Syed v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1403
•18 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Syed v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1403
File number(s): SYG 2547 of 2020 Judgment of: JUDGE DOUST Date of judgment: 18 December 2024 Catchwords: MIGRATION — judicial review — student visa —Ministerial Direction No. 69 — whether applicant was a genuine temporary entrant — unfairness or unreasonableness not established — jurisdictional error not established — application dismissed Legislation: MigrationAct 1958 (Cth) ss 359, 476, 477
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576
CRU18 v Minister for Home Affairs [2020] FCAFC 129; 277 FCR 493
Heir & Ors v Minister for Immigration & Anor [2020] FCCA 1598
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167
Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of last submissions: 15 November 2024 Date of hearing: 15 November 2024 Place: Sydney The Applicant: In person Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 2547 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HANNAN MOHIUDDIN AHMED SYED
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
18 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Application lodged and filed on 10 November 2020 be 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 DOUST:
BACKGROUND TO APPLICATION TO THE COURT
The applicant commenced the present application on 10 November 2020 seeking an order that the first respondent, the (then) Minister for Immigration, Citizenship, Migrant Services and the Multicultural Affairs, now Minister for Immigration and Multicultural Affairs (Minister) and the second respondent, the (then) Administrative Appeals Tribunal, now Administrative Review Tribunal (Tribunal) show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (Act).
The applicant filed an affidavit in support of the application, annexing a copy of the decision of the Tribunal the subject of the Application.
Consistent with the usual approach, the Tribunal filed a submitting appearance, with the Minister to defend the application.
The Application purports to proceed in respect of decisions of:
(a)the Tribunal made on 22 October 2020; and
(b)the Minister’s delegate (delegate) made on 19 February 2019
However, the grounds of the Application are directed only to the decision of the Tribunal, and the applicant’s submissions at the hearing were also directed to that decision.
To the extent the application invokes this Court’s jurisdiction pursuant to s 476 of the Act in respect of the Tribunal decision it has been made within the time specified in s 477 (1) of the Act.
The Application is well outside the 35-day period specified in s 477 of the Act to the extent it seeks to challenge the delegate’s decision. In addition, the delegate’s decision to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa), was reviewable by the Tribunal by application under Part 5 of the Act and was a “primary decision” within the meaning of that term in s 476(4) of the Act. As such, this Court has no jurisdiction in respect of it pursuant to s 476(2)(a)) of the Act. In any event, none of the arguments advanced by the applicant concerned the primary decision.
On 20 January 2021 the first respondent’s lawyers filed with the court a Court Book containing relevant documents held by the Department of Home Affairs concerning the applicant’s visa application, including a copy of the Tribunal decision annexed to the application.
On 20 March 2024 a Registrar of this Court ordered the matter be listed for final hearing on a date to be advised. The Registrar directed the applicant, on or before 5 April 2024, to file and serve any amended application with proper particulars of the grounds of the application. The Registrar also directed the applicant to file and serve along with any additional evidence on which the applicant sought to rely, along with written submissions, with the first respondent to file any evidence and submissions by 19 April 2024.
On 16 July 2024, a Registrar of this Court made orders extending the times for compliance with those orders to 25 July 2024 and 1 August 2024 respectively.
On 1 August 2024 the first respondent filed written submissions (albeit the applicant had not filed any amended application, any additional evidence or submissions).
On 13 November 2024, the applicant sent an Outline of Submissions to the Court. That submission was responsive to parts of the first respondent’s Outline of Submissions.
The Court received, without objection, both the Affidavit of the applicant dated 9 November 2020, and the Court Book (CB).
The first respondent had no objection to me receiving and having regard to the Applicant’s Outline of Submissions.
THE APPLICANT’S VISA APPLICATION
The applicant, born 10 May 1982, is a citizen of India. He is married with two sons, who were born in 2015 and 2018 respectively. He initially entered Australia in 2007 on a student visa.
The applicant had attained the following qualifications at the time of his visa application on 22 November 2018:
(a)a Diploma of Information Technology (Software Development) at the International Institute of Business and Information Technology in Sydney between November 2007 and September 2009;
(b)Advanced Diploma of Network Security, between February 2013 and April 2014;
(c)a Bachelor of Science, Business or Technology (Business Management) at Kings Own Institute in Sydney between 2015 and 2016;
(d)a Master in Accounting at Kings Own Institute in Sydney between 2017 and 2018.
