Starlight Services Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 700
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Starlight Services Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 700
File number: PEG 192 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 8 August 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister not to grant a visa applicant a temporary skill shortage visa – standing to commence and continue the judicial review application – whether the Tribunal asked itself the wrong question – whether the Tribunal’s reasoning process demonstrated illogicality or irrationality in the Tribunal decision – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 338, 347, 476, 477, 478, 479, 486C, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 7.01, 7.03
Migration Regulations 1994 (Cth) reg 4.02, Sch 2, cll 482.222, 500.212
Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 528; [2019] FCAFC 217
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238; [2016] FCA 858
Yong v Minister for Immigration and Multicultural Affairs [1997] FCA 495; (1997) 75 FCR 155
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 12 April 2024, 21 May 2024 Place: Perth Counsel for the Applicant: Ms S Frankel Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Ms C Mumford (12 April 2024)
Ms H Hofmann (21 May 2024)Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 192 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STARLIGHT SERVICES PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
Mr Mohamed Fazil Abul Cassim is a non-citizen who applied for a Temporary Skills Shortage (Class GK) visa (TSS visa), sponsored by Starlight Services Pty Ltd (Starlight Services). A delegate of the Minister refused to grant Mr Cassim the TSS visa and Starlight Services applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision. The Tribunal affirmed the delegate’s decision and that decision of the Tribunal is now the subject of an application to this Court for judicial review under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The application for judicial review was originally made by Mr Cassim but, for reasons explained later in this judgment, Starlight Services was subsequently substituted for Mr Cassim as the applicant in this proceeding. Starlight Services relies on an amended application which asserts that the Tribunal made a jurisdictional error by:
(a)asking itself the wrong question when determining whether Mr Cassim met the requirements of cl 482.222(a) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations); and
(b)undertaking an irrational or illogical line of reasoning when considering Mr Cassim’s family and personal circumstances in relation to whether he intended genuinely to stay in Australia temporarily.
For the reasons explained below, I have found that Starlight Services has not established that the Tribunal made a jurisdictional error in reaching its decision. The application for judicial review is therefore dismissed.
VISA HISTORY AND ADMINISTRATIVE DECISIONS
Mr Cassim entered Australia in 2014 as the holder of a student visa and he has held bridging visas since his student visa ceased.
On 23 December 2019, while he was outside of Australia, Mr Cassim applied for the TSS visa. He applied for the TSS visa in the short-term stream with a maximum visa period of up to two years, and was sponsored by Starlight Services to work as a facilities manager.
A delegate of the Minister refused to grant Mr Cassim a TSS visa on 23 February 2021. The delegate was not satisfied that Mr Cassim met the requirements of cl 482.222 of Sch 2 to the Regulations.
Starlight Services applied to the Tribunal for review of the delegate’s decision on 4 March 2021, recording in the application that Mr Cassim was the primary visa applicant.
The Tribunal convened a hearing on 1 August 2023. A representative of Starlight Services, as the review applicant, and Mr Cassim, as the primary visa applicant, both gave evidence at the Tribunal hearing.
On 1 August 2023 the Tribunal affirmed the delegate’s decision.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether Mr Cassim was a genuine applicant for entry and stay as a short-term visa holder. The Tribunal considered whether Mr Cassim met the requirements of cl 482.222 in Sch 2 to the Regulations, which provides:
The applicant is a genuine applicant for entry and stay as a short term visa holder because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)any other relevant matter; and
(b)the applicant intends to comply with any conditions to which the visa is subject, having regard to:
(i)the applicant’s record of compliance with any condition to which a visa previously held by the applicant (if any) was subject; and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering Mr Cassim’s circumstances, the Tribunal said at [26] and [27] in relation to Mr Cassim’s family:
26.He stated that his mother and father are here in Australia with him at this time on visitor visas and that he has two siblings, a brother here in Australia on a 491 visa, and a sister here in Australia on a student visa, and that they live with him.
27.The Tribunal has considered the evidence very carefully. In particular the Tribunal has considered that the applicant has now been in Australia for more than seven years and that he is here in Australia living with his two siblings, his brother and his sister. The Tribunal finds that the visa applicant’s personal circumstances with his family here in Australia and no other family back in his home country at this time does lend weight to a contention that the family and personal circumstances of the applicant demonstrate that he may lack an incentive to return to his home country.
The Tribunal considered that Mr Cassim had lived in Australia for several years and had only returned home from time to time for small amounts of time, which lent weight to the contention that Mr Cassim was comfortable in Australia and that he did not want to return to his home country. The Tribunal found that this also lent weight to the contention that Mr Cassim was not a genuine temporary entrant.
The Tribunal acknowledged Mr Cassim’s assertion that he may have received poor advice from a previous migration agent but found that there was no specific evidence provided to the Tribunal that authenticated that this, if true, would have made any substantial difference to Mr Cassim’s situation at that stage.
