FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, as fixed by a Registrar or agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    I have had the advantage of reading in draft the reasons for judgement of my brothers, Derrington and Thawley JJ.

2    I agree with their Honours’ reasons and with the orders which they propose for the disposal of this appeal. I wish to add some further observations.

3    Reasons for judgement of such length and detail are, with respect, necessary in this instance, given the grounds of appeal, the way in which the case was argued and some prior authorities. However, it would be unfortunate if it were thereby thought that the making of administrative decisions in respect of student visas, either by delegates of the Minister or by a merits review tribunal, of which there must be very many, entails an inordinate burden on public resources.

4    Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.

5    Satisfaction based criteria are not unexaminable on judicial review: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J). However, where they entail “a matter of opinion or policy or taste” there is considerable scope for unexceptional, administrative evaluation and a corresponding requirement for judicial restraint lest the boundaries between the legitimate exercise of judicial power and administrative power be crossed: Buck v Bavone (1976) 135 CLR 110 at 118-119 (Gibbs J).

6    Much, perhaps too much, judicial time has been spent in judicial review and in the exercise of appellate jurisdiction in respect of merits based evaluations as to whether a particular person is a “genuine” student. I cannot help but think that this is in no small part due to a failure on the part of the profession to appreciate the nature of the evaluative criterion mentioned, the limits in relation thereto of judicial review, an overly narrow reading of the Minister’s directions and an uncritical assimilation of them with subordinate legislation prescribing criteria relevant for the purpose of the making of a quite different administrative decision.

7    This was a routine, merits based evaluation in the course of public administration. It was not just inherently specific to the material before the Tribunal but also reactive to the way in which the appellant had put his claim for the visa over the course of an administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the appellant was a genuine student. They were sufficient unto the day. Not to recognise this would be to make student visa decision-making more unwieldy, delayed and consumptive of public resources than it should be.

Associate:

Dated:    24 February 2020

REASONS FOR JUDGMENT

DERRINGTON AND THAWLEY JJ:

INTRODUCTION

8    On 14 April 2015, the appellant applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa. On 16 April 2015, a delegate of the then Minister for Immigration and Border Protection requested additional information in a letter which summarised Ministerial Direction No 53 Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (Direction 53) made under s 499 of the Migration Act 1958 (Cth) and provided a link to that direction. The letter included:

According to your study records, you have only completed vocational level courses over the past 6 years or since your arrival. You have multiple enrolments in short/inexpensive courses. Your current enrolment in Project Management is unrelated to your previous studies. Therefore your intention and the value of this new course to your future is in question. There are also concerns that you do not genuinely intend to stay in Australia temporarily and are using the student visa program as a means of maintaining residence in Australia.

9    On 13 May 2015, the appellant’s migration agent responded, providing further information which included a statement made by the appellant. The appellant’s visa application was refused on 27 May 2015 because the delegate of the Minister was not satisfied that the appellant was a genuine temporary entrant as required by cl 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth). The delegate’s reasons referred to Direction 53, stating that it set out the factors which must be taken into account when assessing the genuine temporary entrant criterion, then set out a summary of the direction, and provided a link to a complete copy of it.

10    On 10 June 2015, the appellant applied to the Administrative Appeals Tribunal for review of the delegate’s decision.

11    By letter dated 26 August 2016, the Tribunal sent to the appellant’s appointed representative a copy of Direction 53 and invited the applicant to a hearing on 14 September 2016. The letter invited the appellant to provide documents he intended to rely upon, as well as a written statement addressing by reference to Direction 53 the issue of whether he was a genuine temporary entrant. The letter informed the appellant that Direction 53 was relevant to the Tribunal’s assessment of whether the appellant genuinely intended to stay in Australia temporarily.

12    The appellant did not respond to the Tribunal’s letter, but attended the hearing. On 7 November 2016, the Tribunal affirmed the delegate’s decision not to grant the visa. The Tribunal reached the same conclusion as the delegate: it was not satisfied that the appellant genuinely intended to stay in Australia temporarily and, thus, did not satisfy cl 572.223(1)(a).

13    By an application filed on 25 November 2016, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. He was legally represented. That Court dismissed his application on 13 September 2019: Kumar v Minister for Immigration & Anor [2019] FCCA 2584. It is from the orders of the Federal Circuit Court that the appellant now appeals.

14    The appellant contends that the Federal Circuit Court erred in not concluding that the Tribunal committed a jurisdictional error for the three reasons he had advanced. For the reasons set out below, the Federal Circuit Court was correct to conclude that the Tribunal was not in error.

STATUTORY AND LEGAL FRAMEWORK

15    Section 29(1) of the Act gives the Minister power to grant a non-citizen a visa to travel to and enter, or to remain in, Australia. There are prescribed classes of visa and regulations may prescribe the criteria for visas of a specified class: s 31(1) and (3).

16    A non-citizen who wants a visa must apply for a visa of a particular class: s 45.

Section 65 of the Migration Act

17    After considering a valid application for a visa, the Minister must grant the visa “if satisfied” of the various matters identified in s 65(1)(a) of the Act. One of the matters of which the Minister or his delegate must be satisfied is that the criteria prescribed by the Act or Regulations for the visa have been met: s 65(1)(a)(ii). If the Minister is not satisfied of the matters identified in s 65(1)(a), the Minister is to refuse to grant the visa: s 65(1)(b). Section 65 provides (notes omitted):

65 Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

    (i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of the same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

18    The power to grant the visa is non-discretionary in that the Minister is under an obligation to grant the visa “if satisfied” of the various matters identified in s 65(1)(a). The satisfaction of the Minister (or the delegate or Tribunal on review) that the prescribed criteria have been met is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa and is a “jurisdictional fact”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [37] (Gummow and Hayne JJ).

19    The state of satisfaction may be challenged if it was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: SGLB at [38] (Gummow and Hayne JJ). That is not an exhaustive statement of the way jurisdictional error might be demonstrated. In SGLB at [38] it was a statement expressly directed at how the state of satisfaction in s 36(2)(a) might be shown to be the subject of jurisdictional error. A jurisdictional error in the formation of the state of satisfaction in s 36(2)(a) would in turn vitiate the state of satisfaction in s 65(1) – cf: Singh v Minister for Home Affairs [2020] FCAFC 7 at [45]; see also: EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681.

Clause 572.223(1)(a) of Schedule 2 to the Regulations

20    Regulation 2.01(1) of the Regulations provides that the prescribed classes of visas include the classes set out in Schedule 1 to the Regulations. Clause 1222 of Schedule 1 prescribes certain subclasses of visa and, at the relevant time, included “Subclass 572 – Vocational Education and Training Sector”.

21    The criteria for the prescribed classes of visa are located in Schedule 2 to the Regulations: reg 2.03. The criteria for the Subclass 572 visa for which the appellant applied included “primary criteria” and “secondary criteria”. The primary and secondary criteria are both divided into “criteria to be satisfied at time of application” and “criteria to be satisfied at time of decision”.