In the visa application the applicant stated that he wished to remain in Australia to study for a Diploma of Enterprise Resource Planning (ERP) from the Australian College of Business Intelligence.
THE DECISION OF THE MINISTER’S DELEGATE
On 19 February 2019 the Minister’s delegate wrote to the applicant, via his nominated migration agent advising the applicant that the application for the visa had been refused.
The Decision Record attached with the letter recorded the delegate’s view that clause 500.212 in Schedule 2 of the Migration Regulations1994 (Cth) (Regulations) was not satisfied. That clause, known as “the genuine temporary entrant criterion”, provides 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; 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.
The delegate referred to Ministerial Direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (Direction) which sets out the factors that must be taken into account when assessing the genuine temporary entrant criterion for student visa applications. The delegate noted that the direction is made in accordance with section 499 of the Act. The delegate set out a summary of the factors to be considered arising from the Direction, which included, inter alia:
(a)the applicant’s circumstances in their home country;
(b)the applicant’s potential circumstances in Australia;
(c)the value of the course to the applicant’s future;
(d)the applicant’s immigration history.
The delegate then went on to consider those factors in the applicant’s case.
The delegate noted, in respect of the applicant’s circumstances in India, that the Applicant’s spouse, children, parent, brother and two sisters were residing in India and that he had a sister living in the United Arab Emirates (UAE), a brother in Oman and a brother in Kuwait. The delegate also noted the absence of evidence of financial assets in India. The delegate did not consider the applicant’s family ties would serve as an incentive for the applicant to return to India in circumstances where he had no financial or employment ties there.
The delegate noted the applicant’s part-time employment as a security guard and observed that if he undertook the relevant study the applicant would have remained in Australia for in excess of twelve years undertaking study. The regression in the level of study from Masters to a Diploma course raised the delegate’s concern that the applicant’s primary motivation was to secure ongoing employment and residence in Australia, rather than pursue academic progression.
The delegate observed that the applicant had failed to articulate why his existing qualifications at the Masters level were insufficient to allow him to achieve his career goal. The delegate noted the applicant’s claim that the Diploma course he sought to undertake would make him eligible to apply for higher salaried positions like “Finance Manager” but noted the applicant had no job offers, and observed there was no evidence the ERP course was required to further his career in India. The delegate queried the applicant’s knowledge of the job market in India given the amount of time he had spent in Australia.
The delegate stated that the period the applicant’s spent in Australia called into question his intention to return to his home country to apply his knowledge and skills there. The delegate was not satisfied that the applicant has demonstrated that the proposed qualification would be of a greater benefit to her than the work experience and qualifications he already held. As such, the delegate had significant concerns the applicant had applied for a further student visa for the primary purpose of securing an extension of his stay in Australia rather than due to a genuine interest in the subject matter of his studies and academic progression.
The delegate acknowledged there was no evidence that the applicant has not been compliant with the conditions of his visa in Australia but concluded that the significant period of time the applicant had spent in Australia suggested that his potential circumstances in Australia outweighed any incentive he had to depart. The delegate said he held significant concerns that the Applicant was attempting to utilise a temporary visa to maintain ongoing residence and the remuneration associated with his on-going employment as a security guard.
The delegate concluded that the applicant did not meet the requirements of cl 500.212, and found that the applicant did not meet the criteria for the grant of the visa and refused the application.
THE REVIEW BY THE TRIBUNAL
The applicant lodged his application for review with the Tribunal on 7 March 2019. He nominated a migration agent as his representative in respect of that application.
On 17 April 2020, the Tribunal wrote to the applicant’s migration agent with an invitation to provide information concerning the application.
The invitation was contained in an attached letter which stated that it was a requirement of the student visa sought by the applicant that he be both:
(a)enrolled in a registered course of study; and
(b)a genuine applicant for entry and stay as a student.