The Tribunal found that Mr Cassim’s immigration history, consisting of numerous visa applications made by him, also lent weight to the contention that he did not intend a genuine temporary stay in Australia.
The Tribunal was not satisfied that Mr Cassim was a genuine applicant for entry and stay as a short-term visa holder as required by cl 482.222. In reaching this conclusion, the Tribunal found:
(a)Mr Cassim did not genuinely intend to stay in Australia temporarily, having regard to his family, personal and immigration history, and therefore did not meet cl 482.222(a); and
(b)for the purposes of cl 482.222(c), Mr Cassim was not a genuine applicant for entry and stay as a short-term visa holder because of any other relevant matter.
JUDICIAL REVIEW APPLICATION
Mr Cassim filed an application to this Court on 4 September 2023, and the application was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
Mr Cassim filed an amended application on 12 March 2024, which contains the following grounds:
1.The Second Respondent’s decision was affected by jurisdictional error in that it asked the wrong question when determining whether the Applicant met cl. 482.222(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Particulars
a.The Second Respondent made a finding of fact that the Applicant’s family were located in Australia, with no other family in his home country at that time.
b.The Second Respondent asked itself the question “What are the Applicant’s current family and personal circumstances?” and on that basis found that the Applicant did not genuinely intend to stay in Australia temporarily.
c.The Second Respondent should have asked itself “What will the Applicant’s family and personal circumstances be when the proposed visa ceases?” and made a finding on that basis as to whether the Applicant genuinely intended to stay in Australia temporarily.
2.The Second Respondent undertook an irrational or illogical line of reasoning when considering the Applicant’s family and personal circumstances in relation to whether he intended genuinely to stay in Australia temporarily.
Particulars
a.The Second Respondent found that the fact that the Applicant’s family were located in Australia at the time of its decision demonstrated a lack of incentive for the Applicant to return to his home country.
b.However, the Applicant’s parents were in Australia as the holders of visitor visas, which do not permit a stay in Australia of more than 12 months.
c.The Second Respondent’s adverse finding about the Applicant’s intention to stay in Australia temporarily, based on the current location of the Applicant’s parents in Australia as the holders of visas that would require them to depart Australia before the end of the proposed visa, was irrational or illogical.
STANDING
The application for judicial review first came before me for hearing on 12 April 2024. At that time, the applicant recorded on the judicial review application was Mr Cassim, and I invited the parties to address me on the question of whether Mr Cassim had standing, given that Starlight Services was the review applicant before the Tribunal. The parties requested an opportunity to file written submissions addressing this issue and the hearing was adjourned to 21 May 2024 and orders were made to facilitate the filing of submissions.
Both parties accepted in their further written submissions that Starlight Services has standing to bring and continue the judicial review proceeding and that it was appropriate for the Court to make an order substituting Starlight Services as the applicant. A director of Starlight Services deposed an affidavit confirming that Starlight Services consented to being substituted as a party to the proceeding, relying on the same grounds of review, and that Starlight Services had engaged Estrin Saul Lawyers, the law firm on the record for Mr Cassim, to represent it in relation to the proceeding.
While Mr Cassim accepted that Starlight Services had standing, he also advanced submissions that he too had standing. The Minister submitted that Mr Cassim did not have standing in this proceeding.
In circumstances where both parties accepted that Starlight Services has standing and that it was appropriate for the Court to substitute the applicant, I made an order by consent at the hearing on 21 May 2024 substituting Starlight Services for Mr Cassim as the applicant in this proceeding.
Given the detailed submissions filed by the parties on this issue, it is appropriate to briefly record in these reasons why I was satisfied that it was appropriate to make such an order:
(a)The review applicant before the Tribunal was Starlight Services. Section 347 of the Migration Act sets out who can make an application to the Tribunal for review of a Part 5-reviewable decision. Mr Cassim did not have standing to seek review of the delegate’s decision under s 347(2)(a) of the Migration Act because the delegate’s decision was not a Part 5-reviewable decision covered by subsection 338(2), (3), (3A), (4) or (7A) of the Migration Act. Rather, the delegate’s decision was a Part 5-reviewable decision covered by s 338(9) of the Migration Act, which defines as a Part 5-reviewable decision as ‘[a] decision that is prescribed for the purposes of this subsection’. Regulation 4.02(4) of the Regulations prescribes various decisions for the purposes of s 338(9) of the Migration Act, including a decision refusing to grant a Subclass 482 (Temporary Skill Shortage) visa to a non-citizen who is outside of Australia at the time of the application if ‘the non‑citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under regulation 2.75 or 2.75B and the nominator was, at the time the nomination was approved, a person, body, company or partnership referred to in subregulation (4AA)’: reg 4.02(4)(l)(i) of the Regulations. These requirements were met in the present case. Pursuant to s 347(2)(d) of the Migration Act, an application for review of a Part 5-reviewable decision covered by s 338(9) of the Migration Act may only be made by ‘the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection’. Pursuant to reg 4.02(5)(k) of the Regulations the person who applied to become the sponsor or who nominated the non-citizen may make an application for review of a decision to which reg 4.02(4)(l) relates. In this case, that was Starlight Services and Starlight Services was therefore the proper applicant in the review before the Tribunal.
(b)Section 478 of the Migration Act sets out who may make an application to this Court under s 477 of the Migration Act, and relevantly provides that an application ‘may only be made by … if the migration decision concerned is made on review under Part 5 or 7 or section 500 – the applicant in the review by the relevant Tribunal…’: s 478(a) of the Migration Act. Starlight Services was the applicant in the review by the Tribunal in this matter. Section 486C of the Migration Act limits the persons who may commence or continue a proceeding in this Court in connection with visas and that relates to the validity, interpretation or effect of a provision of the Migration Act or Regulations. The persons who may commence or continue a proceeding in this Court include a party to a review who is mentioned in s 479, which in turn provides that a party to a review includes, if the migration decision concerned is made on review under Part 5 of the Migration Act, the applicant in the review by the Tribunal. I am satisfied that, as Starlight Services was the applicant in the review by the Tribunal, it has standing to commence and continue this judicial review proceeding.
(c)The Court has jurisdiction when an application is filed, and the amendment of a party is a procedural matter: Yong v Minister for Immigration and Multicultural Affairs [1997] FCA 495; (1997) 75 FCR 155 at 168. The Court may make an order substituting a party at any stage of the proceeding, including after the limitation period has ended: see rr 7.01 and 7.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I was therefore satisfied that it was appropriate to make an order substituting the applicant in the present case.
CONSIDERATION OF THE GROUNDS OF APPLICATION
Ground 1: Did the Tribunal ask itself the wrong question?
The parties’ submissions
By ground 1, Starlight Services contends that the Tribunal asked itself the wrong question by considering Mr Cassim’s family and personal circumstances as they existed at the time of making the decision, and that the Tribunal should have considered what Mr Cassim’s family and personal circumstances would be at the time the proposed visa would cease. The impugned reasoning is at [27] of the Tribunal’s reasons, which is extracted above at [11].
Starlight Services relied on Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238; [2016] FCA 858 (Saini) and Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros) (both addressed below) in submitting that an applicant meets the genuine temporary entrant criterion if they intend to depart Australia at the end of the proposed visa, and therefore, when determining the genuine temporary entrant criterion, the question for determination is whether the applicant intends to leave Australia at the end of their stay. Starlight Services submitted that this necessarily requires consideration of the applicant’s circumstances at the end of their proposed visa period. In her reply submissions, Counsel for Starlight Services submitted that the task of the Tribunal is to evaluate, at the time of its decision, an applicant’s current intentions, and it is necessary to consider the applicant’s future circumstances to ascertain their current intentions.
Starlight Services submitted that, in this case, the Tribunal only considered Mr Cassim’s circumstances as at the time of its decision and did not consider his potential circumstances at the expiry of his proposed visa. Put another way, Starlight Services submitted that the Tribunal considered whether Mr Cassim had an incentive to leave as at 3 August 2023, instead of asking whether he had an intention to leave Australia sometime after 3 August 2025. Mr Cassim’s parents were in Australia on visitor visas, which do not permit a stay of more than 12 months, and his sister was here on a temporary student visa and the Tribunal did not make findings about the length of her proposed stay. Starlight Services further submitted that the Tribunal made no forward-looking findings in relation to Mr Cassim’s circumstances in Australia or his home country.
Starlight Services submitted that, if the Tribunal had asked itself the correct question, it is likely that it would have found that at least Mr Cassim’s parents would not be in Australia at the end of the proposed visa period and this would have affected the weight that the Tribunal gave to Mr Cassim’s family circumstances.
The Minister submitted that, in assessing whether cl 482.222 was met, the Tribunal was required to determine whether, at the time of its decision, Mr Cassim held a genuine intention to stay in Australia temporarily, which required it to consider how long Mr Cassim intended to stay in Australia and nothing else, citing Saini at [28]-[30]. The Minister submitted that there is nothing in the wording of cl 482.222 to support an assertion that in assessing Mr Cassim’s intentions at the time of its decision, the Tribunal was required to consider Mr Cassim’s circumstances at the end of the proposed visa, and referred to Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 528; [2019] FCAFC 217 (Inderjit) at [36].
The Minister further submitted that Mr Cassim made no submissions to the Tribunal to the effect that his family and personal circumstances would be any different when his visa ceased than they were at the time of the Tribunal decision. The Minister submitted that the Tribunal is not required to consider an argument that has not been put to it, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [61].
