Sultana v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

FEDERAL CIRCUIT COURT OF AUSTRALIA

SULTANA & ANOR v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

[2020] FCCA 2000

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal considered all claims expressly made by the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 65, 474, 476, 478, 479

Migration Regulations 1994 (Cth), reg.2.01 cl 500.212, cl 1222, reg.2.03

cl 500.2, cl 500.212(a), cl 572.223

Ministerial Direction No. 69

Ministerial Direction No. 53

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Associated Provincial Picture House Limited v Wednesbury Corporation [1949]

1 KB 223

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

First Applicant:

SAYEDA KANIZ SULTANA

Second Applicant:

SHABIR AHAMED

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1610 of 2018

Judgment of:

Judge Emmett

Hearing date:

24 June 2020

Date of Last Submission:

24 June 2020

Delivered at:

Sydney

Delivered on:

27 July 2020

REPRESENTATION

Solicitors for the Applicants:

Mr Mani Nair

Counsel for the Respondents:

Ms Katherine Hooper

Solicitors for the Respondents:

Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 1610 of 2018

SAYEDA KANIZ SULTANA

First Applicant

SHABIR AHAMED

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal, dated 11 May 2018 (“the Tribunal”). The Tribunal’s decision affirmed a decision of a delegate of the first respondent (“the Delegate”) refusing to grant the applicants Student (Temporary) (Class TU) Visas on the basis that that the Tribunal was not satisfied that the first named applicant is a genuine applicant for entry and stay as a student because it was not satisfied that the applicant intends genuinely to stay in Australia temporarily.
The first-named applicant is the Primary Applicant (“Primary Applicant”) who applied for the Student Visa. The second-named applicant is her husband (“Secondary Applicant”) and his claims are dependent on those of the Primary Applicant.
It was necessary for the Primary Applicant to meet clause 500.212 reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”). Relevantly, that clause is as follows:
“The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter.”
The Primary Applicant arrived in Australia on 6 May 2011 holding a subclass 572 Student Visa valid to 8 June 2011.
The Primary Applicant was subsequently granted a further subclass 572 Student Visa. That visa expired on 11 September 2016.
Since her arrival in Australia, the Primary Applicant has departed Australia once for a period of two months in mid-2015. The Secondary Applicant arrived in Australia on 11 December 2009 and has not departed Australia since that date.
On 5 September 2016, the Primary Applicant lodged a further application for a Student Visa.
On 25 January 2017, the applicants’ visa applications were refused by the Delegate.
On 15 February 2017, the applicants lodged with the Tribunal an application for review of the Delegate’s decision. On 23 March 2018, the applicants attended a hearing before the Tribunal.
The invitation to the hearing before the Tribunal, dated 27 February 2018, identified the relevant issue as whether the Primary Applicant is a genuine applicant for entry and stay as a student. The letter stated that relevant to that requirement is Direction No. 69 and included a copy of Direction No 69. The letter also invited the Primary Applicant to provide a written statement addressing the issue of whether she is a genuine applicant for entry and stay as a student by reference to Direction No 69.
On 21 March 2018, the applicants provided written submissions and other documents to the Tribunal in support of the visa application.
Counsel for the first respondent in submissions, dated 12 June 2020, accurately summarised the Tribunal’s decision as follows:
“[11] The Tribunal referred in its reasons to the requirements in Ministerial Direction No 69, including summarising them at CB 181[12]. It had regard to the applicants' evidence and claims (see, for example, CB 182[18]; CB 183[24], [26]; CB 184[31]). Ultimately, the Tribunal placed weight on the applicants' extensive periods of residence in Australia and ties to this country (eg, CB 182[16], [19]), the applicants' study history and the qualifications they had each achieved (CB 183 [21 ]-[24 ]), and the absence of any satisfactory evidence that the applicants intended to depart Australia after four weeks, when the applicant would finish her course: CB 183[24]-[25]; CB 184[28]-[30].
[12] The Tribunal found that it was not satisfied on the evidence, considered individually and cumulatively, that the applicant intended genuinely to stay in Australia temporarily, and she therefore did not meet cl 500.212(a): CB 184[31].”
The applicants were represented before this Court by their solicitor, Mr. Mani Nair.
At the commencement of the hearing, the applicants were granted leave to rely on a Further Amended Application and the Grounds were as follows:
“Ground 1
The Tribunal committed jurisdictional error by taking into account irrelevant considerations.
Particulars
In that:
a.At (20) the Tribunal states:
