Federal Court of Australia

Tandukar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1267

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (the FCC) of 11 December 2019, which dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the AAT) of 24 May 2017. The appellant had unsuccessfully sought review by the AAT of a decision of a delegate of the Minister for Immigration made on 14 June 2016 to refuse to grant her a Student (Temporary) (class TU) (subclass 572) visa under the Migration Act 1958 (Cth) (the Act).

2    Although orders were made on 6 July 2020 requiring the appellant to file and serve a written outline of submissions in support of her appeal, none were provided. The Registry of the Federal Court received correspondence from the appellant indicating that she intended to rely upon the written submissions which had been filed on her behalf by her lawyers for the purposes of her application for judicial review to the FCC. Those submissions, which had been drafted by Counsel, were sufficient to identify the arguments which might be advanced on the appellant’s behalf in relation to the errors which were alleged to exist in the AAT’s decision. They did not, however, purport to identify any error in the decision of the primary judge.

3    Neither party sought an oral hearing such that the appeal was heard on the papers.

Background

4    The appellant is a citizen of Nepal who arrived in Australia on 21 February 2008. At the date of her arrival she was aged 23 and is now 35 years of age.

5    The appellant originally held a Class TU Subclass 572 Student visa, which was valid until 5 March 2008. She was thereafter granted several subsequent TU572 and TU573 extensions as well as a number of related bridging visas. On 22 April 2016, she applied for a further student visa, indicating that she proposed to undertake a Diploma in Marketing, an Advanced Diploma in Marketing and a Certificate IV in Marketing.

6    On 2 May 2016, the Minister’s delegate wrote to the appellant seeking additional information. The letter recorded that the appellant had previously enrolled in fifteen courses and was currently enrolled in an additional three. The letter raised with the appellant whether she was a genuine student. It said, inter alia:

According to your study history you have changed courses and education providers several times from Accounting to Hospitality to Business, to Marketing, to Management, to English, to Tourism, and now you wish to study Marketing again. Even though a person may seek a change in career, I note that the courses you have chosen are typically of a short duration, low-cost and often in unrelated fields of study.

This makes me question why you would be studying so many vocational level subjects for up to 10 years without any attempts to progress to a higher educational level.

This is not consistent with the behaviour of a genuine student… This indicates that you are using the student visa application as a means to maintaining residence in Australia.

7    The appellant was invited to respond to the delegate’s concern and on 26 May 2016 she sent an email to the delegate along with several records relating to her studies. In her response she provided a variety of reasons as to why she had altered the nature and type of courses which she had undertaken and, in particular, why she had frequently changed disciplines.

8    It is not in dispute that, as at the date of the determination by the delegate, the appellant had engaged in the following Vocational Education and Training (VET) courses:

Degree                                                                 Dates                                         Status

Diploma of Travel and Tourism                        06/04/2015 to 02/04/2016           Finished

Diploma of Tourism                                          07/04/2014 to 02/04/2016           Cancelled

General English (Elementary to Upper

Intermediate)                                                     10/03/2014 to 28/03/2014             Finished

Diploma of Tourism                                          24/02/2014 to 20/02/2016            Cancelled

Advanced Diploma of Management                 29/04/2013 to 12/12/2013             Finished

Diploma of Management                                   23/07/2012 to 28/03/2013             Finished

Certificate IV in Marketing                                17/10/2011 to 01/06/2012            Finished

Certificate III in Business                                   02/05/2011 to 23/09/2011           Finished

Diploma of Hospitality                                       08/11/2010 to 11/03/2011            Finished

Diploma of Hospitality                                       04/10/2010 to 10/12/2010            Cancelled

Diploma of Hospitality                                       23/08/2010 to 05/11/2010            Cancelled

Diploma of Hospitality Management                 15/03/2010 to 11/03/2011             Cancelled

Certificate IV in Hospitality (Com Cookery)     18/03/2009 to 13/08/2010             Finished

Certificate IV in Hospitality (Com Cookery)     16/03/2009 to 12/03/2010             Cancelled

Diploma of Accounting                                      25/02/2008 to 25/02/2009             Finished

9    On 14 June 2016, the appellant was informed that the delegate had declined to grant her a further student visa. The delegate indicated that he was of the opinion that she was using the student visa program to circumvent the permanent immigration program and, further, that he was not satisfied that she was a genuine applicant for entry and stay as a student. On 30 June 2016, she applied to the AAT for review of that decision.

