Tanada v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1321
•3 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tanada v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1321
File number(s): SYG 2333 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 3 December 2024 Catchwords: MIGRATION – Judicial review of a decision of the Administrative Appeals Tribunal affirming a refusal to grant student visa - Whether Tribunal misconstrued clause 500.212(a) of Sch 2 to the Migration Regulations 1994 – Where applicant wanted to support a family member in Australia for the duration of their, not indefinite, legal proceedings - Where Tribunal found applicant did not satisfy cl 500.212 on the basis of cl 500.212(a) – Error of the kind identified in Eros - Jurisdictional error established Legislation: Migration Regulations 1994 sch 2 cl 500.212 Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection vSZMTA [2019] HCA 3
Plaintiff M64-2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 4 November 2024 Place: Parramatta Solicitor for the Applicant: Mr Jones Counsel for the First Respondent: Mr Reilly Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2333 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRYSTEL JOY TANADA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
3 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the Second Respondent is amended to the ‘Administrative Review Tribunal’.
3.A writ of certiorari issue quashing the decision of the Second Respondent made on 19 February 2020.
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter 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 SKAROS:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 16 December 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister), made on 7 June 2019, to refuse the grant of a Student (Subclass 500) visa (the visa) to the applicant under s 65 of the Migration Act 1958 (the Act).
The basis for the Tribunal’s decision was a finding that the applicant did not satisfy the requirements of cl 500.212 of sch 2 of the Migration Regulations 1994 (the Regulations) that she intends genuinely to stay in Australia temporarily.
BACKGROUND
The applicant is a 30-year-old female citizen of Philippines who arrived in Australia on 25 January 2019 on a visitor visa.
On 8 April 2019, the applicant applied for the visa, which was refused by the delegate on 7 June 2019.
On 19 June 2019, the applicant applied to the Tribunal for review of the delegate’s decision. On 7 May 2020, the Tribunal invited the applicant to provide information, pursuant to s 359(2) of the Act by 21 May 2020, to demonstrate that she met the visa requirements. The applicant completed a ‘Request for Student Visa Information’ form, which attached a number of supporting documents (CB 94-110). In this form, she also consented to the Tribunal deciding the review without a hearing (CB 95).
On 16 December 2020, the Tribunal decided to affirm the decision of the delegate.
THE TRIBUNAL’S DECISION
The Tribunal identified the dispositive issue as being whether the applicant met cl 500.212 of the Regulations. That is, whether the applicant was a genuine applicant for entry and stay as a student because the applicant intended genuinely to stay in Australia temporarily (the GTE Criteria).
The Tribunal set out the legislative criteria they had regard to in their consideration of the applicant’s claims and evidence.
The Tribunal identified that, in determining the relevant issue, it must have regard to the Ministerial Direction No. 69 titled ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ made under s 499 of the Act. This Direction provided that the Tribunal must have regard to (as a guide, not a checklist):
· the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
· the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
· if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
· any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Tribunal stated that it had regard to the Departmental file, the information supplied by the applicant to the Tribunal, including family court orders in relation to the applicant’s sister, and the applicant’s oral evidence at the hearing before it.
Thereafter, the Tribunal summarised the applicant’s circumstances and considered them in relation to the GTE Criteria.
The Tribunal made the following observations:
(a)The Tribunal considered that the applicant’s proposed courses in the fields of commercial cookery and hospitality management, aligned with her current level of education and work experience and would assist her with her proposed goal of becoming a professional chef at a hotel, restaurant or cruise ship (as outlined in her GTE statement and questionnaire responses). The Tribunal was not convinced the applicant had sound reasons for not studying the proposed courses, or similar, in her home country. It found that while she had previously studied a similar course to the Diploma of Hospitality Management, she had no qualifications in cooking.
(b)The Tribunal observed that the applicant’s mother was in Australia. It also noted that her sister and niece resided in Australia permanently. The Tribunal noted that, on the evidence before it, the applicant had some friends and unknown relatives in the Philippines but the frequency with which they contacted one another, the number of people this entailed, and the nature and duration of these relationships were not put before the Tribunal.
(c)The Tribunal considered a supporting statement provided by Ms Nonika Nisha De Jorgensen, the applicant’s English teacher at Evolution Hospitality Institute. In it, Ms De Jorgensen stated that despite the applicant going through a difficult period of her life she had expressed her intentions to return to Philippines to continue her culinary career and reunite with her partner (which the Tribunal indicated was not information mentioned by the applicant to the Tribunal).
The Tribunal considered that the applicant’s economic circumstances did not offer a strong incentive for her to return as she had little to her name in Australia and the Philippines.