22    A “primary criterion” to be satisfied at time of decision is that provided by cl 572.223(1)(a) which is in the following terms:

(1)    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 (1A) or (2).

23    It will be noted that two states of satisfaction are referred to, linked by the word “because”. The first is that the Minister “is satisfied that the applicant is a genuine applicant for entry and stay as a student”: cl 572.223(1). The second is that the Minister “is satisfied that the applicant intends genuinely to stay in Australia temporarily”: cl 572.223(1)(a).

24    The critical state of satisfaction for the purposes of this appeal is the second, namely “that the applicant intends genuinely to stay in Australia temporarily”: cl 572.223(1)(a). The Tribunal did not reach that state of satisfaction which meant that it could not be satisfied under s 65(1)(a)(ii) that the prescribed criteria had been met.

25    Clause 572.223(1)(a) provides that the state of satisfaction “that the applicant intends genuinely to stay in Australia temporarily” must be reached “having regard to” the four matters identified in the clause as (i) to (iv). As discussed next, Direction 53 provides guidance to decision makers on the factors that “should be considered” in weighing those four matters – see: Preamble to Direction 53.

Direction 53

26    The Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions and the exercise of those powers: s 499(1). Those directions cannot be inconsistent with the Act or Regulations: s 499(2).

27    The delegate and Tribunal must comply with a valid ministerial direction: s 499(2A); Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [19] (French CJ, Kiefel, Bell and Keane JJ).

28    Direction 53 is a written direction to which s 499 applies. It concerns the state of satisfaction in cl 572.223(1)(a) about whether “the applicant intends genuinely to stay in Australia temporarily”.

29    If there is a failure to comply with Direction 53 in reaching an adverse state of satisfaction under cl 572.223(1)(a) which is sufficiently material to the formation of that state of satisfaction, and consequently upon the state of satisfaction in s 65(1) of the Act then, depending on the nature of the non-compliance, jurisdictional error may be established. An example of such jurisdictional error is as follows. If Direction 53 required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated if the applicant established that he or she was thereby deprived of the possibility of the repository of power forming a favourable state of satisfaction: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]–[31] (Keifel CJ, Gageler and Keane JJ) and [72] (Edelman J); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]–[48] (Bell, Gageler and Keane JJ) and [84]–[95] (Nettle and Gordon JJ). Although the decision-maker was, in fact, not satisfied that the visa applicant had met the relevant criteria, that actual state of mind was reached through a “material” non-compliance with statutory requirements prescribed for that decisional process. Accordingly, the state of non-satisfaction was not of the kind upon which the legislature conditioned the exercise of power under s 65(1)(b).

30    Direction 53 is divided into two parts: “Part 1 Preliminary” and “Part 2 Directions”. Part 1 includes:

Preamble

…

The genuine temporary entrant criterion for Student visa applications requires the Minister to be 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

This Direction provides guidance to decision makers on the factors that should be considered in weighing up: the applicant’s circumstances; the applicant’s immigration history, the intentions of a parent, legal guardian or spouse of a minor applicant, and any other relevant matter to determine whether the applicant genuinely intends to stay in Australia temporarily. This Direction is binding on all decision makers.

31    Part 2 includes:

ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION

1.    Decision makers should not use the factors specified in this Direction as a checklist. Rather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

2.    Decision makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by:

a.    considering the applicant against all factors specified in this Direction; and

b.    taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).

3.    Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

4.    Circumstances where further scrutiny may be appropriate include but are not limited to:

a.    Information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny.

b.    The applicant or a relative of the applicant has an immigration history of concern.

c.    The applicant intends to study in a field unrelated to their previous studies or employment.

d.    Apparent inconsistencies in information provided by the applicant in their Student visa application.

5.    An application for a Student visa must be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

THE APPLICANT’S CIRCUMSTANCES

6.    Decision makers must 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 570, 571, 572, 573, 574, 575 and 576 Student visas, decision makers must also 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 is intended primarily for maintaining residence in Australia.

The applicant’s circumstances in their home country

9.    In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:

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.

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.

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.

d.    Military service commitments that would present as a significant incentive for the applicant not to return to their home country.

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 purpose 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.

10.    Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

The applicant’s potential circumstances in Australia

11.    In considering the applicant’s potential circumstances in Australia, decision makers must 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.

b.    Evidence that the Student visa program is being used to circumvent the intentions of the migration program.

c.    Whether the Student visa is being used to maintain ongoing residence.

d.    Whether the primary and secondary applicant(s) have entered into a relationship of concern for Student visa purposes. Where it has been determined that an applicant and dependant have contrived their relationship for Student visa purposes, the decision maker can find that both applicants do not satisfy the genuine temporary entrant criterion.

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 an applicant could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future

12.    Decision makers must have regard to the following factors in considering the value of the course to the applicant’s future:

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.

b.    Relevance of the course to the student’s past or proposed future employment either in their home country or a third country.

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.

THE APPLICANT’S IMMIGRATION HISTORY

  13.    An applicant’s immigration history refers both to their visa and travel history.

14.    In considering the applicant’s immigration history, decision makers must have regard to the following factors:

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 (within the meaning of subsection 5(9) of the Act), 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.

  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, were 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.

iv.    if the applicant has travelled to countries other than Australia, whether they complied with the immigration laws of that country and the circumstances around any non-compliance.

IF THE APPLICANT IS A MINOR – THE INTENTIONS OF A PARENT, LEGAL GUARDIAN OR SPOUSE OF THE APPLICANT

15.    If the primary or secondary applicant for a subclass 570, 571, 572, 573, 574, 575 or 576 visa is a minor, decision makers must have regard to the intentions of a parent, legal guardian or spouse of the applicant.

ANY OTHER RELEVANT MATTERS

16.    Decision makers must 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.

32    Paragraph 1 of Part 2 states that the “factors” mentioned later in Part 2 are not be used as a “checklist” but are “intended to guide decision makers to weigh up the applicant’s circumstances as a whole”. As will be seen, the “factors” of which paragraph 1 speaks are the factors mentioned in each of paragraphs 9, 11, 12 and 14.

33    Paragraph 6 states that the decision maker “must have regard to” two matters:

(1)    “the applicant’s circumstances in their home country”; and

(2)    “the applicant’s potential circumstances in Australia”.

34    Paragraphs 9 and 11 set out the “factors” which the decision maker “must have regard to” in considering the two matters to which paragraph 6 states that the decision maker must have regard.

35    Paragraph 7 provides that the decision maker “must also have regard to the value of the course to the applicant’s future”. The “factors” which the decision maker “must have regard to” in respect of that matter are set out in paragraph 12.

36    In considering “immigration history”, the decision maker “must have regard to” the factors in paragraph 14.

37    As mentioned, the delegate was not satisfied that the primary criterion in cl 572.223(1)(a) was satisfied by the visa applicant at the time of the delegate’s decision.

The Tribunal

38    The delegate’s decision was a “Part 5-reviewable decision”. A visa applicant can apply to the Tribunal for review of a Part 5-reviewable decision: s 347. If an application is properly made, the Tribunal must review the decision: s 348. The powers of the Tribunal on review are provided by s 349 of the Act and include the power to affirm or vary the decision or to set it aside and substitute a new decision: s 349(2).

