Verma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 531
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Verma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 531
File number: LNG 79 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 5 July 2022 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to have regard to evidence and was irrational or unreasonable.
Legislation: Migration Act 1958 (Cth) ss 474, 499, 359, 368
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421
BHD18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 26
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713
Minister for Immigration & Citizenship v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210
Acuna Plaza v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2019] FCA 424
Division: General Division Number of paragraphs: 42 Date of hearing: 23 August 2021 Place: By video to Hobart Counsel for the Applicant: Ms G. Costello QC Solicitor for the Applicant: FCG Legal Pty Ltd Counsel for the Respondents: Mr F. Gordon Solicitor for the Respondents: Australian Government Solicitor ORDERS
LNG 79 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RUSHAL VERMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
5 JULY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant is a citizen of India who arrived in Australia on 14 November 2018 on a tourist visa valid until 15 February 2019. On 30 January 2019 she applied to the Department of Home Affairs for a class TU subclass 500 student visa to undertake study in Australia. On 13 March 2019 her application was refused by a delegate of the first respondent (“Minister”) and on 16 March 2019 the applicant applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal's decision.
In this judicial review proceeding the Court's task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow the application will be dismissed.
RELEVANT LEGISLATION
Part 500 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) sets out the criteria for the grant of a subclass 500 student visa. Clause 500.212 provides:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Section 359 of the Act relevantly provides:
359Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
…
Section 499 of the Act relevantly provides:
499Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
…
In considering cl.500.212, the Tribunal must have regard to Ministerial Direction No.69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa application”, made under s.499 of the Act. Part 2 of Ministerial Direction No.69 relevantly provides:
…
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the application that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
…
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
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;
…
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
BACKGROUND FACTS
The applicant's 30 January 2018 visa application was made on the basis of her enrolment in a Diploma of Information Technology Networking course. That course concluded on 5 April 2020 and she then enrolled in an Advanced Diploma of Information Technology course that was due to commence on 20 April 2020. However, it did not commence because the education provider cancelled the offering on 31 March 2020 as a consequence of low enrolments.According to a confirmation of enrolment document dated 31 March 2020, reproduced in the Court Book, and her evidence to the Tribunal, the applicant then enrolled in an Advanced Diploma of Business which was due to be completed in September 2021.
On 15 April 2020 the Tribunal wrote to the applicant inviting her to provide all relevant information about her course of study and her entry and stay in Australia as a student. The applicant responded with a completed “Request for Student Visa Information” form dated 27 April 2020. In it, she relevantly responded:
…
Q16.Please give details of how and why the Main Applicant chose the education provider(s) for the Australian course(s) they are currently studying and/or propose to study in the future.
I had applied to study bachelors in information technology after doing year 12 in India and had come for a visit to Tasmania and at that young age the appeal of studying in Australia and seeing the difference in the education system was tempting to try. I have completed my diploma in information technology and now enrolled in advanced diploma in Business. I have understood my direction in life to successful career in India.
Q17.If there are similar courses available in the Main Applicant’s home country or region to the course(s) they are currently studying and/or propose to study in Australia, please give details of the Main Applicant’s reasons for not undertaking the course(s) in their home country of region.
I have grown up as the older sibling in my father’s family business and I have been thinking of expanding and modernising it having studied here has helped me broaden my thinking while already here I can further my study and understand the business to be able to go home and may be expand into trading with Australia. After completing the diploma of Business then I understand the good trade and business relationship between the two countries. Once I have the knowledge I can go back and help my parents with my knowledge and combine it with my father’s knowledge of the Indian business system. Combined with my study in IT I feel I will find ways to improve out already existing small family business into someone for mine and my brother’s future.
…
Q22.Please give details of the Main Applicant’s contact with family in their home country (if any), and how often this contact occurs.
I keep regular contact with my family in India through internet (video call) and call and I love my parent a lot.
…
Q26.Please give details of the Main Applicant’s plans, including employment plans, at the completion of the course(s) of study now proposed. Please include details of how these course(s) relate to the Main Applicant’s future plans.
As stated above my plan is to go back to India. My knowledge of information technology and business study will have a [sic] impact in my future plans.
