Tandukar v Minister for Immigration
[2019] FCCA 3510
•11 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TANDUKAR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3510 |
| Catchwords: MIGRATION – Student visa – where applicant had been resident in Australia for nine years – where applicant had undertaken multiple short courses – whether Tribunal misconstrued the regulation – statutory construction – no error of construction – applicable criterion properly applied – whether Tribunal assumed criterion could not be met as finding made that applicant intended to prolong stay – application properly considered – mandatory considerations – whether Tribunal failed to consider matters addressed in Direction No 53 – applicable principles – where applicant bore onus of demonstrating a failure to consider – where applicant merely pointed to reasons and took no further step – where Minister prepared table analysing evidence and reasons, demonstrating where no express finding made and no evidence led – application dismissed. |
| Legislation: Acts Interpretation Act 1900 (Cth), s.15AA |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 |
| Applicant: | SANJU TANDUKAR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1298 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 25 January 2019 |
| Date of Last Submission: | 25 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 11 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R. Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Mr C. Tran |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application filed on 27 December 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,438.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1298 of 2017
| SANJU TANDUKAR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 27 December 2018, the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 24 May 2017 affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
Contrary to the applicant’s submissions, I have concluded that the Tribunal did not misconstrue the relevant regulation in stating that a successful applicant for a Student visa had to be both a genuine student and have a genuine intention to remain in Australia. Nor upon its finding that the applicant was seeking to prolong her stay in Australia, did it assume she could not meet the criteria for her visa. Further, I am not satisfied that the Tribunal failed to address, so far as were relevant, the matters identified in Ministerial Direction No 53.
Background
The applicant is a Nepalese citizen aged 34 years who arrived in Australia on 21 February 2008 holding a Student visa. As appears below, the applicant enrolled in a number of courses after that date.
On 22 April 2016, the applicant applied for another Student visa, proposing to undertake Diploma in Marketing, an Advanced Diploma in Marketing and a Certificate IV in Marketing.
On 2 May 2016, a delegate of the Minister wrote to the applicant and requested additional information. The delegate noted that PRISMS records indicated the applicant had enrolled in fifteen courses and was currently enrolled in a further three courses. The letter stated:
According to your study history you have changed courses and education providers several times from Accounting to Hospitality to Business, to Marketing, to Management, to English, to Tourism, and now you wish to study Marketing again. Even though a person may seek a change in career, I note that the courses you have chosen are typically of a short duration, low-cost and often in unrelated fields of study.
This makes me question why you would be studying so many vocational level subjects for up to 10 years without any attempts to progress to a higher educational level.
This is not consistent with the behaviour of a genuine student . . . This indicates that you are using the student visa application as a means to maintaining residence in Australia.
The applicant was invited to provide comment in relation to that information within 28 days. On 26 May 2016, the applicant transmitted an email to the delegate attaching a letter responding to the request for information and an array of records relating to her studies.
On 14 June 2016, a delegate refused to grant the applicant a further Student visa. The applicant then applied to the Tribunal for a review of the delegate’s decision. In making that application, the applicant supplied the Tribunal with a copy of the delegate’s decisional record. In that record, the delegate set out cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), and referred to Ministerial Direction No. 53, Assessing the genuine temporary criterion for Student visa applications (Direction No. 53). The delegate concluded that:
On balance, I am not satisfied that you are a genuine applicant for entry and stay as a student because I am not satisfied that you intend to genuinely stay in Australia temporarily having regard to your circumstances and immigration history a (sic) and other relevant matters. On this basis, I am not satisfied that you meet the requirements of clause 572.223.
On 21 April 2017, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in her case. The hearing was scheduled for 23 May 2017. The Tribunal supplied the applicant with a copy of Direction No. 53.
The applicant appeared before the Tribunal on 23 May 2017 and although she was provided an interpreter, indicated that she would prefer to conduct the hearing in English. She did so. On 24 May 2017, the Tribunal decided to affirm the delegate’s decision, providing a statement of its reasons for doing so (Reasons).
Tribunal decision
The Tribunal identified the nature of the application the subject of review and the applicant’s migration and study history together with the criteria applicable for particular sub-classes of Student visas: [1]-[3].
The Tribunal considered the delegate’s decisional record, noting that the delegate had not been satisfied that the applicant met the requirements of cl. 572.223 of the Regulations. The Tribunal also noted that the delegate had considered the applicant’s PRISMS records and that she had enrolled in a series of unrelated fields over a period of some eight years. The Tribunal observed that the delegate had questioned the value of those courses to her career plans, and that she had worked in Australia since 2011 in a field unrelated to her several courses of study: [4].
The Tribunal outlined the application for review and the documents which had been supplied in relation to it. The Tribunal also observed that at the hearing, the applicant had been represented by her migration agent and that she was afforded an opportunity to give evidence and present arguments in relation to the decision under review: [5]-[7]. The Tribunal correctly identified the relevant subclass of visa, set out cl 572.223(1)(a) of the Regulations and also recognised that it was obliged to consider Direction No 53 and the factors which it specified. It also commented that Direction No 53 was not to be used as a checklist but as a guide to assist in weighing up the applicant’s circumstances as a whole “in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”: [8]-[12].
The Tribunal noted that at the hearing it had discussed the delegate’s reasons for refusing her application with the applicant: [13]. As this discussion was central to Ground 1 of the application, it is convenient to set out those reasons in that section of the judgment.
The Tribunal recorded the evidence given by the applicant concerning her study history and her explanation for changing courses. It also noted her explanation for why she had chosen the courses that she had enrolled in (to run the family’s dairy business); a matter which the Tribunal noted had not been referred to when she made her visa application in 2016. The Tribunal further noted that the applicant had pursued a range of other courses “because she wanted to open a resort or holiday getaway”. It accepted that the applicant had successfully completed various courses over a period of nine years but expressed concern that she had not followed a clear pathway which was relevant to her career plan: [14]-[18]. In this regard, the Tribunal observed that “after nine years of study in Australia, the applicant is now proposing to return to study Accounting, the field she originally came here to study, but chose to discontinue after completing her Diploma in 2009 on the grounds that it was not a course she herself wanted to pursue”: [18].