The letter advised the applicant that he would need to provide sufficient information to satisfy the Tribunal that he met both of those visa requirements. It invited him to give the Tribunal, in writing, all relevant information about the course of study he was undertaking and his entry and stay in Australia as a student. The invitation directed him to provide specific details about the requested information using the “Request for Student Visa Information” form, to which it provided a link. The invitation also provided the applicant with a copy of the Direction. The invitation requested the applicant to provide the information by 1 May 2020.
The applicant provided a completed Request for Student Visa Information form to the Tribunal dated 1 May 2020.
In it, the applicant stated that he did not consent to the Tribunal deciding the review without holding a hearing.
The applicant responded to a prompt to provide information about his work experience before arriving in Australia with “N/A”.
The applicant stated that he had arrived in Australia on 5 November 2007 and had returned to his home country on a number of occasions since his arrival.
In the section of the form concerning the applicant’s migration history, the applicant responded that he twice previously had applications for student visas refused – in 2011 and 2014, and on each occasion had been successful in his applications for review of those decisions.
The applicant stated that he was presently studying a Diploma of Leadership and Management with Frontier Leadership, which was due to conclude in July 2020. The applicant set out his lengthy educational history in Australia dating back to 2007, which included five courses which he did not complete.
The applicant said that he had undertaken his vocational level, bachelor degree and masters degree study in Australia, and it made more sense to undertake his further study in Australia as well. He said that his Australian qualifications would be highly regarded in Oman, where he intended to work as an accountant after completing his study, having been offered a position with a business there. He attached a letter of offer dated 30 April 2020 from Al-Qinas International Business LLC for a position commencing on 4 October 2020.
The applicant also stated that he had worked as a security guard for more than 5 years in Australia.
On 1 October 2020 the Tribunal wrote to the applicant’s migration agent attaching an invitation to the applicant to attend a telephone hearing on 16 October 2020, advising that on the material before the Tribunal alone it was unable to make a decision that was favourable to the applicant. The letter also requested the applicant to provide further information prior to the hearing date, namely, current evidence of enrolment, and documentation evidencing his past studies.
On 9 October 2020, the applicant’s migration agent made a written submission to the Tribunal in relation to the review. Amongst other things the submission explained that the applicant had initially proposed to start an IT services business in India with his brother, but had realised with the level of competition in that field in India such a business would not be profitable. The applicant then determined to become an accountant.
The submission acknowledged that the applicant had already completed the course of study which had been the purpose of his student visa application (the Frontline Leadership course), but had subsequently enrolled in a Diploma of Community Services course at the Australian Institute of Business and Technology, which studies were due to commence shortly after the Tribunal’s scheduled hearing, and conclude in October 2021. The submission stated that the applicant enrolled in those studies because community support work was likely to be in high demand in India in the post-COVID period, and the additional qualification was desirable in the event his employment in Oman fell through either due to an adverse Tribunal decision or as a consequence of the COVID pandemic.
The submission also stated that the applicant had a wife, 2 children and 3 siblings in India, and had inherited some AUD$200,000 worth of assets in India when his father passed away, meaning he had strong family and economic ties to India.
The Tribunal hearing proceeded as a virtual hearing on 16 October 2020.
On 22 October 2020 the Tribunal wrote to the applicant’s migration agent enclosing a copy of a letter to the applicant advising of the Tribunal’s decision affirming the decision under review. That letter enclosed a decision record dated 22 October 2020.
THE TRIBUNAL’S REASONS
The Tribunal did not accept the applicant’s reasons for not studying in India, due to the fact that the applicant had failed to demonstrate having undertaken any significant research into the availability of the course in his home country.
The Tribunal found that the applicant’s family ties to India did not of themselves provide a significant incentive for him to return to India, given his strong employment history in Australia, and his intention to return to Oman. The Tribunal considered that the sheer length of time the applicant spent in Australia was indicative of an intention to remain in Australia on a more permanent basis.
Whilst the Tribunal accepted that individuals may change their course of study and career paths, it did not accept that the current course in which the applicant was enrolled would assist his further career development given the high level qualifications he had already obtained in business and accounting.
The Tribunal concluded that the applicant was enrolling in his current course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.
The Tribunal was not persuaded that the applicant’s employment prospects would be enhanced by the course of study he was undertaking, given the course was at a lower level than his existing qualifications and was not relevant to the offer of employment he had in Oman.
