Suhian v Minister for Immigration, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1070
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Suhian v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1070
File number(s): SYG 538 of 2021 Judgment of: JUDGE KAUR - BAINS Date of judgment: 25 October 2024 Catchwords: MIGRATION – judicial review – jurisdictional error –sch 2, cl 500.212 Migration Regulations 1994 (Cth) – genuine temporary entrant criterion – student visa –Direction 69 required personal ties to be considered in reaching a state of satisfaction in assessing the genuine temporary entrant criteria – jurisdictional error established on illogical or irrational ground Legislation: Migration Act 1958 (Cth) ss 29, 31, 45, 65, 360, 476, 477, 499
Migration Regulations 1994 (Cth) cll 500.211, 500.212
Cases cited: AWU16 v Minister for Immigration and Border Protection [2020] FCA 513
EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681
Kaur v Minister for Immigration and Border Protection [2015] FCA 1
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
LPDT v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Minister for Immigration v SZMDS (2010) 240 CLR 611
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 485
Singh v Minister for Home Affairs [2020] FCAFC 7
SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 2 October 2024 Place: Sydney Counsel for the Applicant: Mr C Honnery Solicitor for the Applicant: The Immigration Lawyers Counsel for the First Respondent: Mr A Flick Solicitor for the First Respondent: HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 538 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAYDEE SUHIAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR - BAINS
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.A writ of certiorari be issued, directed to the Second Respondent quashing its decision dated 26 February 2021.
3.A writ of mandamus issue directed to the Administrative Review Tribunal (the successor body to the second respondent) requiring it to determine the applicants’ application for review according to law.
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 Kaur-Bains
On 1 April 2021, the applicants filed an application seeking judicial review of a decision of the second respondent (Tribunal) dated 26 February 2021, which affirmed the decision of the delegate not to grant Student (Temporary) (Class TU) visas (visa).
The first applicant (applicant) is a female citizen of the Philippines and the second applicant is her minor son. On 13 May 2021, orders were made pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth) (Rules), that the applicant be appointed the litigation guardian of the second applicant.
This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for judicial review has been brought within the time set out in s 477 of the Act.
BACKGROUND
On 14 October 2011, the applicant arrived in Australia as the holder of a Student (Subclass 572) visa (CB 61). The applicant was granted further Student visas (Subclass 572 and Subclass 500) between 2014 and 2017 (CB 60-61).
On 16 November 2018, the applicant applied for a student visa to complete a Diploma of Hospitality Management. The application also included the applicant's son who is a minor. The application was prepared with the assistance of a migration agent.
On 21 January 2019, a delegate of the Minister refused the application for a visa on the basis that the applicant failed to satisfy cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations) (CB 43 - 53).
On 8 February 2019, the applicant applied to the Tribunal for merits review of the delegate’s decision (CB 54 - 55). On 20 August 2020, the Tribunal invited the applicant to a telephone hearing scheduled for 4 September 2020. On 27 August 2020, the applicant requested that the hearing be postponed until 30 September 2020, claiming that COVID-19 had made it difficult for her to prepare the documents required for the hearing. On 28 August 2020, the Tribunal wrote to the applicant to advise that it had considered the request but had decided not to postpone the hearing.
RELEVANT LAW
Section 29(1) of the Act gives the Minister power to grant a non-citizen a visa to travel to and enter or to remain in Australia. There are prescribed classes of visas and regulations prescribe the criteria for visas of a specified class: s 31(1) and (3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
After considering a valid application for a visa, the Minister must grant the visa “if satisfied” of the various matters identified in s 65(1)(a) of the Act. One of the matters the Minister or his delegate must be satisfied of, is that the criteria prescribed by the Act or Regulations for the visa have been met: s 65(1)(a)(ii) of the Act. If the Minister is not satisfied of the matters identified in s 65(1)(a), the Minister has to refuse the grant of the visa: s 65(1)(b) of the Act.