39    The Tribunal is under a statutory obligation to provide a written statement for its decision on review: s 368 of the Act. Section 368(1) includes:

Tribunal’s decision and written statement

(1)    Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must … 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; …

THE TRIBUNAL’S DECISION

40    The Tribunal noted that a “major issue” in the case was whether the appellant met the time of decision criterion on cl 572.223(1)(a): T[9]. It recorded at T[10] and T[11] that the Tribunal “must have regard to” Direction 53, stating that the direction:

requires the Tribunal to have regard to a number of specified factors in relation to:

•    the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

•    the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

•    if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

•    any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

41    At the hearing, the Tribunal gave the appellant a summary of the cl 572.223(1) criterion that he be a genuine applicant for entry and stay as a student as required by the Regulations. The Tribunal informed the appellant that a major issue on review was whether he genuinely intended to stay in Australia temporarily having regard to his circumstances and immigration history, and the considerations set out in Direction 53 as relevant to him, and any other relevant matter – see: cl 572.223(1)(a). The Tribunal gave the appellant an overview of the considerations in Direction 53 and noted that a complete copy of Direction 53 had been provided to the appellant with the invitation to the Tribunal hearing: T[12].

42    The Tribunal set out its findings and reasoning from T[13] to T[34]. The findings and reasoning may be summarised in the following way:

(1)    By at least August 2014, the appellant had incentive to cease residence in Australia. He had close family members and friends outside Australia. He was married in February 2013 in India and his daughter was born in 2014. His wife and daughter remained in India. The appellant was the only child of his parents. He had responsibilities towards his parents and family in Pakistan as well as being the “heir” to his family’s property. He had no close family members in Australia.

(2)    The appellant’s case was that he had a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia. The plan was to open one or more hospitality (or other) businesses in India on land and buildings already owned by him or his family.

(3)    The appellant arrived in Australia on a student visa in 2008 proposing to study English and hospitality courses. By August 2014, the appellant had more than sufficient skills, knowledge and qualifications objectively necessary to embark upon his claimed career ambition of opening one or more restaurants in India. He had, by that time:

(a)    a Bachelor of Science in political science from India in 2008;

(b)    an Australian Vocational Education and Training (VET) sector Diploma of Hospitality;

(c)    an Australian VET sector Advanced Diploma of Hospitality;

(d)    an Australian VET sector Advanced Diploma of Hospitality Management;

(e)    an Australian VET sector Certificate IV in Business;

(f)    an Australian VET sector Diploma of Management; and

(g)    an Australian VET sector Advanced Diploma of Management.

(4)    The diplomas in hospitality prepared the appellant to run and operate hospitality establishments. His diploma in hospitality management added specific management skills in a hospitality context. By August 2014, he had added three general VET sector qualifications in business and management. The Tribunal considered “the university degree level study completed by the applicant in India to be at a higher level than study at the vocational or TAFE level”.

(5)    The Tribunal was “concerned” that the appellant was already a university graduate before ever coming to Australia and had spent around 8 years studying trade qualifications in the VET sector, at a level below his university accomplishments.

(6)    The Tribunal found “unconvincing his claim that he needed to study more in order to build sufficient personal confidence or, in his words, to ensure that everything ran as smoothly as possible”.

(7)    The Tribunal found the advanced diploma of marketing which the appellant completed after August 2014 to be superfluous to his stated career ambitions. In any event, he obtained that qualification and went on to propose a further stay in Australia.

(8)    The appellant sought his fourth student visa in 2015 to study a diploma of project management which he “suggested … was at the recommendation of his education consultant”. The Tribunal acknowledged that the setup phase of a hospitality business could be regarded as a ‘project’ to which the discipline of project management might have some application, but the Tribunal could not otherwise identify any distinct value in the appellant continuing to prolong his separation from his wife, daughter, parents and the business he wished to open in India, so as to acquire skills in project management that were of limited value over and above his bachelor’s degree and the six Australian VET sector qualifications he already possessed, to which he had also added the VET sector advanced diploma of marketing.

(9)    Rather than “yield to his incentives to return to India”, the appellant applied for another student visa and proposed a course which the Tribunal found had limited value to his future plan when placed next to the array of qualifications he already had.

(10)    In 2015, when his visa came to an end, the appellant had every personal and professional reason to cease his residence in Australia, but did not.

(11)    The appellant reported that his wife held a master’s degree from India and had a stable government job teaching. He claimed she had never had an intention of joining him in Australia. The Tribunal considered that “[i]f that is so, he had all the more reason to reunite with his wife and daughter instead of proposing further stay and study in Australia”.

(12)    The Tribunal considered the appellant’s “conduct in proposing further stay to study a course of very limited value to his future suggests that he will not yield to the array of incentives he has to leave Australia, but rather intends to stay on in Australia and intends (regardless of what his wife might intend) to bring his wife and child, now his closest personal connections, onshore at an opportune time”.

43    The Tribunal stated at T[32]:

On the basis of the above, and having considered the applicant’s circumstances, immigration history, relevant considerations taken from Direction 53, and 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 FEDERAL CIRCUIT COURT’s decision

44    As noted earlier, the Federal Circuit Court dismissed the appellant’s application for judicial review. His judicial review grounds mirrored the grounds of appeal to this Court. It is not necessary to set out the reasoning of the primary judge in detail. His Honour’s reasoning is referred to below in dealing with the grounds of appeal.

THE APPEAL

Ground 1

45    The appellant’s first ground of appeal was that the primary judge erred in failing to conclude that the Tribunal’s decision was affected by jurisdictional error because the Tribunal failed to comply with Direction 53 by failing to consider paragraphs 9(c) to (e), 12(c) and 14(a) and (b). Whilst the ground of appeal was framed in terms of “failing to consider”, the appellant’s argument before the Federal Circuit Court and before this Court on appeal extended to an assertion of jurisdictional error on the basis that the Tribunal was obliged to make a finding about each of the “factors” identified in paragraphs 9(c) to (e), 12(c) and 14(a) and (b).

46    The appellant’s complaint was not that the Tribunal failed to consider a specific piece of evidence or other material, or a submission or argument which he put in relation to the relevant “factors”. His case was that the Tribunal committed a jurisdictional error in not considering or making a finding in relation to the “factors” in paragraphs 9(c) to (e), 12(c) and 14(a) and (b), notwithstanding that he placed no particular reliance upon any of those factors.

47    Before the Federal Circuit Court, the appellant contended that the various considerations set out in Direction 53 were mandatory considerations and that a failure to consider them would result in jurisdictional error: J[25]. It was also submitted that an absence of evidence going to one of the mandatory considerations militated in favour of a conclusion that the appellant satisfied the relevant criterion: J[25]. It was submitted that the Tribunal was obliged to make findings in respect of each of the factors mentioned in Direction 53, irrespective of whether an applicant raised an issue relevant to the factor or the factor was relevant by reason of the evidence or material before the Tribunal: J[29]. It was common ground before the Federal Circuit Court that the specific paragraphs were not referred to; but not that the Tribunal did not consider those matters.