10    On 22 May 2017, the appellant’s agent supplied to the AAT several supporting documents which included a Confirmation of Enrolment in a Bachelor of Business (Accounting), which was due to commence on 26 June 2017. The confirmation was dated 18 May 2017, indicating that the appellant had only recently enrolled in that course.

11    The appellant was invited to a hearing at the AAT which she attended with her migration agent on 23 May 2017. She was assisted at the hearing by an interpreter in the Nepali and English languages.

The decision of the AAT

12    The AAT affirmed the delegate’s decision on 24 May 2017. It was not satisfied that the appellant met the criterion in cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). That clause set out one of the criteria which had to be fulfilled before the visa for which the appellant had applied could be granted. It was that:

(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; …

13    In determining whether he was satisfied the appellant met these criteria, the delegate applied, as he was required to do, the provisions of Direction No 53, Assessing the genuine temporary entrant criterion for Student visa applications, which provided, inter alia, that the delegate / AAT have regard to certain specified factors including:

    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.

14    In its reasons, the AAT stated that in the course of the hearing it had discussed with the appellant that, in order for her to obtain a student visa she had to be both a genuine student and have a genuine intention to remain in Australia temporarily. It also identified the inconsistent explanations which she had provided over time as to why she had undertaken the various courses of study and the further inconsistency in her alleged intentions and career. It observed that the appellant has not followed a clear study pathway which was relevant to her stated career plan and that she was proposing to adopt a course of study (accounting) which she had abandoned some years ago. It also concluded that the appellant did not require a Bachelors of Accounting for the purposes of managing her family’s dairy farm in Nepal, which she now claims was her intention. That, so the AAT found, was regardless of whether the family dairy expanded its operation so as to require more than its current five employees. It further found that it was not satisfied that the appellant’s ties to Nepal present a significant incentive for her to return there on completion of her course, particularly taking into account her part-time employment in Australia.

15    Based on the appellant’s education history in Australia, her inconsistent accounts of her intentions and reasons for taking particular courses, and her enrolment in a Bachelor course shortly before the hearing, the AAT concluded that the appellant was seeking to prolong her stay in Australia. It reached the conclusion that it was not satisfied that the requirements of cl 572.223 had been met.

The application for review to the FCC

16    An application for review of the AAT’s decision was lodged in the FCC on 19 June 2017. For reasons which are not entirely clear, the application was not heard until 25 January 2019. When it came on for hearing, the appellant was represented by Counsel.

17    On 11 December 2019, the FCC dismissed the application. In circumstances where, on this appeal, the appellant merely relies on the submissions advanced on her behalf below, it is appropriate to assay as some length the reasons of the primary judge.

18    Ground 1 before the FCC was that the AAT had misconstrued cl 572.223(1)(a) as requiring both that the appellant was a genuine student and had a genuine intention to remain in Australia temporarily. It was submitted that all that had to be shown was that the visa applicant intended genuinely to stay in Australia temporarily and that there was no need for the delegate to be satisfied that the applicant was a genuine student.

19    The primary judge rejected this submission. It was held that, when the regulation is read as a whole, it is apparent that the decision-maker needed to be satisfied that the applicant is a “genuine applicant for entry and stay as a student”. In reaching that state of satisfaction the decision-maker must be satisfied, inter alia, that the applicant intends genuinely to say in Australia temporarily having regard to the listed criteria. His Honour held that the focus was not on whether the applicant genuinely intends to remain in Australia temporarily, but whether the applicant is a genuine applicant to be a student and that they intend to stay in Australia as a student. It was also identified that cl 572.223(1)(a)(iv) requires the decision-maker to have regard to “any other relevant matter”. The learned primary judge then said (at [44]):

When regard is had to those matters, it is clear that whether an applicant for a Student visa is a genuine student is plainly a relevant matter and one which may be considered, quite apart from the content of the phrases “genuine applicant” and “stay as a student” in cl 572.223(1) and “applicant intends genuinely to stay” in par 572.223(l)(a).