The Minister submitted that in the circumstances of this case, the Tribunal was correct to consider Mr Cassim’s intentions at the time of its decision by reference to his circumstances that existed at that time, and did not fall into error in the manner asserted by ground 1.
In written submissions, the Minister submitted that, even if the Court accepted that the Tribunal erred in the manner alleged by Starlight Services, the error was not material because there was a separate and independent basis for the Tribunal’s conclusion, citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [36]. However, Counsel for the Minister confirmed at the hearing that that submission was not relied upon.
Relevant case law
In this matter, Starlight Services referred to [20] of Saini, where Logan J said in the context of a similarly worded provision in Schedule 2 to the Regulations:
… I accept that “intends genuinely to stay in Australia temporarily” carries with it, via the presence of the adverb, “temporarily”, the notion of a specific, passing purpose. That passing purpose is the stay in Australia. The purpose would be fulfilled upon departure.
In Eros, Allsop CJ confirmed at [13], after referring to Saini, that the genuine temporary entrant criterion is concerned with ‘the genuine intention as to length of stay, and nothing else’.
There is no dispute between the parties, as I understand it, as to the meaning of the word ‘temporary’ or that the genuine temporary entrant criterion is concerned with an applicant’s intention as to the length of the stay. Rather, the dispute in the present case relates to whether the Tribunal erred in assessing Mr Cassim’s intention. To this end, and as referred to by Counsel for the Minister in her oral submissions, there are further paragraphs of Saini that are instructive, including [28]-[30], where Logan J said:
28.It is to be remembered that the satisfaction described in cl 572.223(1) is satisfaction at the time of decision. One is either satisfied, at that time, that the visa-applicant “intends genuinely to stay in Australia temporarily” (emphasis added) or one is not. If, at the time of decision, the decision-maker is satisfied that the applicant’s intention is not to stay in Australia temporarily, the criterion will not be met. I agree with Judge Cameron’s statement at [18], based on textual analysis, that, “[t]he words ‘intends genuinely to stay in Australia temporarily’ are concerned with how long the visa applicant intends to stay in Australia and nothing else.”
29.… If there is evidence that, at the time of decision, an applicant harbours an intention to seek employment or undertake further study here that may well mean, in conjunction with other factors referred to in cl 572.223(1)(a), that a decision-maker is not satisfied that the visa-applicant “intends genuinely to stay in Australia temporarily”.
30.Equally, that an applicant for a Student visa may, at the time of decision, hope, for example, to undertake post-graduate study if successful in respect of the study for which the particular visa is sought, but nonetheless still leave once any further study is completed, it may be open to conclude that the visa-applicant does still have, at that time, an intention, “genuinely to stay in Australia temporarily”. The Regulations do provide for other classes of visa which may be sought on-shore so as to permit the holder of a Student visa to seek a visa which would permit a longer stay for further study or for employment. That means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”. What is required is an evaluation by the decision-maker of intention as at the time of decision.
The Minister referred to Inderjit at [36] to support the proposition that the wording of cl 482.222(a) did not require the Tribunal to consider Mr Cassim’s circumstances at the time that his proposed visa would cease:
Nothing in the text of cl 500.212 or in the subject matter, scope and purpose of the Act and Regulations supports a construction that cl 500.212(a)(iv) is subject to any limitation as to the way in which a decision-maker can arrive at his or her findings as to what a visa applicant’s intention is or what weight he or she may, or must give, to any of the four relevant considerations prescribed in cl 500.212(a) when arriving at a state of satisfaction as to whether the applicant has satisfied the decision-maker that he or she intends genuinely to stay in Australia temporarily.
Was the Tribunal required to consider Mr Cassim’s circumstances at the end of his proposed visa period?
Based on the cases referred to and the express wording of cl 482.222(a), the Tribunal was required to consider whether Mr Cassim genuinely intended to stay in Australia temporarily. Both Saini and Eros, which relate to the genuine temporary entrant criterion in a student visa context, show that the genuine temporary entrant criterion is concerned only with whether an applicant intends to stay temporarily in Australia. The reasoning in those cases is also applicable to the consideration of cl 482.222(a).
Saini also shows that the intention of an applicant is to be assessed as at the time of the Tribunal decision. The parties have not identified any direction made under s 499 of the Migration Act that applied to the Tribunal’s consideration of whether Mr Cassim met the requirements of cl 482.222(a). This can be contrasted with the position in relation to the consideration of the genuine temporary entrant criterion in the context of student visas, where decision-makers are required to have regard to various factors referred to in a direction made under s 499 of the Migration Act.