…
The Tribunal summarised the applicant’s allegations as follows:
36.… The applicant commenced but did not complete a BSC IT in India. She arrived in Australia on 14 November 2018 as a tourist. She intended to visit her uncle and experience an Australian Christmas. She applied for the student visa on 30 January 2019. Apparently she had applied to be enrolled in courses of study at the end of December 2018 or in early January 2019. She has not returned to India. She completed a Diploma of IT (Networking) in April 2020. She was enrolled in an Advanced Diploma of IT but did not commence it. This course was cancelled by the course provider due to insufficient student numbers. Instead she enrolled in and is currently studying an Advanced Diploma of Business. This course is due to be completed in September 2021. The applicant’s father, mother and brother reside in India. Her uncle and aunt reside in Australia, in Tasmania. She has no assets in India. In her statement dated 30 January 2019 she stated she intended to study the Advanced Diploma of Information Technology for career reasons. In her second undated statement she stated that she intended to study the Advanced Diploma of Business because the Advanced Diploma of Information Technology had been cancelled. Her articulated reason for completing the Advanced Diploma of Business was to assist her father in his small printing business. She did not explain the size or complexity of the business or the particular need for her skills. She has not explained to the Tribunal’s satisfaction why her existing qualification is insufficient for her vague career path, why she has regressed to vocational level courses in Australia having commenced a bachelor level course in India, the need for a vocational qualification in business to assist her father’s business, any detail as to her future career path or her expected future remuneration. (emphasis added)
Stating that it had had regard to cl.500.212 and Ministerial Direction 69, the Tribunal found that the information provided by the applicant was insufficient to demonstrate that she was a genuine temporary entrant to Australia as a full-time student. In reaching that conclusion the Tribunal:
(a)accepted that the applicant had provided evidence of social, direct family and financial ties to her home country, or other economic incentives to return, sufficient to act as an incentive to return, but was nevertheless not satisfied, having regard to the time she had spent in Australia and the intended period of her future stay in Australia, that the applicant had a significant incentive to return to India;
(b)considered that the length of the applicant's proposed stay suggested she was studying for the purposes of staying in Australia and that her conduct was consistent with her having decided to extend her stay in Australia by utilising the student visa program;
(c)placed little weight on the value to the applicant's future of the Advanced Diploma of Business, noting that changing from a course in information technology to a course in business was suggestive of a person who was intent on staying in Australia rather than on pursuing a particular field of study. The relevance of the course to the business operated by the applicant's father had not been explained in any detail and the applicant had been vague as to the course’s relevance to her own general career path;
(d)was not satisfied that the proposed additional study had a reasonable prospect of adding significant value to the applicant's career beyond her then-existing qualifications;
(e)was not satisfied, having regard to the disparity in economic circumstances between India and Australia, that the applicant had significant incentive to return to India, noting that she had been unable to demonstrate substantial ties or personal assets there;
(f)was not satisfied that the applicant had demonstrated the value to her future of her proposed course, not having demonstrated clear and substantial improvements that would arise from her proposed study sufficient outweigh the significant time and monetary commitment this course will require; and
(g)assessed the applicant's incentive to return to India to be poor as, since her arrival in Australia on 14 November 2018, she had spent nearly 2 unbroken years in Australia, which indicated a lack of strong personal ties to India.
The Tribunal relevantly expressed its findings as follows:
46.The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. On balance it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
47.The Tribunal has considered all information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
48.On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
49.There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
50.On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant alleged:
1.The Tribunal breached s359 by obtaining information pursuant to a request for information and not having regard to it.
The Tribunal may obtain information under s 359. If it does so, it must have regard to it. The Tribunal failed to have regard to information obtained in the form titled “Request for Student Visa Information Under s359(2) of the Migration Act”. In particular, the Tribunal failed to have regard to information about how the applicant would use her Australian studies to develop her family business in India as specified in the answer to Q17.
2.The Tribunal was irrational or legally unreasonable in finding – as no reasonable decision maker on planet earth would find – that because the applicant had not visited her family in India in the period leading up to November 2020 she did not have ties to India in circumstances where no Australian could take a trip back to India to visit family during most of 2020 due to COVID-19.