Relevantly, for the student visa applied for by the applicant, clause 500.2 of schedule 2 of the Regulations set out the primary criteria as follows:
500.211
…
(a) the applicant is enrolled in a course of study;
…
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfied cl 500.212(a) of the Regulations, the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction 69), which was made under s 499 of the Act (Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (Kumar) at [27] and [28]). The “Genuine temporary entrant criterion” was defined in Direction 69 as referring to the requirement in clause 500.212(a) of the Regulations.
Direction 69 made clear that the Tribunal, in considering the Genuine temporary entrant criterion, have regard to:
(a)The applicant’s circumstances in her home country, potential circumstances in Australia and the value of the course to her future. This involved, inter alia, considering reasons for not undertaking the study in the home country, personal ties to the home country and to Australia, economic circumstances of the applicant that would present a significant incentive not to return home, evidence that the student visa programme was being used to circumvent the intentions of the migration programme, whether the student visa was being used to maintain ongoing residence and the value of the course to the applicant’s future.
(b)The applicant’s immigration history, including, previous applications for an Australian, visa and whether the visa may be used primarily for maintaining ongoing residence.
(c)Any other relevant information, including, information that may be either beneficial or unfavourable to the applicant.
Part 2 of Direction 69 specifies that the factors in the Direction were not to be used as a checklist, instead stating that:
1.…The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion
TRIBUNAL’S DECISION
Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. On 4 September 2020, the applicant appeared before the Tribunal by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages. The applicant's representative did not attend the hearing.
On 26 February 2021, the Tribunal refused to grant the applicant the visa. In its written reasons, the Tribunal first summarised the background and procedural history of the matter ([1] to [9] of the reasons). It then set out the relevant criteria for a Subclass 500 (Student) visa, relevantly including the requirements that the applicant be a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations, as well as the factors that the Tribunal should have regard to as specified in Direction 69 ([10] to [14] of the reasons). The Tribunal also considered the applicant’s claims and evidence in relation to her history of studies in both the Philippines and Australia ([15] to [18] of the reasons).
The Tribunal then considered the applicant’s claims and evidence regarding her personal ties to the Philippines and to Australia, as follows:
(a)The applicant has friends and family in the Philippines. The applicant intended to fulfil her mother’s wish, which was to spend her later years with her grandson (being the applicant’s son) ([19] of the reasons).
(b)As the only daughter in her family, the applicant had a great responsibility to return to her mother in the Philippines to be with her ([20] of the reasons).
(c)The applicant had a mother and aunt that lived in the Philippines, and friends in the Philippines who she missed “terribly” ([21] of the reasons).
With regard to the applicant’s claims and evidence regarding her personal ties to the Philippines and Australia, the Tribunal stated at [21] of the reasons:
The Tribunal accepts the applicant's evidence that she has both family and community ties to her home country. However, the Tribunal does not accept that these circumstances serve as a significant incentive for her to return to her home country. This is because she has been able to sustain her relationships with family and friends in the Philippines since first arriving in Australia in 2011.
The Tribunal considered the applicant’s evidence that, prior to the COVID-19 pandemic, she had worked as a cook at an RSL for 6 months, earning $400-$600 per week after tax and that she received some money from her mother. The Tribunal also considered the evidence of the applicant’s aunt whom she lived with in Australia, who claimed that the applicant was financially dependent on her. The Tribunal found that the applicant’s demonstrated ability to earn between $400-$600 per week and the fact that she received “substantial financial support” from her aunt constituted strong incentives for her to remain in Australia ([24] of the reasons).
With regard to the proposed value of the course to the applicant’s future, the Tribunal considered the applicant’s claims and evidence that she intended to use the Australian qualification to get a better job in the Philippines and that her long term goal was to open her own resort. The Tribunal also considered the applicant’s evidence given at the hearing that with the Australian qualification she could expect to be paid $600-$1000 per month ([25] to [26] of the reasons).
The Tribunal then made a finding at [27] of the reasons, about the proposed value of the course to the applicant’s future as follows:
Objectively, the Tribunal finds that the applicant's proposed course of study, a Diploma of Hospitality Management, is of limited value given that she is already a university graduate in her home country and has already worked as a cook in the restaurant sector in Australia. The Tribunal finds that the applicant's proposed course of study is inconsistent with her current level of education and her employment history.