20    It was also observed that the wider context in which the regulation operated included the general purpose and policy of the provision and the mischief it was seeking to remedy. In this context the primary judge referred to the preamble to Direction 53 which provides:

A person who wants to study under the Student Visa Program must obtain a Student visa before they can commence a course of study in Australia. Amongst other things, a successful applicant must be both a genuine temporary entrant and a genuine student.

(Emphasis added in the reasons of the primary judge)

The primary judge found that this statement correctly reflected the object and purpose of the regulation and that the delegate was required to comply with Direction No 53 as a guide in the application of cl 572.223.

21    The primary judge was confirmed in the view that the essential question asked in the regulation, being whether the applicant was a “genuine applicant for entry and stay as a student”, included consideration of whether they were a genuine student, taking into consideration the observations of Logan J in Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238 (Saini), 244 [22] – [23]. Those observations are important to the decision in this matter and should be set out in full:

22.    As to overall context, the Minister placed particular emphasis in his submissions upon the introductory paragraph in cl 572.223(1), which is known in parliamentary drafting terminology as the “chapeau” and which governs the clause of which cl 572.223(1)(a) forms a subsidiary part. This emphasis was not misplaced.

23.     The introductory paragraph specifies a subject of overarching satisfaction which the Minister must hold in order for a “Student visa” to be granted. That satisfaction is that the applicant is a genuine applicant for entry and stay “as a student”. Further, the presence of the conjunction, “because” indicates that this overarching satisfaction must be reached by reason of particular criteria specified in cl 572.223(1)(a) and (b). By virtue of the reference to “any other relevant matter” in cl 572.223(1)(a)(iv), the criteria relevant to satisfaction that an applicant “intends genuinely to stay in Australia temporarily” are limited only by relevance to the subject matter, scope and purpose of cl 572.223. That subject matter, scope and purpose is to establish a class of visa to enable a person to enter and stay temporarily in Australia as a student. This is apparent not just from the presence of the adverb, “temporarily” but also from the repetition of “genuine” or a derivative both in the chapeau and in cl 572.223(1)(a) and also the adjectival clause, “as a student” which governs “stay”, in the chapeau.

22    Consequently, the primary judge concluded that cl 572.223(1) should not be given a narrow construction so as to be confined only to whether the visa applicant intended to stay in Australia temporarily. His Honour said (at [51]):

Clause 572.223(1) of the Regulations does not exclude from consideration whether the applicant was a genuine student and genuinely intended to stay in Australia temporarily for the purposes of undertaking his or her course of study. The Tribunal was authorised to consider whether the applicant was a genuine, or authentic, applicant for entry and stay as a student. In the context of cl 572.223(1), adherence to the ordinary meaning of the term ‘genuine’ is appropriate so as to give effect to the clause and its purpose.

23    In the result, his Honour found that reading the reasons of the AAT fairly and as a whole “without an eye keenly attuned to [the perception of] error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259: it was correct to recognise that cl 572.223(1) imposed a single criterion, which was confirmed by Direction 53, and that when it identified that it was required to consider whether the applicant was a genuine student and had a genuine intention to remain in Australia temporarily, it was merely paraphrasing Direction 53 and applying it as it was required to do.

24    The learned primary judge also concluded that, even if there was an error, in order for it to vitiate the delegate’s state of non-satisfaction it would have to be “material”: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain); Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 (Shrestha): and in this case, had the error been made out, it could not have been so described. That was because the AAT’s decision turned on the fact that it was not satisfied the appellant met the criterion “based upon its lack of satisfaction that the applicant intended to stay in Australia temporarily”. At worst, the AAT had asked itself a superfluous question.