It is appropriate to look at the terms of the legislation to ascertain whether there is any particular consideration that the Tribunal was required to take into account in determining whether Mr Cassim met the genuine temporary entrant requirement. Based on the terms of cl 482.222(a), the Tribunal was required to determine whether Mr Cassim intended genuinely to stay in Australia temporarily having regard to his circumstances, his immigration history and any other relevant matter. However, as was the case in Inderjit in respect of cl 500.212(a), there is nothing in the subject matter, scope or purpose of cl 482.222(a) that limited the way the Tribunal could arrive at its findings in relation to Mr Cassim’s genuine intentions. While it would have been open to the Tribunal to consider any evidence available to it as to what Mr Cassim’s circumstances would be at the expiry of the visa for which he had applied, in the absence of any clear submission or evidence from Mr Cassim about those circumstances, the Tribunal was not required to form any view about what Mr’s Cassim circumstances would be at the time his visa, if granted, would cease.
Further, Logan J’s reasoning in Saini does not support a contention that, in considering whether Mr Cassim intended genuinely to stay in Australia temporarily, the Tribunal was required to expressly consider or make findings about what Mr Cassim’s circumstances would be likely to be at any particular future point in time. The reasoning in Saini left open the possibility that an applicant may have some hope or intention of seeking a further temporary visa at the conclusion of the visa for which they applied whilst still genuinely intending to remain in Australia temporarily: see [30] of Saini, extracted at [34] above. This reinforces that the legislation does not require that the Tribunal assess whether an applicant intends to leave Australia at the time their visa would cease. Rather, it only requires that the Tribunal assess whether the applicant has a genuine intention to stay in Australia temporarily.
In assessing Mr Cassim’s intention, at the time of the Tribunal decision, in relation to how long he proposed to stay in Australia, the Tribunal was not precluded from considering Mr Cassim’s circumstances at the time of its decision in ascertaining his intention at the time of the decision. This is consistent with the terms of the legislation, which expressly requires that the Tribunal consider an applicant’s circumstances and their immigration history. I do not consider that taking into account Mr Cassim’s circumstances at the time of the decision shows that the Tribunal asked itself the wrong question, which is the error asserted by ground 1. That does not mean, however, that the Tribunal’s findings in relation to an applicant’s current circumstances cannot be challenged on other grounds of jurisdictional error, and in the present case, I consider in ground 2 whether the Tribunal’s reasoning was illogical or irrational.
I do not accept that the Tribunal, in considering whether Mr Cassim genuinely intended to stay in Australia temporarily, was specifically required to consider what his personal circumstances would be at the time his visa would cease. Its failure to consider this factor does not indicate that it applied the wrong test.
Ground 1 is not established.
Ground 2: Was the Tribunal’s reasoning process illogical or irrational?
The parties’ submissions
By ground 2, Starlight Services asserts that the Tribunal undertook an irrational or illogical line of reasoning when considering Mr Cassim’s family and personal circumstances in relation to whether he intended genuinely to stay in Australia temporarily. The ground again relates to the Tribunal’s finding at [27] of its reasons.
In advancing this ground, Starlight Services relies on the Full Court’s judgment in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) in which the Court confirmed that to reach a lawful state of satisfaction, a decision-maker in reaching the state of satisfaction must not be irrational, illogical or unreasonable. Starlight Services submitted that a state of satisfaction may be irrational, illogical or unreasonable when the reasoning process that led to that state of satisfaction is unjust, arbitrary or capricious.
Starlight Services submitted that Mr Cassim gave evidence to the Tribunal, which the Tribunal accepted, that his parents were in Australia as the holders of visitor visas. The Tribunal then proceeded to find that Mr Cassim’s personal circumstances, with his family here in Australia and no other family back in this home country at this time, lent weight to a contention that those circumstances demonstrated a lack of incentive for Mr Cassim to return to his home country. Starlight Services submitted that, in circumstances where Mr Cassim’s parents were in Australia as the holders of visitor visas, which are commonly understood as short-term visas for visiting Australia, their current presence in Australia could not rationally constitute an incentive for Mr Cassim to remain in Australia indefinitely. Starlight Services submitted that the Tribunal acted illogically by assigning weight against Mr Cassim’s intention to stay in Australia temporarily due to the presence of his parents as temporary visitors in Australia. In circumstances where the Tribunal made few findings of weight in relation to Mr Cassim’s intentions, its finding in relation to the parents contributed significantly to its ultimate finding that he was not a genuine temporary entrant.
The Minister submitted that the Tribunal’s reasoning was not unjust, arbitrary or capricious, and submitted that for the decision to be vitiated by jurisdictional error based on illogical or irrational findings of fact or reasoning, extreme illogicality must be shown, citing CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 (CGQ15) at [60]-[61]. The Minister submitted that the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it engaged and to make the findings it made on the material before it, citing Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51 (Gill) at [61]. The Minister further submitted that the question for the Court is not only whether the factual finding made by the Tribunal was illogical or irrational, but also whether this was such that the required state of satisfaction did not exist, with the consequence that the subsequent purported exercise of power was without authority, citing EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681.
