FEDERAL COURT OF AUSTRALIA

Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

3.    The first respondent’s name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

THE COURT:

1    This is an appeal from the decision of the Federal Circuit Court refusing to grant Constitutional writ relief to the appellants in respect of the decision of the Administrative Appeals Tribunal made on 9 February 2018 to affirm the decision of the Minister’s delegate not to grant the applicants student (temporary) (class TU) visas: Inderjit v Minister for Home Affairs [2019] FCCA 1525.

2    The issue in the appeal is whether the Tribunal erred in applying, on a correct understanding of the law, the requirements in cl 500.212 of the Migration Regulations 1994 (Cth), which provides as follows:

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.

(emphasis added)

Background

3    The appellants are husband and wife. Between 2007 and 2009, the husband had a student visa. The wife arrived in Australia in 2009. From 2009 to 2012, the wife had a student visa with her (now) husband as a secondary applicant. From 2012 to 2016, the husband had a subclass 457 temporary skilled visa (the 457 visa) with his wife as the secondary applicant to that visa.

4    On 23 August 2016 the wife applied for a student visa with her husband as the secondary applicant. On 15 November 2016, the Minister’s delegate refused that application.

The proceeding in the Tribunal

5    The appellants appeared before the Tribunal assisted by their migration agent.

6    The Tribunal found that the wife was an Indian citizen, born in 1980, and the husband an Indian citizen born in 1981. They maintained a de facto relationship until 2015 when they married.

7    The Tribunal found that the wife had achieved satisfactory results in her recent courses in 2016 for a diploma and in 2017 for an advanced diploma and that she had been awarded both diplomas.

8    It said that there was no information before it that either appellant had not complied with prior visa conditions. However, early in its reasons (at [13]), the Tribunal stated that it had significant concerns about the motives and intentions of the wife in enrolling in her then current course of study for a Bachelor of Business degree, and that it was not “satisfied that [she] is a genuine temporary entrant for stay as a student”. The Tribunal set out the provisions of cl 500.212. It then proceeded to examine the criteria in cl 500.212(a), having regard to the Minister’s Direction No 69 made under s 499 of the Migration Act 1958 (Cth) entitled “Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications”.

9    The Tribunal found that, by the time of its hearing, the husband had spent 10 years and the wife eight years onshore claiming to be temporary residents. It said that if the student visa were granted, their periods onshore would ultimately be 12 and ten years respectively, and that:

On the evidence, even if the [wife] finishes the Bachelor degree by December 2020, the Tribunal is not persuaded that she intends to depart Australia or that she considers her time living in Australia to be temporary.

10    It found that the degree for which the wife had enrolled would cost $36,000 and that the husband had not worked since 2016. It did not accept that, were the visa granted, the appellants would have savings to start a business, or that they genuinely intended to depart Australia, given the very significant costs that they would incur over the succeeding two years until she finished her degree in December 2020.

11    The Tribunal found that the husband had been looking for a job in Australia since his 457 visa ceased and that his occupation was still on the skills list, but that he had not been successful in finding a job or a sponsor. The Tribunal noted that, cumulatively in its evaluation, the husband and wife’s visa histories and their current visa status:

points to the [wife] using the student visa programme in relation to her application for this visa and at the time of this decision to maintain residence in Australia and on the written and oral evidence provided, indicates that she intends to pursue permanent residency if an opportunity presents itself. The Tribunal’s view is that the [wife] and her husband both intend to remain on shore until that opportunity presents itself. This is considered by the Tribunal to be a qualified intention to be a temporary entrant and is not considered to be an indication that the applicant is a genuine temporary entrant.

(emphasis added)

12    It noted that the appellants were on bridging visas at the time of the hearing. It found that the wife had applied for the student visa in 2016 to enable her husband to be granted a substantive visa, and to be in a position to apply for another 457 visa onshore rather than offshore, if he could find a sponsor and a job. The Tribunal found that the appellants had made no claim and provided no evidence that they could not work in India, nor was there any reason why they could not return to live in their home country.

13    The Tribunal accepted that the degree in which the wife had enrolled was a logical progression from the diploma and advanced diploma that she had earned in 2016 and 2017. It said that it had not given any negative weight to her not studying during the preceding four years while her husband’s 457 visa was current, and that that visa had authorised her stay in Australia.