25    The appellant’s second ground of review before the FCC was that the AAT had erred in deciding that her attempt to prolong her stay in Australia was conclusive that the appellant did not have any intention to stay in Australia temporarily. However, the primary judge concluded that submission was based on a misconstruction of the AAT’s reasons and that the AAT had relied on a number of factors in concluding that the appellant did not intend to remain in Australia temporarily. The primary judge also held (at [65]) that a finding that “a visa applicant is enrolling in courses in order to prolong their stay in Australia is … properly capable of supporting a conclusion that the applicant does not intend to stay in Australia temporarily.” He further held that such a finding would be a rational and reasonable basis for inferring that the person was not a genuine applicant for entry and stay as a student. Finally, in relation to this ground, his Honour held that the AAT’s conclusion on this issue was a finding of fact and the challenge to it involved impermissible merits review.

26    The third ground of review was that the AAT failed to take into account all of the mandatory considerations identified in Direction No 53. The Minister submitted that the essential matters had been considered and an examination of the transcript before the AAT disclosed that they were all either expressly or impliedly properly taken into account. It was further submitted that any consideration not taken into account was immaterial to the conclusion which had been reached. The primary judge held (at [85]) that the AAT was required to take into account all of the factors specified in Direction No 53, as well as any other relevant factor. However, his Honour cautioned against translating the principles identified in He v Minister for Immigration and Border Protection (2017) 255 FCR 41 (He), concerning the granting of partner visas, to the application of Direction No 53. His Honour concluded (at [91]) that in the application of Direction No 53 it may transpire that the decision-maker may conclude that, in the circumstances, a stipulated matter may not be relevant or that there was no evidence on which a finding might be made.

27    Ultimately, the primary judge held that the AAT had complied with the requirements of cl 572.223 and Direction No 53. The mere fact that no express findings were made by the AAT in relation to any particular consideration did not necessarily lead to the conclusion that it had not been taken into account. It was for the appellant to demonstrate that it had not been considered and she had failed to do that in this case. The AAT was found to have given proper and genuine consideration to each of the factors in Direction No 53 and the absence of any reference to particular matters arose in circumstance where the appellant had not adduced any evidence in relation to them with the consequence that the factors were not material. The primary judge traversed all of the matters raised in Direction No 53 and identified whether any evidence had been called in respect of it, whether a finding was made and, if so, where it was to be found in the AAT’s reasons.

grounds of Appeal to this Court

28    The grounds advanced in the Notice of Appeal filed on 23 December 2019 are as follows:

1.     His Honour made error in finding that the Second Respondent did not misinterpret and was correct when finding that the Applicant had to satisfy dual requirements; being a genuine student and also having a genuine intention to remain in Australia.

2.     His Honour erred in finding that:

(a)     The Second Respondent did not make an error when stating that the Applicant was seeking to prolong her stay in Australia and had no intention to stay in Australia temporarily.

   (b)     The Second Respondent did not misapply the regulation.

(c)     Any error by the Second Respondent was not material and was not jurisdictional.

3.     His Honour made error by finding that the Second Respondent did not make jurisdictional error when overseeing and not taking into account relevant considerations, even though the Second Respondent’s reasons were brief when providing its reasoning of matters under the Ministerial Direction No.53.

4.     His Honour denied the Applicant procedural fairness.

29    It is apparent, as was submitted by the Minister, that the first three grounds reflect the grounds of the amended application relied upon by the appellant before the FCC. The fourth ground is directed to the FCC rather than the AAT.

Ground 1

30    The origin of this ground of appeal lies in the first sentence of [13] of the AAT reasons in which it said:

At hearing, the Tribunal discussed with the applicant the reasons her Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant her circumstances in Nepal and Australia, her immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

31    The appellant submitted that the AAT’s approach was plainly wrong because cl 572.223(1)(a) only requires a determination that the visa applicant intends genuinely to stay in Australia temporarily and that there is no additional requirement that the applicant be a genuine student.