APPLICANT’S SUBMISSIONS
Ground 1
The applicant's case on the first ground of the application was developed in argument to take a form somewhat different to that which had been pleaded.
The applicant submitted that the Tribunal failed to have regard to the information she had supplied in answer to questions 16 and 17 of her completed Request for Student Visa Information form, quoted earlier at [9], about how she would use her Australian studies to develop her family business in India and why she had chosen to study in Australia rather than in India. She argued that although, commencing at para.12 of its decision record the Tribunal had referred to the form and its contents, it failed to have regard to her evidence that her rationale for undertaking the Advanced Diploma in Business course included learning how to expand trading into Australia and that she could combine her newly-acquired knowledge with her father's knowledge of the Indian business system and expand her father's business.
The applicant also argued that the Tribunal's reliance on the fact she had not visited India in the two years after her arrival in Australia in November 2018, which it said indicated that she did not have strong personal ties to India, overlooked the arrival of the COVID-19 pandemic and, in particular, that travel had been inhibited in the 7 months preceding the Tribunal’s 17 November 2020 decision. The Tribunal was also said to have overlooked the applicant's evidence that she had had internet contact with her family.
It was submitted that if the Tribunal had had regard to that evidence, the outcome of its review might have been different and so its failure to do so was jurisdictional.
Ground 2
The applicant submitted in relation to the second ground of her application that, when finding that she did not appear to have strong personal ties to India, the Tribunal acted irrationally and unreasonably in placing reliance on the fact that she had not returned to India in circumstances when, for much of 2020, returning to India had not been possible because of COVID-19-related travel bans. The applicant further submitted in relation to this point that the Tribunal had failed to consider her evidence in the Request for Student Visa Information form that she had stayed in regular contact with her family in India through the internet.
The applicant submitted that, because of that process of reasoning, the Tribunal’s decision was illogical or irrational.
CONSIDERATION
Ground 1
Failure to have regard to evidence concerning value of course
The first of the two issues raised by ground 1 of the application concerned the value of the applicant’s proposed course of study to her hypothesised career in her family’s business, a matter made relevant by item 7 of Ministerial Direction 69, and whether when reaching its decision on that issue the Tribunal had had regard to what the applicant said in her answers to questions 16 and 17 of the Request for Student Visa Information form.
The Tribunal must consider an applicant's claims in light of the facts as disclosed by the evidence in its possession. If the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review because the evidence might have persuaded the Tribunal that it was satisfied that the applicant met the criteria for the grant of the visa sought, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30 and 31, Mason J at 40, 44-46 and Dawson J at 71; Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at 130 [111] and 132 [122]; Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 at 436 [13]; BHD18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 26 at 42-43 [44]-[45].
The answer the applicant gave to question 16 of the form referred to the differences in the educational offerings in India and Australia and to her wish to have a successful career in India but did not touch on what value being in Australia might have to the growth of her family business or to her future more generally.
The answer to question 17 of the form spoke of expanding and modernising the family business using what the applicant was in the process of learning in the Advanced Diploma in Business course and what she had already learned in the information technology course she had completed earlier in 2020. The applicant said much the same in her “statement of purpose” documents which were referred to in some detail by the Tribunal. For instance, in the second of those statements she said:
…
I am of opinion that my completed course and my currently enrolled course will enable me to have successful career and as well as enable me to support my father’s business. The skills gained from IT units will help me to make apps and design new kinds of graphics, new styles and I can also create visual content to communicate messages through networking management tools. After that, from business units , I will be able to explain my father importance of human resources and how to manage them. I will also be able to prepare a marketing plan for his current business. He has been running the business very traditionally, and I believe with my developed technological and business skills, I will be able to digitize most of the work, do e-marketing, approach different business with new printing ideas. Currently, my father takes order for printing and outsources the printing work. I want to encourage my father to get our own printing machine for this outsourced work. I know that it required budget planning and high level of research before bring any changes.
…
The applicant also said in her answer to the form's question 17 that she wanted to expand the family business into trading with Australia, using what she learned from the business diploma.