48    The primary judge concluded that:

(1)    the Tribunal clearly recognised the relevance of Direction No 53 and had regard to its content: J[34] to [38];

(2)    the appellant had put forward no evidence, argument or claim in relation to the topics covered in paragraphs 9(c) to (e), 12(c) and 14(a) and (b) of Direction 53: J[39];

(3)    the Tribunal considered Direction 53 and did not mention paragraphs 9(c) to (e), 12(c) and 14(a) and (b) because they “were not sufficiently important or germane to its decision to warrant express mention”: J[40].

49    On appeal, as before the Federal Circuit Court, the appellant relied upon He v Minister for Immigration and Border Protection (2017) 255 FCR 41 (Siopis, Kerr and Rangiah JJ). That case concerned reg 1.15A(3), but it was submitted that the reasoning was applicable to Direction 53. The appellant submitted that a decision-maker not only had to consider, but had to make findings about, each of the factors mentioned in Direction 53. Picking up the language in He at [76] – [78], the appellant submitted that “each of [the factors in 9(c) to (e), 12(c) and 14(a) and (b)] poses, in effect, a question or questions for the Tribunal” with the intention that they “will be answered, not merely thought about”, and that “each such factor, unless the decision-maker expressly refers to it … [becomes] a potential trigger for the assertion of jurisdictional error”. It was submitted that “the Tribunal cannot ignore a particular matter simply because it assesses there to be no substantial evidence or submissions about that matter”.

50    The appellant also relied upon the decision of Judge Riley in Singh v Minister for Immigration [2018] FCCA 3423. Her Honour has been understood as having applied He to Direction 53.

51    The appellant also referred to the decision of Colvin J in Jan v Minister for Home Affairs [2019] FCA 1837. The appellant submitted that, to the extent He was inconsistent with Jan, Jan was incorrectly decided.

52    It is convenient to look first at He, Singh and Jan.

He v Minister for Immigration and Border Protection

53    He concerned an application for a Partner (Residence) (Class BS) Visa. One of the criteria for grant of the visa was that the visa applicant was, at the time of decision, the “spouse” of the sponsoring partner: cl 801.221(2)(c) of Sch 2. The Tribunal on review of a delegate’s decision was not satisfied that Ms He was the “spouse” of her sponsor, Mr Xu. The word “spouse” was defined in s 5F of the Act. A person is a spouse of another person if the person is “in a married relationship” with that other within the meaning of s 5F(2). Section 5F(2) provided:

(2)     For the purposes of subsection (1), persons are in a married relationship if:

(a)    they are married to each other under a marriage that is valid for the purposes of this Act; and

(b)    they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

(c)    the relationship between them is genuine and continuing; and

   (d)     they:

(i)     live together; or

(ii)     do not live separately and apart on a permanent basis.

54    Section 5F(3) permitted the regulations to make provision “in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. Regulation 1.15A provided:

1.15A    Spouse

(1)    For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

  (2)    If the Minister is considering an application for:

…

(c)    a Partner (Residence) (Class BS) visa; …

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)    The matters for subregulation (2) are:

(a)    the financial aspects of the relationship, including:

(i)    any joint ownership of real estate or other major assets; and

(ii)    any joint liabilities; and

(iii)    the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

(v)    the basis of any sharing of day to day household expenses; and

(b)    the nature of the household, including:

(i)    any joint responsibility for the care and support of children; and

(ii)    the living arrangements of the persons; and

(iii)    any sharing of the responsibility for housework; and

(c)    the social aspects of the relationship, including:

(i)    whether the persons represent themselves to other people as being married to each other; and

(ii)    the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

(iii)    any basis on which the persons plan and undertake joint social activities; and

(d)    the nature of the persons’ commitment to each other, including:

(i)    the duration of the relationship; and

(ii)    the length of time during which the persons have lived together; and

(iii)    the degree of companionship and emotional support that the persons draw from each other; and

(iv)    whether the persons see the relationship as a long-term one.

55    The Migration Review Tribunal concluded Ms He was not the “spouse” of Mr Xu. Her application to the Federal Circuit Court for judicial review was also dismissed. On appeal to the Full Court, Ms He submitted that the factors set out in reg 1.15A(3) were matters which, under reg 1.15A(2), the Tribunal was required to “consider”, and that it was not enough for the Tribunal to take into account the evidence going to those matters; the Tribunal was required to “consider” those matters by making a determination, or reaching a conclusion, or making a finding about, each of them: He at [33], [44]-[46].

56    The Minister submitted that the Tribunal’s obligation was to have regard to the considerations set out in reg 1.15A(3), but that this did not require it to make an express finding in respect of each consideration. He also submitted that a duty to consider a matter is not to be elevated to a duty to make express reference to that consideration or reach a particular conclusion in respect of the consideration: He at [40]. The Minister relied upon Salahuddin v Minister for Immigration and Border Protection (2013) 229 FCR 290 at [22]-[24], [29] and [34].

57    The principal question on this aspect of the case was described by the Full Court as whether reg 1.15A(2) required that the Tribunal make findings upon each of the circumstances set out in reg 1.15A(3): He at [70]. In He, the Full Court concluded:

(1)    The matters set out in reg 1.15A(3) were mandatory relevant considerations which the decision-maker had to consider by an active intellectual process directed to each of the matters: [52].

(2)    At the level of principle, the terms or operation of statutory provisions may require not only active consideration of a mandatory consideration but also that a conclusion be formed or a finding be made about the relevant consideration: [53].

(3)    The requirement that the Tribunal have regard to the circumstances in reg 1.15A(3) meant that the Tribunal was required to make findings upon each of the fifteen prescribed matters numbered with Roman numerals in that regulation: at [76].

(4)    The requirement that the Tribunal have regard to the “principal matters” identified in paragraphs (a) to (d) of reg 1.15A(3) also meant that the Tribunal was required to make findings upon each of those four matters: at [77].

58    The Full Court in He stated at [76] to [78]:

[76]    In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:

(i)    whether there are children and whether there is any joint responsibility for their care and support;

(ii)     what the living arrangements of the persons are; and

(iii)    whether and to what extent there is sharing of the responsibility for housework.

The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. 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: cf Paerau [v Minister for Immigration and Border Protection (2014) 219 FCR 504] at [27], [69] and [119]. 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.

[77]    So far, we have discussed the requirement for the Tribunal to make findings in respect of the specific matters in reg 1.15A(3) numbered with Roman numerals. It is also necessary to consider whether findings are required in respect of the principal matters in paras (a) to (d), namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other. These matters are expressed broadly and it is less obvious that they pose questions that are required to be answered. Nevertheless, they should be seen as doing so, having regard to the questions that are then immediately posed in connection with each of the principal matters. In our opinion, the requirement to “consider” the principal matters means that a decision-maker must make findings upon each of them. In many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters. For example, the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally.