14    However, the Tribunal found that the wife gave vague evidence about when classes had started for the degree for which she had enrolled earlier in 2018 that caused it to suspect that perhaps she had not attended any, or very many, classes to that point in time. It found that the degree had a start date of 15 January 2018 and that the wife had given vague answers to its questions about what she had done in attending classes over the three weeks preceding the hearing. It did not consider plausible that, if she had attended any classes, she could not recall with greater specificity, when asked, which ones and when she had attended. It formed the view that she was unwilling to give more specific details than she did and did not accept her reasons for not attending her degree classes in 2018 more regularly, given that it was a full time course that ran four days a week. It found that, since the degree commenced on 15 January 2018, she had very poor attendance record of less than 20% of course time over the preceding three weeks.

15    The Tribunal found that the wife’s stated career goal was to run her own business, and that she had achieved academic qualifications up to an advanced diploma in business. It found that she had worked for the same cleaning company in Australia since 2010, and had managed a team of 25 people for about the previous 18 months. It found that she was a long term employee who had been rewarded with a promotion to that management or supervisory role.

16    It found that she had academic qualifications, albeit not a bachelor degree, in business, and was not persuaded that adding the degree to her academic qualifications, in her circumstances, would improve her prospects of being able to set up and run her own business. It formed the view that she had enrolled in the “degree to support the student visa application, not because she genuinely needs the qualification to achieve her career goals”.

17    The Tribunal found that the husband had tertiary qualifications as an information technology (or IT) professional, and had some four years’ work experience in that role while he held his 457 visa. It found that he would be likely to have good prospects of being able to get a job in India in his chosen field of IT on the basis of his qualifications and experience and that neither he nor his wife would suffer any handicap if they returned to India. It noted that the wife had said that there were no IT positions in the village or area whence they came, but found that they could live, as a married couple, and work wherever they needed or chose.

18    It found that both appellants had qualified and had held jobs in their respective chosen field or discipline during various periods from 2010 to 2018, and that (at [32]):

The Tribunal cannot reconcile why they would stay onshore, living off savings and/or the sole income of the [wife] who works part-time, with the added significant expense of the [wife’s] additional course fees ($36,000 for the two year Bachelor of Business) when they are both, in the view of the Tribunal, qualified and experienced and could depart Australia and work in their chosen areas of skill or expertise in India. The Tribunal’s view is that it is because they do not intend or wish to reside outside Australia or consider their time in Australia to have been temporary. The Tribunal, on the evidence, is of the view that the [wife] has a qualified intention to stay as a temporary visa holder, that is, she is waiting for an opportunity to pursue permanent residency.

(emphasis added)

19    On balance, the Tribunal was not satisfied that the wife was a genuine applicant for stay as a student, having considered the wife’s circumstances, her written and oral evidence, and other relevant facts and matters, even though it had given some matters positive weight. It considered the wife to be:

using the student visa programme to maintain residence in Australia until an opportunity presents itself for her and/or her husband to pursue a legitimate pathway to permanent residency, which is contrary to a claim to be a temporary entrant.

(emphasis added)

20    The Tribunal found that, since 2009, the wife had travelled back to India only once for about a month in 2015, when she and her husband were married, and that, in more than 10 years the husband had resided in Australia, he had travelled back only one further time, for about a month in 2011. It found that the appellants had remained in Australia since 2015 and had been here for around half of their adult lives. It found that, in the circumstances and on the evidence, whilst the appellants had close family members living in India and they said that they had none living in Australia:

they do not demonstrate that the ties they have in India are sufficiently strong that they intend to return there to live or that they consider their time in Australia to be temporary.

