –consideration of Ministerial Direction No 69 – whether the Tribunal failed to consider material claims within the applicant’s genuine temporary entrant statement – found the Tribunal failed to have regard to the matters contained in paragraphs 9(b) and 9(c) of Direction 69 –found the Tribunal failed to take into account factors which had been the subject of substantial and clearly articulated claims made by the applicant – application granted. Legislation: Migration Act 1958 (Cth) ss 474, 476, 499, 359(2)
Migration Regulations (Cth) sch 2 cl 500.212
Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’
Cases cited: Craig v South Australia (1995) 184 CLR 163
DQM18 v Minister for Home Affairs [2020] FCAFC 110
Kaur v Minister for Home Affairs [2019] FCA 2026
Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1861
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 30 October 2023 Place: Melbourne Counsel for the Applicant: Mr Honnery Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Ms Wang Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 3903 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAHAVIR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant’s Amended Application for an Order pursuant to s 476 of the Migration Act 1958 (Cth) be granted.
2.A writ of certiori be issued directed to the Second Respondent quashing the decision dated 11 December 2018.
3.A writ of mandamus be issued directed to the Second Respondent requiring it to reconsider and determine the Applicant’s Application according to law.
4.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
5.The First Respondent pay the applicant’s costs in a sum to be fixed if not agreed.
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 2 October 2023, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 11 December 2018. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa.
BACKGROUND
The applicant is a citizen of India.
The applicant arrived in Australia on 29 January 2014 on a Student (TU-573) visa which had been granted offshore under the streamlined visa processing arrangement.
The Student (TU-573) visa was granted in order for the applicant to undertake a Bachelor of Information Technology. Sometime in August 2014, the applicant’s enrolment in the Bachelor of Information Technology was cancelled. Subsequently, the applicant undertook a Certificate III in Commercial Cookery.
On 14 March 2017 the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (Visa) on the basis of his enrolment in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business.
The Department of Immigration and Border Protection (Department) confirmed receipt of the Visa application by correspondence dated 14 March 2017. In that correspondence, the applicant was advised the Department may make a decision on his application without requesting further information and that he should therefore “provide us with all the information you feel is relevant”. The applicant was also advised in this letter of the need for him to keep the Department updated with regard to his contact details.
Refusal of student visa on 28 June 2017
On 28 June 2017, a delegate of the Minister (Delegate) refused the applicant’s application for a student visa. The refusal notification attached the decision record of the Delegate which stated the reason for the refusal of the Visa was on the basis that the Delegate was not satisfied the applicant was a genuine temporary entrant for the purposes of study as required by cl 500.212 of Schedule 2 of the Migration Regulations (Cth) (Regulations).
A copy of the Delegate’s decision, as well as information about the applicant’s right of review, was sent to the applicant to his nominated email address on 28 June 2017.
Application for review at Tribunal on 14 July 2017
On 14 July 2017, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> (representatives email address) for correspondence and provided the mobile number “xxxxx xxx07” (representative’s mobile number).
In correspondence dated 18 July 2017 confirming 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. The applicant was also advised of the need to keep the Tribunal updated with regard to his contact details.
On 13 August 2018 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 Migration Act 1958 (Cth) (Act). The Tribunal provided the applicant with a s 359(2) questionnaire 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).
On 27 August 2018 the applicant provided the Tribunal with a written submission, a completed s 359(2) questionnaire and supporting documents. In the applicant’s response to the s 359(2) questionnaire, the applicant consented to the Tribunal deciding his application for review without a hearing.
On 11 December 2018 the Tribunal affirmed the decision of the delegate not to grant the applicant the Visa.
Tribunal’s decision
On 12 December 2018 the Tribunal sent a copy of the decision record to the applicant’s representative’s email address. The Tribunal identified that the issue was whether the applicant intended to genuinely stay in Australia temporarily as required by cl 500.212(a) of the Regulations.
In considering whether the applicant satisfied cl 500.212(a), the Tribunal had regard to Direction 69. Direction 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. The Tribunal stated that it had considered the delegate’s decision, the applicant’s responses in his visa application, the applicant’s responses to the s 359(2) questionnaire and his written submissions provided to the Tribunal on 27 August 2018.