32    It is undoubted that the wording of the AAT’s reasons does not follow that of cl 572.223, however it is not erroneous for that reason. Moreover, the AAT’s reasons must be read in the context of its determination of whether cl 572.223(1) had been satisfied. The primary object of that regulation is whether the Minister is satisfied that “the applicant is a genuine applicant for entry and stay as a student” (emphasis added). It is not a regulation which merely seeks to ascribe some temporal descriptor of the applicant’s intended stay in Australia in a general sense. Its purpose and object is to ascertain whether their stay is for the purposes of being a student. Necessarily their status as a student is essential for the purposes of characterising the intended length of the visa applicant’s presence here. This was made pellucid by Logan J in Saini, whose reasons and analysis, which are set out above, should be accepted.

33    The reasoning of the learned primary judge on this point should also be accepted. The delegate was required to consider whether the applicant’s temporary presence in Australia was “as a student” and, a necessary part of that was consideration of whether the appellant’s claim to be a student was genuine. As the primary judge explained, the reference to “applicant” in cl 572.223(1)(a) must equate with the person referred to in the chapeau, being a person who is a “genuine applicant for entry and stay as a student”. The expression, “as a student” informs the description of the applicant who is a “genuine applicant”. In that way, the object of the regulation is to ensure that the applicant is a person who genuinely intends to stay in Australia as a student. The state of satisfaction referred to in the chapeau is linked to the state of satisfaction about the applicant being in Australia temporarily by the use of the word “because”: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (Kumar) [23]. Consistently with the above, the primary judge held that the matters in sub-cll 572.223(1)(a)(i) – (iv) pertained to whether the applicant’s intention to stay in Australia was genuine, but that was in relation to her intention to stay here as student. That conclusion was correct and nothing was advanced by the appellant to displace it.

34    The primary judge also held that cl 572.223(1)(a)(iv) required the AAT to take into account in assessing the genuineness of the appellant’s intention to stay in Australia temporarily, “any other relevant matter”, which would include whether the appellant was a genuine student. That analysis also ought to be adopted. That issue was particularly pertinent in the present case where the appellant had undertaken numerous VET courses, many of which were fairly fundamental and repetitive, and she had not sought to advance her education beyond that in any substantial way. The objective circumstances necessarily raised the question of whether she was a genuine student and the AAT was entitled, if not required, to consider that. Such a conclusion is fortified by the terms of the preamble to Direction No 53, set out above. As the primary judge held, that preamble fairly identified the underlying policy of the regulation and the impugned part of the AAT’s reasons was merely a paraphrasing of that part of Direction No 53.

35    The appellant has not demonstrated any error in the primary judge’s conclusion that the AAT did not err in concluding it was not satisfied in terms of cl 572.223(1) that the appellant “was a genuine applicant for entry and stay as a student”.

36    Neither did the appellant establish any error in the primary judge’s conclusion that any such error would not have amounted to a material error which would vitiate the AAT’s lack of satisfaction that the appellant met the criteria in the regulation: see Hossain and Shrestha. The essence of the AAT’s determination was that it was not satisfied that the applicant intended to stay in Australia temporarily. It articulated the several matters on which it relied to reach that conclusion, which were summarised in [21] and [22] of its reasons:

21. In the Tribunal’s view, the applicant’s study history of shifting from course to course over nine years without a clear pathway, the inconsistencies in her evidence as outlined at paragraph 17 above and the fact that she only enrolled in the Bachelor of Accounting on 18 May 2017, shortly before her hearing, lead the Tribunal to conclude that the applicant is seeking to prolong her stay in Australia.

22. 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.572.223(1)(a).

37    Putting aside the question of whether the AAT determined that the appellant was not a genuine student, on the facts found by it, it is impossible to think that the AAT could have reached any other conclusion than the one which it did. Therefore, even if the AAT did ask itself whether the appellant was a genuine student, no error arose.