The Tribunal at [28] of the reasons, stated its concern that the applicant’s circumstances indicated that the visa was intended primarily for maintaining residence in Australia.
The Tribunal at [29] of the reasons, noted the applicant’s evidence that she had been paid $400‑$600 per week in Australia and expected to earn $600-$1000 per month in the Philippines. The Tribunal considered this to be a strong financial incentive for the applicant to remain in Australia.
The Tribunal noted at [30] of the reasons, the applicant’s evidence that her family owned a farm and that “as the only child, she will be the one who will need to look after it.” However, the Tribunal also noted that the applicant’s mother may continue to manage the land or that the assets related to the farm could be sold. The Tribunal ultimately did not consider that any of the applicant’s economic ties to the Philippines presented a significant incentive for her to return.
After considering all the evidence before it, the Tribunal found on balance it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Therefore, the Tribunal affirmed the decision not to grant the applicant the student visa ([31] and [34] of the reasons).
GROUNDS IN THE AMENDED APPLICATION
In the amended application, the applicant raised the following four grounds:
Ground 1
(a)The Tribunal’s assessment of a mandatory consideration, under Direction 69, is affected by illogical or irrational reasoning and findings.
Ground 2
(b)The Tribunal’s decision is affected by jurisdictional error due to:
(i)Illogical or irrational reasoning and findings;
(ii)A failure to consider a relevant consideration; and/or
(iii)Misapplying paragraph 12(c) of Direction 69.
Ground 3
(c)The Tribunal failed to comply with s 360 of the Act
Ground 4
(d)The Tribunal misunderstood or misapplied Direction 69 or asked the wrong question or identified the wrong issue.
CONSIDERATION
Ground 1 – illogical or irrational reasoning and findings
The applicant contends that in considering the applicant’s personal ties to her home country, there is no logical connection between the evidence that the Tribunal accepted, as to the applicant’s personal ties, and the Tribunal’s conclusion reached at [21] of the reasons.
The applicant referred me to the decision of AWU16 v Minister for Immigration and Border Protection [2020] FCA 513, where Mortimer J (as her honour then was) said at [58]:
While it is a matter for the finder of fact to determine what evidence it accepts or what it does not, the purpose of the rationality grounds of review is to supervise lines of reasoning, or paths of fact-finding, which stray clearly beyond the area of decisional freedom that is given to the fact finder. A repository of a statutory merits review function of the kind in issue here is not authorised by the review provisions in the Migration Act 1958 (Cth) to base her or his decision, even in fact finding, on lines of reasoning which are devoid of logic, or which are no more than conjecture or speculation. Parliament has conferred these merits review functions and powers on the basis that they will be exercised reasonably, rationally and in a logical manner, relying on probative material and drawing inferences which are explained by reference, and have a rational connection, to the material before the decision-maker.
The Minister submitted that the Tribunal’s conclusion at [21] was open on the evidence and was not one at which no rational or logical decision maker could arrive on the same evidence.
Relevant legal principles
In Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130] (SZMDS) at [130], [133] and [135], Crennan and Bell JJ, set out the relevant legal principles regarding the test for illogicality or irrationality as follows:
[130] In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[133] However, 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.
…
[135] …A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. ……(emphasis added)
The Full Court in Kumar at [18] and [19] said:
[18] The power to grant the visa is non-discretionary in that the Minister is under an obligation to grant the visa “if satisfied” of the various matters identified in s 65(1)(a). The satisfaction of the Minister (or the delegate or Tribunal on review) that the prescribed criteria have been met is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa and is a “jurisdictional fact” as per Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [37] (SGLB).
[19] The state of satisfaction may be challenged if it was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”, per SGLB at [38]. That is not an exhaustive statement of the way jurisdictional error might be demonstrated. In SGLB at [38] it was a statement expressly directed at how the state of satisfaction in s 36(2)(a) might be shown to be the subject of jurisdictional error. A jurisdictional error in the formation of the state of satisfaction in s 36(2)(a) would in turn vitiate the state of satisfaction in s 65(1), as per Singh v Minister for Home Affairs [2020] FCAFC 7 at [45]; see also EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681.