The Tribunal did not accept the applicant’s claim that she needed an accounting qualification in order to manage her family’s dairy. It noted that the dairy was currently run by her younger brother who had achieved qualifications to senior high school level and that she had already completed courses in Business, Management and Marketing: [19].
The Tribunal accepted the applicant had family ties in Nepal and had travelled there on four occasions but was not satisfied such ties presented a significant incentive for her to return home on completion of her course, especially taking into account her ongoing employment since 2011: [20].
Having regard to the applicant’s study history, including the changes in her course enrolments over nine years, the absence of a clear career pathway, the inconsistencies in her evidence and her enrolment in yet a further course a week prior to the hearing, the Tribunal concluded that the applicant was seeking to prolong her stay in Australia: [21].
The Tribunal was not satisfied that the applicant met the time of decision criterion in par 572.223(1)(a) of the Regulations; namely, that the applicant intended genuinely to stay in Australia temporarily: [22]. It also found that the applicant did not meet the requirements for other subclasses of visa (each of which contained an identical criterion) and for those reasons affirmed the decision under review: [23]-[24].
Procedural history
On 19 June 2017, the applicant filed an application for judicial review of the Tribunal’s decision. An affidavit affirmed by the applicant’s solicitor on 19 June 2017 exhibited a copy of the Reasons but adduced no further evidence in support of the application for judicial review.
By a Response filed on 14 July 2017, the Minister contended that the application impermissibly invited the court to undertake a merits review of the applicant’s case, and that the Tribunal’s decision was not affected by jurisdictional error. It sought dismissal of the application.
On 20 February 2018, orders were made, by consent, listing the matter for final hearing and regulating the filing of any amended application, affidavits and written submissions.
On 27 December 2018, the applicant filed an amended application for judicial review of the Tribunal’s decision.
On 10 January 2019, an affidavit was filed on behalf of the Minister to which was exhibited a copy of the transcript of the Tribunal hearing.
Consideration
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] Absent jurisdictional error, the court has no jurisdiction to grant relief in relation to the decision under review.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
By her amended application, the applicant abandoned the six grounds of review that were contained in her original application and advanced three new grounds, one of which was informed by particulars.
Ground 1 – misconstruing regulation
Ground 1 of the amended application reads:
The Second Respondent made jurisdictional error at [13] construing Regulation 572.223(1)(a) as containing two separate components, both (a) to be a “genuine student” and (b) to have a genuine intention to remain in Australia temporarily.
It is convenient to set out [13] of the Reasons:
At hearing, the Tribunal discussed with the applicant the reasons her Student visa had been refused in the context of the genuine temporary entrant criterion, noting that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant her circumstances in Nepal and Australia, her immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above. (Emphasis added)
It was submitted the Tribunal’s statement to the applicant at [13] that, in the context of the Genuine Temporary Entrant Criterion, a successful applicant had to be “both a genuine student and have a genuine intention to remain in Australia temporarily” was “plainly incorrect” and “simply wrong”.
In Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), cl 572.223(1) reads:
The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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 meets the requirements of subclause (2).
It was submitted that properly construed par 572.223(1)(a) merely stated that an applicant was a genuine Applicant for entry and stay as a student if the applicant intended genuinely to stay in Australia temporarily. The text of the clause was said not to impose two separate requirements but only one – that an applicant intended genuinely to stay in Australia temporarily. It was submitted that, by reading cl 572.223 as if it contained two separate requirements, the Tribunal made legal error upon the matter on which it determined the visa application.
As was put in the course of oral submissions, upon a literal construction of par 572.223(1)(a), it did not matter whether the applicant was not a genuine student – all that the clause required was that he or she intended genuinely to stay in Australia temporarily. As was said “a person could come to Australia with a four year visa, for example, under a visa, have no intention whatever of doing anything in relation to that course of study . . .” and satisfy the criterion of cl 572.223. It was sufficient, so it was said, that the applicant intended to stay in Australia temporarily.
Resolution
The Regulations may prescribe criteria for visas of a specified class.[5] It was common ground that regulation 572.223 provided the criterion for a Student (Temporary) (Class TU) visa. The power to grant or refuse the visa pursuant to s 65 of the Act was to be exercised in accordance with the applicable regulations,[6] and thus, upon cl 572.223.
[5] Act, s 31(3).
[6] Act, s 498(1).
I am not satisfied that the Tribunal misconstrued the regulation. However, the anterior question, the answer to which seemed to be assumed, concerned the proper construction of the regulation.
Somewhat surprisingly, and as raised in the course of submissions, although Ground 1 rested upon a suggested misconstruction of the regulation, no reference was made to the principles of construction upon which cl 572.223 was to be construed. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[7] the Court stated:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[7] (2009) 239 CLR 27, [47] (The Court).
The substantive basis for Ground 1 was that the Reasons at [13] recorded the Tribunal’s statement to the applicant at the hearing that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. It was submitted that this statement demonstrated the Tribunal had misconstrued the regulation by imposing dual requirements in the regulation when, properly construed, par 572.223(1)(a) contained only one requirement.
The submission also assumed that, properly construed, cl 572.223(1) did not require or permit the Minister to have regard to whether, in forming the requisite state of satisfaction, the applicant was a genuine student and genuinely intended to remain in Australia temporarily. By launching the challenge at the mid-level of par 572.223(1)(a) and before giving consideration to the text of cl 572.223(1) itself, the applicant elided consideration of the requirements of the clause which contained the criterion that was be satisfied at the time of decision. Further, it also isolated the critical inquiry as though divorced from each of the cumulative considerations addressed by par 572.223(1)(i)-(iv).
Beginning with consideration of the text of cl 572.223(1), the criterion prescribed by the regulation is whether the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because of the matters in sub-cl (1)(a) and having regard to each of the matters enumerated in par (i) to (iv) inclusive. The criterion is not whether the Minister is satisfied that an applicant intends genuinely to stay in Australia temporarily. To the contrary, satisfaction of those matters supplies an answer to whether the criterion in cl 572.223(1) is satisfied. The question whether an applicant intends genuinely to stay in Australia temporarily is not to be answered in a vacuum. The framework within which the question is to be considered is provided by the cumulative requirements of par 572.223(1)(a)(i)-(iv).
