FEDERAL COURT OF AUSTRALIA

Jan v Minister for Home Affairs [2019] FCA 1837

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants do pay the costs of the first respondent to be assessed if not agreed.

3.    There be liberty to apply for a lump sum order as to costs.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Since 2011, Mr Ammar Aslam Jan has held student visas or associated bridging visas which allow him temporary residence in Australia. In 2012, he was married and since 2015 his wife has been in Australia. She has held visas dependent upon Mr Jan's visas. In the period from 2012 to 2017, Mr Jan completed six certificate courses of study. He also enrolled in a number of courses that he did not complete. The courses in which he has enrolled have not been in a consistent field of study.

2    Mr Jan now seeks a visa in order to undertake a course for obtaining a Bachelor of Business degree from Sheridan College. The application by Mr Jan and his wife for new student visas for that purpose was refused. The refusal was affirmed by the Administrative Appeals Tribunal. An application to the Federal Circuit Court to review the Tribunal's decision on the basis of alleged jurisdictional error was refused. Mr Jan and his wife now bring an appeal in this Court.

3    The appeal raises four grounds that correspond to the grounds rejected by the primary judge. For the following reasons, the primary judge was correct as to the result and the appeal should be dismissed with costs.

The reasoning pathway of the Tribunal

4    The Tribunal dealt with the history of the application. It then stated the applicable criterion by which the application was to be determined being cl 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (now expressed in cl 500.212). The criterion required the Minister (and the Tribunal standing in the shoes of the Minister) to be satisfied that Mr Jan was a genuine applicant for entry and stay as a student because the Minister (or Tribunal) is satisfied that he intended to stay in Australia temporarily, having regard to certain specified matters.

5    The Tribunal then noted that it must have regard to Direction No 53 - Assessing the genuine temporary entrant criterion for Student visa applications (Direction). The Direction was made by the Minister in the exercise of the power conferred by s 499 of the Migration Act 1958 (Cth). By s 499(2A), a body such as the Tribunal must comply with the Direction in the performance of functions and the exercise of powers under the Migration Act. The Tribunal stated that the Direction requires the Tribunal to have regard to a number of specified factors in relation to maters which it then enumerated. The Tribunal noted the terms of the Direction to the effect that the factors specified should not be used as a checklist but were intended to guide the decision-maker to weigh up the applicant's circumstances as a whole. These matters set the context for the following reasons. It is plain that the Tribunal was proceeding on the basis that it was required to have regard to the matters stated in the Direction and that it had to weigh up all the circumstances.

6    The Tribunal then dealt with the history of Mr Jan's education in Australia in some detail (paras 14 to 19). In the course of doing so, the Tribunal found (para 16):

The Tribunal considers that the time the applicant has lived in Australia, at the time of this decision for about six and a half years, his lack of academic progression beyond low level VET courses until January 2018, indicates he may be using the student visa programme for the primary purpose of maintaining residence and thereby extending his time onshore for both himself and his wife, the dependent visa applicant in this review.

7    It then observed that the number of courses Mr Jan had enrolled in and then either withdrawn from or cancelled was a matter 'of significant concern' (para 20). It then said that not only had Mr Jan not completed those courses but he had 'changed study from business, to engineering, to network technology, to human resources' and that he now wanted to study business again.

8    The Tribunal referred (at para 21) to the fact that in 2016 (when Mr Jan's application for a student visa towards undertake study to a Bachelor's degree had first been lodged) he had stated his career goal as being that he planned to return to Pakistan to assist his father in the expansion of the family's pharmacy business. The Tribunal then said that Mr Jan had now provided to the Tribunal a job offer with a different company in Pakistan as general manager. It was presented on the basis that it was an offer to commence when he finished his studies in 2021. Ultimately, the Tribunal did not accept the evidence of the job offer as general manager to be reliable and gave it little weight (para 24).

9    The Tribunal found that Mr Jan was qualified and experienced by the studies he had already undertaken to return to Pakistan to achieve the stated goal of working in the family's pharmacy business (para 25).

10    The Tribunal then found that there had been no satisfactory explanation as to why, if it was a Bachelor's course that Mr Jan was hoping to study in Australia, he had not commenced such a course at an earlier time and did not accept his evidence explaining why he had not done so. The Tribunal also found that it had concerns about whether he would complete the Bachelor course (para 26).