At paragraph [22] of the Tribunal’s decision, the Tribunal summarised its findings:
Overall, given the lack of evidence of academic progress, his study history, his ongoing well-paid part-time employment, his immigration history and the lack of value of the courses to his future, the Tribunal find that the applicant is using the Student visa program to circumvent the intention of migration programs; the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he genuinely intends to stay in Australia temporarily.
Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 20 December 2018. The applicant filed an Amended Application on 2 October 2023.
The Amended Application contains the following ground for judicial review (without amendment):
1. The Tribunal’s decision is vitiated by jurisdictional error because the Tribunal failed to consider claims and submissions advanced by the applicant, and matters of practical relevance referred to in Direction No. 69.
Particulars
a.A decision-maker must take into account the factors in Direction No. 69 which have been the subject of substantial, clearly articulated claims or are clearly engaged by the material.
b.The applicant’s statement to the Tribunal raised his circumstances in India, including his family ties and economic factors, and claimed he had a significant incentive to return to his home country: CB pp 117 – 120.
c.The Tribunal failed to consider these claims, or have regard to relevant factors referred to in Direction No.69, including:
i.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: 9(b) of Direction 69;
ii.The economic circumstances of the applicant in their home country: 9(c) of Direction 69;
iii.Whether the course of study would assist the applicant to obtain employment or improve employment prospects in their home country, and the relevance of the course to the applicant’s proposed future employment: 12(a) and 12(b) of Direction 69.
d. The Tribunal’s error deprived the applicant of the possibility of a favourable outcome, and constituted jurisdictional error.
The applicant filed the following further material:
(1)affidavit of the applicant filed 20 December 2018, annexing the Tribunal’s decision dated 11 December 2018;
(2)written submissions filed 2 October 2023; and
(3)a list of authorities filed 3 October 2023.
The Minister filed a Response on 6 February 2019. The Response contained the following:
1. the Administrative Appeals Tribunal (Tribunal) decision dated 11 December 2018 is not affected by jurisdictional error and is therefore a privative clause decision within the meaning of s 474(2) of the Migration Act 1958. The Tribunal’s decision, therefore:
a. is final and conclusive;
b.must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
c.is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
The Minister also filed written submissions on 16 October 2023 upon which the Minister relies.
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].
Direction 69
In accordance with s 499 of the Act, Direction 69 sets out the factors that the decision maker should have regard to when assessing the genuine temporary entrant criterion 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.
In relation to the applicant’s circumstances, in so far as is presently relevant, Direction 69 provides:
·at paragraph 6, that the decision maker should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia; and
·at paragraph 7, 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.
Paragraph 9 of Direction 69 sets out the factors the decision maker should have regard to when considering the applicant’s circumstances in their home country and, relevantly, provides that decision makers should have regard to:
·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 (paragraph 9(b)); and
·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 (paragraph 9(c)).
Paragraph 12 of Direction 69 sets out the factors which the decision maker should have regard to when considering the value of the course to the applicant’s future, and, relevantly, provides that decision makers should have regard to:
·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 (paragraph 12(a)); and
·relevance of the course to the student’s past or proposed future employment either in their home country or a third country (paragraph 12(b)).
GROUND OF REVIEW
Applicant’s submissions
The applicant submits that the Tribunal failed to consider material claims within the applicant’s genuine temporary entrant statement provided to the Tribunal on 27 August 2018 (GTE Statement), and relevant factors under Direction 69.
The applicant submits that the Tribunal failed to consider the applicant’s GTE Statement which addressed his circumstances in India, his relationship with his parents and economic factors, and his significant incentive to return to his home country, all of which were matters of practical relevance referred to in paragraphs 9(b) and 9(c) of Direction 69.
The applicant also submits that the Tribunal failed to have regard to germane factors of whether the course of study would assist the applicant to obtain employment or improve employment prospects in India, or the relevance of the course to his proposed future referred to in paragraphs 12(a) and 12(b) of Direction 69.
In their written submission the applicant relied on Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (Kumar) and Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1861 in support of their submission that the Tribunal had an obligation to have regard to each matter under Direction 69. However, ultimately this submission was not pressed. Rather, the applicant submitted that the Tribunal must take into account factors 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 factors contained in Direction 69: Kaur v Minister for Home Affairs [2019] FCA 2026 at [31] (Kaur) and it failed to do so.