Having regard to the text of cl 572,223(1), the following may be noted.
First, where par 572.223(1)(a) speaks of “the applicant”, it can only be speaking of the person referred to in cl 572.223(1). The meaning to be applied to the term “applicant” in par 572.223(1)(a) is a person who “is a genuine applicant for entry and stay as a student.” A person who does not meet that description will not satisfy the criterion in cl 572.223(1). So understood, the phrase “as a student” informs the description of the applicant as a person who is a “genuine applicant” in cl 572.223(1).
Secondly, where par 572.223(1)(a) speaks of an applicant who intends genuinely “to stay”, again it must be taken to be referring to the applicant in cl 572.223(1) who seeks to stay in Australia as a “student”; namely, one who is “is a genuine applicant for entry and stay as a student.”
Thirdly, the preferred meaning of the term “the applicant” in par 572.223(1)(a), is informed by the requirement in cl 572.223(1) that he or she is “a genuine applicant for entry and stay in Australia”.
Fourthly, the proper construction of par 572.223(1)(a) also requires that consideration be given to the content of each of the matters enumerated in par (i) to (iv) of par 572.223(1)(a). Those matters provide context and so inform the meaning of the phrase “the applicant intends genuinely to stay in Australia temporarily” as used in par 572.223(1)(a). In this regard, Ministerial satisfaction required consideration of whether the applicant intended genuinely to stay in Australia ‘temporarily’, being, as it was said, the obverse of ‘permanently’. To that end, the matters enumerated in par (i) to (iv) of par 572.223(1)(a) supplied a framework of the matters that were to be considered in deciding upon satisfaction as to whether the applicant’s intention to stay temporarily was genuine.
Fifthly, satisfaction as to whether an applicant is a person who intends genuinely to stay in Australia temporarily within the meaning of par 572.223(1)(a) requires that regard is had to the applicant’s circumstances, immigration history, the intentions of the applicant’s parent, legal guardian or spouse (where relevant) and any other relevant matter. The circumstance that the regulation not merely authorises but requires that regard to be had to any other relevant matter confirms that a deal of latitude is conferred on the decision-maker when deciding if an applicant intends genuinely to stay in Australia temporarily. When regard is had to those matters, it is clear that whether an applicant for a Student visa is a genuine student is plainly a relevant matter and one which may be considered, quite apart from the content of the phrases “genuine applicant” and “stay as a student” in cl 572.223(1) and “applicant intends genuinely to stay” in par 572.223(1)(a).
Sixthly, no consideration was given to the wider context in which the regulation operated, including the general purpose and policy of the provision and, in particular, the mischief it was seeking to remedy. These matters may be discerned from Direction No 53. As noted above, the Tribunal supplied the applicant with a copy of Direction No. 53 before the hearing; the preamble to which contains the following:
A person who wants to study under the Student Visa Program must obtain a Student visa before they can commence a course of study in Australia. Amongst other things, a successful applicant must be both a genuine temporary entrant and a genuine student. (Emphasis added)
This statement may fairly be said to identify the underlying policy.
Although the issue was squarely raised by the Minister’s written submission, it was not submitted that Direction No 53 was in this respect inconsistent with the Act or Regulations or for that reason, unlawful.
Seventhly, the requirement to have regard to the policy and mischief being addressed by the regulation is not confined to its consideration for the purposes of the proper construction of the regulation. To the contrary, by the combined operation of ss 499(1) and (2A) of the Act, the Tribunal was obliged to comply with Direction No 53. By this means, as was common ground, the Tribunal was required to apply the ministerial direction, albeit not as a checklist but as a guide.
Eighthly, in my view, the construction of the regulation for which the applicant contended was strained, artificial and would not promote the purpose and objects of the Act[8] and in particular, the purposes for which Student visas are granted as informed by Direction No 53. In my opinion, it is not the constructional choice that should be made.[9]
[8] Acts Interpretation Act 1900 (Cth), s 15AA.
[9] CfSZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 363, [38].
Ninthly, as the Tribunal recognised at [3], a Student visa is not available as of right or for any course of study but must be for a course in which an applicant is enrolled or has an offer of enrolment. In addition, courses for which a visa may be granted must be of a kind that are prescribed.
Finally, I am fortified in the conclusion that the applicant’s submission ought to be rejected having regard to the reasoning in Saini v Minister for Immigration and Border Protection.[10] There Logan J stated:
As to overall context, the Minister placed particular emphasis in his submissions upon the introductory paragraph in cl 572.223(1), which is known in parliamentary drafting terminology as the “chapeau” and which governs the clause of which cl 572.223(1)(a) forms a subsidiary part. This emphasis was not misplaced
The introductory paragraph specifies a subject of overarching satisfaction which the Minister must hold in order for a “Student visa” to be granted. That satisfaction is that the applicant is a genuine applicant for entry and stay “as a student”. Further, the presence of the conjunction, “because” indicates that this overarching satisfaction must be reached by reason of particular criteria specified in cl 572.223(1)(a) and (b). By virtue of the reference to “any other relevant matter” in cl 572.223(1)(a)(iv), the criteria relevant to satisfaction that an applicant “intends genuinely to stay in Australia temporarily” are limited only by relevance to the subject matter, scope and purpose of cl 572.223. That subject matter, scope and purpose is to establish a class of visa to enable a person to enter and stay temporarily in Australia as a student. This is apparent not just from the presence of the adverb, “temporarily” but also from the repetition of “genuine” or a derivative both in the chapeau and in cl 572.223(1)(a) and also the adjectival clause, “as a student” which governs “stay”, in the chapeau.
[10] (2016) 245 FCR 238, [22]-[23], (Logan J).