The Tribunal stated that it did not draw any adverse inference from the previous refusals to grant visas to the applicant (which he had successfully reviewed). However, it expressed concern that the applicant had been in Australia since 2007, undertaking numerous courses which he did not complete and which were not consistent with one another from a course content perspective or an academic level perspective and now sought to undertake a course which he had not objectively demonstrated would add value to his future. The Tribunal did not consider that behaviour consistent with that of a genuine student who intended to remain in Australia temporarily.
The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and concluded that he did not meet the requirement in cl 500.212(a), and accordingly, was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212.
The Tribunal found that the criteria for the grant of the student visa were not met and affirmed the decision under review.
GROUNDS OF APPLICATION TO THE COURT
The Court may only grant a remedy to the applicant if the Tribunal’s decision is affected by an error that is jurisdictional in character.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 (LPDT); Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot (with whom Beech-Jones J agreed in separate reasons) described jurisdictional error as follows (with footnotes omitted):
2. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all” and is in that sense "void".
3.Because an express or implied condition of a statutory conferral of decision‑making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
In some cases, the error will be jurisdictional whether or not that error has been shown to have had an effect on the final decision, for example, where apprehended or actual bias are shown: LPDT at [6].
However, in most instances an error will only be jurisdictional where the error was material to the decision made, in the sense that there is a realistic possibility, that is, one that is neither fanciful nor improbable, that the decision could have been different but for the error: LPDT at [7], [14].
The grounds in the Application are dealt with in turn below.
GROUND 1
The decision of the Administrative Appeals Tribunal is affected by jurisdictional error, as it failed to comply with s359AA of the Migration Act 1958 (Cth) (Act).
Particulars
a. As is evident from paragraph 24 of the Tribunal 's decision record the Tribunal informed me that my study history may be the reason or part of the reason for affirming the delegate's decision and invited me to comment or respond. However, the Tribunal did not advise me that I could seek additional time to comment on or respond to the information as required by s359AA(l)(b)(iii) of the Act. The decision was thus affected by jurisdictional error.
The applicant’s Outline of Submissions did not add anything to how this ground was articulated in the Application.
At the hearing, the applicant’s attention was drawn to the following paragraph of the first respondent’s submission and he was invited to make any submission about it:
The Minister submits that the applicant's study history did not constitute "information" for the purposes of paragraph 359A(1)(a) (and subsection 359AA(1)) as the applicant's study history was given by the applicant to the Tribunal for the purpose of the application for review: see paragraph 359A(4)(b). The Minister notes that information excluded from the scope of the obligation in section 359A is also excluded from the operation of section 359AA: Heir & Ors v Minister for Immigration & Anor [2020] FCCA 1598 at [42] citing SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [90].
The applicant did not say anything in response to that submission.
The Tribunal did not err in the manner described in Ground 1.
At paragraph 24 of its decision, the Tribunal said:
The Tribunal places significant weight on the fact that the applicant has been in Australia since 2007 and has undertaken a large volume of courses, many of which he didn’t complete and which are not consistent with one another from a course content perspective or academic level perspective, as being behaviour that is inconsistent with that of a genuine student. The Tribunal informed the applicant that his study history may be the reason or part of the reason for affirming the delegate’s decision and invited the applicant to comment or respond.
Earlier in its decision, at paragraph 17, the Tribunal set out a list of the courses in which the applicant had been enrolled since arriving in Australia, noting which of those he had completed, and which he had not completed.
All but one of the courses (and the information whether the applicant had completed or not completed the course) had been listed by the applicant on the Request for Student Visa Information form he had returned to the Tribunal. The only course that did not appear on that form was the Diploma of Community Services course referred to in the applicant’s submission to the Tribunal dated 9 October 2020, a Certificate of Enrolment in which was annexed to that submission.
The applicant’s “study history” referred to in [24] of the Tribunal’s reasons was, therefore, information that had been provided by the Applicant to the Tribunal for the purposes of the review. It was information that subsection 359A(4)(b) excludes from the obligation in that section to give the applicant the information and invite comment upon it. As the Tribunal had no duty under s 359A in respect of the information, no occasion arose for the Tribunal to employ the steps in s 359AA, or to abide by the requirements of that section: see, in respect of the analogous provisions in ss 424A and 424AA, SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415, per Moore J at [2]; per Tracey and Foster JJ at [86] – [91].