Consideration of Ground 1
In this case, it is the justification in the Tribunal’s reasons and the intelligibility of the exercise of the power as explained in the reasons which needs to be examined, bearing in mind the constraints applicable to that task. To succeed the applicant needs to establish, as relevantly said in SZMDS at [135], that there was an absence of logical connection between the accepted evidence as a whole and the reasons for the decision.
The factors set out in cl 500.212 of the Regulations, which include the applicant’s circumstances in her home country, which in turn include the matters set out in paragraph 9(b) of Direction 69, being personal ties, are the mandatory considerations that the Tribunal is bound to consider.
When considering the applicant’s personal ties, the Tribunal accepted the applicant’s evidence “both as to family and community ties in her home country” (at [21] of the reasons). The parties accepted that the said family and community ties were a reference to the applicant’s evidence as to her friends and family back in the Philippines but also the applicant’s evidence that she had a great love for her culture, norms and values, which she could not experience overseas, and that her mother wanted to live the later part of her life with her grandson, which wish the applicant was obliged to fulfil and that the applicant missed her friends (accepted evidence of family and community ties). A fair reading of the Tribunal’s reasons at [19] and [20] support the parties’ acceptance as to the facts the Tribunal found.
The Tribunal then at [21] concluded, that it did not accept “these circumstances” (referring to the accepted evidence of family and community ties) served as a significant incentive for the applicant to return to her home country for the sole reason expressed by the Tribunal, being that the applicant was able to sustain her relationships whilst in Australia for the last 9 years.
In my opinion, there is an absence of logical connection between the accepted evidence of the family and community ties and the conclusion drawn by the Tribunal at [21] (as set out in the preceding paragraph of this Judgment), and the reason expressed, being that the applicant has been able to sustain her relationships with family and friends in the Philippines. There is an absence of logical connection because:
(a)First, the fact that the applicant has a love for her country which she cannot experience in Australia (accepted evidence), has no logical connection to the reason expressed, of having maintained relationships whilst in Australia for the last 9 years for the conclusion drawn, that she does not have a significant incentive to return to her home country.
(b)Second, the fact that the applicant has children and wishes to fulfil her mother’s wish to live the later part of her life with her grandson (accepted evidence), has no logical connection to the reason expressed, of having maintained relationships whilst in Australia for the last 9 years for the conclusion drawn, that she does not have a significant incentive to return to her home country.
Materiality
The question then arises whether the identified error is material so as to give rise to jurisdictional error: LPDT v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [14], [16] and [36].
The Full Court in Kumar said at [28] and [29]:
[28] Direction 53 is a written direction to which s 499 applies. It concerns the state of satisfaction in cl 572.223(1)(a) about whether “the applicant intends genuinely to stay in Australia temporarily”.
[29] If there is a failure to comply with Direction 53 in reaching an adverse state of satisfaction under cl 572.223(1)(a) which is sufficiently material to the formation of that state of satisfaction, and consequently upon the state of satisfaction in s 65(1) of the Act then, depending on the nature of the non-compliance, jurisdictional error may be established. An example of such jurisdictional error is as follows. If Direction 53 required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated if the applicant established that he or she was thereby deprived of the possibility of the repository of power forming a favourable state of satisfaction: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]–[31] (Keifel CJ, Gageler and Keane JJ) and [72] (Edelman J); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]–[48] (Bell, Gageler and Keane JJ) and [84]–[95] (Nettle and Gordon JJ). Although the decision-maker was, in fact, not satisfied that the visa applicant had met the relevant criteria, that actual state of mind was reached through a “material” non-compliance with statutory requirements prescribed for that decisional process. Accordingly, the state of non-satisfaction was not of the kind upon which the legislature conditioned the exercise of power under s 65(1)(b).