Minister’s submissions
The Minister submits that it is not necessary for the Tribunal to refer in its reasons to every piece of evidence and every contention made by an applicant.
In relation to paragraph 9(b) of Direction 69, the Minister submits that the Tribunal expressly referred to the applicant’s family ties to India as a Direction 69 factor, and that reference made by the Tribunal to the Delegate’s findings reflected the Tribunal’s own assessment that it was not satisfied those ties represented a significant incentive for the applicant to return to India.
In relation to paragraph 9(c) of Direction 69, the Minister submits that the applicant is incorrect in submitting that Direction 69 requires the Tribunal to consider whether to take economic circumstances into account in support of the applicant being a genuine temporary entrant. Rather, the Minister submits that the express language of paragraph 9(c) of Direction 69 refers to “economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country”. Further, the Minister submits the applicant’s submissions to the Tribunal were not probative of the applicant’s economic circumstances referred to in paragraph 9(c), but were no more than general assertions about India’s economic circumstances.
In relation to paragraphs 12(a) and 12(b) of Direction 69, the Minister submits that the Tribunal did have regard to both factors and made adverse findings to the applicant on those matters.
LEGAL PRINCIPLES
The following general legal principles did not appear to be contested:
·the Tribunal must take into account factors 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 at [31];
·the onus is upon the applicant to establish that they made a substantial and clearly articulated claim and that the inference should be drawn that the Tribunal overlooked the matter from a failure to refer to a matter in the written reasons: Kumar at [91];
·it is not necessary for the Tribunal to refer in its reasons to every piece of evidence and every contention made by an applicant: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] (WAEE);
·the Tribunal’s reasons are not to be scrutinised with an eye keenly attuned to error, nor is it necessary for the Tribunal to provide reasons of a kind which might be expected of a court of law: WAEE at [46]; and
·the Tribunal’s reasons are to be read as a whole, in the context of the representations made and other information available: DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [45].
CONSIDERATION – PARARAPH 9(B)
Submissions as to paragraph 9(b) of Direction 69
In his GTE Statement to the Tribunal submitted on 27 August 2018 the applicant made the following statements:
ii. [I have been] reliant on [my] parents for financial, physical and emotional support for life to date;
iii. I come from a traditional family and [am] lucky enough to be well supported by my parents;
iv. I want to make my parents proud by raising up to their expectations and carve a hospitality career for myself when I return to India;
v. my significant incentive to return to home country is my parents, my undiluted passion to stay and serve my homeland and proudly shine with an entrepreneurial hospitality venture;
vi. I am the only son and in a traditional family setup, I will be caretaking my parents as they age;
vii. I am over 28 years old and have a goal and purpose in life to become successful in my home country or another country where I do not have to sacrifice my dedication to my parents for a long time; and
viii. I sincerely hope I will be given a chance to complete my degree so I can return home with pride and grace to my parents.
The applicant submits that the Tribunal failed to have regard to these claims in the context of paragraph 9(b) of Direction 69.
In respect of paragraph 9(b) the applicant submits that regard must be had to 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. The applicant submits that the statements set out in their GTE Statement at items (ii)- (viii) expressly claimed that his family ties, specifically those to his parents, were a significant incentive to return to his home country. The applicant submits that the Tribunal did not consider this issue or make any finding upon it.
The Minister submits that items (ii) - (iii) do not seek to establish circumstances that would serve as a significant incentive of the applicant to return to India. The Minister submits that they do not relate to paragraph 9(b) of Direction 69. The Minister submits that item (iv) is a statement that the applicant wishes to make his parents proud; it is not probative of whether the applicant has a significant incentive to return to India. As to the remaining items, the Minister submits that they simply assert that the applicant’s parents provide him with a significant incentive to return to India. The Minister submits that the applicant’s claim that the Tribunal failed to consider this relies on a narrow reading of the Tribunal’s reason without regard to context. The Minister submits that the Tribunal expressly referred to the applicant’s family ties to India as a Direction 69 factor but noted that “given the time he has spent in Australia and the intended period of is future stay onshore”, the Delegate was not satisfied those ties represented a significant incentive for the applicant to return to India. Further, it submits that it is plain from the subsequent paragraphs of the Tribunal’s reasons that this reflected the Tribunal’s own assessment. The Minister submits that the Tribunal highlighted that the applicant had not left Australia since his arrival on 29 January 2014 and concluded that the applicant “appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and he does not genuinely intend to stay in Australia temporarily”. In these circumstances, the Minister submits that the Tribunal identified the issue and made findings that answered it. Accordingly, the Minister submits that the inference sought ought not be drawn.