No jurisdictional error is demonstrated by the matters raised by Ground 1.
GROUND 2
Ground 2 is as follows:
The Administrative Appeals Tribunal failed to properly consider whether I (the applicant) genuinely intend to remain in Australia temporarily as a student.
Particulars
As is evident from paragraph 18 of the Tribunal 's decision and under heading "Personal ties to home country', the Tribunal only considered my wife infant son, parents and siblings as my family ties in my home country. However, I have 2 children in my home country. This information was provided to the Tribunal in response to Q21 of Section 8 on page number 7 of Form M17 submitted to the Tribunal on 01 /05/2020. The birth certificate of the second child was submitted to the Tribunal on 01 /05/2020 as part of the document titled Family_ties_in_India.pdf. The same information was also provided to the Tribunal in paragraph 13 of the written submissions made by my representative and submitted to the Tribunal on 09/10/2020. The failure to have regard to this fact led to the Tribunal failing to properly consider whether I am a genuine temporary entrant in Australia.
The applicant contended that the Tribunal had erred by failing, when considering his ties to India, that he had not just one son, but two sons. His two sons had been disclosed in his answer to Question 21 of the Request for Student Visa Information the applicant submitted to the Tribunal.
The Tribunal described the applicant’s personal ties to India at [18] of its reasons as follows:
Personal ties to home country
•As to the applicant’s personal ties to India, the applicant’s wife, infant son, parents and siblings live in India, Kuwait and the UAW respectively. He maintains contact with them via telephone.
•As to the applicant’s community ties to India, he claimed to have friends in India.
•As to the applicant’s financial ties to India, he claimed to own a 2 bedroom unit, gold and a motorbike.
•The applicant has returned home to visit his family ten times since arriving onshore in 2007. He has also travelled to Singapore, Saudi Arabia and Malaysia several times.
That description erroneously failed to record the applicant’s second son and also erroneously referred to the applicant’s parents being in India. The applicant had never indicated that his mother remained in India (she had passed away before he came to Australia), and his father had passed away shortly prior to the Tribunal hearing. That fact was disclosed in the submission prepared by the applicant’s representative.
In his oral submissions at the hearing the applicant said that being a father of two sons makes a difference. From a parenting perspective, this is undoubtedly true. The existence of another child of the applicant in India was a matter that would ordinarily be thought to strengthen the applicant’s argument as to the extent of his family ties in India.
The Tribunal’s factual errors about his family members, although regrettable, do not constitute jurisdictional error.
In CRU18 v Minister for Home Affairs [2020] FCAFC 129; 277 FCR 493, the Court said (at [29] – [31]):
An erroneous finding of fact will typically not suffice, in and of itself, to stigmatise a discretionary administrative decision as the product of jurisdictional error: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167, [9] (Heerey, Nicholson and Selway JJ). In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (Black CJ, French and Selway JJ), this court observed (at 16[53]) that:
…mere factual error by [a decision maker] will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision…
In Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542, McHugh J (sitting at first instance) observed (at 548-549 [35]-[36]):
A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.
A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ; hereafter, “SZMDS”)), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29] – [31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [2] – [4] and 445-446 [45] – [50] (Bell, Gageler and Keane JJ).
The errors made by the Tribunal do not concern any jurisdictional fact. The existence, or location of any particular member of the applicant’s family, were not facts upon which either the jurisdiction of the Tribunal, or the grant of the visa, was conditioned. The matter before the Tribunal was an application for review of the decision to refuse to grant the applicant a student visa. That review required consideration of the question whether the applicant satisfied the criteria for the grant of the visa, including the genuineness criterion in cl 500.212 of the Regulations, namely, whether he was a genuine applicant for entry and stay as a student because he intended genuinely to stay in Australia temporarily. Satisfaction of the genuineness criterion was an essential requirement for the applicant to succeed on the review, and to be entitled to the grant of the visa.