In my opinion, each of these matters inform the proper construction of the criterion prescribed by cl 572.223(1). So construed, I do not accept that par 572.223(1)(a) should be given the narrow construction contended for by the applicant. Clause 572.223(1) of the Regulations does not exclude from consideration whether the applicant was a genuine student and genuinely intended to stay in Australia temporarily for the purposes of undertaking his or her course of study. The Tribunal was authorised to consider whether the applicant was a genuine, or authentic, applicant for entry and stay as a student. In the context of cl 572.223(1), adherence to the ordinary meaning of the term ‘genuine’ is appropriate so as to give effect to the clause and its purpose.[11]
[11]Cf Australian Securities and Investments Commission v Kobelt [2019] HCA 18, 119 citing Alcan, supra, amongst others (Keane J).
Properly construed, satisfaction of the criterion in cl 572.223(1) that the applicant was a genuine applicant for entry and stay as a student required that this state of satisfaction be achieved having regard to the whole of the matters addressed by the regulation. Clause 572.223(1) incorporated within the criterion which it prescribed, that the required state of satisfaction was because the decision-maker was satisfied that the applicant intended genuinely to say in Australia temporarily and that this was to be determined having regard to each of the matters in pars (i) to (iv) of cl 572.223(1)(a). Those requirements were cumulative.
Nor do I consider that the Tribunal misapplied the regulation.
It was clear that the Tribunal identified and considered the correct regulation and that cl 572.223(1) was set out: [4], [10], [21]-[22].
Reading the Reasons fairly as a whole and “without an eye keenly attuned to error”, [12] it is clear the Tribunal recognised that the regulation imposed a single criterion. That it did so, is confirmed by its Reasons at [12] where the Tribunal expressly stated that Direction No 53 was not to be used as a checklist but as a guide to assist in weighing up all of the applicant’s circumstances. The Tribunal stated that the ministerial direction was to be used “in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
[12] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
I agree that in recording the impugned statement at [13], which was made to the applicant in the course of the hearing, the Tribunal was doing nothing more than paraphrasing Direction No 53. The Tribunal was bound to apply the direction by force of s 499(2A) of the Act. Direction No 53 states that “a successful applicant must be both a genuine temporary entrant and a genuine student”.
I have summarised above the process by which the Tribunal considered at [14]-[21], the question of whether the applicant’s circumstances were such that the relevant criterion was satisfied. It is also clear that the Tribunal decided the application on the basis that cl 572.223(1) was not satisfied: [22]-[24].
Further, I accept that any error by the Tribunal in the impugned statement set out at [13] of the Reasons must be material in order to amount to jurisdictional error.[13] In this case, the Reasons make plain that the Tribunal’s determination that the criterion in cl 572.223(1) was not satisfied was based upon its lack of satisfaction that the applicant intended to stay in Australia temporarily.[14]
[13]See Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151.
[14]Shrestha, supra (2018) 264 CLR 151, [10].
I accept the submission that if the Tribunal erred in the manner complained, at most, all that occurred was that it identified a superfluous question.[15] I further accept that what the Tribunal had determined was sufficient to affirm the decision under review. Any error was therefore not material and was not, as a result, jurisdictional.
[15] Ibid.
Ground 1 is rejected.
Ground 2 – erroneous assumption
Ground 2 of the amended application reads:
The Second Respondent made jurisdictional error at [21] and [22] by assuming that seeking to “prolong” a stay in Australia was conclusive that the Applicant did not have any intention to stay in Australia temporarily.
It is convenient to set out those [21] – [22] of the Reasons:
In the Tribunal’s view, the applicant’s study history of shifting from course to course over nine years without a clear pathway, the inconsistencies in her evidence as outlined at paragraph 17 above and the fact that she only enrolled in the Bachelor of Accounting on 18 May 2017, shortly before her hearing, lead the Tribunal to conclude that the applicant is seeking to prolong her stay in Australia.
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and the other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).
The applicant complained of the reasoning at [21], doing so on the basis that since she was applying for a visa so as to remain in Australia it was necessarily the case that she was seeking to prolong her stay in Australia. For that reason, a finding that the applicant was seeking to prolong her stay in Australia did not, it was said, preclude a finding that she intended to stay in Australia temporarily. The applicant submitted that the real question was not whether the applicant was seeking to prolong her stay in Australia, but whether “she intended genuinely to stay in Australia temporarily, that is not permanently.”[16] For those reasons it was submitted the Tribunal had wrongly assumed that a finding the applicant was prolonging her stay in Australia necessarily required a conclusion that she did not intend to stay in Australia temporarily.
[16] Applicant’s written submission, [12].
Resolution
I do not accept this submission. The applicant framed Ground 2 upon a premise that, because the applicant had been in Australia since 2008, the grant of any further visa necessarily entailed that her stay would be prolonged. However, in my opinion, the Tribunal’s reasoning at [17], [21] and [22] fairly indicates that it was not concerned to address the narrow proposition upon which Ground 2 was based. As was plain from the content of the Reasons at [21], the Tribunal was relying upon the matters addressed earlier at [17] to explain why it had reached the conclusion that the applicant was seeking to prolong her stay in Australia.
I accept the Minister’s submission that finding a visa applicant is enrolling in courses in order to prolong their stay in Australia is also properly capable of supporting a conclusion that the applicant does not intend to stay in Australia temporarily. Indeed, counsel for the applicant quite properly accepted that a finding by an administrative decision-maker that an applicant wished to prolong his or her stay in Australia was not an irrelevant consideration. Such a finding would provide a rational and reasonable basis for an inference that the applicant was not a person who should be properly characterised as “a genuine applicant for entry and stay as a student”. I consider that it did so in this case.
Further, the present application may also be distinguished from cases such as such as FTZK v Minister for Immigration and Border Protection where the Court held that the Tribunal’s reasons did not logically support the finding that was ultimately made.[17]
[17] (2014) 88 ALJR 754.
Once it is recognised there was a finding that the visa applicant was seeking to prolong her stay in Australia, it can be seen that in truth Ground 2 is a challenge to the correctness of the factual finding which the Tribunal made at [21], having regard to the matters which preceded it. It was open to the Tribunal to reason from its finding about the applicant seeking to prolong her stay in Australia to a conclusion about the genuineness of her stay in Australia. From this perspective, I consider that Ground 2 involves impermissible merits review.