Do items (ii) – (viii) relate to the consideration in paragraph 9(b) of Direction 69?
The Minister did not contend that above factors were not the subject of substantial and clearly articulated claims. Rather, the Minister contended that the claims did not relate to paragraph 9(b) of Direction 69.
For the following reasons, I consider that items (ii) - (viii) do relate to paragraph 9(b) of Direction 69.
Items (ii) and (iii) are directed to addressing the findings of the Delegate where the Delegate said:
In regards to ties to their home country, the applicant has not provided any evidence to suggest that they own any assets or have any other business ties to their home country. The applicant is single and has no dependents. Taking the above factors into consideration, I consider that the applicant’s circumstances in both Australia and at home may present a significant incentive for them not to return to their home country following the proposed studies. Furthermore, while I note the applicant has personal ties to India in the form of their immediate family, I find that these ties do not, of themselves, constitute a strong incentive to return home when considered against the fact applicant does not have any dependants and lacks strong employment or economic circumstances in India. I am concerned that their intention to live in Australia is motivated by factors other than study.
Accordingly, the Delegate was clearly considering the factors under paragraph 9(b). Items (ii) and (iii) were responsive to those matters. I reject the Minister’s submission that items (ii) and (iii) were seeking to rebut the Delegate’s findings that the absence of assets or business ties in India may represent as a significant incentive not to return to India and therefore do not relate to paragraph 9(b). Paragraph 9(b) requires consideration of whether the relevant circumstances serve as a significant incentive. I therefore consider that the enquiry may be answered in the negative.
As to item (iv), I reject the Minister’s submission that item (iv) is simply a statement that the applicant wishes to make his parents proud. That submission fails to consider the entirety of the statement which is premised upon the applicant making his parent proud “by raising up to their expectations and carve a hospitality career for myself when I return to India”.
I consider that the remaining items, on a fair reading, do amount to a claim by the applicant that his parents provide a significant incentive for him to return to India. I reject the Minister’s oral submissions that these claims are reliant simply upon the fact that the applicant has parents in India. I consider the applicant’s claims go further than that and when read fairly, in totality and context, are to the effect that:
·the applicant has been well supported by his parents and in that context seeks to complete his studies and return to India to create a successful career in hospitality to make his parents proud; and
·the applicant comes from a traditional family and as the only son will care for his parents as they age; and
·these matters provide a significant incentive for the applicant to return to India.
Did the Tribunal consider the applicant’s claim that his parents were a significant incentive for him to return to India?
At paragraph [10] of its decision the Tribunal confirms that in considering whether the applicant satisfies cl 500.212(a) it must have regard to Direction 69 and sets out factors in (a) – (d) of the preamble to Direction 69.
At paragraph [11] of its decision the Tribunal confirms that Direction 69 is not to be used as a checklist but, rather, as a guide when considering the applicant’s circumstances as a whole and whether the applicant satisfies the genuine temporary entrant criteria.
At paragraph [12] of the Tribunal’s decision the Tribunal says that it has reviewed the Delegate’s decision of 5 April 2017 and notes that it is not binding on the Tribunal and that the Tribunal brings an “independent view to the review application”.
Paragraph [13] sets out a summary of the Delegate’s decision. At the 11the bullet point of that summary the Tribunal summarises the delegate’s findings in relation to the Direction 69 factors, and relevantly, says as follows:
In considering the factors in Direction 69, the delegate found that:
…
•whilst the applicant has personal and family ties to India, given the time he has spent in Australia and the intended period of his future stay onshore, the delegate was not satisfied that the ties represent a significant incentive for him to return to India.