21    The Tribunal then said (at [36]-[39]):

36.    The Tribunal has considered the submissions of the representative in support of the claim that the [wife] is a genuine temporary entrant. The expression ‘genuinely intends to stay in Australia temporarily’ has been subject to judicial consideration in the context of the equivalent pre-1 July 2016 student visa criteria. It requires that the applicant must unqualifiedly intend his or her stay to be temporary [Saini v MIBP [2015] FCCA 2379 (Judge Cameron, 3 September 2015) at [23], upheld on appeal in Saini v MIBP [2016] FCA 858 (Justice Logan, 29 July 2016)]. In Saini v MIBP Judge Cameron held that an intention to remain in Australia if qualified to do so at the end of the student visa, would amount to the lack of an intention to stay temporarily, because the intention to stay temporarily would not be unqualified [Saini v MIBP [2015] FCCA 2379 (Judge Cameron, 3 September 2015) at [23]]. In upholding his Honour’s judgment, Justice Logan held that what is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily [Saini v MIBP [2016] FCA 858 (Justice Logan, 29 July 2016) at [30]. Justice Logan expressly disagreed with the contrary interpretation of this criterion in Khanna v MIBP (2015) FCCA 1971 (Judge Manousaridis, 21 July 2015). While Khanna was overturned on appeal in MIBP v Khanna [2016] FCA 142 (Judge Reeves, 1 March 2016), that judgment did not expressly address the construction of cl.572.223(1)(a).

37.     The Tribunal is not, on the evidence, satisfied that the [wife], who currently holds a bridging visa related to her unsuccessful student visa application that is the subject of this review, unqualifiedly genuinely intends to stay in Australia temporarily. She has expressly informed the Tribunal that if an opportunity presents itself for her to pursue a legitimate pathway to permanent residency, if she qualifies, that is what she intends and would prefer to do.

38.     On the basis of the above, and having considered relevant facts and matters individually and cumulatively, the Tribunal is not satisfied that the [wife] intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

39.     Accordingly, the Tribunal is not satisfied that the [wife] is a genuine applicant for entry and stay as a student as required by cl.500.212.

(emphasis added)

The proceeding before the trial judge

22    The appellants’ application before the trial judge asserted that the Tribunal had made a jurisdictional error, first, by misinterpreting the expression “intends genuinely to stay in Australia temporarily” in cl 500.212(a) of the Regulations, and, secondly, by making legally unreasonable findings of fact, making such findings without evidence or taking into account irrelevant considerations.

23    In this Court, the appellants abandoned their appeal on the second ground and maintained only the first ground.

24    Before his Honour, the appellants put a formal argument that Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238 at 246 [30] was wrongly decided in respect of what Logan J had held, namely that:

…if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”.

25    The appellants submitted to the trial judge that the decision of Judge Manousaridis in Khanna v Minister for Immigration and Border Protection (2015) 298 FLR 388, which Logan J held was wrongly decided, was preferable.

26    The trial judge correctly found that he was bound by Logan J’s decision, and dismissed the first ground of review. His Honour also dismissed the second ground of review, leading to this appeal.

The appellants’ submissions in the appeal

27    The appellants argued, somewhat ambivalently, that the decision in Saini 245 FCR 238, like the curate’s egg, was somehow correct and incorrect in part. They contended that the Tribunal had misapplied what Logan J had said in its reasons in [21], [36] and [37]. They submitted that the expression, “any other relevant matter” in cl 500.212(a)(iv), had to be read as meaning either:

    if a person expressed one intention that could rationally coexist with a second intention, the presence of the second intention could not dictate the absence of the first intention, demonstrating, so the argument ran, that Logan J’s reasoning of inconsistency between the two intentions was wrong; or alternatively

    the second intention (being the intention to avail oneself, if the opportunity presented, to stay permanently in Australia) had to be found to be of little or no weight in deciding as to the existence or otherwise of an intention genuinely to stay in Australia temporarily for the purposes of cl 500.212(a).

28    The appellants argued that, as a matter of construction of cl 500.212(a), a settled intention to take advantage of a future opportunity, if it presented itself, to stay in Australia permanently was not a relevant consideration at all, or was a relevant matter of marginal or supplementary weight, within the meaning of “any other relevant matter” in cl 500.212(a)(iv). They contended that the Tribunal had misunderstood what Logan J had said, when it found at [21] and [36], that the settled intention of the wife later to seek a visa that would lead to permanent residence was not an unqualified intention that her stay would only be temporary. The appellants submitted that the Tribunal erred by giving the presence of the wife’s settled intention to stay permanently in Australia more than no, or minimal, weight in its reasons. They contended that the intention was either not a relevant matter or that the Tribunal had attributed greater weight to it than, on the appellants’ construction, cl 500.212(a)(iv) allowed. The appellants argued that a mere vague or fleeting thought about what might happen in the future was insufficient to justify the Tribunal not being satisfied that the wife did not intend genuinely to stay in Australia only temporarily.