The Tribunal’s error is material for the following reasons:
(a)In this case cl 500.212(a)(i) required the Tribunal, as a relevant mandatory consideration, to consider the applicant’s circumstances.
(b)Direction 69, a written direction to which s 499 applies, required the Tribunal to consider the applicant’s personal ties to her home country.
(c)Therefore, the Tribunal’s error, in not logically and rationally considering the applicant’s accepted evidence as to her personal ties, may have affected it in reaching the required state of satisfaction as required by s 65(1)(a) of the Act.
For the above reasons Ground 1 gives rise to jurisdictional error.
Ground 2 – illogical or irrational reasoning in relation to paragraph 12(c) of the Direction
The applicant contended that paragraph 12(c) of Direction 69, required a comparison of an applicant’s expected remuneration in her home country and Australia given the Tribunal reasons at [29] that:
the applicant has been paid AUD$400–$600 per week in Australia and… she expects that, with the Diploma of Hospitality Management, she could earn AUD$600–$1000 per month in the Philippines. The Tribunal considers the applicant has a strong financial incentive to remain in Australia for the higher paid employment opportunities available to her.
The applicant submitted that the Tribunal’s finding at [29], when considering paragraph 12(c) of Direction 69, that the applicant has a strong financial incentive to remain in Australia for the higher paid employment opportunities is illogical, because the Tribunal when comparing the amount the applicant could expect to receive in her home country compared to Australia, failed to take account of the differences in the cost of living. The applicant says that the Tribunal failed to consider the real value of the course to the applicant’s future and accordingly the Tribunal has misapplied paragraph 12(c) of Direction 69 and failed to consider a relevant matter.
The Minister submitted, as follows, which reasoning I accept:
(a)Paragraph 12(c) of Direction 69, relates to the value of the applicant's course to her future; by reference to the remuneration she could expect to receive in her home country, using her qualifications. Direction 69 did not require the Tribunal to consider cost of living and general economic circumstances in the applicant's home country.
(b)The applicant put on oral evidence and written submissions regarding the amount she estimated she would be able to make working in the Philippines and at no time made submissions about the comparative cost of living in Australia, compared to the Philippines. The applicant gave evidence that she was able to earn between $400 - $600 a week while working as a student, limited to 20 hours per week, and expected to earn the equivalent of $600 - $1000 a month in the Philippines.
(c)The Tribunal at [25] to [27] of its reasons, dealt with the value of the proposed course to the applicant’s future, and those paragraphs engaged with the language of 12(c) of Direction 69, to assess whether the applicant's course was of value to her future. There is no challenge to the Tribunal’s finding at [27] of the reasons that the proposed course is of limited value.
(d)Therefore, the applicant's assertion that the Tribunal's decision was affected by jurisdictional error on the basis of illogical or irrational reasoning and findings; a failure to consider a relevant consideration; and/or misapplying paragraph 12(c) of Direction 69 cannot succeed.
Ground 2 does not disclose jurisdictional error.
Ground 3
The applicant submitted that the Tribunal failed to comply with s 360 of the Act in relation to findings made by the Tribunal, concerning the applicant’s financial incentive to remain in Australia due to higher paid employment opportunities. The applicant submits that issue was not obvious and the Tribunal, to accord the applicant procedural fairness, was required to squarely raise that in light of the applicant’s evidence as to her past earnings, the Tribunal had a concern that the applicant’s employment history might be indicative of the applicant having a significant financial incentive to stay in Australia.
On the issue of procedural fairness, the applicant relied on the decision of Kaur v Minister for Immigration and Border Protection [2015] FCA 1 at [57]; where Robertson J said:
As to the first applicant’s submission that the issues were not apparent, Alphaone and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J stand for the propositions that “procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power”, the decision-maker “must also advise of any adverse conclusion which would not obviously be open on the known material” and “a decision-maker is not otherwise required to expose his or her thought processes or provisional views”.
The applicant further relied on the decision of Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 485, where Button J at [27] and [33] said:
[27] Of course, issues may not just emerge after a hearing, but may also emerge during the course of a Tribunal hearing. In SZHKA, Gray J said as follows at [7] (emphasis added, Gyles J generally agreeing):
First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL [v Minister for Immigration and Multicultural and Indigenous Affairs (2006)] 228 CLR 152 at [38]–[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.