11    Having dealt with those matters in detail and reached conclusions to the effect that the history of Mr Jan's study and his stated goal for study indicated that he may be using the student visa programme primarily for the purpose of residing in Australia, the Tribunal then needed to consider whether the evidence as to other relevant matters rose to a level which persuaded the Tribunal to a different conclusion. Its subsequent reasoning must be considered in that context. It had reached the view that the history of Mr Jan's education counted against him. The question was whether there was material that indicated that a different view should be reached despite those conclusions.

12    In that context, the Tribunal then reasoned as follows as to other matters (paras 28-30, 32):

At the time of application, the applicant had travelled offshore on six occasions - four times in 2015, including trips to Saudi Arabia for the pilgrimage and to Kenya and New Zealand. On the two other occasions, once in 2013 and once in 2012, he travelled offshore for holidays, to visit family and attend to family obligations. Since his visa was refused, the applicant has travelled offshore twice, for a holiday in April 2017 and just prior to the Tribunal hearing to visit his sick mother for 33 days. It is accepted the applicant has some family ties to his home country. However, the Tribunal does not consider the ties to be stronger than his incentive to remain in Australia where he has been living for most of his adult life and where he now resides with his wife, since 2015.

The Tribunal has considered all relevant facts and matters and, notwithstanding that the applicant has achieved competency in some of the courses he has undertaken, is not convinced that the applicant considers his time in Australia to be temporary.

The Tribunal has considered the financial evidence provided indicating support from their family and also the evidence that both the applicants are working in Australia, and has no concern about the applicants' ability to support themselves financially to cover study and living costs in Australia. The applicant gave oral evidence at the hearing that he earns about $900 to $950 a week and his wife earns anywhere from $700 to $850 a fortnight working in the kitchen of an aged care facility. Evidence was provided that they receive assistance from family who lives overseas.

…

On the basis of the above, and having considered the applicant's circumstances, immigration history, 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.573.223(1)(a).

Grounds 1 and 3: Alleged failure to comply with the Direction

13    The first and third grounds both allege that the primary judge should have found jurisdictional error by reason of the alleged failure by the Tribunal to have regard to factors to which the Tribunal was required to have regard to by reason of the terms of the Direction.

14    The Direction begins by stating in paras 1 and 2:

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.

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).

15    The Direction then refers to the circumstances in which decision-makers may request additional information. It then states in para 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.

16    Then, under the heading, 'The Applicant's Circumstances', the Direction identifies three matters in paras 6, 7 and 8, namely:

Decision makers must have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.

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.

Weight should be placed on an applicant's circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.

17    Then, the Direction lists more detailed matters as to each of the matters identified in paras 6, 7 and 8. In the case of circumstances in the home country of the applicants, the Direction says that the decision-maker must have regard to certain factors. Relevantly for present purposes, they include the following three matters (para 9):

a.    Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives as established by the applicant.

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.

18    In the case of potential circumstances in Australia, the Direction says that the decision-maker must have regard to certain factors, including '[t]he applicant's ties with Australia which would present as a strong incentive to remain in Australia' (para 11).

19    In the case of the value of the course to the applicant's future, the Direction says (para 12) that the decision-maker must have regard to:

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.

20    The submissions for the appellants were premised upon three implicit claims:

(1)    the Tribunal was obliged by the terms of the Direction to have regard to each of the matters specified in the Direction;

(2)    a failure by the Tribunal to refer to a particular matter meant that it had failed to have regard to that matter; and

(3)    a failure by the Tribunal to refer to a particular matter (and thereby have regard to that matter as required) would be a jurisdictional error.

21    As to these propositions, it may be accepted that the Tribunal was obliged to apply the Direction: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [19] (French CJ, Kiefel, Bell and Keane JJ).

22    The view has been expressed in the Federal Circuit Court that the consequence is that the Tribunal must make findings as to every matter identified in the Direction is a matter to which a decision-maker 'must have regard' and therefore it is necessary to consider which of those factors have been considered by the Tribunal expressly or impliedly: Singh v Minister for Immigration and Border Protection [2018] FCCA 3423 at [16]-[24] (Riley J). Counsel for Mr Jan pressed the case on that basis. I note that in Bala v Minister for Immigration and Border Protection [2019] FCA 600, Anastassiou J was presented with a similar argument but found that it was not necessary to decide the point because his Honour concluded that each criteria was considered: at [14].

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.