The Minister submitted that after considering Mr Cassim’s evidence and submissions, the Tribunal provided well-reasoned and logical reasons for its decision, including by considering Mr Cassim’s past immigration history, his limited travel back to Sri Lanka, that his brother, sister and parents were in Australia and the length of time Mr Cassim had been residing in Australia. The Minister submitted that the circumstances were all matters which were relevant to the issue to be determined by the Tribunal. The Minister submitted that it was not illogical for the Tribunal to assign weight to the presence of Mr Cassim’s parents in Australia, despite them holding visitor visas. In the absence of evidence from Mr Cassim or his parents that they intended to return to Sri Lanka at the end of their visas, or of any conditions preventing further visa applications, the Tribunal was entitled to consider that their presence in Australia was a matter which showed that Mr Cassim may not have an incentive to return to Sri Lanka. Further, the Minister submitted that the Tribunal relied on other factors to reach its conclusion that Mr Cassim did not genuinely intend to reside in Australia temporarily and its decision was not one that no rational or logical decision-maker could reach and was within the range of possible lawful outcomes.
In her oral submissions, Counsel for the Minister also specifically referred to the phrase ‘having regard to’ as set out in cl 482.222(a) and referred to Inderjit, where the Full Court said at [29]-[30]:
29.The Tribunal’s reasons demonstrated that it had engaged in a detailed evaluation of all of the matters to which cl 500.212(a) required it to have regard in arriving at its ultimate conclusion. When legislation requires a decision-maker to “have regard to” one or more particular criteria that it specifies, the decision-maker has to take each criterion into account and give it weight, as a fundamental element, in making his or her determination: R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J with whom Gibbs J agreed at 324, applied in R v Toohey; Ex Parte Meneling Station Pty Limited (1982) 158 CLR 327 at 333 per Gibbs CJ…
30.Moreover, if the legislation requires a decision-maker to have regard to more than one criterion or factor in making a decision, but gives no fixed weighting to any of them, then none of the factors has any presumptive or fixed weighting in relation to any or all of the other criteria: Telstra [Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR at 183] [112].
Counsel for the Minister submitted that, in finding that Mr Cassim’s circumstances with his family here in Australia and no other family back in his home country at this time lent weight to a contention that he may lack an incentive to return, the Tribunal was simply giving weight to one of the criteria listed in subclause (a), which is exactly what the Tribunal was required to do. The Minister submitted that the Tribunal also addressed the other criteria specified by cl 482.222 and, as the legislation did not require the Tribunal to give any fixed weight to any of the criteria, the Tribunal gave weight to all of them and used the same words for every finding it made, namely the words ‘lends weight’ to the contention. Counsel for the Minister submitted that it was open to the Tribunal to engage in the process of reasoning that it did and to make the findings it did on the material before it.
Relevant legal principles
There is no material dispute between the parties in relation to the relevant legal principles to be applied, and Counsel for the Minister confirmed at the hearing that the Minister, although referring to additional cases to those referred to by Starlight Services, did not dispute the principles referred to in Starlight Services’ submissions.
There are a number of cases of the High Court and the Full Court of the Federal Court which explain the principles relating to the judicial review of fact finding of an administrative decision-maker on the grounds of illogicality or irrationality.
Starlight Services referred to [34] of Djokovic where the Full Court of the Federal Court said:
The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: [Minister for Immigration and Citizenship vSZMDS 240 CLR 611] at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in [Minister for Immigration and Border Protection v] Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS), Crennan and Bell JJ said at [131] that the relevant test:
... must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Their Honours explained at [132] that it is ‘necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error’ and at [133] that ‘the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it’: see also, Gill at [61].
In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174, the Full Court of the Federal Court said at [47]:
Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).
The passages of CQG15 cited in the Minister’s submissions contain an extract of Wigney J’s judgment in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516, where his Honour reviewed relevant authorities and, after referring to the reasoning at [132] of SZMDS (see [54] above) that jurisdictional error can be established on the basis of illogical reasoning or illogical or irrational findings ‘on the way’ to the final conclusion, said at [55]:
Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566; (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
With these principles in mind, I consider the Tribunal’s reasoning and the parties’ submissions in the present case.
Consideration of whether the Tribunal’s state of satisfaction was illogical or irrational
In determining whether the Tribunal’s decision or reasoning was illogical or irrational, it is first necessary to consider the precise finding and reasoning of the Tribunal, and how the Tribunal’s finding should be interpreted in the context of its reasons as a whole.
The particular finding of the Tribunal was that Mr Cassim’s ‘personal circumstances with his family here in Australia and no other family back in his home country at this time does lend weight to a contention that the family and personal circumstances of [Mr Cassim] demonstrate that he may lack an incentive to return to his home country’ (emphasis added).