Conclusion in relation to Ground 1

38    It follows that the appellant cannot succeed on the first ground.

Ground 2

39    By the second ground of appeal the appellant submitted the AAT erred in its reliance on its finding that she was seeking to prolong her stay in Australia when concluding that she was not intending to stay in Australia temporarily. It was submitted that the first conclusion did not necessitate the second, because undertaking a course of study would inevitably prolong the appellant’s stay.

40    The Minister’s submission that the primary judge was correct to conclude that this ground of review was based on a misconstruction of the reasons should be accepted. When read as a whole the reasons show the AAT considered a number of matters when finding that the appellant did not intend to stay in Australia temporarily. That is made clear by the AAT referring in [22] to all of the appellant’s circumstances as supporting its conclusion.

41    Further, the Minister’s submission that the primary judge was correct to conclude that the appellant’s strategy of enrolling in a variety of courses to prolong her stay in Australia was capable of supporting a conclusion that she did not intended to stay here temporarily, should also be accepted. It must be kept in mind that the relevant question was whether the appellant was a genuine applicant for entry and stay as a student, and it was in that context that the decision-maker was to determine whether the appellant had a genuine intention to stay temporarily. If her intention is to stay in Australia solely for the purposes of engaging in study, the intended presence is temporary and for a limited identified purpose. If her engagement in study is merely a pretence for extending the duration of her presence here, the intended presence is more permanent and not at all temporary. It follows that the primary judge was correct to hold that the finding that the appellant was merely seeking to prolong her stay here was a rational and reasonable basis for inferring that she was not a genuine applicant for entry and stay as a student.

42    To some extent it appears that the appellant also sought to argue that the finding that the appellant only enrolled in further courses to prolong her stay in Australia was not open. That submission, however, is not supportable. There was more than sufficient evidence on which the AAT might have reached that conclusion and the appellant’s submissions in this respect amount to an invitation to the Court to engage in impermissible merits review.

43    Ground 2(c) raises whether the learned primary judge erred by finding that any error in relation to the finding that the appellant was merely seeking to prolong her stay in Australia was not material. The Minister submitted that this issue was not pressed before the primary judge, but takes no point about that on appeal. In relation to this point it is necessary to reiterate that, before this Court, the appellant sought to rely upon the written submissions filed for the purposes of the application in the FCC. Those submissions do not address the question of whether the alleged error which formed the basis of Ground 2 was material. The Minister’s submissions address the question of materiality, but in relation to the issue raised in Ground 1. In any event, as it has been found that no error was committed by the AAT in relation to the matters raised in Ground 2 there is no need to consider the question of materiality.

Conclusion with respect to Ground 2

44    Ground 2 has not been not been made out and must also fail.

Ground 3

45    The argument sought to be advanced under this heading was that the AAT was required to make a finding in relation to each matter identified in Direction No 53 and that the primary judge erred in not concluding that the tribunal had failed to make all the necessary findings. It was submitted that the obligation of the AAT to make specific findings is supported by the decision in He where the Full Court held, in relation to a different statutory regime, that the decision-maker was required to make a finding in relation to each of the considerations mentioned in the direction.

46    As is discussed previously, the appellant’s difficulty in relation to this ground is that the primary judge accepted, to a degree, that the decision in He applied to the AAT’s application of Direction No 53. His Honour found either that the relevant findings had been made by the AAT or that no finding was necessary in the circumstances given the absence of any evidence relating to particular issues and the absence of any submissions. The written submissions relied upon by the appellant in this Court, being the same before the FCC, did not purport to deal with the primary judge’s conclusions and nor did it attempt to identify where, if at all, the primary judge may have erred in his conclusions.