(emphasis added)
At paragraph [14] the Tribunal says it has reviewed the Delegate’s decision and the applicant’s responses in his Student visa application and has had regard to the applicant’s response in the s 359(2) questionnaire and the GTE Statement. The Tribunal then sets out certain matters which it says arise from those responses and that evidence. None of those matters included items (ii) – (viii) above.
At paragraph [15] the Tribunals says:
The Tribunal has considered all the above information and has regard to the factors in Direction 69.
At paragraph [18] of its decision the Tribunal refers to applicant’s GTE Statement and sets out an extract from it regarding the applicant’s change of course and at paragraph [19] notes that this suggests that the applicant’s change of course was motivated by migration and visa considerations rather than a desire to progress academically.
At paragraph [21] and [22] the Tribunal says:
On the evidence before it, the Tribunal finds that the applicant is not a genuine student. Rather, he appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and he does not genuinely intend to stay in Australia temporarily.
Overall, given the lack of evidence of academic progress, his study history, his ongoing well-paid part-time employment, his immigration history and the lack of value of the courses to his future, the Tribunal finds that the applicant is using the Student visa program to circumvent the intention of migration programs; the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he genuinely intends to stay in Australia temporarily.
I reject the Minister’s submission that the applicant’s claim that the Tribunal failed to consider that the applicant’s parents provide a significant incentive for him to return to India relies upon a narrow reading of the Tribunal’s reasons without regard to context and that is it clear from the subsequent paragraphs that this reflected the Tribunal’s own assessment.
For the following reasons, I consider that the Tribunal did fail to consider the applicant’s claims in relation to his parents being a significant incentive for him to return to India. Firstly, it is clear from the above that the Tribunal did not expressly engage for itself with the applicant’s claim that his parents provide a significant incentive for him to return to India. Paragraph [13] of the Tribunal’s decision is a summary of the Delegate’s finding regarding the applicant’s personal and family ties. It is not a finding of the Tribunal, nor does the Tribunal expressly adopt the Delegate’s finding as its own. I do not consider, as submitted by the Minister, that the Tribunal “highlight[ing] the fact that the applicant had not left Australia since his arrival on 29 January 2014”, amounts to an adoption by the Tribunal of the Delegate’s findings as to this matter. Secondly, the Tribunal’s summary of the applicant’s GTE Statement and other material set out at paragraph [14] of the decision, does not refer to the applicant’s claim regarding his parents being a significant incentive for him to return to India. Whilst it is not necessary for the Tribunal to refer in its reasons to every piece of evidence and every contention made by an applicant (WAEE at [46]), the Tribunal’s decision provides evidence of the mental processes engaged in by the Tribunal: Kumar at [88]. Here, the Tribunal’s reasons do not engage with the issue. I accept the contents of paragraph [14] and paragraph [18] of the Tribunal’s decision indicates that the Tribunal was aware of GTE Statement. They do not, however, indicate that the Tribunal considered the applicant’s claims regarding his parents being a significant incentive for him to return to India. To the contrary, they indicate the absence of any such consideration. Further, I do not consider this absence is cured by the inclusion at paragraph [14] of the Tribunal’s decision that it has had regard to the GTE Statement. Thirdly, in light of the express language of Direction 69, the claims of the applicant in relation to his parents were clearly relevant and it cannot reasonably be inferred that they were such that it was not necessary for the Tribunal to refer to them. While the Tribunal’s reasons are not to be scrutinised with an eye keenly attuned to error, the Tribunal must take into account factors which have been the subject of substantial and clearly articulated claims made by the visa applicant. There is simply nothing in the Tribunal’s reasons from which it can be inferred that it did so. Finally, I reject the submission made by the Minister that paragraph [21] of the Tribunal’s decision indicates that the Tribunal had regard to the applicant’s submissions regarding his parents being a significant incentive to return to India. In oral submissions, the Minister submitted that paragraph [21] is inconsistent with the proposition that the applicant’s family ties provided him a significant incentive to return. The Minister submitted that the finding at paragraph [21] is one of greater generality that encompasses the issue of whether the applicant’s parents provided him with a significant incentive to return to India. Paragraph [21] is, in my view, conclusionary. It is a conclusion reached following the purported consideration by the Tribunal of all the material before it. That this is so, is evidenced by the use of the commencing phrase, “On the evidence before it” and the contents of the subsequent paragraphs. Paragraph [21] says nothing about whether the applicant’s parents are a significant incentive for him to return to India. Rather, it is directed to the overarching question of whether “the applicant is a genuine applicant for entry and stay as a student” for the purposes of cl 500.212. That question fell to be determined in light of the applicant’s substantial and clearly articulated claims as they pertained to the matters in Direction 69, one of which was that his parents were a significant incentive for him to return to India. The Tribunal did not have regard to those claims and therefore fell into error.