The finding, and its impact on the Tribunal’s decision-making, is not expressed in clear and unequivocal terms. At times in advancing their submissions, the parties have referred to the Tribunal’s finding in the terms in which it was expressed in the Tribunal’s reasons. At other times in their submissions, the parties have referred to the finding in slightly different terms. For example, in her oral submissions, Counsel for the applicant submitted that ‘where [Mr Cassim’s] parents were here on visitor visas’ and ‘it could be readily inferred that visitor visas are temporary visas for a short temporary stay’ it was irrational for the Tribunal to ‘conclude that that would be a reason for somebody to stay permanently in Australia’. This suggests that Starlight Services has interpreted the Tribunal’s finding as amounting to a finding that the temporary presence of Mr Cassim’s parents in Australia amounted to a reason for Mr Cassim to stay permanently in Australia.
Whether or not the Tribunal made an irrational or illogical finding may turn on the proper interpretation of the finding.
Turning first to the finding as articulated by the Tribunal, I make the following three observations:
(a)the ‘family and personal circumstances’ of Mr Cassim referred to in [27] of the Tribunal’s reasons are not limited to his parents being in Australia on visitor visas and, rather, the ‘family’ the subject of the finding includes Mr Cassim’s siblings;
(b)the qualification that Mr Cassim has no family in his home country ‘at this time’ might, on one view, be seen as an acknowledgement that that circumstance is temporary or may change (alternatively, it might be seen an acknowledgement that the situation had changed since earlier information was provided to the delegate when Mr Cassim’s family remained outside of Australia); and
(c)the finding is expressed in terms of possibility rather than fact, that is, the circumstance lent weight to a contention that Mr Cassim may lack an incentive to return to his home country, rather than a finding that the circumstance in fact indicates that Mr Cassim did lack an incentive to return to his home country.
In considering the proper interpretation of the Tribunal’s finding, I have had regard to the structure of the Tribunal’s reasons and the context in which this finding appears and I make the following observations.
The Tribunal’s reasons for decision contain three headings: ‘Application for review’, ‘Consideration of claims and evidence’ and ‘Decision’. The relevant reasoning appears under the heading ‘Consideration of claims and evidence’. Under this heading, the Tribunal identified the issue before it at [8], summarised the delegate’s decision, the evidence before the Tribunal and the applicant’s submissions at [9]-[26], made findings in relation to that evidence at [27]-[31], included a subheading, ‘genuine short-term applicant’ under which the Tribunal extracted cl 482.222 and then set out its conclusions in relation to whether Mr Cassim met the requirements of cl 482.222 at [32]-[39].
The language used by the Tribunal in expressing its findings at [27]-[31] is relevant. The language used at [27] is extracted above. In relation to the other paragraphs:
(a)At [28] the Tribunal expressed that Mr Cassim having lived in Australia for several years and only returning home from time to time for a small amount of time ‘would also lend weight to the contention that [Mr Cassim] is comfortable here in Australia and that he does not want to return to his home country and that this also lends weight to the contention that [Mr Cassim] is not a genuine temporary entrant’ (emphasis added);
(b)at [29] the Tribunal referred to a submission that Mr Cassim may have received for advice from a previous migration agent, but found that there was no specific evidence that authenticates that, if true, this would make any substantial difference to Mr Cassim’s situation at this stage;
(c)at [30] the Tribunal expressed that Mr Cassim’s immigration history and the numerous applications he made ‘also lends weight to the contention that [Mr Cassim] does not intend a genuine temporary stay here in Australia’ (emphasis added); and
(d)at [31] the Tribunal considered a submission made by the applicant in relation to the delegate’s decision, having regard to Mr Cassim’s marital status, and expressed the view that it was open to the delegate to consider such personal circumstances in deciding whether Mr Cassim may lack an incentive to return to his home country.
It can be seen from this that the Tribunal used the phrase ‘lends weight to the contention’ in relation to each of its relevant findings. It can also be seen that the reasoning of the Tribunal at [29] and [31] appears to be a comment on submissions made and the Tribunal is not in those paragraphs indicating that a particular matter was given any weight in its consideration of whether Mr Cassim met the relevant criteria.
The Tribunal’s finding that Mr Cassim did not meet the requirements of cl 482.222(a) is expressed in the following terms (emphasis added):
33.For the applicant to meet cl 482.222(a), the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the applicant’s circumstances and immigration history, and any other relevant matter.
34.On that basis the Tribunal finds that the visa applicant does not genuinely intend to stay in Australia temporarily having regard to the visa applicant’s family, personal, and immigration history.
35.For these reasons, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore the applicant does not meet cl 482.222(a).