[78]    The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages. Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.

59    The Full Court then observed that the requirement to “consider” a matter (which in that case was held to require the making of a finding about the matter) was separate to the statutory obligation to provide reasons. The Full Court stated at [79]:

[79]    … It must be emphasised that there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act: see Yusuf at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; [2012] FCAFC 131 at [40]. The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to “consider” all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).

60    The Full Court considered the Tribunal’s statement of reasons and concluded that the Tribunal had made findings about each of the relevant matters. At least one of the findings had not been expressly stated in the reasons but was held to have been implicitly made – see: He at [85].

61    Each of the matters relied upon by Ms He as something about which the Tribunal ought to have made a finding, was something which Ms He had relied upon before the Tribunal in support of her contention that she was in a “married relationship”. He was not a case which involved an assertion of error on the part of the Tribunal for not having made a finding about a matter which had not been advanced by the visa applicant as germane to the case.

Singh v Minister for Immigration

62    In Singh, Judge Riley, after referring to He, concluded that a decision maker had to consider each of the “factors” mentioned in Direction 53: see Singh at [18]. Her Honour did not expressly conclude that the decision maker had to make findings about each of the “factors” and did not refer to the passages in He which came to that conclusion in respect of reg 1.15A(3). However, her Honour did conclude that the decision maker needed to consider each of the factors even if no relevant evidence concerning the factor had been advanced: Singh at [35].

63    It is useful to provide two examples of her Honour’s reasoning in Singh. The Minister had conceded that the Tribunal had not expressly referred to subparagraphs 9(d) and (e) of Direction 53 and did not suggest that it should be inferred from the Tribunal’s reasons that it had considered those subparagraphs: Singh at [43]. Judge Riley stated at [45]:

It may be the case that the applicant had no military service commitments in India, and that there was no relevant civil or political unrest in India, which would operate as disincentives for the applicant to return there. However, in those circumstances, Direction No 53 required the Tribunal to consider whether to weigh those matters in the balance in support of the applicant being a genuine temporary entrant. That is, the fact that the applicant was not required to undertake military service in India, and the fact that there was no relevant civil or political unrest in India, tended to suggest that the applicant was not attempting to stay in Australia to avoid those things. The Tribunal did not consider whether to weigh them in the balance, contrary to Direction No 53, and thereby fell into jurisdictional error.

64    At [66], her Honour said:

In relation to item 12(c), regarding remuneration, the Minister submitted that the item was not relevant because the applicant had put no evidence before the Tribunal about the remuneration he could expect to receive in India or a third country using his proposed Bachelor of Business compared with the income the applicant could expect to receive in Australia. I do not accept that item 12(c) was not relevant. It was a mandatory consideration. It was necessary for the Tribunal to consider it, whether the applicant put on evidence about it or not. By failing to do so, the Tribunal fell into jurisdictional error.

65    Her Honour referred to the decision of the Full Court in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Stone, Foster and Nicholas JJ). Khadgi concerned s 109(1)(c) of the Act which obliged the Tribunal to “have regard to” the prescribed circumstances set out in reg 2.41. The Full Court concluded that the decision maker had to engage in an active intellectual process with each of the prescribed circumstances. It did not conclude that, in all circumstances, a decision-maker had to make a finding about each of the prescribed circumstances.

66    Her Honour set out [57] to [60] of Khadgi:

[57]    Section 109(1)(c) of the Act obliges the Tribunal to “have regard to” the prescribed circumstances set out in reg 2.41. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s 109. In order to comply with that prerequisite, the decision-maker must engage in what has been described as “an active intellectual process” in which each of the prescribed circumstances receives his or her “genuine” consideration: Tickner at 462 (per Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (p 540) (per Gleeson CJ and Gummow J).

[58]    In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.

[59]    Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] (p 512) (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.

[60]    In some cases it may be apparent that amongst the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. This was true of the particular matter referred to by Mason J in The Queen v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 338. As his Honour’s reasons in The Queen v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”. But the converse is also true. The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [57] (p 164) (per Sackville J).

67    Her Honour then stated in Singh at [24]:

It seems to me that [Khadgi], although it concerns a somewhat different statutory scheme, stands for substantially the same propositions as He. Therefore, it is necessary to consider which of the factors specified in Direction No 53 the Tribunal in the present case considered expressly, and which it may have considered impliedly, or by findings of greater generality or in some other way.

68    The Full Court in He did not refer to Khadgi. He does not stand for the same propositions as Khadgi, although it should be noted that He has been understood in different ways: Williams v IS Industry Fund Pty Ltd (2018) 266 FCR 370 at [24]; Nguyen v Minister for Home Affairs [2019] FCA 1095 at [18]; Nguyen v Minister for Home Affairs [2019] FCA 892 [16]–[20]; Campos v Minister for Immigration and Border Protection [2019] FCA 1791 at [35]–[37].

69    Regulation 1.15A is distinguishable from Direction 53. Direction 53 contains an express direction that “[d]ecision makers should not use the factors specified … as a checklist” and that “[r]ather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole”.

Jan v Minister for Home Affairs

70    Jan concerned Direction 53. Like the present case, it also concerned the lack of satisfaction on the part of the Tribunal on review from a delegate’s decision that the criterion in cl 573.223(1)(a) was met.

71    At [22] of Jan, Colvin J stated by reference to Singh at [16]-[24] that the view had been expressed in the Federal Circuit Court that the Tribunal was required to make findings, whether express or implied, about every “factor” identified in Direction 53.

72    His Honour noted that a similar argument had been put but was not necessary to decide in Bala v Minister for Immigration and Border Protection [2019] FCA 600 (Anastassiou J).

73    Justice Colvin stated (emphasis in original):

[23]    It is the case that the Direction contains a number of provisions which identify matters to which decision-makers must have regard. However, those references must be construed in the context of the opening description in the Direction. As has been noted, it states that decision-makers should not use the factors specified as a checklist, but rather they are intended to guide decision-makers to weigh up the circumstances as a whole. ‘Checklist’, is a word of some generality. It may describe a convenient list of matters to be investigated or verified. It may be a ready means of reference. It carries with it the notion of a complete reference for the purpose of ensuring that nothing is missed.

[24]    Therefore, the instruction not to use the factors listed in the Direction as a checklist appears to indicate that the Direction was not intended to express a complete list that was to be traversed in every case. Rather, the use of the word guide and the stated need to weigh up the circumstances as a whole command an approach that requires the decision-maker to evaluate what is significant in the particular case and to consider those significant matters in a holistic way. In that context, the requirement to have regard to each of the matters mentioned does not require the decision to be the outcome of an assessment that brings to bear each of the factors. If a factor is considered by the decision-maker to be one that is not significant in the particular instance, then it need not be brought to account.

[25]    The preamble to the Direction states that it ‘provides guidance to decision makers on the factors that should be considered in weighing up: the applicant’s circumstances; the applicant’s immigration history [and other matters] to determine whether the applicant intends to stay in Australia temporarily’. It then states that the Direction ‘is binding on all decision makers’ (being no more than a reflection of the terms of s 499). The use of the words ‘should be considered’ rather than ‘must be considered’ together with the reference to ‘guidance’ lends support for the view I have just expressed as to the intended meaning of the Direction.