47    It must be kept in mind that the jurisdiction of this Court to hear appeals from the FCC is granted by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Whilst that jurisdiction is in the nature of a rehearing of the action at first instance: Construction, Forestry, Mining and Energy Union v Alfred (2011) 203 IR 78 (CFMEU v Alfred), 99 [87]; Farrington v Deputy Commissioner of Taxation (2002) 50 ATR 429, 431 [4]; Kowalski v Domestic Violence Crisis Service [2005] FCA 12 [51]: it is well established that the jurisdiction is only exercised for the correction of error: CFMEU v Alfred at 99 [88]; Dovuro Pty Ltd v Wilkins (2000) 105 FCR 476, 487 [38]; Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586, 590 – 591 [20]. Thus, whilst the Court must undertake a review of the findings of the primary judge and conduct a “real review” or a “real rehearing” of the matter: Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129, 148 [55]: it does not follow that, on an appeal, a Court is required to trawl through the evidence below and reach its own conclusions as to the correctness of the primary judge’s findings. As was said by Flick J in CFMEU v Alfred at 99 [89]:

In undertaking that task, the Court is to determine whether the findings made are correct but it is not the function of the appellate court “merely to substitute its own view, as if it were again performing the function of the trial judge”: cf. Wade v Australian Railway Historical Society (SA Division) (t/as Steamranger) (2000) 77 SASR 221 at [38] per Doyle CJ (Duggan and Lander JJ concurring). Nor is it appropriate to invite an appellate court “simply to revisit the relevant evidence … and then contend that the court should reach a different conclusion … In an appeal by way of rehearing, error must be demonstrated for the appellate court to be entitled to disturb the decision of the primary decision-maker… Furthermore, the manner in which the case is conducted by the parties on appeal ought not depart from the manner in which the case was conducted at trial, and generally, the appeal arena is not the appropriate forum to raise new arguments”: cf. Tasmanian Sandstone Quarries Pty Ltd v Legalcom Pty Ltd [2010] SASCFC 6 at [34] per Gray J (Nyland and Kourakis JJ agreeing).

48    In other words, the appellate function of the Court only permits it to intervene where appellable error is demonstrated in the orders made by the FCC: Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1, 5 [26]: and it is the obligation of the appellant to demonstrate that error.

49    Here, there was no attempt to identify any error in the reasons or orders of the primary judge. There was no submission that the primary judge’s conclusions as to the nature of the evidence and submissions made to the AAT were in error and nor was there any criticism of his Honour’s findings as to the extent to which the AAT made findings about the matters referred to in Direction No 53. It may be that the appeal on this ground ought to fail for this reason alone.

50    Even if one were to consider the appellant’s submissions below in relation to this ground, her reliance on the decision in He as the foundation of the alleged errors committed by the AAT was misplaced given the later decision in Kumar. The former decision concerned the question of whether a person was a spouse of a sponsoring partner pursuant to cl 801.221(2)(c) of schedule 2 of the Regulations. Regulation 1.15A enumerated those matters which a decision-maker was to consider in ascertaining whether a person was a “spouse” and set out a list of considerations. The Full Court held that the matters set out in that regulation were mandatory relevant considerations which had to be considered by the decision-maker and it was necessary for a finding to be made in relation to each such matter.

51    In support of the submission made to the FCC that the Minister was here required to make a finding of fact in relation to each of the matters identified in Direction No 53, the appellant relied upon the decision in Singh v Minister for Immigration and Border Protection [2018] FCCA 3423. However, that reliance was misplaced. There, Judge Riley only found that the decision-maker was required to consider each of the matters set out in Direction No 53. Her Honour did not conclude, at least expressly, that a finding needed to be made in relation to each.

52    In any event, as is apparent from the subsequent decision in Kumar, the decision in Singh was incorrect to the extent to which it suggested that the Direction No 53 imposed any obligation on the decision-maker to make findings in relation to the matters specified in it. In distinguishing the decision in He in relation to reg 1.15A, Derrington and Thawley JJ observed at [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”.

53    Their Honours identified a number of indicia which negated the conclusion that a decision-maker was required to consider, let alone make a finding in relation to, each of the matters specified in Direction No 53. These included that the Direction expressly indicated that it was to provide “guidance” to decision-makers and that it should not be used as a checklist. When the Direction was considered as whole it was found (at [83]) that the obligation to “have regard to” the factors identified meant 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.” Later their Honours said (at [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].