Consideration of the genuineness criterion involved an evaluation of a number of factors, no single one of which was made dispositive by the Regulations. The applicant’s personal circumstances in India were one relevant factor in considering satisfaction of the criterion. The applicant’s personal ties in India were a subset of those personal circumstances, with his family ties a further subset of those personal ties.
The errors the Tribunal made in characterising the applicant’s family in India were not, to adopt the language of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at 16 [53]), the manifestation of some error of law, whether substantive or procedural. The Tribunal correctly identified the genuineness question it was required to determine, and that it was required to have regard to the Direction in determining that question. It then considered the applicant’s circumstances in his home country, and the extent of his personal ties to his home country, and whether those circumstances would present a significant incentive for the applicant to return to his home country were factors it was required by the Direction to consider. The Tribunal correctly recorded that the applicant had immediate family members (being a wife and a child) and some siblings in India. It also identified that he had other siblings overseas. In fundamentals, the Tribunal correctly understood the applicant’s family ties in India.
In its reasons, the Tribunal had regard to a number of factors in reaching the conclusion (at [29]) that the applicant’s circumstances in his home country (including his family ties there) did not provide a significant incentive for him to return there at the conclusion of his studies, namely:
(1)the applicant’s lengthy history studying in Australia (which by the time of the Tribunal hearing had involved three career fields: information technology, accounting and community services) and had involved undertaking courses that there inconsistent in academic levels ([15] – [17], [24]);
(2)the applicant’s personal circumstances in India, including his reasons for not studying in India, which the Tribunal rejected because the applicant had not demonstrated that he had done any research as to the availability of such courses ([19]);
(3)the applicant’s strong employment history in Australia ([20]);
(4)the absence of evidence of strong economic prospects in India ([21]); and
(5)the sheer length of time the applicant had been onshore, which the Tribunal considered was indicative of his intention to remain in Australia on a more permanent basis ([22]).
The Tribunal had regard to evidence of the applicant’s own conduct at the time the family ties to which he referred subsisted, to reach a conclusion about the incentive those ties provided for him to return to India. That is, the applicant had remained in Australia for many years, and was changing academic trajectory to a third field at a lesser academic level than his previous study at the time of the Tribunal hearing, even whilst his family ties in India had been expanded by the birth of his second son.
The Tribunal went on to consider the applicant’s potential circumstances in Australia (at [30] – [32]), noting the lack of connection between the applicant’s proposed course in Community Support, and his current job offer in Oman (in accountancy), and reached the conclusion that the applicant was enrolling to circumvent the student migration program and remain in Australia. That was a conclusion about the applicant’s conduct in Australia at a time after the birth of his second son.
The Tribunal then considered (at [33] – [36]) the value of the course the applicant proposed to study to his future, noting again the fact that the course he proposed to study was inconsistent with his job offer in Oman. The Tribunal was not satisfied that his course would improve his employment prospects of enhance his earning capacity given his existing qualifications.
At [37], the Tribunal concluded that the applicant’s behaviour was not consistent with that of a genuine student who intended to remain in Australia temporarily.
In reaching its conclusion that the genuineness criterion was not satisfied, the Tribunal gave decisive weight to factors other than the applicant’s family ties in India.
Adopting the framework of LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, the Tribunal’s error as to the number of the applicant’s children was not material in the sense that there was a realistic possibility that had the Tribunal correctly noted the applicant’s second child, its decision could have been different. In the Tribunal’s analysis, greater weight was accorded to the applicant’s demonstrated conduct of seeking to further extend an already lengthy stay in Australia, to carry out study in a further area, in a course the Tribunal was not persuaded enhanced the applicant’s existing career prospects or had relevance to his offer of employment. His conduct in seeking to further extend his stay to undertake study at a lower academic level and in a different field occurred after the birth of his second child. It was conduct that logically negated the proposition that the applicant’s family ties provided an incentive to ensure his return to India, whether the applicant had one child or two in that country.
No jurisdictional error is demonstrated by the matters raised by Ground 2.
GROUND 3
Ground 3 is as follows:
The decision of the Administrative Appeals Tribunal was legally unfair and unreasonable.
a. The particulars of grounds 1 and 2 above show that the Tribunal made an unfair and unreasonable decision.
b. It also seemed to me that the Tribunal was in a rush to finish the hearing and make a decision as the Tribunal did not even introduce what the hearing would be about, why my visa was refused by the Department, how the hearing would be conducted, etc. And, in conducting the hearing in such a way, the Tribunal did not offer me procedural fairness.