[26]    It is also to be noted that para 8 of the Direction requires that weight is to be placed on circumstances that indicate that the visa is intended primarily for maintaining residence in Australia. The same words are not used in paras 6 and 7 which use the words 'must have regard'. Again, this aspect of the overall terms of the Direction indicates that the use of the expression 'must have regard' does not require particular weight, or indeed any weight, to be given to the matters stated in paras 6 and 7. Rather, the Tribunal must advert to them for the purpose of considering whether they should be brought to bear, but if the Tribunal forms the view that they are not significant in the particular case then they can be put to one side based upon that assessment. The Tribunal is not obliged to go down and check off each one irrespective of the circumstances and bring it to account in its reasons.

[27]    Therefore, this is an instance where ‘have regard to’ requires the particular consideration to be considered as a matter that might be brought to account with other considerations in forming the overall judgment required, but does not require the matter to be given particular weight (whether in a fundamental way or otherwise) in reaching the required decision. I recently considered the relevant authorities in Nguyen v Minister for Home Affairs [2019] FCA 892 at [6].

[28]    Therefore, the fact that a particular matter listed in the Direction as a matter to which the Tribunal ‘must have regard’ is not expressly referred to by the Tribunal in its reasons does not indicate that there has been a failure to comply with the Direction.

Consideration

Direction 53

74    In order for the criterion in cl 572.223(1)(a) to be met, the Minister must be “satisfied that the applicant intends genuinely to stay in Australia temporarily”. In reaching that state of satisfaction the Minister must have regard to the four matters identified in (i) to (iv) of cl 572.223(1)(a), namely:

(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.

75    As noted earlier, where the decision-maker is the delegate or Tribunal, the decision-maker must comply with Direction 53 in reaching that state of satisfaction: s 499(2A) of the Act.

76    Direction 53 must be read as a whole. As noted earlier, Part 1 of Direction 53 provides:

This Direction provides guidance to decision makers on the factors that should be considered in weighing up: the applicant’s circumstances; the applicant’s immigration history, the intentions of a parent, legal guardian or spouse of a minor applicant, and any other relevant matter to determine whether the applicant genuinely intends to stay in Australia temporarily.

77    The reference to “the applicant’s circumstances, the applicant’s immigration history, the intentions of a parent, legal guardian or spouse of a minor applicant, and any other relevant matter” is obviously a reference to subparagraphs (i) to (iv) of cl 572.223(1)(a).

78    Paragraph 1 of Part 2 of Direction 53 provides a direction relevant to the interpretation of the words “must have regard to” when used in connection with the various factors mentioned in the later paragraphs. It states:

Decision makers should not use the factors specified in this Direction as a checklist. Rather, they are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

79    The appellant submitted that paragraph 1, particularly the word “checklist”, was intended to convey that it was not sufficient to look only at the factors identified in the direction, and that the decision-maker must also look at any matter a visa applicant might raise which did not fall within a specified factor, referring to Liyanage v Minister for Immigration and Border Protection [2017] FCA 1333 at [12], [13] (Allsop CJ). It may be accepted that Direction 53 read as a whole does not limit the decision maker to a consideration of the factors mentioned in Direction 53. However, that proposition arises from a consideration of the whole direction rather than from the word “checklist”.

80    The Minister submitted that the use of the word was to be understood as an indication that the factors mentioned in Direction 53 were not to be applied in a rigid or mechanical way.

81    The word “checklist” is to be understood as a ready means of reference, “intended to guide decision makers to weigh up the applicant’s circumstances as a whole”. The real question is what one is to do with the factors mentioned in Direction 53, when it is read as a whole in its statutory and administrative context.

82    Paragraphs 9, 11, 12 and 14 of Direction 53 state that the decision maker “must have regard to” the factors mentioned in those paragraphs. The expression “have regard to” takes its meaning from its context: Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [54] (Sackville J); Khadgi at [60]-[62]. It might mean that the matter must be taken into account and given weight as a “fundamental element” or a central or critical consideration in making the decision: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 (Mason J). It might mean simply that consideration must be given to the matter, as opposed to the matter being treated as “fundamental” or as attracting particular weight.

83    In Direction 53, where it provides that the decision-maker “must have regard to” the factors mentioned, the phrase – read in context – means that the decision-maker should turn his or her attention to each factor during the decision-making process and consider whether and how it should be brought to bear in reaching the decision. As Colvin J explained in Jan at [26]:

[T]he Tribunal must advert to [the factors] for the purpose of considering whether they should be brought to bear, but if the Tribunal forms the view that they are not significant in the particular case then they can be put to one side based upon that assessment. The Tribunal is not obliged to go down and check off each one irrespective of the circumstances and bring it to account in its reasons.

The word “advert” is there being used to indicate that the matter should be considered in the decision-making process: whether it should be adverted to in the statement of reasons is a different question. See also: Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 at [23] (Perry J); Bala at [17].

84    Where a decision-maker is required to have regard to several mandatory considerations, he or she must actively engage with each of the considerations by determining how and to what extent, if at all, each of them might feed into the deliberative process and ultimate decision: Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, at [47]–[54]; Khadgi at [63]. The consideration of the factor in the process of reaching a decision must be genuine: Tickner v Chapman (1995) 57 FCR 451 at 462 and 464 (Black CJ), 476 (Burchett J), 495 and 496 (Kiefel J); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]; Khadgi at [57].

85    Those factors in Direction 53 considered to be sufficiently material to the decision must be brought to account in the decision-making process: Jan at [27]. Some factors may weigh in favour of the visa applicant, some may weigh against, some may be neutral, some may be of marginal significance and some may be irrelevant in the particular circumstances. The weight to be given to the various factors mentioned in Direction 53 is a matter for the decision-maker: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Khadgi at [58].

86    It is not the number of factors for and against a decision which is necessarily important, although it might be that this is considered by the decision-maker to be relevant in the particular circumstances. If a matter is not considered to be relevant to an applicant’s circumstances, or to be sufficiently material to the application, then it does not need to be given weight. In such a situation, the decision maker has had regard to the factor in determining, after genuine consideration, that the factor was not sufficiently relevant or material.

87    As is addressed further below, the decision-maker does not have an obligation under s 368 of the Act to refer to an immaterial matter in the reasons for decision. On the other hand, it is desirable to state that consideration has been given to the factors which the relevant statute requires be considered. As the Full Court said in Salahuddin at [22]:

… Where the context in which a decision is to be made requires that consideration be given having regard to specified matters, it forever remains the preferred course for any administrator to expressly refer to such matters. To do so largely removes any room for argument and provides assurance to the parties – especially the frequently unrepresented claimant – that a case has been properly considered. A failure to do so exposes such a decision-making process to a perhaps well-justified perception on the part of a claimant that his decision has not been made in accordance with law. Any such failure also fails to perhaps explain to a reviewing court as fully as would otherwise have been desirable the process of reasoning applied to the facts. The importance to a claimant, in particular, that his claims have been considered in accordance with law, cannot be under-stated …

Reasons for decision

88    The making of the decision is separate from the giving of a written statement for the decision under s 368 of the Act. The written statement serves as a record of the reasons and provides evidence of the mental process engaged in by the Tribunal: He at [79].