" ......... , and notwithstanding that she performed [well] will in her courses, the Tribunal is not convinced that the applicants genuinely intend to depart Australia shortly after the applicant's current course. It finishes on 8 June 2018."
b.And at (24):
The applicant's course finishes in mid-2018 and it is reasonable to think that some steps may have been taken to make actual plans by now and the applicants would also have provided the Tribunal with some evidence that they have made to depart Australia”
c.In making the statements at a. and b. above, the Tribunal has been unmindful of the Preamble to Direction Number 69. That second paragraph in that Preamble reads:
"An applicant who is a genuine temporary applicant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time for an intention to utilise lawful means to remain in Australia for an extended period of time or permanently."
d.In stating as at a. and b. above, the Tribunal failed to take into consideration the requirement as stated at c. above and in doing so, the Tribunal deprived the applicants to pursue a course lawfully available to them.
Ground 2
Further and or in the alternative: The Tribunal incorrectly interpreted the Preamble to Direction Number 69 or completely disregarded it, for reasons not unclear from the decision of the Tribunal, and thereby the Tribunal committed jurisdictional error.
Particulars
a. Despite the fact that the Preamble to Direction Number 69 has already been stated under Ground 1 c. above, it is repeated for ease of reference and emphasis. It reads:
"An applicant who is a genuine temporary applicant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time for an intention to utilise lawful means to remain in Australia for an extended period of time or permanently."
b. The quotation under Ground 3 and Particulars a. above itself states the circumstances whereby the applicant, as in the instant case, is able to activate the provisions of the Preamble in situations where:
(i)the applicant “is a genuine temporary applicant”;
(ii)“will have circumstances that support a genuine intention to temporarily enter and remain in Australia,”;
(iii)“…notwithstanding the potential for this intention to change over time for an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.” (Emphasis added.)
(iv)The quotation at b.(iii) above is significant for three (3) reasons, namely:
A.”…notwithstanding the potential for this intention (that is the temporary intention) to change over time);
B. for an intention to utilise lawful means to remain in Australia …
C. for an extended period of time or permanently.”
(v)The Tribunal’s erroneous decision would deprive the applicant to avail herself from utilising “lawful means” available to her in the instant case “to remain in Australia for an extended period of time or permanently.”
Ground 3
The decision of the Tribunal was legally unreasonable for the reasons particularised under Ground 1 and Ground 2.
Particulars:
The applicant repeats the Particulars for Ground 1 and Ground 2.”
The legislative framework and the relevant principles are accurately set out in the submission of counsel for the first respondent as follows:
“14. Regulation 2.01(1) of the Regulations provides that the prescribed classes of visas include the classes set out in Schedule 1 to the Regulations. Clause 1222 of Schedule 1 prescribes certain subclasses of visa and includes Subclass 500 (Student).
15. The criteria for the prescribed classes of visa are located in Schedule 2 to the Regulations: reg 2.03.
16. The criteria for the Subclass 500 visa include both primary and secondary criteria. A primary criterion for the grant of the visa is cl 500.212(a). It is a time of decision criterion, as indicated by cl 500.2. Relevantly, the Regulations provide:
500.2--Primary criteria
Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
…
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) …
17. Ministerial Direction No 69 provides guidance to decision makers on the factors that should be considered in weighing the four matters identified by Roman numerals above: Preamble to Direction No 69: CB 105.9.
18. In considering whether the applicant satisfies cl 500.212(a) of Schedule 2 of the Regulations, the Tribunal must have regard to Direction No 69, made under s 499 of the Act: s 499(2A); Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [19] (per French CJ, Kiefel, Bell and Keane JJ).
19. In Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, the Full Court (Derrington, Thawley and Logan JJ) considered the nature and extent of the Tribunal’s obligation to consider all factors in what was then Direction No 53. Their Honours rejected the appellant’s appeal, finding no failure by the Tribunal to comply with the Direction. Justices Derrington and Thawley delivered joint reasons for judgment. At [29], their Honours stated:
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] HCA 34; (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] HCA 3; (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).
20. At [83], their Honours held that the Direction, ‘where it provides that the decision-maker “must have regard to” the factors mentioned, the phrase – read in context – means that the decision-maker should turn his or her attention to each factor during the decision-making process and consider whether and how it should be brought to bear in reaching the decision.’ At [96]-[97], their Honours continued:
[96] Direction 53 requires that, in reaching the state of satisfaction in cl 572.223(1)(a), the decision maker “have regard to” the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial.
[97] That is not to deny that a failure to make a finding might constitute or evidence jurisdictional error in particular circumstances. The visa applicant would need to establish that: (a) it was necessary to make the finding in order to have exercised the jurisdiction or exercised it in the manner contemplated by the statutory scheme; and (b) the failure to make the finding was material in the sense of depriving the applicant of the possibility of a successful outcome: SZMTA.
21. Justice Logan agreed with Derrington and Thawley JJ, and added additional observations. In particular, the first respondent refers to his Honour’s reasons at [4]-[7].”
At the outset of the hearing, the applicants’ solicitor, Mr Nair, sought leave to join a child of the applicants to this proceeding. That leave was opposed by the first respondent on the basis that the child was not born at the time of either the Delegate's decision or the Tribunal’s decision. Accordingly, pursuant to s. 478 and s. 479 of the Act the child had no standing to be joined to the proceeding. The applicants’ application was refused on that basis.
As best as I understand the Further Amended Application, the applicants’ complaints take issue with various findings of the Tribunal by asserting that the Tribunal erred by taking into account irrelevant considerations; incorrectly applied or disregarded the Preamble to Direction No. 69; and made a legally unreasonable decision.
In his oral submissions, Mr Nair referred in particular to paragraphs 18-19 of the Tribunal’s decision which are as follows:
“18. The Tribunal has had regard to all relevant facts and matters, including documentary evidence provided by the applicant with her application, additional documents provided to the Tribunal and the oral evidence given at the hearing.
19. There are some matters of significant concern to the Tribunal. Firstly, that the applicants, referencing the time they have lived in Australia to the number of times they have returned to their home country, do not satisfy the Tribunal that they have strong ties to their home country. The applicant has been onshore for seven years and has departed once. The secondary applicant has been onshore for nine years and has not departed at all. During that time he has held student or related bridging visas. The Tribunal has formed the view that the applicants’ ties to Australia, where they have now lived for seven and nine years respectively, are probably stronger than those to their home country.”
Mr Nair in his oral submissions submitted that just because the Primary Applicant was onshore for seven years and departed only once, the Tribunal formed the view that her ties to Australia were stronger than to Bangladesh and that the Tribunal did not take “a balanced view”, being the language used in Direction No. 69.
Mr Nair submitted that the Tribunal did not take into consideration that the applicant intended to open a childcare centre in Bangladesh. Mr Nair submitted that the applicants provided sufficient information to the Tribunal for it to be so satisfied. Mr Nair also submitted that in having regard to the fact that the applicants did not have evidence of imminent departure, the Tribunal did not take into consideration that the applicants’ timing of departure could change, given that at the time of decision the applicant was still enrolled in a course due to finish on 8 June 2018.
With regard to the allegation in Ground One that the Tribunal took into account irrelevant considerations, I asked Mr Nair what were the irrelevant considerations that the Tribunal had taken into account. I asked that question several times during the hearing and Mr Nair was unable to provide a satisfactory answer. The response Mr Nair did give referred to the Tribunal’s findings about the concerns it had in relation to the Primary Applicant's ties to Australia over Bangladesh and that it did not take a “balanced view” as it was required to do.
Mr Nair’s complaint that the Tribunal’s decision was not balanced was supported only by a submission that the Tribunal was required by Direction No. 69 to take to “take a reasonable and balanced approach".
A fair reading of the Tribunal decision record makes clear that the Tribunal did precisely that. The Tribunal had regard to the Primary Applicant’s satisfactory results in her course and her continued study. However, the Tribunal found, notwithstanding those satisfactory results, that since the sponsor nomination for her husband’s 457 Visa was refused, the Primary Applicant had made the Student Visa application in 2016 so that she and her husband could maintain residence in Australia.
In essence, the applicants’ complaint is that the Tribunal failed to accept all the applicants’ claims. However, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