CONSIDERATION – PARAGRAPH 9(C)
Submissions as to paragraph 9(c) of Direction 69
In his GTE Statement submitted to the Tribunal, the applicant made the following statements:
The case officer formed a view about the economic circumstance in my home country stating the "disparity" between India and Australia. I strongly believe this assessment was entirely illogical as it was derived from undisclosed source and a blanket statement to complete an administrative paragraph in their decision record.
Based on the facts, India was ranked 6th in GDP (US $2.848 trillion) in 2017 only behind US, EU, China, Japan, Germany and UK. Australia is ranked 13th in the world. Based on the case officer's logic, it should have been in fact more logical for them to state that I had every intention to return to my home country as the "disparity" is in favour of my home country.
…
Furthermore, the case officer has little or negligible information on hospitality and tourism sector for India. The course that I elected leads me to one of the largest and fastest growing industries, not only in India but also globally.
The applicant also submitted information and data on the Indian hospitality sector’s significant contribution to its economy.
In respect of paragraph 9(c) the applicant submits that above statements in the GTE Statement are clearly addressing the economic circumstances in India and comparing to Australia in accordance with paragraph 9(c) of Direction 69. The applicant submits that the Tribunal did not consider this issue or make any finding upon it. In addition, the applicant submits that while the Tribunal found that there was “no evidence” that the applicant’s economic circumstances would prevent him from returning to India, it did not consider whether that factor supported his claim to be a genuine temporary entrant.
As to paragraph 9(c), the Minister submits that the applicant’s submission that Direction 69 requires the Tribunal to consider whether to take economic circumstances into account in support of the applicant being a genuine temporary entrant is incorrect. The Minister submits it is inconsistent with the language of paragraph 9(c) of Direction 69 which refers to “economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country”. Further, the Minister submits that the applicant’s submissions to the Tribunal consisted of no more than general assertions that India has a higher overall GDP than Australia and that the contribution of the travel and tourism sector to India’s GDP was significant. It is submitted that such assertions are not probative of the economic circumstances of the applicant referred to in paragraph 9(c).
Did the Tribunal consider the economic circumstance of the applicant pursuant to paragraph 9(c) of Direction 69?
Paragraph 9(c) of Direction 69 provides that when considering the applicant’s circumstances in their home country, decision makers should have regard to:
…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.
I accept the Minister’s submissions that paragraph 9(c) of Direction 69 does not require the Tribunal to consider whether to take economic circumstances into account in support of the applicant being a genuine temporary entrant. Such a contention is inconsistent with the language of paragraph 9(c) which provides that what is required to be considered is whether the economic circumstances of the applicant present as a significant incentive for the applicant to not to return to their home country. There is nothing in the language of paragraph 9(c) requiring the Tribunal to consider the converse.
However, I reject the Minister’s submission that paragraph 9(c) ought be construed as contended for by the Minister. I consider such a construction to be overly narrow. I do not consider the “economic circumstances of the applicant” in paragraph 9(c) of Direction 69 is limited only to economic circumstances specific and particular to the applicant, to the exclusion of more general economic circumstances of the applicant’s home country which may act as a significant incentive for the applicant not to return. Indeed, I consider such circumstances are expressly entertained by the inclusion in paragraph 9(c) that such circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia.
In their decision the Delegate, relevantly, said:
I have also taken into account the economic circumstances in the applicant’s home country relative to the applicant’s potential economic circumstances in Australia. Given the disparity in the economic circumstances between India and Australia, I cannot be satisfied that the applicant has a significant incentive to return to India.