…
[33] However, it is also clear that issues may arise below the level of the “headline” items specifically mentioned in the governing legislative provisions and regulations. For example, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) observed, at [39], that if issues are characterised at too high a level of generality, virtually every aspect of an applicant’s claim would already be “in issue”. Their Honours put the point this way:
If the issues on the review of the delegate’s decision by the Tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?”, rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self‑evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant’s claim would be in issue in the Tribunal’s review of the delegate’s decision. But if the issues are to be identified more particularly, other questions arise.
In my opinion, for the following reasons as submitted by the Minister, I find there was no denial of procedural fairness:
(a)The Tribunal is obliged to invite an applicant to appear at the hearing. The hearing to which an applicant is invited, under s 360 of the Act, must be "real and meaningful", in the sense that it must provide the applicant with a real chance to present their case: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [61] and Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [37] in relation to the analogous s 425 of the Act. This may give rise to an obligation on the part of the Tribunal to bring to the attention of an applicant any issue arising in the review that was not obvious in the circumstances: SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 at [32]–[43].
(b)On 20 August 2020, the Tribunal informed the applicant in the hearing invitation letter, that the Tribunal may assess whether she is a genuine applicant for entry and stay as a student on the basis of Direction 69. A copy of Direction 69 was attached to the hearing invitation (CB 69). By informing the applicant that the Tribunal may have regard to Direction 69, the applicant was put on notice that the factors in Direction 69, including paragraphs 12 and 9(c) were issues arising in relation to the decision under review (CB 66 - 67).
(c)Furthermore, the applicant gave evidence in relation to her remuneration prospects in the Philippines both in the form of oral evidence (CB 149 at [26] of the reasons) and in her written submissions filed with the Tribunal on 28 August 2020, which contained information in relation to the expected income she would receive (CB 119).
(d)The Tribunal noted in its questioning which parts of Direction 69 its questions related to, specifically stating 'this is relevant to clause 9C of the Direction' (at Transcript, p 6, line 42) and 'this is in relation to clause 12 C' (at Transcript p 9, line 24).
(e)The applicant was on notice of the relevant issues by virtue of being provided with Direction 69 and as a result of the Tribunal's questions, and had the opportunity to explain and expand on these issues. The Tribunal is under no duty to provide a 'running commentary' upon what it thinks about evidence that is given: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 8 HCA 63; (2006) 228 CLR 152 at [48].
Ground 3 does not disclose jurisdictional error.
Ground 4
The applicant submitted that the Tribunal misunderstood and misapplied paragraph 9(c) of Direction 69 by asking the wrong question or identifying the wrong issue.
Paragraph 9(c) of Direction 69 required the Tribunal to 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.
In my opinion, for the following reasons identified by the Minister, the Tribunal did not misunderstand or misapply paragraph 9(c) of Direction 69:
(a)The Tribunal did consider whether the applicant's economic circumstances presented as a significant incentive not to return to the Philippines.
(b)At [29] and [30] of the Tribunal decision, the Tribunal considered that the applicant had a strong financial incentive to remain in Australia, noting the difference in income that the applicant would be able to achieve in Australia compared to the Philippines and that the applicant's evidence regarding her economic ties to the Philippines did not present as a significant incentive for her to return to the Philippines. Thus, the Tribunal clearly considered the matters that presented as a significant incentive for the applicant not to return to her home country.
Ground 4 does not disclose jurisdictional error.
CONCLUSION
I am satisfied, given the jurisdictional error disclosed by Ground 1, that it is appropriate to quash the decision of the Tribunal dated 26 February 2021 and issue a writ of mandamus directed to the Administrative Review Tribunal (the successor body to the Administrative Appeals Tribunal) requiring it to determine the applicants’ application for review according to law.
COSTS
I will hear the parties on costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur - Bains. Associate:
Dated: 25 October 2024
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