(a)The Tribunal noted that the applicant had no concerns about military commitments.
(b)While the Tribunal accepted that the applicant was motivated in her English, cookery, and hospitality management courses, the Tribunal could ‘not ignore the presence of the applicant’s entire immediate family in Australia and indeed the significant personal issues her sister [was] undergoing’.
(c)The Tribunal (at [23] of its reasons) considered that the applicant was strongly incentivised to remain in Australia for purposes other than study, that being to provide support for her sister and niece while they were involved in Family Court proceedings, circumventing the intentions of the migration program. At [28], the Tribunal stated that while the applicant was studying in Australia it was also because of her sister’s situation that she wanted to remain.
(d)The Tribunal considered her immigration history weighed in her favour as there was no evidence that she had not complied with the conditions of the Australian visa, or visas to any other country.
(e)The Tribunal noted that the applicant was previously refused a visitor visa to Australia in 2016, but it was not before the Tribunal which criteria she had not satisfied. Whilst the Tribunal did not make a finding about the previous visa that was refused, it did have concerns regarding the applicant’s reasons for coming to and remaining in Australia.
Ultimately, the Tribunal found that the applicant did not intend genuinely to stay in Australia temporarily, and therefore failed to satisfy cl 500.212(a), and consequently did not consider paragraphs cl 500.212 (b) or (c). Having found that the applicant was not a genuine applicant for entry and stay as a student, as required by cl 500.212(a), the Tribunal affirmed the decision of the delegate.
APPLICATION TO THIS COURT
The application to this Court has one ground of review, which has been considered further below.
On 24 July 2024, Orders were made by a Registrar of this Court providing for the applicant to file and serve any amended application, written submissions, and any additional evidence on or before 31 July 2024. The applicant filed an outline of submissions on 29 July 2024 and a list of authorities on 1 November 2024.
On 14 August 2024, Orders were made by a Registrar of this Court providing for the Minister to file and serve any written submissions and any additional evidence on or before 30 August 2024. The Minister filed written submissions and list of authorities on 30 August 2024.
The matter was heard on 4 November 2024 at the Parramatta Registry of the Court. The applicant was represented by Mr Michael Jones who appeared in person. The Minister was represented by Mr Tim Reilly of Counsel who was granted to leave to appear by Microsoft Teams.
The Minister sought to rely on the Court Book. Accordingly, the Court Book, filed on 17 August 2021, was tendered into evidence and marked Exhibit CB.
GROUND OF REVIEW
The application to this Court contains one ground of review, being that:
The Tribunal misconstrued clause 500.212 of Sch 2 to the Migration Regulations 1994 by misunderstanding or incorrectly applying the term “temporarily”.
Particulars
The Tribunal affirmed the delegate's decision on the sole basis that the Applicant did not satisfy the criterion in cl 500.212(a) because she did not intend genuinely to stay in Australia temporarily. In reaching that conclusion the Tribunal accepted at [28] that she had been studying in Australia and continued to do so, but that she "also" wanted to remain "because of her sister's situation here". At [23] the Tribunal had referred to the Applicant's wish to remain to support her sister (and niece) "while [her sister] is involved in Family Court proceedings". Those proceedings would by their nature have been temporary. The Tribunal did not base its finding on any other reason that the Applicant would have for staying in Australia other than temporarily.
The applicant submitted that the Tribunal’s reasoning demonstrates that the Tribunal took into account the applicant’s intention to support family members in Australia in its finding that she was not a genuine temporary entrant. At [23] (CB 123):
The Tribunal considers that the applicant has strong incentive to remain in Australia for a purpose other than study. That is, to provide her sister and niece with support while she is involved in Family Court proceedings. Taking this into account, the Tribunal considers that the applicant is using the student visa to maintain ongoing residence in Australia to provide that support to her sister and that in doing so, she is circumventing the intentions of the migration program.
Further, at [28]:
[…] Whilst she has been studying here and continues to do so, it is also because of her sister’s situation that she wants to remain here. This is not the purpose of a student visa and it leads the Tribunal to find that the applicant is using the student visa to maintain ongoing residence in Australia to remain with her sister and niece.
The applicant submitted that this reasoning by the Tribunal was a jurisdictional error of the kind identified in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros). This is so because the genuine temporary entrant criteria in cl 500.212 (a) “is concerned and only concerned with the intention as to length of stay”: Eros at [22]. The Tribunal’s conclusion that the applicant was using the student visa program to maintain ongoing residence, circumventing the intentions of the program was irrelevant to whether the applicant satisfied cl. 500.212(a).