Related evidence given by the applicant at the Tribunal hearing was paraphrased in the Tribunal’s reasons as follows:
30.The applicant was invited to explain the change in direction of her study from information technology to a vocational course in business. She replied “because I was doing in IT, I started looking at I [sic] father who had a small business, and I will be studying IT course in India so I would help my father’s business, I started IT course in Australia, then the college cancelled IT course, after consulting the education consultant, Advanced Diploma of Business will be of equal value to help my father, I want to help my father’s business to grow, with education I have gained, the course in IT and Advanced Diploma of Business will help me take my father’s business to the next level, these skills will help me to take my father’s business to upper level, even if I don’t help my father, it can help me in those sectors in software and hardware, I will be able to get a better job”.
It is to be observed that the applicant’s plans for how she could employ what she would learn in the Advanced Diploma of Business course were nebulous. The Tribunal observed that she was also vague in her descriptions of her post-study career path more generally. The Tribunal’s discussion of the applicant’s future plans necessarily reflected the lack of precision and detail that she provided in the first place.
The Tribunal thought little of the potential value to the applicant’s future of the Advanced Diploma in Business course and in para.40 of its reasons explained why:
(a)in her first “statement of purpose” the applicant had extolled the virtues and relevance of a Diploma of Information Technology and of an Advanced Diploma of Information Technology but in her second “statement of purpose”, after the cancellation of that advanced diploma course, she demonstrated “flexibility” and enrolled in a quite different course, the Advanced Diploma in Business. The Tribunal concluded from this “flexibility” that the applicant’s purpose was not to study but to remain in Australia;
(b)the applicant had not explained in any detail what need the family business would have for a person qualified with an Advanced Diploma in Business; and
(c)the applicant was “vague as to her general career path by reference to the Advanced Diploma in Business”.
The presently relevant finding was expressed in para.41 of the decision record as follows:
41.On balance, the Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has qualifications in information technology obtained in Australia. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to her career beyond the existing qualifications.
It is apparent from paras.12 to 20 of its decision record that the Tribunal had read and was aware of the contents of the applicant’s completed Request for Student Visa Information form, albeit it did not include a detailed summary in its reasons. However, it only needed to particularise the applicant’s answers if obliged to by s.368 of the Act which relevantly provides:
368Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
…
Given the Tribunal’s finding on the value to the applicant of the Advanced Diploma in Business and the reasons it gave for that finding, s.368 did not require the Tribunal to refer specifically to the applicant’s statement as to the appeal of studying in Australia, to her assertions that that course would be relevant to expanding the family business generally or to Australia, or to her idea of combining her Australia-acquired knowledge with her father's knowledge of the Indian business system. Those issues were subsumed in the more general finding that the applicant’s assertions as to her future career were vague and unpersuasive and that a need in the family business for the skills of an advanced diplomate in business had not been demonstrated: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593. Consequently, I do not infer from the fact that the contents of the answers to questions 16 and 17 of the Request for Student Visa Information form were not specifically referred to that they were not considered by the Tribunal as required by s.359 of the Act, particularly as in para.47 of its decision record it expressly stated:
The Tribunal has considered all information provided by the applicant in support of her application. …
Failure to have regard to evidence of connection to family
The Tribunal stated in para.45 of its decision record:
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 14 November 2018 the applicant has spent nearly 2 years in Australia and has not returned to India, which indicates that she does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be poor.
The applicant submitted that in finding that she did not appear to have strong personal ties to India and concluding that her incentive to return to India was poor, the Tribunal failed to have regard to:
(a)the fact that the COVID-19 pandemic had inhibited travel over the 7 months prior to the Tribunal’s 17 November 2020 decision; and
(b)her evidence in the Request for Student Visa Information form that she had stayed in regular contact with her family in India through internet video calls.
In relation to the first of those points, bans on overseas travel were notorious in Australia at the time of the Tribunal’s decision so any suggestion that the Tribunal was unaware of them or unaware that the applicant could not have made a return trip to India while they were in place must be rejected. I do not conclude that the Tribunal overlooked that practical consequence of the COVID-19 pandemic and observe in that regard that its relevant finding:
... that since the applicant’s arrival in Australia on 14 November 2018 the applicant has spent nearly 2 years in Australia and has not returned to India …
refers to a period much longer than the 7 months to which the allegation refers.