The applicant’s submissions in his GTE Statement set out above, were responsive to those findings, most specifically in relation to the asserted disparity in economic circumstances between India and Australia. I therefore reject the Minister’s submissions that the applicant’s submissions to the Tribunal consisted of no more than general assertions that India has a higher overall GDP than Australia. It is also clear from a plain reading of the GTE Statement that the applicant’s submissions went further than simply asserting that India has a higher GDP than Australia. It is also not the case that the remainder of the applicant’s relevant submissions related to the contribution of the travel and tourism sector to India’s GDP as asserted by the Minister. The submissions related to the contribution of the tourism and hospitality sector, with the applicant relying on this information to submit that “the course that I elected leads me to one of the largest and fastest growing industries, not only in India but also globally”.
Accordingly, I consider that the above statements in the GTE Statement do address matters relevant to paragraph 9(c) of Direction 69. There is nothing in the Tribunal’s decision which indicates that it had regard to these claims, nor made any finding as to them. In failing to do so, the Tribunal fell into error.
CONSIDERATION – PARAGRAPH 12(A) AND 12(B)
As to paragraphs 12(a) and (b) of Direction 69, the applicant submits that the Tribunal failed to have regard to these considerations; however, these matters were only lightly pressed and for the following reasons I reject them.
At paragraph [14] of its decision, the Tribunal refers to the applicant having completed Certificates III and IV in Commercial Cookery and a Diploma of Hospitality, his failure to complete the diploma in Bachelor of Information Technology (IT), his then current enrolment in a Bachelor of Business and his plans to seek employment in the hospitality sector on his return to India and to open his own fusion restaurant.
At paragraphs [16] the Tribunal sets out matters to do with the applicant’s change of study pathway from IT to hospitality and at paragraph [18] sets out the applicant’s evidence as to his enrolment in a hospitality course.
At paragraph [19] the Tribunal finds that the applicant’s evidence suggests that the applicant’s change of course was motivated by migration and visa considerations, rather than by a desire to progress academically.
At paragraph [21] the Tribunal finds “on the evidence before it” that the applicant is not a genuine student and at paragraph [22] says:
Overall, given lack of evidence of academic progress, his study history, his ongoing well-paid part-time employment, his immigration history and the lack of value of the courses to his future, the Tribunal find that the applicant is using the Student visa program to circumvent the intention of migration programs; the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he genuinely intends to stay in Australia temporarily.
Paragraph [21] and [22] are therefore conclusionary findings, based on the findings made and matters considered by the Tribunal in the preceding paragraphs. Accordingly, I consider that the Tribunal did have regard to the matters included in paragraph 12(a) and 12(b).
MATERIALITY
Materiality is essential to the existence of jurisdictional error: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) T [45].
Materiality is established if the error deprived the applicant of a realistic possibility of a different outcome. What is required to be considered is whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined": MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [38]. The standard of “reasonable conjecture” is undemanding: Nathanson v Minister for Home Affairs [2022] HCA 26 at [33], [47].
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 the Full Court of the Federal Court said at [79]:
The threshold for establishing materiality has been described as “undemanding” and “not onerous”. However, that does not mean that the exercise in which a court is required to engage in assessing materiality is to be undertaken by adopting an approach that is driven by formalism, which fixes on nuances said to arise from a fine-grained parsing of the decision-maker’s language, or which focuses on possibilities that are theoretical rather than real (Chamoun at [66], distinguishing realistic possibilities from those that are fanciful or improbable).
The Minister submits that in finding that the applicant was not a real student, the Tribunal relied on several factors and that in these circumstances the applicant cannot establish a realistic possibility that the Tribunal’s assessment of the genuine temporary entrant criterion could have been different. I reject that submission. While the Tribunal did rely on several factors in finding that the applicant was not a genuine student, it is not the number of factors for and against a decision which is necessarily important: Kumar at [86]. The Tribunal failed to have regard to the matters contained in paragraphs 9(b) and 9(c) of Direction 69. Those matters were relevant to whether the applicant was a genuine student. Had the Tribunal had regard to those matters, I am satisfied that there is a realistic possibility that a different decision could have been made.
DISPOSITION
For the above reasons, the applicant’s Amended Application is granted.
The matter is remitted back to the Tribunal for reconsideration in accordance with law.
The applicant seeks an order that the first respondent pay their costs. I shall order that the first respondent pay the applicant’s costs in a sum to be fixed, if not agreed.
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: 14 December 2023
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