It was submitted that the Tribunal’s reasoning in the present matter closely matched those of the Tribunal in Eros. In Eros the Tribunal found that the applicant in that case had an intention to remain in Australia, at least while her daughter was here (which was noted to be a period of two years) and, to that end, proposed to use the student visa program to maintain ongoing residence in Australia. The Tribunal in Eros, as in this case, found the applicant did not satisfy cl 500.212(a). Similarly, in the present matter, the Tribunal was concerned that the applicant, whilst she was continuing to study in Australia, wished to stay to support her sister during the family law matter. It was submitted that this was, inevitably, a temporary situation. Therefore, the inference dawn by the Tribunal at [28] of its decision, that the applicant was “using the student visa program to maintain ongoing residence in Australia to remain with her sister and niece” was irrelevant to the task set in cl 502.212(a) to consider whether the intended period of stay was or was not temporary, regardless of whether another, not contradictory, reason for staying for a temporary period may have arisen, as contemplated by the preamble in Direction 69, which provides:
An applicant who is a genuine temporary entrant 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 to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
It was submitted that the Tribunal, having found that the applicant did not satisfy cl 500.212(a), did not consider paragraphs (b) or (c).
The applicant referred to Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 (Dait), in which the Full Federal Court supported Allsop CJ’s reasoning in Eros. It was also observed that in Dait, the Court held that it was not necessary for the Tribunal in that case to proceed to consider sub-cls (b) and (c) of cl 500.212 in circumstances where it had found that (a) had not been met and there was no error in that finding.
Minister’s submission
The Minister submitted that this case can be distinguished from Eros. This is so because, in Eros, Allsop CJ interpreted the Tribunal’s findings as necessarily being that the applicant (in that case) would remain in Australia temporarily, being the two years that her daughter wished to stay. As such, the Tribunal in that case had erred in concluding that cl 500.212(a) was not met. The Minister also referred to Dait in which the Full Federal Court noted that the Tribunal in Eros should have progressed its inquiry (that is, to consider sub-cls (b) and (c)) because, on the findings it made, Ms Eros had satisfied cl 500.212(a).
It was submitted, however, that on a fair reading, the Tribunal in this case did not find that the applicant only intended to stay in Australia until the conclusion of her sister’s family court proceedings or until the conclusion of her studies. That is, there was no finding that the applicant intended to stay temporarily. The Tribunal at [17] – [23] found that the applicant did not have personal ties to her home country that would be an incentive for her to return, that there was a very real risk that her economic circumstances were a significant incentive not to return and noted that her immediate family were in Australia. It was submitted that the Tribunal makes a specific finding that the applicant does not intend to remain temporarily and therefore it cannot be fairly said that the Tribunal found that the applicant intended to depart Australia once her sister’s family court proceedings resolved.
It was submitted that while the Tribunal does not make a finding that the applicant intends to stay in Australia “indefinitely”, that was not part of the statutory requirement, and that it was sufficient for the Tribunal to have found that the applicant does not genuinely intend to stay in Australia temporarily as it concluded at [30].
Consideration
The applicant contends that the Tribunal had misconstrued cl 500.212 by its misunderstanding (or incorrect application) of the term “temporarily”. It is useful to set out the applicable text of this provision:
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.
Both the applicant and the Minister referred to Dait and Eros in their submissions.
As considered in Dait, cl 500.212 requires satisfaction of a single state of affairs, that being whether the applicant is a genuine applicant for entry and stay as a student. Each of sub-cls (a), (b) and (c) are integral elements of the criterion and the applicant must satisfy each sub-cl to qualify as a “genuine applicant for entry and stay as a student”. However, if an applicant does not meet sub-cls (a) or (b) alone, it is not necessary to continue the enquiry: [31] – [32].
In this case, the Tribunal only considered whether the applicant satisfied cl 500.212(a). Having found that she did not, it concluded at [31] that the applicant was not a genuine applicant for entry and stay as a student as required by cl 500.212. In circumstances where it had found that cl 500.212(a) was not satisfied, it was not necessary for the Tribunal to consider cl 500.212(b) and (c): Dait [32].
The question that falls for determination in this matter is whether the Tribunal made an error, of the kind made in Eros when considering whether the applicant satisfied cl 500.212(a).
In Eros, the Federal Court stated there are many considerations that may be relevant to assessing whether someone is genuine in his or her intention to stay temporarily for sub-cl (a) or whether he or she is a genuine applicant for entry and stay as a student for the chapeau to cl 500.212. The Federal Court held in Eros that cl 500.212(a) is concerned with the genuine intention as to length of stay and nothing else: at [13] per Allsop CJ.