89    The existence of a statutory obligation to furnish reasons which include a statement of the findings on material questions of fact entitles the inference to be drawn that a matter not mentioned in the statement was not considered by the Tribunal to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [9]-[10] (Gleeson CJ); [44] (Gaudron J); [69] (McHugh, Gummow and Hayne JJ).

90    Reasoning in this way is not mandatory: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31] (French CJ and Kiefel J, with whom Heydon and Crennan JJ agreed); Minister for Home Affairs v HSKJ (2018) 266 FCR 591 at [44] (Greenwood, McKerracher and Burley JJ). In ETA067 v The Republic of Nauru [2018] HCA 46 at [13]-[14], the High Court stated (emphasis in original, citations omitted):

[13]    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.

[14]    Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.

See also: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34].

91    The applicant bears the onus of establishing from a failure to refer to a matter in the written statement, that the inference should be drawn that the matter was overlooked: SZGUR at [67] (Gummow J); SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25].

92    The appropriate inference depends on all of the circumstances. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47], the Full Court observed:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

93    The context against which the reasons of the Tribunal should be examined includes the course of the decision making process. The appropriate inference to draw might be informed by what occurred during the decision-making process, including the evidence and submissions put forward by an applicant before the delegate and the Tribunal on review and the prominence or importance of the particular matter said to have been overlooked.

94    Section 368 does not in terms require a reference to submissions or contentions. The written statement must set out the “reasons for the decision” and the “findings on any material questions of fact” and it must refer “to the evidence or any other material on which the findings of fact were based”. The appropriate inference to draw from a failure to mention a submission or contention turns on the particular facts. It is permissible (even in the absence of a statutory obligation to provide reasons) to draw inferences from what the decision-maker said by way of explanation of his or her decision: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25].

95    The reasons of an administrative decision-maker are meant to inform and are not to be scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272-3.

Findings

96    Direction 53 requires that, in reaching the state of satisfaction in cl 572.223(1)(a), the decision maker “have regard to” the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial.

97    That is not to deny that a failure to make a finding might constitute or evidence jurisdictional error in particular circumstances. The visa applicant would need to establish that: (a) it was necessary to make the finding in order to have exercised the jurisdiction or exercised it in the manner contemplated by the statutory scheme; and (b) the failure to make the finding was material in the sense of depriving the applicant of the possibility of a successful outcome: SZMTA.

98    For example, a visa applicant might establish that a failure to make a finding of fact resulted in a constructive failure on the part of the Tribunal to provide the review contemplated – cf: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.

99    By way of further example, a visa applicant might establish through a failure to make a finding of fact that the decision-maker ignored relevant material in a way that affected the exercise of the power: Yusuf at [82]-[84]; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [27]; Plaintiff M64/2015 at [25].

Application to the present case

100    Factor 9(c): The appellant submitted that he had furnished evidence as to his economic circumstances including that he was “heir” to his family’s property and that he or his family held interests in property from which he could run one or more hospitality businesses. This was said to be relevant to factor 9(c) of Direction 53. The Tribunal considered this evidence: T[13(c)], T[13(f)], T[17]. It brought the evidence to account in reaching a state of satisfaction as to whether the applicant was a genuine temporary entrant. The Tribunal concluded that the appellant had an incentive to return to India, including by reason of his economic circumstances.

101    As is addressed further below, the Tribunal was not thereby prevented from reasoning that the appellant’s continued stay in Australia to study courses of minimal utility in the face of those incentives suggested he was not a genuine temporary entrant.

102    Factors 9(d) and (e), 12(c) and 14(a)(ii), (b)(i), (ii) or (iv): No submission was made by the appellant to the Tribunal about military service or civil unrest in India – cf: paragraphs 9(d) and (e) of Direction 53. There was no evidence to suggest these factors were relevant or significant to the appellant’s particular circumstances.

103    There was no evidence before the Tribunal that enabled it to perform the comparison contemplated by clause 12(c). The Tribunal was not invited to. There was no evidence that engaged clauses 14(a)(ii), (b)(i), (ii) or (iv). It was not suggested that they were engaged.

104    The Tribunal had provided Direction 53 to the appellant in advance of the hearing. At the hearing, the Tribunal gave the appellant an overview of the considerations in Direction 53, noting that he had been provided a complete copy of it: T[12]. The Tribunal referred to Direction 53 in its reasons, recording that the direction “requires the Tribunal to have regard to a number of specific factors” in relation to the four matters set out in cl 572.223(1)(a): T[10].

105    It is plain from the foregoing that the Tribunal understood it had to comply with Direction 53 and consider the specific factors mentioned in it. Such statements can be taken into account in determining what the delegate in fact did, albeit the reliability of such statements is to be assessed according to all of the circumstances: Carrascalao at [131]; Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [70]; Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [38].

106    The Tribunal, in its reasons, did not laboriously set out each of the factors and deal with them seriatim – cf: Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 at [20]. Indeed, it did not refer to any specific factor by reference to its paragraph number. Rather, it assessed the appellant’s circumstances as a whole, consistently with what paragraph 1 of Direction 53 required. It is to be inferred from the statement of reasons that it did so after having considered which factors were material to the appellant’s particular circumstances, and which were not.

107    The appropriate inference to draw is that the Tribunal, having considered the whole of Direction 53, did not regard paragraphs 9(d) and (e), 12(c) and 14(a)(ii), (b)(i), (ii) or (iv) to be of sufficient importance or materiality to its decision on review to warrant mention in its written statement of reasons.

108    The primary judge was correct not to draw the inference that those or any paragraphs of Direction 53 were overlooked. There was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no submission had been made, and which were not the subject of evidence, less still to make express findings about those factors.

109    Factors 14(a)(i) and (b)(iii): As to subparagraphs 14(a)(i) and (b)(iii), the Tribunal did “have regard to” the fact that the appellant had previously applied for, and been granted, multiple student visas: T[24]-[25]. The appellant’s lengthy stay in Australia on multiple student visas was part of the Tribunal’s reasons for not being satisfied that the appellant satisfied the “genuine temporary entrant” criterion.

110    It should be noted that, if it had been established that the Tribunal did not have “have regard to” a specific factor, the appellant would still need to establish that the failure to do so was material to the outcome – cf: Hossain at [30]. The “outcome” of immediate importance is the state of satisfaction in cl 572.223(1)(a) which must be reached in order to form the state of satisfaction in s 65(1). The visa applicant would have to show that the failure to consider the factor could realistically have resulted in the formation of a favourable state of satisfaction under cl 572.223(1)(a).