Read fairly and in context, the Tribunal’s finding at [27] was to the effect that Mr Cassim’s family and personal circumstances, being that he lives in Australia with his two siblings, in conjunction with the information that his parents were, at the time of the Tribunal decision, in Australia on visitor visas and he had no other family in Sri Lanka at that particular time, lends weight to the possibility that he may not genuinely intend to stay in Australia temporarily. When this finding is read together with the finding at [34], I accept that the Tribunal, in reaching its finding that Mr Cassim did not intend genuinely to stay in Australia temporarily, took into account in a way that was adverse to Mr Cassim, that, at the time of its decision, his family was with him here in Australia and he had no family in Sri Lanka. I therefore accept that the fact that Mr Cassim’s parents were present in Australia at the time of its decision was given some weight, in conjunction with other factors, in the Tribunal’s finding that Mr Cassim was not a genuine temporary entrant. It would, however, be a strained interpretation of the Tribunal’s reasons to view the Tribunal’s consideration of the circumstances of Mr Cassim’s parents as separate from those of his siblings and treat the Tribunal’s finding as being that the fact that his parents were in Australia at the time of its decision itself indicated that Mr Cassim did not genuinely intend to stay in Australia temporarily or, as suggested in Starlight Services’ written submissions, constituted an incentive for Mr Cassim to remain in Australia indefinitely.
I accept the Minister’s submission that it was not illogical or irrational for the Tribunal to find that Mr Cassim’s family and personal circumstances, being that he lives in Australia with his two siblings, in conjunction with the information that his parents were, at the time of the Tribunal decision, in Australia on visitor visas and he had no other family in Sri Lanka at that particular time, lends weight to the possibility that he may not genuinely intend to stay in Australia temporarily. It was open to a logical and rational decision-maker to reach this finding on the evidence before it and there is nothing unjust, arbitrary or capricious in the finding.
Even if I am wrong in my interpretation of the specific finding of the Tribunal, I would not find that any lapse in logic in the specific finding of the Tribunal would lead to the Tribunal’s decision being illogical or irrational.
If the Tribunal’s finding, properly interpreted, amounted to a finding that Mr Cassim’s parents being in Australia at a particular point in time meant, in and of itself, that Mr Cassim intended to remain in Australia permanently or indefinitely, then I would be prepared to accept that the finding itself is illogical or irrational on the basis that, considered in isolation, the mere presence of Mr Cassim’s parents in Australia at a particular snapshot in time is not probative evidence one way or the other as to Mr Cassim’s intentions as to the length of his proposed stay in Australia. Further information would be needed to logically draw any inferences as to Mr Cassim’s intentions, and the nature of any further information could affect the available inferences. For example, the inferences that the Tribunal might draw from information that Mr Cassim’s parents were, at the time of its decision, in Australia on visitor visas might be quite different if, on the one hand, additional information suggested that they continued to reside in Sri Lanka and were simply in Australia for a month or two to see their children before returning to Sri Lanka, compared to information, on the other hand, that they had sold their real and personal property in Sri Lanka and had no intention of returning there. In the absence of further information about the circumstances of Mr Cassim’s parents at the time of the Tribunal decision, the fact of Mr Cassim’s parents being in Australia on short-term visitor visas, considered in isolation, is not logically probative evidence of Mr Cassim’s intentions one way or the other.
However, as the summary of the case law referred to above that indicates, although a lapse in logic in a finding of the Tribunal on the way to reaching its decision can, in some circumstances, show jurisdictional error in the Tribunal decision, it will not do so in every case and the focus must remain on whether the Tribunal decision is affected by jurisdictional error.
In the present case, if, contrary to my finding at [69] above, the Tribunal’s finding was properly interpreted in the way indicated at the start of [71] above, and the finding was illogical or irrational on the basis that the factual premise was not logically probative of the finding, that would not vitiate the whole of the Tribunal decision. The Tribunal identified that Mr Cassim’s family circumstances (which, in the context of its overall conclusion, had to include its findings in relation to the circumstances of Mr Cassim’s siblings and not just his parents), personal circumstances and his immigration history all lent weight to the view that Mr Cassim did not intend genuinely to stay in Australia temporarily. The Tribunal did not identify any of Mr Cassim’s circumstances that it considered supported the view that Mr Cassim met the genuine temporary entrant requirement. In these circumstances, I do not accept the submission advanced by Starlight Services that the Tribunal’s finding in relation to Mr Cassim’s parents ‘contributed significantly to its ultimate finding’ that Mr Cassim did not meet the genuine temporary entrant criterion. The finding that Mr Cassim did not meet the genuine temporary entrant criterion was open to a logical and rational decision-maker on the material that was before the Tribunal.
Ground 2 is not established.
CONCLUSION
In circumstances where I have found that the grounds relied upon by Starlight Services do not establish jurisdictional error in the Tribunal decision, the application for judicial review must be dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 8 August 2024
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