Consideration

29    The Tribunal’s reasons demonstrated that it had engaged in a detailed evaluation of all of the matters to which cl 500.212(a) required it to have regard in arriving at its ultimate conclusion. When legislation requires a decision-maker to “have regard to” one or more particular criteria that it specifies, the decision-maker has to take each criterion into account and give it weight, as a fundamental element, in making his or her determination: R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J with whom Gibbs J agreed at 324, applied in R v Toohey; Ex Parte Meneling Station Pty Limited (1982) 158 CLR 327 at 333 per Gibbs CJ. In Telstra Corporation v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267], Jacobson, Lander and Foster JJ approved Rares J’s discussion (in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[112]) of the principles applicable when a decision-maker must approach the making of a decision under legislation that requires him or her “to have regard to” one or more factors. Rares J said (176 FCR at 182-183 [107]-[108], [110]):

107     Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at [52] per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed (East Australian Pipeline 233 CLR 229 at [102]):

It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them.

108     Because s 152CR(1) required it to take into account each of the seven specified factors, the Commission had to give each of them appropriate consideration in arriving at its final determination. The number and variety of factors which a statute requires a decision-maker to take into account or to have regard to in arriving at a decision necessarily affects the weight any one of those factors must be given in the deliberative process. In Sean Investments 180 CLR 322, the costs were fundamental — or foundational — because they were the only matter which the statute prescribed. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [22]-[23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at [32].

[…]

110     I am of opinion that the sense in which the High Court used the expression “fundamental weight” in this context is to require the decision-maker to treat the consideration of the factors, as opposed to the factors themselves, as a central element in the deliberative process: Meneling Station 158 CLR at 338 per Mason J. In this way the decision-maker will give appropriate weight to those factors. The Parliament sought to ensure that the Commission would give proper, genuine and realistic consideration to each of the factors it specified in s 152CR(1) but without confining it to those matters, as s 152CR(2) showed. Such consideration must be reflected in the Commission's reasons for its decision.

(bold emphasis added)

30    Moreover, if the legislation requires a decision-maker to have regard to more than one criterion or factor in making a decision, but gives no fixed weighting to any of them, then none of the factors has any presumptive or fixed weighting in relation to any or all of the other criteria: Telstra 176 FCR at 183 [112].

31    The ultimate issue for decision under cl 500.212 is whether the “applicant is a genuine applicant for entry and stay as a student” because he or she meets each of the criteria in cl 500.212(a), (b) and (c). In considering each of criterion (a) and (b), the decision-maker must have regard to each of the prescribed factors for that criterion (so far as it may apply in the circumstances). The Minister, or decision-maker standing in his or her shoes, after considering a valid application for a visa, must grant it, by force of s 65(1)(a)(ii) of the Act, relevantly here, if he or she is satisfied that the criteria prescribed for the visa in the Act and or Regulations have been satisfied.

32    The purpose of cl 500.212(a) was to ensure that the decision-maker considered, among other matters, any statements of intention or conduct revealing of intention for the purpose of evaluating whether or not, ultimately, the applicant for the visa had satisfied the decision-maker about the genuineness of his or her stated intention to stay in Australia temporarily.

33    Here, the Tribunal (as the decision-maker exercising the Minister’s powers under s 65(1)) had to be satisfied, for the purposes of cl 500.212(a), that the wife, as an applicant for the student visa for which she had applied, was a genuine applicant for entry and stay as a student because she intended genuinely to stay in Australia temporarily, having regard to her circumstances, immigration history, and were he or she a minor, the intentions of his or her parent or other guardian, and any other relevant matter.