In considering whether Ms Eros satisfied cl 500.212(a), the Tribunal had regard to Direction No. 69 and identified the matters it was required to take into account when making its decision. At [18] Allsop CJ observed that the Tribunal made no findings about such matters and how they may inform any conclusion that Ms Eros did not genuinely intended to be a student for the purposes of the ultimate evaluative question in the chapeau. His Honour at [19] set out several paragraphs from the Tribunal’s reasons in which the Tribunal expressed its concerns that Ms Eros (who had initially travelled to Australia on a visitor visa) had used the visitor visa program to circumvent the more rigorous student visa assessment process. The Tribunal indicated that it was not convinced that Ms Eros’ proposed courses of study would be of value to her future. It considered that the value of one of the proposed courses would be marginal and did not consider that the course would assist her to obtain (or improve her employment prospects).
The Tribunal noted that Ms Eros’ daughter, who has completed studies in Australia and was eligible for a graduate work visa, wanted to remain in Australia for at least two years and that this provided an incentive for Ms Eros to remain in Australia. It did not consider the presence of family, friends or assets in her home country to be an incentive for Ms Eros to cease residence in Australia. It also considered Ms Eros’ partner’s earnings in Australia could be more than those he could earn in their home country and that this also presented an incentive to return to their home country.
At [20] his Honour observed that the Tribunal made no findings, by reference to the consideration of the factors, that Ms Eros did not genuinely intend to stay as a student. His Honour noted that to do so, the Tribunal would have had to grapple with the apparent genuineness of Ms Eros in undertaking the courses, even if they were a way she would be able to remain in Australia.
By reference to the Tribunal’s reasoning that Ms Eros had an intention to remain in Australia, at least while her daughter was here (which was for two years), His Honour, found that, on any view, that is a temporary stay: at [21].
At [22], His Honour states:
What the Tribunal appears to have done in its reasoning is to raise doubts about the primary purpose or motivating purpose of staying in Australia (to be with her family, now specifically her daughter) and treat it as relevant to the meaning of “temporary stay”. Of course, those matters could be so relevant. If they informed a finding that Ms Eros intended to stay indefinitely in Australia (as the discussion in [19] hinted at, but without any conclusion) then plainly she would not genuinely intend to stay temporarily in Australia. But no such finding was made. The concern in the last sentence of [30] is not a finding. It is an expression of a concern. Subclause (a) is concerned and only concerned with the intention as to length of stay. The finding is not that she genuinely intends to stay indefinitely but for a defined, relatively short period related to an apparent desire to be near her daughter and to study. There is no finding (though there are hints) that Ms Eros is not a genuine applicant to stay as a student. To make that finding the Tribunal would have to deal with other considerations beyond the intended length of stay, and evaluate her evidence including the fact, if it is the case, as it appears to be, that Ms Eros has dutifully undertaken the various courses that she has enrolled in, and, if it be the case, that she genuinely wants to do the courses.
His Honour further reasoned that:
29… As Logan J said in Saini 245 FCR at 245 [28] about the relevant words of the predecessor to subcl (a), the words “are concerned with how long the visa applicant intends to stay in Australia and nothing else”.
30. The Tribunal’s finding at [30] was that, or was consistent only with a finding that, Ms Eros intended to stay temporarily. There was no finding that she would stay longer.
31. There may well be seen to be material before the Tribunal (relevant under subcl (a)(iv)) that may have permitted a finding of an intention to stay indefinitely, but that finding (and any supporting findings) was (and were) not made.
32.There may well be seen to be material before the Tribunal (relevant under subcl (c)) that may have permitted a finding that Ms Eros was not a genuine student and her stay was not “as a student”, but no such finding (and any necessary evaluation of evidence and supporting findings) was (and were) not made, or undertaken.
The Federal Court ultimately found that the Tribunal in Eros had misconstrued cl 500.212.
The facts of the present case are not identical to those in Eros, particularly in relation to the defined period of time (which was two years in the case of Ms Eros) that the applicant intended to remain in Australia. Nevertheless, the Court acknowledges, as submitted by the applicant, that there are striking similarities in the approach taken by the Tribunal in the present case in its consideration of the matters in Direction No. 69 and its assessment of whether the applicant was a genuine temporary entrant for the purposes of cl 500.212.