Ground 2

111    The appellant’s second ground of judicial review before the Federal Circuit Court was that the Tribunal failed to comply with Direction 53 by accepting that the applicant had powerful incentives to return to India, but then using that finding in reasoning that his continued study in Australia in the face of those incentives indicated that he wished to remain here indefinitely, and was using his student visa as a means to do so. It was submitted that this reasoning was either not permitted by Direction 53 or that it was illogical.

112    The appellant contended that Direction 53, in particular paragraph 9(b), required that a finding that there was an incentive to return must militate in favour of a conclusion that an applicant satisfied the genuine temporary entrant criterion and that the Tribunal’s reasoning was illogical.

113    This ground must be rejected. Paragraph 9(b) provides that, in considering the “applicant’s circumstances in their home country” regard must be had to “[t]he 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 Tribunal took that factor into account, concluding that the applicant had strong ties and real incentives to return to India by August 2014: T[17].

114    Direction 53 cannot sensibly be construed as forbidding the process of reasoning which the Tribunal then adopted. The Tribunal considered that by August 2014 the applicant had the “necessary skills, knowledge and qualifications to have sufficient confidence to open one or more restaurants”: T[23]. The Tribunal was not convinced by the appellant’s claim that he needed to study more in order to build personal confidence: T[27]. The Tribunal observed that the appellant was considering a course that had “limited incremental additional value to his future plan when placed next to the array of qualifications he already has” despite the incentives for him to return to India. The Tribunal thought the appellant’s proposal of a further course of study of “very limited value to his future” suggested that he would not yield to the incentives before him to return to India: T[30]. In other words, the Tribunal formed the view that the appellant intended to stay in Australia.

115    Of this reasoning the primary judge stated:

[50]    … This conclusion was open to the Tribunal on the material before it, which included material as to the courses the [appellant] had completed, the length of his stay in Australia, a finding that he had acquired the necessary skills to achieve his ambitions some years earlier, that he had thus far not yielded to incentives to return to India which included the fact his wife and child resided there, and that he had enrolled in a course of limited value to his future plans …

[51]    There is nothing unremarkable about the Tribunal’s process of reasoning disclosed above. Contrary to the [appellant’s] claims, the findings made by the Tribunal were open to it on the material available, and its chain of reasoning was logical …

116    The primary judge was correct.

117    Absent the matters which the Tribunal took into account in reaching its ultimate conclusion that the appellant was not a genuine temporary entrant, factor 9(b) would have counted in the appellant’s favour. That fact does not prohibit the reasoning which was employed.

Ground 3

118    At T[30], the Tribunal stated:

[The appellant’s] own conduct in proposing further stay to study a course of very limited value to his future suggests that he will not yield to the array of incentives he has to leave Australia, but rather intends to stay on in Australia and intends (regardless of what his wife might intend) to bring his wife and child, now his closest personal connections, onshore at an opportune time.

119    The appellant submitted that the Tribunal found “that, at the time of the decision, it was the appellant’s actual, subjective intention to bring his wife and child to Australia, possibly against their will”. It was submitted that there was no evidentiary basis for the Tribunal’s finding. In amplification of that submission it was said that nothing in the material indicated that the appellant had formed such an intention, nor was there anything to indicate that he had ever made any attempt to force or coerce his wife, child or any other person to leave India and nor was there any consideration by the Tribunal as to how he might seek to effect this intention. It was submitted that the finding could “only be characterised as legally illogical, irrational or unreasonable”.

120    The primary judge stated at J[55]:

In my view, the [appellant’s] contention that the statement at paragraph [30] of the decision constitutes a finding that the [appellant] intended to force his wife and child to come to Australia does not reflect a proper reading of the paragraph. The language of the paragraph is directed at the [appellant’s] intention. It notes the wife’s contrary intention. It does not conclude that the [appellant] intends to force his wife to come to Australia against her wishes. What is recorded is simply a record of his wishes, and her wishes, which are not in alignment. Alternatively, the language could be taken to mean that the Tribunal did not accept the [appellant’s] claim that his wife did not intend to join him in Australia. Whichever view might be preferred, there is nothing in the paragraph that supports the contention that the Tribunal concluded the appellant would force his wife to come to Australia.

121    The Tribunal concluded that the appellant’s circumstances viewed as a whole suggested he was not genuinely intending to return to India. That conclusion was based on a number of considerations, including in particular that the appellant’s proposal to embark on a course of such limited value in the face of apparent incentives to return to India suggested that he was seeking the student visa in order to remain indefinitely in Australia.

122    It was permissible for the Tribunal to infer from the facts found and the material before the Tribunal that the appellant’s true intention was to seek to bring his wife and daughter to Australia at an appropriate time, whatever intention his wife held about coming to Australia at the time of hearing. The Tribunal’s finding was not that the appellant would, at some future time, force his wife to come to Australia against her will.

123    Facts can be established through evidence or, in the case of the Tribunal, the material which is before the decision maker. Facts may also be established through a process of inference: Holloway v McFeeters (1956) 94 CLR 470 at 480; Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 168 (Mason J); Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [91].

124    In the context at least of judicial decision-making, an inference must be reasonably open on the material and is to be distinguished from mere conjecture: Seltsam at [84]. If there are no proved or agreed facts from which the inference can be made, or material from which it can be drawn, the process of inference fails and what is left is mere conjecture or speculation: Seltsam at [87]. These principles were referred to in the context of a decision of the Tribunal, constituted by senior counsel, in a review under Part IVC of the Taxation Administration Act 1953 (Cth) in Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307 at [88] (Jagot J).

125    Whether an inference is permissible depends in part on the decision-making context. In a court, for example, rules of evidence might limit the manner in which evidence might be used. Permissible lines of reasoning might also be different. The present context is that of a merits review tribunal which was not bound by the rules of evidence and which has a decision-making process which is different from that encountered in civil litigation conducted in courts. In Wu Shan Liang at 282, the plurality made various observations about the nature of the decision-making process (by a delegate) and warned against too closely drawing upon analogies in the conduct and determination of civil disputes:

The nature of the decision making process

We should mention one further matter. Submissions were made at the hearing of the appeal as to the correct decision-making process which it would have been permissible for the delegates to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation.

Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature (Mahon v Air New Zealand Ltd [1984] AC 808 at 814). A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term “balance of probabilities” played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term “evidence” as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.

A part of this passage was reaffirmed by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [143]. See also: Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [60] – [61] and following (Flick and Perry JJ).

126    If all that can be said is that the reasonable minds of administrative decision-makers might have drawn different inferences from those actually drawn, jurisdictional error will not be demonstrated; an inference must be irrational, illogical or legally unreasonable for the drawing of it to constitute jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [129]-[131] (Crennan and Bell JJ).

127    The inference in the present case was open on the material before the Tribunal.

128    It must also be shown that the impugned inference affected the decision in a material way before jurisdictional error could be established – see: Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222. That might be shown by establishing that, if the impugned inference had not been made, a favourable state of satisfaction may have been reached: Hossain at [30] and SZMTA at [45]-[46].

CONCLUSION

129    The appeal must be dismissed.

Associate:    

Dated:    24 February 2020