54    In light of this, their Honours found that the requirements of Direction No 53 did not impose any obligation to make findings in relation to each of the identified matters. At [96] it was held:

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.

55    It follows that the appellant’s submission in relation to this ground (as best as it can be derived from the submissions made below) is founded upon a misunderstanding as to the decision-maker’s obligations. That too would seem to be a complete answer to this ground of the appeal.

56    It should also be observed that the decision in Kumar was handed down subsequently to the FCC decision in this matter. Before the lower court the Minister had accepted that the decision in He applied with equal force to Direction No 53 and that the relevant provisions in it were mandatory considerations. However, the Minister had also submitted that the appellant had not established that the matters identified by the appellant had not relevantly been taken into account or determined and this had been accepted by the FCC. The primary judge accepted and applied the following statement of principle referred to by the Full Court in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at 75 [34]:

The fact that a matter is not referred to in the tribunal’s reasons, however, does not necessarily mean the matter was not considered by the tribunal at all: SZGUR at [31]. The tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the tribunal’s reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

57    His Honour observed that the above passage was cited with approval by the High Court in ETA067 v Republic of Nauru (2018) 360 ALR 228. There, the Court stated (at 231 [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.

(Citations omitted).

58    The learned primary judge applied these principles to the determination of the AAT and considered each of the matters in Direction No 53 which it was said had not been considered. In relation to many of those matters it was observed that there was either no evidence one way or the other about them before the AAT or no submission was made by the appellant in relation to them. His Honour reasoned, in relation to those matters, that there was nothing to consider and no determination could be made about them. With respect to other matters in relation to which evidence had been adduced before the AAT, the primary judge identified what the evidence was and how the tribunal dealt with the issue in its reasons.

59    As mentioned, no attempt was made by the appellant to demonstrate any error in the conclusions of the primary judge. That was a necessary concomitant of the appellant only relying upon the submissions made by her to the FCC and omitting to file submissions that went to the issues which arose on appeal. The effect of this is that the appellant implicitly asks the Court to go through the many matters identified in Direction No 53 and ascertain for itself whether they had been considered by the AAT and whether findings were made in respect of them. Even though that is not an appropriate manner in which an appeal should proceed, when the reasons of the primary judge are considered, it is apparent that he identified with particularity the matters enumerated in Direction No 53 and accurately ascertained whether there was any evidence adduced or submissions made in respect of them. His Honour then accurately identified whether the AAT considered the matters and made relevant findings. It follows that, if any error exists in the primary judge’s reasons, it must arise because no findings were made in relation to matters in respect of which no evidence was adduced and no submissions made. However, based on the authorities which have been discussed above, no inference can be drawn in such circumstances that the AAT failed to consider those matters. The appropriate inference is that they were considered but, because there was no evidence in relation to them, they were found not to be material. It is difficult to perceive how, in the absence of any evidence concerning them, they might have been material and the AAT was correct to disregard them.

60    It follows that, even on the assumption arising from the decision in He that there was some obligation to consider the matters in Direction No 53, the appellant failed to establish that the primary judge erred in his conclusion that there was no evidence that the AAT had failed to properly consider all relevant matters.

Conclusion with respect to Ground 3

61    The only conclusion which can be reached is that Ground 3 cannot succeed.

Ground 4

62    By this ground the appellant claims that she was denied procedural fairness by the primary judge. No particulars of this ground are provided in the Notice of Appeal or elsewhere so as to make it meaningful and it should be dismissed for that reason alone.

63    However, as the Minister’s submissions disclose, the appellant was represented before the FCC by Counsel and submissions were made on her behalf, both orally and in writing. It is also apparent that his Honour carefully dealt with each and every submission made to him on the appellant’s behalf. There is nothing in the material to suggest that the appellant was denied procedural fairness.

Conclusion with respect to Ground 4

64    Ground 4 also cannot succeed.

Conclusion

65    None of the grounds of appeal are sustainable. The appeal must be dismissed. There is no reason why the Minister ought not to have his costs paid by the appellant.

Associate:    

Dated:    3 September 2020