It is important to note that where the task of the Tribunal involves the making of an evaluative judgment on the basis of aggregate considerations, the Court must approach its task (when determining whether there was a material jurisdictional error) cautiously, keeping in mind that each case necessarily turns on its own facts and circumstances. The Court also accepts, as submitted by the Minister, that the Tribunal’s reasons must be read fairly and as a whole: Plaintiff M64-2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173.
Turning to the facts of the present case, the Court accepts the applicant’s submission that the Tribunal, when having regard to the matters in Direction No. 69, indicated it was not convinced about some matters, was unable to make findings on others and found in the applicant’s favour on various matters.
The Tribunal in the present case was equivocal in respect of several factors it considered, this is understandable considering the decision had to be made without the benefit of a hearing, at which the Tribunal could have clarified the matters on which it was unable to make findings. For example, whether the applicant did or did not have a partner in the Philippines and whether she had other relatives there. Also, while the Tribunal indicated that it could not ignore the presence of the applicant’s “entire family” in Australia (at [23]) there appeared to be some uncertainty about the status of the applicant’s mother in Australia. The Tribunal observed that the applicant’s mother was currently in Australia, but also noted the applicant’s response in the form that her mother’s country of residence was the Philippines. The Tribunal accepted that the proposed course would improve the applicant’s prospect of employment in her home country, that they were relevant to her past study and future goals, but was unable to make any findings about the remuneration the applicant was expected to earn.
There was no suggestion by the Tribunal in its reasons that the applicant was not a “genuine student”. In fact, the Tribunal accepted that the applicant was motivated in her English studies as well as her current studies in the proposed courses of cookery and hospitality management. It also found that the proposed course of study in which the applicant was enrolled were consistent with her current level of education and work experience.
It was evident from the Tribunal’s reasons that a significant factor which led it to conclude that the applicant was using the student visa program to maintain ongoing residence in Australia was her “sister’s situation”, which it considered was for a “purpose other than study”. At paragraphs [23] and [28] of its reasons, despite acknowledging that the applicant had been studying in the proposed courses (and continued to so), it found that the applicant had another purpose for being in Australia, which was to support her sister and niece during their family law proceedings.
As protracted as some family law proceedings may be, they do not continue indefinitely. While exact timeframes will depend on the complexity of a matter, in Australian family law proceedings, the court process has defined stages and timelines to bring about the resolution of the matter. The Court accordingly accepts, as contended by the applicant, that the ongoing family law matter was a temporary situation.
The findings by the Tribunal in the present case at [23] and [28], which preceded the Tribunal’s conclusion at [30] that it was not satisfied that the applicant intends to stay in Australia temporarily, were the same as those made in Eros, as set out in that judgment at [20]. Following the reasoning in Eros, the finding by the Tribunal (in the present case) that the applicant also intended to remain in Australia to support her sister and niece during the family court proceedings, which would have eventually concluded, is “on any view” a period of temporary stay.
None of the concerns raised by the Tribunal, including the presence of the applicant’s family in Australia or the extent of her family ties in the Philippines or the risk that her economic circumstances could provide an incentive for her not to return to her home country, either individually or cumulatively, suggested that the Tribunal had formed a view that the applicant did not genuinely intend to stay in Australia as a student: cf Eros at [20]. As reasoned in Eros, to do so, the Tribunal would have had to grapple with the apparent genuineness of the applicant in undertaking her proposed courses, even if they were a means of being able to stay in Australia.
Nor did the Tribunal’s concerns suggest that it formed the view that the applicant intended to stay in Australia indefinitely: Eros at [22] and [31]. The Court acknowledges (and accepts) the Minister’s submission that such a finding is not part of the statutory text. Nevertheless, the substantive findings of the Tribunal upon which it concluded that the applicant was seeking to maintain “ongoing residence” in Australia were only in respect of her “sister’s situation”, which, as discussed above, by its nature would be for a temporary period.
Having misconstrued cl 500.212 of Schedule 2 to the Regulations, the Tribunal misdirected its consideration of cl 500.212(a) by asking the wrong question. As discussed above, cl 500.212(a) is only about length of stay, and nothing else.
The Court accepts, as submitted by the applicant, that the failure to properly assess the criterion in 500.212(a) resulted in the Tribunal not proceeding to assess (b) and (c). This was material because the applicant was denied the realistic possibility of a successful outcome: Minister for Immigration and Border Protection vSZMTA [2019] HCA 3 [2]; LPDT v Minister For Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12 [16].
The single ground raised by the applicant establishes jurisdictional error on the part of the Tribunal.
CONCLUSION
As the Tribunal’s decision was affected by jurisdictional error the Court will issue writs of certiorari and mandamus in this matter.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 3 December 2024
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