29    However, I note that a failure to comply with a ministerial direction made under s 499 has been held to amount to jurisdictional error: see the analysis by Mortimer J in Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112, particularly at [34]-[35]; and the authorities referred to by Burley J in VKTT v Minister for Home Affairs [2019] FCA 1018 at [19]. In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [42], I found that a different direction under s 499 did not offer mere guidance or a statement of policy that may be departed from if the circumstances justify departure. However, the direction there considered was expressed in terms that were materially different to the Direction. It is important to consider the obligation imposed upon a decision-maker by the particular direction. It is only a material failure to conform to that obligation that may give rise to jurisdictional error.

30    To these matters may be added the jurisprudence as to the nature of the factual conclusions that might be drawn if a matter is not referred to expressly by the Tribunal in its reasons. Recently, the principles were summarised by the High Court in ETA067 v The Republic of Nauru [2018] HCA 46 at [13]-[14] in the following terms:

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.

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.

(citations omitted)

31    Also relevant is the oft-quoted statement to the effect that reasons given by the Tribunal are not to be scrutinised minutely and finely with an eye attuned to the perception of error in a manner that disregards their role as a means of informing as to the matters required to be stated: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

32    For the appellants, it was submitted that there was a failure to comply with the Direction in the following respects.

33    First, the appellants referred to evidence that was submitted to the Tribunal showing that he had financial reasons to return to Pakistan after his studies because he belonged to a notable business family with properties and businesses in Pakistan, the business would be expanded when he returned, he had a social tradition of living in a joint family system and he would inherent a share of the properties and businesses.

34    It was said that the Tribunal gave no consideration to those matters when the Direction required the Tribunal to have regard to personal ties with Pakistan (his home country) and economic circumstances that would present as a significant incentive to return to Pakistan.

35    It was accepted that there was some reference to the financial circumstances of Mr Jan's family in Pakistan but that was said to be confined to the context of considering the level of financial support that they offered while he was in Australia. It was submitted that the evidence was also relevant to his incentive to return, an aspect that was not considered.

36    However, the Tribunal did accept that Mr Jan had some family ties in Pakistan. Even if this finding is confined to his connections with family rather than his connections to the family business, it is plain that the Tribunal had in mind the family pharmacy business and the evidence that his goal was to return to that business. However, it found, in effect, that if that were truly the goal then the studies that had already been completed were sufficient for that purpose. Inherent in that conclusion was a view that the family business in Pakistan was not drawing him back.

37    Further, for reasons I have given, it was for the Tribunal to determine whether a particular matter was to be brought to account as part of the overall evaluation to be undertaken by the Tribunal. It did not need to weigh every specified matter in the balance. Its obligation was to consider whether each of the matters (and any other matter it considered to be relevant) should be brought to account in reaching the required conclusion. It could form the view that some matters were not to be brought to account in the weighing process because they did not have relevant significance. In the context of the Tribunal's reasons and the significance that it gave to the history of Mr Jan's education in Australia over a number of years, the evidence concerning the financial connection to Pakistan has not been shown to be so significant or compelling that it might be inferred that the Tribunal's failure to refer to that evidence manifested a failure to turn its mind to whether that matter should be brought to bear when reaching the required overall conclusion.

38    Therefore, the failure to refer specifically to that evidence in the Tribunal's reasons does not indicate that there has been a failure to conform to the requirements of the Direction.

39    Second, it was submitted that there had been a failure to consider whether there were sound reasons why Mr Jan was not undertaking further study in Pakistan. It was said that there was evidence about why he chose Australia and that evidence was not considered. Again, the Tribunal did address this matter when considering Mr Jan's professed goal for studying. It formed the view that the extent of study that was required for his stated goal had been completed. In those circumstances, there was no relevance in considering whether there were study opportunities in Pakistan.

40    Third, it was submitted that the Direction required the Tribunal to consider whether the proposed Bachelor degree course was consistent with his current level of education and whether it would assist Mr Jan to obtain employment in his home country. These matters were addressed by the findings by the Tribunal about its concerns as to whether he would be able to complete the degree and the fact that he had already completed a level of education commensurate with his goal.

41    Fourth, it was submitted that on the evidence the future employment prospects relied upon by Mr Jan were not confined to the family business and the general manager role that the Tribunal did not accept. It was said that he also advanced a claim that it would help him to compete and work as 'self-employed business personnel'. These general claims are not of a kind that a failure to refer to them might lead to the inference that the Tribunal failed to consider those matters as required by the Direction. They are of a kind that might be expected to not be expressly referred to in reasons which give weight to the education history of Mr Jan in Australia.