34    We reject the appellants’ argument that the criterion of “any other relevant matter” in cl 500.212(a)(iv) excludes or limits the ability of a decision-maker to make or use any finding as to what an applicant for a visa intended, were he or she to have an opportunity to apply for permanent residence. Such a construction cannot be reconciled with the language of the clause. The state of mind of the applicant for the visa is necessarily a relevant matter, because cl 500.212 requires the applicant to satisfy the Minister that he or she has a genuine intention about the length and circumstances of his or her stay in Australia. It follows that, a decision-maker, such as the Tribunal, in its evaluation of that state of mind, may have regard to matters that bear on the identification and establishment of the intention of the applicant for the visa.

35    The appellants’ argument seeks to treat a state of mind, being intention, as in some way capable of subdivision into legally discrete categories, some of which are relevant, some of which are irrelevant, in a way that has no regard to the general statutory language that the Minister must have regard to “any other relevant matter” in considering whether he or she is satisfied as to whether the applicant for visa “intends genuinely to stay in Australia temporarily”.

36    Nothing in the text of cl 500.212 or in the subject matter, scope and purpose of the Act and Regulations supports a construction that cl 500.212(a)(iv) is subject to any limitation as to the way in which a decision-maker can arrive at his or her findings as to what a visa applicant’s intention is or what weight he or she may, or must give, to any of the four relevant considerations prescribed in cl 500.212(a) when arriving at a state of satisfaction as to whether the applicant has satisfied the decision-maker that he or she intends genuinely to stay in Australia temporarily.

37    In its reasons, the Tribunal referred to what Logan J had held in Saini 245 FCR at 246 [30]. His Honour expressed the test as requiring the decision-maker to undertake an evaluation of intention at the time of his or her decision, as he explained thus:

That means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”. What is required is an evaluation by the decision-maker of intention as at the time of decision.

(emphasis added)

38    We do not understand Logan J to have held that the existence of a settled intention, at the time of the decision, later to seek a visa that would lead to other than temporary residence as necessarily negating any capacity of a decision-maker to find that the applicant for the visa genuinely intended to remain in Australia temporarily. Rather, his Honour stated that the existence of that settled intention was “not consistent” with an intention to “genuinely to stay in Australia temporarily”.

39    Ordinarily, that lack of consistency may be expected to lead a decision-maker to examine closely whether its presence should result in the decision-maker not being able to form the requisite state of satisfaction justifying the grant of the visa. But as we read Logan J’s reasons, he did not hold that the decision-maker had to decide that the existence of the settled intention, at the time of the decision, if the opportunity to do so arose, later to seek a visa that would lead other than temporary residence, necessarily negated the entitlement to seek a visa.

40    Contrary to the appellants’ submission, we do not consider that the Tribunal misapplied the reasoning of Logan J in Saini. In our view, the Tribunal in this case made an evaluation of the wife’s intention as at the time of the decision, based on all of the material before it, including the appellants’, and in particular the wife’s, statements of her and his intentions.

41    A person’s intention is a question of fact for the decision-maker, applying cl 500.212, based on all of the material before it. A person may genuinely wish to return home after a course of study and thus entertain a genuine intention to stay temporarily, even though, at the same time remaining open to pursuing in the future, what the person considers to be unlikely, an opportunity, if it presents itself, to seek a permanent visa to do so. The decision in such cases, ultimately, depends on the decision-maker’s evaluation as to whether the applicant for the visa has satisfied him or her for the purposes of s 65(1)(a)(ii) of the Act, that the criteria for the visa prescribed by cl 500.212 have been satisfied, in which case the Minister must grant the visa, or otherwise, if not so satisfied, refuse it.

42    Here, the Tribunal stated at [37] that it was not satisfied on the evidence that the wife unqualifiedly, genuinely intended to stay in Australia temporarily. That factor was a matter that it took into account, as it was bound to do under cl 500.212(a)(iv), in coming to its conclusion that, overall, it was not satisfied that she genuinely intended to stay in Australia temporarily. Rather, as it found in numerous places in its reasons, it considered that she was using the student visa program to maintain residence in Australia until an opportunity presented itself for her and her husband to pursue a legitimate pathway to permanent residency. That finding was open to the Tribunal, and we are not able to perceive any jurisdictional error in its reasons for that conclusion.

Conclusion

43    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    4 December 2019