So far as the applicant attacks the decision on the ground of unreasonableness by reference to Ground 2, the following passage of Wigney J in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton), at [92] summarises the reasoning which informs the proper approach to such an exercise, emphasizing the limits on this Court in any such review:
The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44] – [45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Li at [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently…
The applicant did not elaborate on Ground 3 orally or in his written submissions.
So far as the Tribunal erred in its description of his family members in India (as identified in Ground 2), that did not render the decision unreasonable, in the sense that it lacked an evident, transparent and intelligible justification (as discussed by Wigney J in Stretton), nor was it one that no rational or logical decision-maker could arrive at on the same evidence (to adopt the language of Crennan and Bell J in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130] – [131]).
The applicant also alleges at (b) of Ground 3 that he was not offered procedural fairness because the Tribunal seemed to be in a rush, and did not introduce what the hearing was about, why his visa application and been refused, or explain how the hearing would be conducted.
The High Court considered the Tribunal’s procedural fairness obligations in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 [29], citing Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 (Alphaone) at 591‑592 as follows:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added)
The High Court went on at [32] as follows:
In Alphaone the Full Court rightly said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (emphasis added)
So far as the applicant relies upon the Tribunal’s failure to put to the applicant the information about his study history (which failure is the gravamen of Ground 1), that did not render the Tribunal decision unfair or unreasonable. The applicant had provided his study history to the Tribunal for the purpose of the review. He could not suggest any of that information caught him by surprise, nor that he was denied an opportunity to make submissions about it. In his written submissions to the Tribunal the applicant addressed the fact that he had changed his aspiration from setting up an Information Technology services business to professional practice as an accountant, indicating he was conscious that his shift of course during his studies was likely to attract the Tribunal’s interest.
The applicant had been given a copy of the delegate’s reasons which explained why his application had been refused (it was attached with the Applicant’s application for review). The Tribunal sent the applicant both a fact sheet entitled “Information for migration review applicants – MR Division”, and one entitled “Information About Hearings” that explained the hearing procedures, which were described on the first page as relatively informal. The written submissions made to the Tribunal by the applicant identified the genuineness criteria and engaged with the question of its satisfaction at some length.
The hearing of the application for review lasted only thirteen minutes (the Migration Hearing Record shows the Tribunal hearing commenced at 1.58 p.m. and concluded at 2.11 p.m). However, there is nothing in the Act requires the Tribunal to sit for any specified period of time. Without more, it may not be concluded, simply from the length of the hearing that the hearing did not afford the applicant a real and meaningful opportunity for the applicant to make such submissions or present such evidence as he wished. The issues on the review were well-defined by both the decision below and by the Direction which guided the Tribunal’s task. The Tribunal had given a copy of the Direction to the applicant. The applicant completed the Request for Student Visa Information form, which annexed documents concerning his studies, his proposed future employment in Oman, and his immigration history, and returned that to the Tribunal. The applicant provided the Tribunal a 6-page submission dated 9 October 2020 which was prepared by his migration agent and which attached updated evidence concerning his completion of the Diploma of Leadership and Management and his enrolment in the Diploma of Community Support course. A reading of that submission reveals that the applicant’s migration agent correctly identified the central issue for the Tribunal, that is, whether the applicant genuinely intended to stay temporarily. The submission addressed in some detail the apparent weaknesses in the applicant’s case, namely, the lengthy period during which he had already been in Australia and his desire to undertake further diploma level study unrelated to his extant career trajectory having attained his Master of Accounting.
The applicant has not identified any evidence that he was unable to give the Tribunal due to its hearing process, any argument that he was unable to advance, or any issue which was determinative to the Tribunal’s reasons which was not open on the material before the Tribunal.
The Applicant has not demonstrated any unfairness or unreasonableness from the manner in which the hearing was conducted, nor that there was any jurisdictional error by the Tribunal in that respect.
CONCLUSION
The Application should be dismissed.
I will hear the parties as to costs.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 18 December 2024
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