42    In general, the thrust of the submissions proceeded from a false premise, namely that jurisdictional error could be demonstrated by a failure by the Tribunal to refer in terms to each of the matters listed in the Direction.

43    Grounds 1 and 3 have not been made out.

Ground 2: Alleged error concerning the earnings of Mr Jan

44    As I have noted, the Tribunal made the following finding about the ability of the appellants to support themselves financially (para 30):

The Tribunal has considered the financial evidence provided indicating support from their family and also the evidence that both the applicants are working in Australia, and has no concern about the applicants' ability to support themselves financially to cover study and living costs in Australia. The applicant gave oral evidence at the hearing that he earns about $900 to $950 a week and his wife earns anywhere from $700 to $850 a fortnight working in the kitchen of an aged care facility. Evidence was provided that they receive assistance from family who lives overseas.

45    The oral evidence from Mr Jan was to the effect that the earnings of $900 to $950 were fortnightly earnings, not weekly earnings. The manner in which this error might be relied upon as a basis for demonstrating jurisdictional error was not entirely clear.

46    The primary judge found that the factual error was immaterial. The submission advanced was that the primary judge erred in that conclusion because the error was material to the Tribunal's conclusions that it had no concerns about the appellants' ability to support themselves in Australia and the appellant did not genuinely intend to stay in Australia temporarily.

47    As to the first claim, correction of the error could only have introduced the possibility of a finding that would be adverse to the appellants' visa application. Relief on that basis would be futile.

48    As to the second claim, it seemed to be submitted that by overstating the earnings in Australia the Tribunal distorted its view of the incentive that the appellants had to remain in Australia rather than return to Pakistan. The difficulty with that submission is that there is no indication in the reasons given by the Tribunal that it formed a view that there was a financial incentive for the appellants to remain in Australia by reason of their earnings. Indeed, the Tribunal found that the appellants received financial assistance from their family overseas. Therefore, the factual error has no demonstrated consequence for the result as reasoned by the Tribunal. Therefore, the illogicality and irrationality basis upon which the claim was advanced was not made out. The process of reasoning by which the Tribunal reached its conclusion does not depend upon matters that would give any significance to a factual error to the effect that the earnings of Mr Jan were weekly earnings when they were actually fortnightly earnings.

49    Ground 2 is without any merit.

Ground 4: Alleged failure to consider

50    The Tribunal must make its decision based upon due consideration of the material before it, particularly material advanced by an applicant supporting an application for review. It was submitted that the Tribunal failed to have regard to critical information in an affidavit from Mr Jan's parents dated 20 January 2018. It identified property in Pakistan owed by the family. It then said that Mr Jan will inherit a 20% share in all of the property and business of the family according to the law of the land. It said that they would undertake complete responsibility that Mr Jan will return to Pakistan after completing his study. It said that after Mr Jan completed his studies and returned home the family business will be expanded.

51    Having regard to the reasoning pathway of the Tribunal, this is not a case where its reasoning depended upon some aspect of the degree of family financial wealth and the evidence in the affidavit was to different effect. In such a case the fact that the evidence was not brought to account in reaching a conclusion about family wealth may give rise to jurisdictional error.

52    Rather, for reasons I have given, in this case, the Tribunal's reasoning recognised that there was a family business in Pakistan and, on the Tribunal's approach, the applicant had completed education relevant to working in that business, yet was still seeking to remain in Australia to study. Further, the history of study raised questions as to whether pursuit of studies in order to aid employment prospects was the reason for obtaining student visas.

53    In those circumstances, there is no reason why the Tribunal might be expected to refer to the affidavit evidence in any particular way, nor a basis for inferring that it has disregarded or overlooked the evidence. As I have noted, mere failure to refer to particular evidence does not indicate that it was not considered. In this case, taking account of the reasoning pathway of the Tribunal, it may be inferred that it did not consider the precise extent of the properties held in Pakistan to be of significance.

54    For those reasons, ground 4 has not been made out.

Conclusion and costs

55    It was accepted by both parties that costs should follow the event. Therefore, the appeal should be dismissed with costs, to be assessed if not agreed.

Associate:

Dated:    8 November 2019