I also accept the Minister’s submission that Ground 2 requires an overly zealous reading of the Tribunal’s reasons.[18] Contrary to the applicant’s submission, I do not accept that, upon a finding the applicant was seeking to prolong her stay in Australia, the Tribunal considered itself compelled to come to the conclusion that it did or in the way that it did. The Reasons confirm that the Tribunal decided for itself what it regarded to be the correct or preferable decision for the reasons that it gave.
[18] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Ground 2 is rejected.
Ground 3 – mandatory considerations
Ground 3 of the amended application reads:
The Second Respondent made jurisdictional error by failing to have regard to each of the mandatory conditions set out in Direction no. 53.
Particulars
(a)The Second Respondent did not consider or make relevant findings on paragraphs 9(a), 9(b), 9(c), 9(d) and 9(e) of the Direction, 11(a), 11(b), 11(c), 11(e) of the Direction, 12(a), 12(b) and 12(c) of the Direction, 14(a) and 14(b) of the Direction.
The applicant submitted that the Tribunal did not properly apply Direction No 53 and relied upon recent Full Court authority and a decision of this court as holding that certain provisions in that ministerial direction were mandatory considerations to be applied in the consideration of whether the criterion for the grant of a Student visa were satisfied. The applicant’s submissions identified each clause of Direction No 53 in respect of which it was said the Tribunal had given no, or no adequate, consideration.
Counsel for the applicant accepted that the Tribunal was not required to adopt a formulaic approach by which it slavishly examined the text of each clause in Direction No 53. While it was accepted that the Tribunal had identified at [11] the essential subject matters to which Direction No 53 required attention to be given, it was submitted that the adoption of that summary, while not inaccurate, was not sufficient.
Counsel for the Minister submitted that the absence of express reference to a particular matter did not compel a conclusion that it had not been considered. To this end, the Minister relied upon the affidavit which exhibited a transcript of the hearing before the Tribunal. It is convenient to refer to this below. For present purposes it is sufficient to note the Minister submitted that, with some exceptions, the matters upon which complaint was made had been considered either expressly, impliedly or within the context of some other consideration.
It was further submitted that, in those instances where the Reasons did not demonstrate express consideration of a particular factor, this was explicable by reason that no evidence or submission had been put to the Tribunal. Counsel for the Minister pointed up the internal inconsistency in the applicant’s complaint. In this regard, attention was drawn to a concession “rightly made” that par 11(d) of Direction No 53 had no application to the case. It was further submitted that whether a mandatory consideration had not been addressed fell for evaluation in the context of the limited, or complete absence of, evidence or submissions that had been made to the Tribunal.
Finally, it was submitted that a failure to deal with a mandatory consideration would not necessarily support a finding of jurisdictional error and that “A factor might be so insignificant that the failure to take into account could not have materially affected the decision”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd;[19] Hossain v Minister for Immigration and Border Protection.[20] In the latter appeal, Kiefel CJ, Gageler and Keane JJ, citing Peko-Wallsend held, relevantly, that:
Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, . . . where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.
[19] (1986) 162 CLR 24, 60 (Mason J).
[20] (2018) 264 CLR 123, [80].
Those principles were relied upon as supporting a conclusion that, even if it were found that the Tribunal had not considered a particular factor in Direction No 53, this did not compel a conclusion that the failure to do so constituted jurisdictional error.
Mandatory considerations
An administrative decision may be vitiated by legal error where a decision-maker fails to take into account a mandatory relevant consideration [21] Whether the matters addressed by regulations are mandatory considerations is to be determined by reference to the subject matter, scope and purpose of the relevant legislation. In Lo v Chief Commissioner of State Revenue,[22] Basten JA, (with whom Beazley P agreed) said:[23]
The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd[24] it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
Macfarlan JA, (with whom Beazley P also agreed) said:[25]
. . . in judicial review proceedings the omission of a decision-maker acting under a statute to take into account a relevant factor is only regarded as vitiating the decision if the statute, expressly or impliedly, mandates that that factor must be taken into account and indicates that failure to do so is intended to invalidate the decision (Peko[26];ProjectBlue Sky v Australian Broadcasting Authority[27]). Likewise in appeals on questions of law, no relevant error of this type will be established unless it is at least shown that the decision-maker failed to take into account a matter that the statute required him or her to take into account. If that is shown, the decision-maker will have erred in law in expressly or impliedly misconstruing the statute.
[21]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
[22](2013) 85 NSWLR 86.
[23](2013) 85 NSWLR 86, [9].
[25](2013) 85 NSWLR 86, [50].
[26](1986) 162 CLR 24, 39-40.
The Act distinguishes between the basis on which a Student visa application is to be considered by an administrative decision-maker from that by which a Protection visa is to be assessed. In the latter case, it is the evidence of the applicant which will define the precise claim and basis on which protection is being sought.[28] Contrastingly, in the consideration of, for example, an application for review of a decision to refuse a Student visa application, ss 5,[29] 29 and 498 of the Act and cl 572.223 of the Regulations collectively supply the framework of relevant considerations within which a decision-maker is to assess a Student visa application.[30] That is because the decision-maker is obliged to proceed by reference to prescribed statutory criteria.[31] By extension, in the review of a Student visa application, the mandatory relevant considerations which a decision-maker is obliged to consider are those prescribed by cl 572.223 and Direction No 53 (as distinct from the evidence or claims being advanced by an applicant).[32]
[28]Eg, race, religion, nationality, membership of particular social group or political opinion: see Act, s 5J(1).
[29] ‘Student visa’.
[30]CfSun v Minister for Immigration and Border Protection [2017] FCA 1270, [39]-[40].
[31]Li v Minister for Immigration and Citizenship (2008) 102 ALD 354, [22]-[23] (Jessup J); Sun, supra [2017] FCA 1270, [56]-[57] (Reeves J).
[32] Cf Sun, supra [2017] FCA 1270, [57]-[58] (Reeves J).
In Sun v Minister for Immigration and Border Protection,[33] Reeves J stated a number of principles which applied to the scope of the obligation respecting the considerations relevant to a Partner visa and did so in the context of decision-maker’s evaluation of the matters prescribed by reg 1.15A(3). Those principles were stated[34] to be as follows:
a)the requirement to consider, or have regard to, such considerations requires a decision-maker to give “proper, genuine and realistic” consideration to them;
b)a court reviewing a decision to ascertain whether the decision-maker has complied with this obligation has no jurisdiction to engage in impermissible merits review;
c)the importance of a particular matter will affect the nature and extent of the consideration which it attracts;
d)thus, a matter of fundamental importance to the decision-making process requires closer consideration than one of lesser importance;
e)the question of whether the decision-maker has complied with their obligation in this regard is a question of “fact and degree”; and
f)it is well-established that any review of a decision-maker’s reasons for a decision should not to be undertaken “with an eye keenly attuned to the perception of error.”
[33] [2017] FCA 1270, [41]-[42].
[34] [2017] FCA 1270, [41] (citations omitted).
In expressing those principles, Reeves J drew support from the Full Court’s statement in relation to the treatment to be applied to the 10 criteria prescribed by reg 2.41 for the purposes of s 109 of the Act in Minister for Immigration and Citizenship v Khadgi that:[35]
It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.
[35] (2010) 274 ALR 438, [62] (Stone, Foster and Nicholas JJ).
It is also relevant to reconcile the approach to be taken in the assessment of an alleged failure to give consideration to a relevant consideration and how such failure may be properly inferred in cases where a decision-maker is obliged to proceed, as here, upon statutorily prescribed criteria. In Sun, Reeves J considered[36] that the word ‘all’ appearing in reg 1.15A(2) did not require the Tribunal to identify each and every circumstance of the relationship but required it:
. . . to identify those circumstances that are germane to its task of determining whether the relationship in question is a married relationship, as defined in s 5F(2) of the Act. In other words, as was held in Khadgi, it requires the Tribunal to identify those circumstances of the married relationship raised by the application at hand that are of “central or fundamental importance” so that those circumstances can receive close attention. . . as the Court said in Khadgi, while the Tribunal will be required to turn its mind to each and every one of the matters prescribed in that list, it is not required to treat all of those matters as being of central or fundamental importance in every matter before it.
[36] [2017] FCA 1270, [60]; and see at [41].
The process of inferential reasoning which was open to be taken on judicial review was also considered in Sun. Reeves J stated the following principles:[37]
a)a decision-maker is required to comply with s 368 of the Act and must prepare a written statement that, relevantly, sets out its “findings on any material questions of fact”.[38] The decision-maker is not obliged to make findings “on any and every matter of fact objectively material to the decision which it was required to make”. Rather, s 368 requires “no more than that the Tribunal set out the findings which it did make” and to set out the findings on the questions of fact which “it considered to be material to the decision which it made and to the reasons it had for reaching that decision”;
b)for those reasons, a court conducting judicial review of a Tribunal’s decision may infer that any matter not mentioned in its reasons was not considered by it to be material. Thus, a failure to mention a matter may, in turn, reveal jurisdictional error and, if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account;
c)however, this inference is not to be drawn lightly and is a matter upon which an applicant bears the onus. To discharge that onus, the applicant needs to do more than “point to material capable of supporting [the] inference” and instead needs to demonstrate that “having regard to all of the evidence and other material before the Court it would be appropriate to draw [the] inference.”
[37] [2017] FCA 1270, [43]-[46] (citations omitted).
[38] Act, s 368(1)(c).
Reeves J concluded that:[39]
When a Court is determining whether to draw such an inference, it will usually be required to undertake “a close analysis of the decision-maker’s reasons without the benefit of other evidence”. In conducting that analysis, it will be necessary to bear in mind that a decision-maker does not need to refer to, or comment on, each criterion that must be considered, nor conduct a “line by line refutation” of the evidence, and the weight to be given to any particular criterion, or group of criteria, is entirely a matter for him or her. Conversely, the fact that a decision-maker states in his or her reasons that a particular criterion has been taken into account is not conclusive of that issue.
[39] [2017] FCA 1270, [46] (citations omitted).
The parties accepted that the principles stated in relation to Partner visas may usefully inform consideration of the manner in which a Student visa should be assessed on review by a Tribunal.
Direction No 53 makes clear that the decision-maker should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied by considering the applicant against all of the specified factors and taking into account any other relevant factor.[40] In doing so, the direction expressly recognises that a balanced approach is required having regard to the need to make a timely decision and the need to identify those “applicants who, at the time of decision, do not genuinely intend to stay in Australia temporarily.”[41]
[40] Direction No 53, Part 2, Directions, cl 2(a)-(b).
[41] Direction No 53, Preamble,
Part 2 of Direction No 53, Directions, is arranged in five sections: Assessing the Genuine Temporary Entrant criterion; The Applicant’s circumstances; The Applicant’s Immigration History; If the Applicant is a Minor, and; Other relevant matters.
In relation to those matters which are relevant in this case:
a)The Applicant’s circumstances, cll 6-12 address a variety of considerations including the applicant’s circumstances in their home country, the applicant’s potential circumstances in Australia and the value of the course to their future. The matters identified by cll 6, 7, 9, 11, and 12 are expressed as mandatory considerations, while cl 10 is expressed in permissive terms;
b)The Applicant’s Immigration History, cl 13 recognises that such history includes both the applicant’s visa and travel history. The considerations addressed by cl 14 are framed in mandatory terms;
c)Other relevant matters, cl 16 obliges the decision-maker, in mandatory terms to take into account any other relevant matter.
The parties drew attention to He v Minister for Immigration and Border Protection.[42] Notably, as Reeves J delivered judgment in Sun following argument in He, the Full Court invited submissions on Sun before delivering its judgment.[43] Siopis, Kerr and Rangiah JJ held[44] that an administrative decision-maker was obliged to consider “each of the fifteen specific matters and each of the four principal matters set out in reg 1.15A(3) and any other relevant circumstances of the relationship.”
[42] (2017) 255 FCR 41.
[43] (2017) 255 FCR 41, [35].
[44] (2017) 255 FCR 41, [50].
The Full Court rejected[45] a submission that the decision-maker was not required to separately evaluate each of the fifteen specific circumstances referred to in the regulation. Instead, it considered that the question posed by the appeal was the scope of the obligation to make findings in respect of the prescribed matters, including each of those numbered with Roman numerals of sub-par 1.15A(a)-(d).[46] Critically, their Honours also held[47] that as a matter of statutory construction, the content of the obligation was to ‘consider’ the matters in that regulation. The decision-maker was therefore obliged to address each of the prescribed matters and to give them active, proper, genuine and realistic consideration:
The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter (citations omitted).
[45] (2017) 255 FCR 41, [67].
[46] (2017) 255 FCR 41, [68], [76].
[47] (2017) 255 FCR 41, [70], [76].
The Full Court further held that a decision-maker was also obliged to make findings upon each of the four principal matters addressed by sub-para’s 1.15A(3)(a)-(d) respectively.[48] In this context, their Honours recognised[49] that where a Tribunal’s Reasons contained no reference to a matter, this may support an inference that it had not been considered.[50]
[48] (2017) 255 FCR 41, [80].
[49] (2017) 255 FCR 41, [79].
[50]Cf Sun, supra [2017] FCA 1270, [43] (Reeves J); citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [69].
The reasoning in He, however, makes clear that the decision-maker might properly consider that a particular matter was not relevant or that there was no evidence on which a particular finding could be made. Further, the Full Court did not accept that the Tribunal was required to make a finding as to the existence or otherwise of every potentially relevant circumstance, but only required the Tribunal to make any necessary findings of fact.[51] The content of the obligation to make necessary findings of fact is then informed by the terms in which the applicable regulation is expressed.
[51](2017) 255 FCR 41, [71] (emphasis in original).
The reasoning in He was generally approved by a Full Court in Williams v IS Industry Fund Pty Ltd,[52] and followed by White J in Nguyen v Minister for Immigration and Border Protection.[53] His Honour endorsed the statement that, when undertaking an assessment of the matters prescribed by reg 1.15A(3), an administrative decision-maker was bound to consider them in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend Ltd.[54]
[52] [2018] FCAFC 219, [23]-[28] (Alsop CJ, Reeves and Derrington JJ).
[53] [2018] FCA 1374, [47].
[54] (1986) 162 CLR 24, 39-40 (Mason J, Gibbs CJ, Deane, Dawson agreeing generally).
By analogy, it follows that each of the principal matters (as addressed by subject heading) and the matters prescribed by cll 6, 7, 9, 11, 12, 14 15 and 16 in Direction No 53 are mandatory considerations which a decision-maker is bound to take into account when evaluating a Student visa application. During that consideration, the decision-maker may quite properly regard a particular matter as not being relevant or decide that there was no evidence on which a particular finding could be made.
While the parties each drew attention to He, I consider that caution is required in translating the principles applicable to the nature of the consideration that is required in relation to Partner visas directly to those which are required under Direction No 53. In particular, it cannot be overlooked that the nature of the consideration that is called for in each case will be controlled by the applicable regulation.
Resolution
The scope of argument under Ground 3 was narrowed by reason that the Minister properly accepted the relevant provisions of Direction No 53 were mandatory considerations.[55] The combined operation of s 499 and Direction No 53 make clear that the Tribunal was obliged to consider the matters for which that direction provided. It was common ground that each of the clauses upon which reliance was placed by the applicant were cast in terms as mandatory considerations.
[55]Citing He v Minister for Immigration and Border Protection (2017) 255 FCR 41 (The Court); Singh v Minister for Immigration and Border Protection [2018] FCCA 3423, [24], [66] (Riley J); Singh v Minister for Immigration and Border Protection [2018] FCCA 3648, [19]-[20] (Riley J).
I accept the Minister’s submission that where a matter has not been referred to by an administrative decision-maker this does not compel a conclusion that it was not considered. In Minister for Immigration and Border Protection v SZSRS,[56] the Full Court stated:
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight. (Citation omitted)
[56] (2014) 309 ALR 67, [34].
This statement of principle has been accepted on many occasions and was approved in ETA067 v Republic of Nauru.[57] The Court stated:
The absence of an express reference to evidence in a Tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that Tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any "material questions of fact" and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
[57] (2018) 360 ALR 228, [13] (Bell, Keane and Gordon JJ).
A table was provided on behalf of the Minister which identified each clause of the ministerial direction which, it was said, the Tribunal had failed to consider. After setting out the text of the relevant clause, the table identified variously: (1) where the transcript indicated no evidence had been placed before the Tribunal and that it had made no finding; (2) where the transcript indicated evidence had been placed before it and the Tribunal had made a finding. In short, in each case where the transcript revealed that no evidence had been led, the Tribunal had made no finding or had made a finding despite the absence of evidence. Conversely, in each case where there was evidence before it, the Tribunal had made a finding and the table provided by the Minister identified where that finding was located in the Reasons.
It does not follow, and I do not accept that, the Tribunal did not ‘consider’ the matters about which no express finding was made. In particular, the applicant bore the onus of demonstrating that such matters had not been considered. A difficulty that might be encountered (and which is illustrated in this case) is that where there is no, or no adequate, evidence adduced as to a particular factor, this will undermine the foundation for a complaint of failure to consider that issue.
Having regard to the delegate’s findings, the central issue arising on the decision under review[58] was whether the applicant was a genuine applicant for entry and stay as a student. In the present case, the applicant attended a hearing with the assistance of her migration agent at which she was afforded an opportunity to give evidence and present arguments in relation to the decision under review. Earlier, the applicant had been invited to respond to the delegate’s invitation to address the question of whether she was a genuinely intended to stay in Australia temporarily. She had taken up that invitation by supplying a letter and documents but had never made a statement. By contrast, before the Tribunal hearing, she had not filed either pre-hearing or post-hearing submissions. Before the hearing, the Tribunal had supplied the applicant with a copy of Direction No 53. Despite that, the only further information before the Tribunal was the evidence which she gave to the hearing and the submissions that were made on her behalf. When offered the services of an interpreter, she had declined that assistance. The applicant presented as a person who had a fluent command of English. Although the Minister’s affidavit exhibited the transcript of the hearing and a table was supplied as a means of correlating the mandatory considerations raised by Direction No 53, the text of those clauses and the evidence – or lack of it – in relation to each clause, counsel for the applicant did not not suggest that the Minister’s table was inaccurate.
[58] Act, s 360(1).
I have examined each of the clauses in Direction No 53 which it was said the Tribunal had failed to address. While the Tribunal’s Reasons were comparatively brief, in my opinion, this may be readily explained by the paucity of evidence that was put before it in relation to the issues arising on review from the delegate’s decision. From an examination of the table, the material excerpts from the transcript and Reasons, the following may be said.
Clause 9 relevantly required that when considering the applicant’s circumstances in their home country, regard must be had to:
a)Clause 9(a): Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision-makers should allow for any reasonable motives as established by the applicant. No submission was made or evidence adduced by the applicant and no finding was made;
b)Clause 9(b): The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country. The issue is addressed by the applicant’s letter sent to the delegate on 26 May 2016 (Letter) and discussed in the course of the hearing as recorded in the transcript. It was considered by the Tribunal in the Reasons at [15] and [19];
c)Clause 9(c): Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. This may include consideration of the applicant’s circumstances relative to the home country and to Australia. The issue was discussed at the hearing as recorded in the transcript and was considered in the Reasons at [20];
d)Clause 9(d): Military service commitments that would present as a significant incentive for the applicant not to return to their home country. No submission was made or evidence adduced by the applicant and no finding was made;
e)Clause 9(e): Political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa as means of obtaining entry to Australia for the purposes of remaining indefinitely. Decision-makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa. No submission was made or evidence adduced by the applicant and no finding was made.
Clause 11 relevantly required that decision-makers must have regard to the following factors:
a)Clause 11(a): The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties. The issue was discussed at the hearing as recorded in the transcript and considered by the Tribunal in the Reasons at [20];
b)Clause 11(b): Evidence that the Student visa program is being used to circumvent the intentions of the migration program. The issue is addressed by the applicant’s Letter and discussed in the course of the hearing as recorded in the transcript. It was considered by the Tribunal in the Reasons at [17], [18] and [21].
c)Clause 11(c): Whether the Student visa is being used to maintain ongoing residence. The issue is addressed by the applicant’s Letter and discussed in the course of the hearing as recorded in the transcript. It was considered by the Tribunal in the Reasons at [17], [18] and [21]-[22].
d)Clause 11(e): The applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge and applicant could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements. There was no submission or evidence raised and no finding. However, the issue was addressed in the Reasons at [14]-[18].
Clause 12 required that decision-makers must have regard the following factors in considering the value of the course to the applicant’s future:
a)Clause 12(a): Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision-makers should allow for reasonable changes to career or study pathways. The issue was discussed at the hearing as recorded in the transcript and was considered in the Reasons at [14]-[19];
b)Clause 12(b): Relevance of the course to the student’s pastoral proposed future employment either in their home country or a third country. The issue was discussed at the hearing as recorded in the transcript and was considered in the Reasons at [19];
c)Clause 12(c): Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study. No submission was made or evidence adduced by the applicant and no finding was made.
Clause 14 required that consideration must be had to the following:
a)Clause 14(a): Previous Visa applications for Australia or other countries, including:
i.If the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined . . . , were granted, or grounds on which they were refused;
ii.if the applicant has previously applied for visas to other countries, whether they were refused a visa and the circumstances that led to visa refusal.
No submission was made or evidence adduced by the applicant, however, the issue was considered by the Tribunal and addressed in the Reasons at [2] and [19].
b)Clause 14(b): Previous travels to Australia or other countries including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, where there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification period.
The issue is addressed by the applicant’s Letter and discussed in the course of the hearing as recorded in the transcript. It was considered by the Tribunal in the Reasons at [20].
It is not unimportant that, while the Minister went to the effort of analysing the material and preparing the table, the approach adopted by the applicant was to focus solely on the Reasons and to assert that because there was no express reference to particular matters, the court should find that they had not been considered. The applicant bore the onus of proof on the matters necessary to make out Ground 3. While she needed to do more than point to material capable of supporting the inference that the issue had not been considered, in this case the applicant did not attempt to meet the first requirement of identifying the material upon which consideration of the issues might have occurred. I do not accept that her generalised assertion supports a conclusion that it is appropriate to draw the inference the issues were not considered.
Having regard to the material which was before it, including the delegate’s decision, the applicant’s Letter, the other documents she supplied and on the evidence given at the hearing, in my opinion the preferable inference is that the Tribunal gave proper and genuine consideration to each of the factors raised by Direction No 53.
Insofar as the Reasons contain no reference to a particular factor, as noted above, this occurred in circumstances where the applicant adduced no evidence and made no submissions in relation to that matter. That the applicant and her migration agent did not do so speaks loudly to the so-called ‘materiality’ of the issue in this case. In the circumstances of this case, I am not satisfied that any failure to take into account a mandatory consideration (which I do not accept was established by the applicant) was of such significance that a failure to do so would have materially affected the decision which was made.
A fair reading of the Reasons involves the Tribunal’s acceptance and understanding of the case that was being addressed to it.[59] To the extent that any of those factors was erroneously overlooked by the Tribunal, I would not have considered such error as being jurisdictional in the circumstances of this case.[60]
[59]CfMinister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, [14] (Gleeson CJ, Hayne and Heydon JJ).
[60]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 788 [30] (Kiefel CJ, Gageler and Keane JJ), citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J); see also Lansen v Minister for Environment and Heritage (2008) 174 FCR 14, [90].
Conclusion
For the reasons above, the application is dismissed.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 11 December 2019
[24](1986) 162 CLR 24, 39 (Mason J).
[27](1998) 194 CLR 355, [91]-[93].
5
29
4