In relation to the second point, the argument overlooks what the Tribunal relevantly found, set out in para.38 of its decision record, which was summarised earlier at [11(a)]. The material finding was that the applicant’s conduct in seeking an extended stay in Australia indicated that her acknowledged ties to India were insufficient incentive for her to return there. As has already been observed, it is apparent from its decision record that the Tribunal had read and was aware of the contents of the applicant’s completed Request for Student Visa Information form, and it can further be seen from para.38 of its reasons that the Tribunal was aware of the applicant’s family ties to India. It was not necessary for the Tribunal to particularise the evidence supportive of the applicant’s contentions that those ties provided an incentive to return to India as it plainly accepted those contentions. It also did not have to be particularised in the context of the material finding because that finding did not depend on that evidence.
In all those circumstances I do not infer from the fact that the Tribunal’s reasons did not particularise the information contained in the applicant’s answer to question 22 of the Request for Student Visa Information form, that it failed to have regard to it.
Ground 2
The substance of the second ground of the application was that the Tribunal had acted irrationally or unreasonably in finding that the applicant did not have ties to India because she had not returned after arriving in Australia in November 2018. In support of that allegation the applicant noted that during a significant period of her stay in Australia it had been difficult or impossible to travel because of border restrictions arising from the COVID-19 pandemic. The argument was developed in submissions to:
…
19.In finding at [45] of its decision that the applicant did not appear to have strong personal ties to India, the Tribunal unreasonably counted the fact that the applicant had not returned to India during a period that included an operative travel ban. The Tribunal also failed to consider the applicant’s evidence given at question 22 of the Form that she kept in regular contact with her family in India through the internet.
…
The task of the Court, when it is alleged that a decision is legally unreasonable, is to ask whether the decision-maker’s exercise of power was beyond power for that reason: Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713 at 732 [78]-[79] per Nettle and Gordon JJ. In Minister for Immigration & Citizenship v Singh (2014) 231 FCR 437 at 445 [43], [44], the Full Court of the Federal Court observed that in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 the High Court said that there is a presumption of law that Parliament intends an exercise of power to be reasonable and that legal unreasonableness can be a conclusion reached by a supervising court:
(a)after the identification of an underlying jurisdictional error in the decision-making process; or
(b)be “outcome focused” when the supervising court cannot identify how the decision was arrived at and, without necessarily identifying an underlying jurisdictional error, the exercise of power is seen by that court as lacking “an evident and intelligible justification”. For instance, it may be discernible in a decision because no reasonable person could have arrived at it: Minister for Immigration & Border Protection v SZVFW at 733 [82] per Nettle and Gordon JJ.
Relevantly for the present case, in Singh the Federal Court said:
… we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. … Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable. (at 446-447 [47])
It has been observed that unreasonableness and illogicality can overlap: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 647 [128]. A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power: Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 220 [49]. However, irrationality or illogicality in an intermediate finding of fact will not support a finding of jurisdictional error if it was immaterial or not critical to the ultimate decision: SZUXN at 221 [55]. In Acuna Plaza v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2019] FCA 424 Allsop CJ said:
… it is enough for the finding to have been carried into the decision, that it flowed into the decision or affected the decision in a not immaterial way, or is sufficiently part of the reasoning to the outcome, or is a finding on which the ultimate conclusion was predicated, not being severable for the decision to be seen as tainted jurisdictionally. … (at [17])
Consequently, in a case such as the present, where express reasons have been given by the decision-maker, the decision in question is unlikely to be affected by jurisdictional error if it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it:
… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. (SZMDS at 648 [131] per Crennan and Bell JJ)
The relevant reasoning of the Tribunal was that it thought the applicant had little incentive to return to India because, in the two years following her arrival in Australia, she had not once returned there. As noted earlier, any suggestion that the Tribunal was unaware of the travel bans or unaware that the applicant could not have made a return trip to India while they were in place must be rejected. That being so, it was not unreasonable or irrational of the Tribunal to conclude in relation to the relevant 2 year period, which comprised 7 months of travel bans and 17 months of relevantly unrestricted travel, that the applicant’s failure to visit her home country once in that period indicated that she was not much drawn to return. While minds might differ as to the conclusion to be drawn from those facts, it was open to the Tribunal to reach the conclusion it reached.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 5 July 2022
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