Direction No. 69 makes clear that in considering the applicant’s potential circumstances in Australia, decision-makers should have regard to the applicants’ ties with Australia and the applicants’ immigration history.
As the Tribunal stated in paragraph 18, it had regard to all relevant facts and matters, including documentary evidence provided by the applicants, additional documents and oral evidence. The Tribunal also referred specifically to Direction No. 69, providing the applicants with a copy of Direction 69 and inviting submissions. The Tribunal invited the applicants to comment particularly on whether the Primary Applicant’s application is a genuine application of entry and stay as a student, with reference to Direction No. 69.
On the evidence and material before it, it was open to the Tribunal to find that the applicants’ ties to Australia were “probably stronger than those to their home country”, having regard to the facts that the Primary Applicant had returned home once in seven years and that the Secondary Applicant had been onshore for nine years and had not departed at all.
The Tribunal also gave consideration to the applicants’ claim to be intending to return to Bangladesh to start a childcare business and accepted that they had the relevant qualifications and finances to do so. However, the Tribunal found that the applicants had not provided any evidence of any concrete steps taken towards starting the business. The Tribunal found that there was no evidence before it of any steps taken by the applicants to finalise their affairs in Australia. The Tribunal found that the applicants’ response as to when their residential lease may finish was “somewhat vague".
The Tribunal noted that it was required to be satisfied that the Primary Applicant is a genuine temporary entrant and that if she is onshore temporarily, it was reasonable for the Primary Applicant to have provided some reliable evidence in accordance with an intention to depart after the completion of the Primary Applicant’s studies in June 2018. The Tribunal noted that the Primary Applicant has made no claim and provided no evidence that she intended to study beyond that date or apply for any other visa. The Tribunal noted that it had asked the applicants if they had booked airline tickets as it was less than three months before the Primary Applicant’s course was finishing. The Tribunal noted the Primary Applicant’s response that she could do it any time and it was not important “now”. The Tribunal found that such evidence would have indicated that the applicants had genuine plans to depart. The Tribunal gave adverse weight to that response.
In the circumstances and on the evidence before it, it was open to the Tribunal to find that if the applicants were genuinely intending to return to Bangladesh shortly after the Primary Applicant’s course finished, they had provided little or no reliable evidence to satisfy the Tribunal that they had made plans to depart Australia within the next three months or so. The Tribunal specifically stated in its decision record that it had regard to the evidence before it against the relevant matters in Direction No. 69, and found that the Primary Applicant would have time to finish her course before she would be required to depart if she chose to do so.
The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. The Tribunal’s findings were not tainted by any failure to afford procedural fairness and were logically probative of the relevant issues before it.
In relation to Ground 3 that the decision of the Tribunal was legally unreasonable, no further submissions were made. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [28] per French CJ), or where a decision has been made that lacks an “evident and intelligible justification” (see Li at [76]; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Li at [30], [113]).
There is nothing to suggest that the Tribunal did not bring a “balanced view” to its deliberations in considering whether the Primary Applicant met the relevant criteria. The Tribunal findings provide a proper and rational context for its conclusion. The findings were reached on a logical and probative basis; were not unreasonable; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
For these reasons, the allegation of unreasonableness cannot be maintained.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence and noted the applicants’ responses.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the proposition making of its decision, including the conduct of its review.
In the circumstances, none of the applicants’ complaints are made out.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s. 474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:Dina Lander
Date: 27 July 2020

[2020] FCCA 2000

27 July 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction