Federal Court of Australia

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 476

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the costs of the first respondent of and incidental to the appeal.

3.    The title of the first respondent is amended from “Minister for Immigration and Border Protection” to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

4.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers in addition to having been made and published in Court today.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Background

1    These proceedings are concerned with an appeal from orders of the Federal Circuit Court of Australia dismissing the first appellant’s application (and the application of his wife, the second appellant) before that Court for the grant of the constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) affirming a decision of the Minister’s delegate not to grant the first appellant’s application for a “Student (Temporary) (Class TU) Vocational Education and Training Sector visa” (the “visa”) under the provisions of the Migration Act 1958 (Cth) (the “Act”).

2    The first appellant is Mr Sharanbeer Singh. He applied for the visa on 11 March 2016. The second appellant, Ms Navjot Kaur, was also an applicant in her capacity as a member of Mr Singh’s “family unit”. The second appellant is married to Mr Singh.

3    The application was taken to be an application for a visa in “Subclass 572” of the visa class described earlier, as that was the subclass nominated by the appellants on the application. However, the delegate considered the application on the footing of whether Subclasses 570, 571, 573, 574, 575 and 576 were also satisfied as each of those subclasses are governed by a consideration of whether the Minister is satisfied that the applicant “intends genuinely to stay in Australia temporarily” having regard to the nominated factors.

4    The Tribunal considered the application for review of the delegate’s decision on the footing that having regard to the course of study then proposed by the first appellant, the relevant subclass was Subclass 572.

5    As to a visa in Subclass 572, the Tribunal was required to determine whether the appellants, as applicants, satisfied the requirements of clause 572.223(1)(a) of the Migration Regulations 1994 (Cth). That clause provides, as a requirement enabling the grant of the visa, that the Minister (and thus the Tribunal) is satisfied that Mr Singh (and by dependency, Ms Kaur) intends genuinely to stay in Australia temporarily having regard to, relevantly for present circumstances: “(i)  the applicant’s circumstances; (ii)  the applicant’s immigration history; (iii)  …; and, (iv)  any other relevant matter.

6    The Tribunal is also required to have regard to “Direction No. 53” entitled “Assessing the genuine temporary entrant criterion for student visa applications” made under s 499 of the Act (“Direction 53”).

7    In assessing the criterion concerning the “applicant’s circumstances”, the Tribunal was required to have regard to the circumstances of the first appellant in his home country, potential circumstances in Australia and the value of the course being undertaken to the future of the first appellant (and, the implications of those matters for second appellant, as a member of the first appellant’s family unit).

8    The factor concerning the immigration history of the appellants engaged any previous application for a visa to Australia or other countries and any previous travel to Australia or other countries.

9    The factor concerning any other relevant matter engaged any relevant information provided by the appellants and information otherwise available to the decision-maker either beneficial or unfavourable to the appellants.

10    In support of the application on 11 March 2016, the first appellant provided certificates of enrolment in a Diploma of Business course and an Advanced Diploma of Business course commencing on 1 February 2016 and concluding on 2 April 2017. The Tribunal also had before it copies of the first appellant’s previous qualifications in relation to other courses of study: Certificate III in Commercial Cookery, an Advanced Diploma of Hospitality, a Diploma of Management and an Advanced Diploma of Management.

11    Before examining the Tribunal’s process of reasoning (which is said to reflect jurisdictional error) that caused the Tribunal to affirm the delegate’s decision, it is necessary to address the appellants’ application to adjourn the hearing of the appeal (which was the subject of the Court’s observations on the hearing of the appeal) and it is also convenient to identify the essential criticisms made of the Tribunal’s decision and the contended errors on the part of the primary judge set out in the first appellant’s affidavit of 29 April 2019 which I treat as the submissions of the appellants on the appeal.

The adjournment application

12    As to the application to adjourn the hearing of the appeal, the hearing was listed for half a day commencing at 10.15am on Tuesday, 6 August 2019. On 5 August 2019 at 11.28am, the Court sent an email to the appellants (who were by then self-represented) and to the solicitors for the Minister referring to the appeal listed for hearing the following day requesting that copies of authorities be handed up at the commencement of the hearing.

13    At 11.40am that morning, the first appellant sent an email to the Court (in response) in which he said this:

I am enclosing my medical certificate with this email.

I am not well and feeling very sick. I can hardly get off the bed.

The doctor has enrolled me in anti-depression program in which I have to get treatment for at least 6 months.

At this stage, I don’t have a lawyer and I need your help to get an adjournment.

Please help me.

Regards

Sharanbir [Sharanbeer] Singh

14    At 1.49pm that day, the solicitors for the Minister sent an email to the appellants and the Court advising that the Minister opposed the request for an adjournment. The earlier email from the first appellant attached a letter from “smartclinics Family Medical Centres” dated 4 August 2019 addressed to the first appellant and signed by Dr Dip Chand which said this:

Mr Sharanbeer Singh has a medical condition [anxiety and depression] and will be unfit for work / court from now until further review. inclusive. He is currently being treated for above condition and has been started on medications.

15    As can be seen from the very brief statements in the letter, Dr Chand considered that the first appellant was, on 4 August 2019, suffering from anxiety and depression which would cause him to be unfit for work or Court and treatment by medication had begun. In the absence of any greater detail and having regard to the lateness of the application, the Court was not persuaded that the appeal ought to be adjourned. The appellants were self-represented as a result of their former solicitor, Rajan Lashand, having taken steps to withdraw from representing the appellants on 22 January 2019. Although the first appellant had said in his email of 5 August 2019 that he did not have a lawyer, approximately six months and 14 days had elapsed between 22 January 2019 and 5 August 2019 within which he either did or could have taken steps to seek alternative legal support. The first appellant had prepared, affirmed and filed on 29 April 2019 an affidavit setting out the central aspects of his criticisms of the Tribunal decision and the decision of the primary judge.

16    These procedural aspects of the proceeding before the Federal Circuit Court also ought to be noted.

17    On 13 March 2018, the Federal Circuit Court set the matter down for hearing on 11 October 2018. On 20 June 2018, the hearing was adjourned to 30 October 2018. On 30 October 2018, the primary judge adjourned the hearing for what appears to be entirely meritorious reasons as set out in the email from the solicitor for the appellants dated 18 October 2018. On 29 November 2018, the matter was set down for hearing on 14 February 2019. On 22 January 2019, Mr Lashand withdrew with notice being given to the solicitors for the Minister on 23 January 2019. On 14 February 2019, the Federal Circuit Court adjourned the hearing to 8 April 2019. By then the appellants were residing in Melbourne. The appellants would appear, for the purposes of the hearing, by video-conference link either by themselves or by any incoming lawyer. The appellants appeared in person before the primary judge on 8 April 2019. The primary judge dismissed the application with ex tempore reasons on 8 April 2019.

The grounds of appeal

18    In the notice of appeal to this Court, the appellants rely on six grounds. They say these things.

19    First, the primary judge did not give them a “reasonable opportunity” to present their case and, as a result, they were “denied procedural fairness”.

20    Second, the primary judge dismissed their application in circumstances where they had not yet filed and served all evidence relevant to their application and material to that matter was, they say, their circumstances as unrepresented parties.

21    Third, the primary judge failed to take into account the evidence presented (presumably before the Tribunal).

22    Fourth, the primary judge did not provide “sufficient reasons for the decision or make any rulings of fact” on the alleged grounds.

23    Fifth, the primary judge did not “adequately turn [his] mind to the grounds” of the application before the Federal Circuit Court “merely stating that the majority of [their] grounds seek a merits review” and that the primary judge’s decision largely repeated the Tribunal’s findings “without engaging in a meaningful review”.

24    Sixth, the primary judge failed to assess whether the Tribunal had “assessed the Genuine Temporary Entrant Criteria according to the law” and that the primary judge failed to “look at the questions the [Tribunal] asked [itself], and the threshold applied along with the legal reasonableness of the findings”.

25    These grounds are the subject of observations in Mr Singh’s affidavit of 29 April 2019.

26    At para 7, Mr Singh repeats the elements of grounds 1, 3 and 5.

27    At para 8, Mr Singh observes that as he was unrepresented, he thought that the primary judge would “at least assess the [Tribunal’s] decision and how the decision was reached”.

28    At para 9, Mr Singh notes that the Tribunal observed that the proposed course of study for which Mr Singh was then enrolled (a Certificate IV course of Commercial Cookery) was not likely to be of assistance or benefit to him. Mr Singh repeats the elements of ground 6. He asserts that he believes that he had submitted “sufficient evidence” and demonstrated “sufficient reasons” to satisfy the Tribunal of the requirements for the visa but that the Tribunal “did not assess the evidence appropriately or actually [ask] itself the correct questions”.

29    At para 10, Mr Singh engages with some of the analysis undertaken by the Tribunal and notes the Tribunal’s observation that he had not mentioned in his resume that he had returned to India to help out in his father’s business and that his explanation was that he had forgotten to mention it in his resume. He observes that the Tribunal considered this an unsatisfactory response which cast doubt about whether he was genuinely involved in his father’s business. The point Mr Singh makes about these observations of the Tribunal is that it is said to reflect legal error as there is said to be no “logical connection” between a failure to mention the matter in the resume and a conclusion of fact (or finding reached on inference) that Mr Singh was not genuinely involved in his father’s business. He says that that finding affected the finding that Mr Singh did not “intend genuinely to stay in Australia temporarily”. Mr Singh contends that the primary judge failed to consider this contended error on the part of the Tribunal. Mr Singh then repeats the elements of ground 5.

30    At para 11, Mr Singh notes the Tribunal’s concern that Mr Singh is undertaking a course in Commercial Cookery and a lack of credible evidence about why he would do so. Mr Singh contends that the primary judge did not consider whether the Tribunal’s finding was “correct”. He says that the primary judge failed to consider whether the Tribunal correctly identified the question to be addressed and whether the Tribunal’s exercise of the review jurisdiction miscarried by asking itself whether the applicant for the visa was “justified” in “spending money” on the particular area of study in question.

31    At para 12, Mr Singh says that although the primary judge stated that most of the grounds of review invited merits review of the Tribunal’s decision, the primary judge focused too much on the appellant’s dissatisfaction with the findings “without exploring how the findings were made and whether the [Tribunal] followed the correct process, asked the correct [questions] and applied the correct standard”. Mr Singh says that this aspect of the matter was particularly important to his case as he was unrepresented and although his grounds of challenge to the Tribunal’s decision may not have been properly articulated as a matter of legal principle, he “still [has] the right to make a review”.

32    In view of the circumstance that the appellants were not represented before either the primary judge or this Court on appeal, I propose to examine the reasoning of the Tribunal to identify whether the Tribunal asked itself the correct statutory questions and examine how it went about reaching its decision. Mr Singh contends that the primary judge failed to engage with “the legal reasonableness of the findings” (appeal ground 6) and failed to consider whether a particular conclusion was rational or logical.

Some matters of principle

33    As to foundation matters of principle, I repeat what I said recently at [36]-[44] in BJU v Minister for Immigration and Border Protection [2021] FCA 111:

36    It almost goes without saying that the source of federal jurisdiction exercised by the Federal Circuit Court arises as a statutory conferral by s 476 of the Act of what is expressed to be “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, that is, a jurisdiction in migration decisions to grant the constitutional writs of mandamus or prohibition or both (and a jurisdiction to grant an injunction). Although s 75(v) does not expressly refer to the constitutional writ of certiorari, the conferral of jurisdiction on the High Court carries with it an “ancillary” or “incidental” authority to grant the writ of certiorari: Re Refugee Review Tribunal and Another; Ex parte AALA (2000) 204 CLR 82, Gaudron and Gummow JJ at [14]. The constitutional writs are the remedial mechanism by which, as an exercise of the judicial power of the Commonwealth, officers of the Commonwealth are subject to supervision so as to ensure that they stay within the limits of the jurisdiction conferred by the relevant Act as the source of the repository’s power or authority. Thus, the primary judge was called upon to decide whether, according to the grounds of challenge, the Tribunal had engaged in jurisdictional error.

37    When the Federal Court of Australia exercises its appellate jurisdiction to determine whether the primary judge engaged in error, it does so by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth).

38    An appeal by way of rehearing requires the appellate court, unless it dismisses the appeal or remits the matter for further hearing, to give the judgment which, in its opinion, ought to have been given in the first instance having regard to the contended errors. An appeal by way of rehearing is a procedure for the “correction of error”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Gageler J at [30] (“SZVFW”). The appellate court “must decide for itself”, within the limits of the Grounds of Appeal, whether the primary judge’s conclusion on the relevant matters is “right or wrong”: SZVFW, Gageler J at [56]. In order to decide “for itself” whether the decision of the primary judge was “right or wrong” in relation to each of the matters now the subject of the Grounds of Appeal, “the appellate court must reach its own conclusion as to whether the administrative decision was [legally] unreasonable” (SZVFW, Gageler J at [20]) on the basis contended for by the appellant and whether the Tribunal’s factual findings were irrational and not logically supported by the available evidence.

39    In doing so, it is, plainly enough, not the role of the Federal Court exercising its appellate jurisdiction (nor the role of the Federal Circuit Court in considering an application for the grant of the constitutional writs) to substitute its own view as to the merits of the decision reached by the administrative decision-maker.

40    Focusing upon the notion of “legal” unreasonableness in the IAA’s decision in the exercise of the IAA’s statutory review function and whether factual findings (or other material findings/conclusions) were irrational or not supported by the available evidence recognises that the legality of the exercise of the jurisdiction conferred upon the repository of the power is to be tested by reference to principled and demonstrated failings in the exercise of the power (that is, conduct going beyond the limits of decisional authority), not by reference to whether the Court takes its own particular view about the merits of the decision reached by the decision-maker.

41    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), their Honours [adopted] earlier statements of principle in the High Court to the effect that one of the presumptions of statutory construction is that Parliament confers power on a repository on the condition (described by Gaudron J in Abebe v The Commonwealth (1999) 197 CLR 510 at 554 [116] as an “essential condition”) that it be exercised reasonably: French CJ at [29]; Hayne, Kiefel and Bell JJ at [63] and Gageler J at [88].

42    As to the standard of legal unreasonableness, Allsop CJ, Robertson and Mortimer JJ in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”) emphasised these matters:

44    In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ: cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. [See the plurality in Li at [76]]. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]). …

…

48    The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.

[emphasis added]

43    The following observations of Gageler J in SZVFW at [59] ought to be noted (citations omitted):

59    References in Stretton to a conclusion that a decision is legally unreasonable being “evaluative” and to the task being “not definitional, but one of characterisation” were usefully directed to emphasising that determination of whether a purported exercise of a statutory power is so unreasonable that no reasonable repository of the power could have so exercised the power is informed not only by “the terms, scope and policy of the statute” but also by “fundamental values” anchored in the common law tradition. Reasonableness is itself a traditional conception of the common law – a translation of “the human into the legal”. Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. In the discernment of unreasonableness, “[t]here are no talismanic words that can avoid the process of judgment”.

[emphasis added]

44    As to findings leading to a conclusion as to whether the decision-maker can reach a state of satisfaction (or not) for the purposes of s 36(2) and s 65(1) of the Act, impugned on grounds of illogicality and irrationality, the following principles identified by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 at [130]-[135] should be noted:

130    In the context of the Tribunal’s decision here [which equally applies to the Tribunal’s decision in this case], “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact [the relevant state of satisfaction], it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.

131    … [T]he test for illogicality and irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

132    Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. …

133    … [T]he correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

…

135    On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

[emphasis added]

The reasoning of the Tribunal

34    At [16] and [17] (all such references are references to the Tribunal’s reasons), the Tribunal recognised that the statutory question it was required to determine was whether it could be satisfied that the first appellant is a genuine applicant for entry and stay as a student on the footing of whether the Tribunal could be satisfied that the first appellant “intends genuinely to stay in Australia temporarily” having regard to the factors earlier mentioned namely the first appellant’s circumstances; the first appellant’s immigration history; and any other relevant matter. Other relevant matters to be considered included the matters addressed by Direction 53. That Direction required the Tribunal to have regard to the first appellant’s circumstances in his home country, potential circumstances in Australia and the value of the course of study to the first appellant’s future; the first appellant’s immigration history, including previous applications for an Australian visa or for visas to other countries and previous travel to Australia and other countries; and any other relevant information provided by the first appellant or information otherwise available to the decision-maker including, as mentioned earlier, information that may have assisted the first appellant or have been unfavourable to the appellant.

35    Accordingly, the contention that the Tribunal failed to comprehend, correctly, the statutory question it was required to address, is unfounded. It may be that a decision-maker properly identifies the statutory question by reference to the text of the Act, the Migration Regulations and/or a relevant Direction made under the Act, but then fails to address that question and actually addresses a different question, or otherwise engages in error in addressing the statutory question thus giving rise to jurisdictional error. However, at the outset, it should be noted that the Tribunal in undertaking its statutory review function, correctly framed the question to be addressed.

36    Moreover, at [18], the Tribunal recognised that, so far as Direction 53 is concerned, the factors to be considered are not to be treated as a checklist but rather the factors are intended to guide the decision-maker in weighing up the first appellant’s circumstances “as a whole” in reaching a finding about whether the Tribunal can be satisfied (or not) that the applicant intends genuinely to stay in Australia temporarily.

37    So far as cl 572.223(1)(a) is concerned, the Tribunal is to have regard to the nominated factors, all of which must be considered and, as the Tribunal recognised, the factors arising under “any other relevant matter” supplied by reference to Direction 53 were to be considered overall as a whole.

38    The Tribunal then embarked upon a consideration of all of those matters.

39    At the outset of its examination of the facts, the Tribunal accepted a number of matters favourable to the first appellant. It is important to note these matters as the Tribunal sought to balance its analysis by making findings about the matters which it accepted and then making findings about matters it could not accept.

40    As to the accepted matters, the Tribunal noted the evidence presented by the first appellant concerning his parents and their assets and savings in India. The Tribunal accepted that there is no evidence of political or civil unrest which would result in the applicant choosing or intending to remain in Australia indefinitely (that is other than temporarily). Similarly, the Tribunal accepted that there is no evidence of any military commitment that would present a significant motive for the first appellant not to return to India: [20].

41    The Tribunal also accepted the evidence of the first appellant that the courses he had undertaken in Australia are considered to have a better reputation than equivalent courses in India: [20].

42    The Tribunal also accepted that the first appellant has “close and strong family ties in India, including a brother and parents”: [20].

43    It also accepted that the first appellant may have an opportunity to work with his father in business in India: [20].

44    The Tribunal also accepted that the first appellant has circumstances, in India, “that are indicative of a person who is only a temporary entrant and wishes to return to their country”: [20].

45    At [21], the Tribunal accepted that the first appellant was then currently enrolled in a course described as “Certificate IV in Commercial Cookery”. The Tribunal also accepted that the first appellant had successfully completed a course that was the subject of his original visa application, a “Diploma of Business”. The Tribunal also accepted that the first appellant had demonstrated a capacity to engage with and complete a range of other courses since arriving in Australia. They were, as described earlier, a “Certificate III in Commercial Cookery”, a “Diploma of Hospitality”, an “Advanced Diploma of Hospitality”, a “Diploma of Management” and an “Advanced Diploma of Management”. The Tribunal noted that two of these courses were Advanced Diploma courses and the others were “Certificate” or “Diploma” courses.

46    The Tribunal accepted that completing courses of study and subjects undertaken in a course of study, is one consideration relevant to the assessment of whether an applicant intends genuinely to stay in Australia temporarily: [21]. Failing to complete courses or subjects within courses might suggest to the Tribunal that a visa applicant has no genuine intention to stay in Australia temporarily where participation in the course is itself not genuine having regard to attendance, completion of subjects and other matters. However, in this case, the Tribunal accepted that the first appellant was completing courses and subjects: [21]. The Tribunal then considered other factors.

47    As to those factors, the Tribunal noted that, at the date of its decision, the appellants had been in Australia for a period of approximately nine years and although the first appellant had returned to India on several occasions, the first appellant had, as a matter of fact, been in Australia for a long period of time for someone who asserted a genuine intention to stay in Australia temporarily: [22]. That question, however, was to be tested by reference to the first appellant’s circumstances, his immigration history and other relevant matters including the matters arising under Direction 53. The Tribunal then engaged in an assessment of those matters.

48    As to those matters, the Tribunal noted that all courses completed by the first appellant were characterised as “short and inexpensive”: [23]. The Tribunal expressed “concern” that the first appellant, having completed two Advanced Diploma courses (one in Hospitality and one in Management), had returned to study a course at the level of “Certificate IV” (the subject matter of the course being Commercial Cookery). The Tribunal considered that a matter relevant to the first appellant’s “circumstances” and thus relevant to the question of whether the first appellant held genuinely an intention to stay in Australia temporarily, was the first appellant’s evidence of his “reasons for returning to this study [at the Certificate IV level]”. As to that matter, the Tribunal accepted that although the course structure may have changed since the first appellant undertook his original course of study at Certificate III level in 2010, the evidence before the Tribunal was that the first appellant “is not going to work in the hospitality industry”: [23]. The Tribunal observed and found that the first appellant “is not planning a career in commercial cooking”. The Tribunal noted that the first appellant was inviting it to accept that he is intending genuinely to stay in Australia temporarily because “he is going to return [to India] to take over his father’s business of manufacturing and selling scarves and saris”. The Tribunal noted the first appellant’s claim that this business is “his heritage” and that it will “ensure a comfortable life for himself and his wife”: [23].

49    In the context of considering the first appellant’s “circumstances” as put to the Tribunal, in the context of seeking to be satisfied about whether the first appellant intends genuinely to stay in Australia temporarily, the Tribunal observed that it was “unable to ascertain the benefit” to the first appellant of the further qualification at Certificate IV level in Commercial Cookery, “given that he [the first appellant] did not plan to work as a cook, or in the hospitality industry and he already held a Diploma and Advanced Diploma of Hospitality”: [23].

50    In seeking to address that matter, the Tribunal notes at [23] that the first appellant “could only offer the explanation that he might want to take up an opportunity in a bar one day”.

51    At [23], the Tribunal notes that in written submissions put to the delegate (and available to the Tribunal) in support of the application, the first appellant asserted that his intention was to obtain his qualification and return to his home country. The Tribunal notes that by the time the matter came before the Tribunal, the first appellant had obtained a Diploma of Business and an Advanced Diploma of Business but had enrolled in a further course which it described as “below his existing qualifications” which had “limited relevance to the actual business and stated career intentions of the applicant in his home country”: [23]. These matters of the character and content of the course, its grade and level, its relationship or otherwise with earlier qualifications and particularly its relevance to the “actual business and stated career intentions” of the first appellant in his home country, were all matters relevant to the “applicant’s circumstances” and thus relevant to whether the Tribunal could be satisfied that the first appellant intends genuinely to stay in Australia temporarily.

52    Having regard to those matters described at [23] of the Tribunal’s reasons, the Tribunal “view[ed]” “the further enrolment of the applicant and his proposed course, Certificate IV in Commercial Cookery as indicative of [a] person using the student visa program to maintain residence and not indicative of [a] person who is a genuine student”. The Tribunal also concluded that it could not accept that the first appellant had “provided credible evidence as to why despite having undertaken the Diploma of Business and Advanced Diploma of Business he has expended further money to undertake a Certificate IV in Commercial Cookery”: [23].

53    Based on the factual matters at [23] of the Tribunal’s reasons, the Tribunal concluded it could not be “satisfied” that the first appellant intends genuinely to stay in Australia temporarily. The process of reasoning adopted by the Tribunal was open on the evidence and it cannot be said that no rational or logical decision-maker could have arrived at the conclusion on the evidence. It cannot be said that the decision reached by the Tribunal was “simply not open” on the evidence or that there is no logical connection between the evidence and the conclusion reached at [23]. Nor can it be said that the conclusion lacks an evident and intelligible justification: see [33] of these reasons.

54    At [24], the Tribunal notes the evidence of the first appellant (which was no doubt put to the Tribunal to support the first appellant’s evidence that his intention is to return to India to “take over his father’s business” which is “his heritage”), that he had “returned to assist his father in the business on his trips to India over the years”. The Tribunal noted at [24] that the first appellant had not disclosed (recited) “any of this work in his Curriculum Vitae”. The Tribunal notes that the first appellant’s explanation for omitting these work references to engagement in his father’s business when returning home over the years, was that “maybe he had forgotten” those circumstances. The Tribunal at [24] regarded that explanation as “unsatisfactory”.

55    The second feature of the explanation noted by the Tribunal at [24] was that “it was just a family business [and therefore] it was not really proper work”. However, the Tribunal regarded that aspect of the matter as inconsistent with the emphasis the first appellant had placed upon his future role in his father’s business as a “proper role that he is returning to and [one that] is able to provide him with a career path and an adequate income for himself and his wife”.

56    At [24], the Tribunal observes that these considerations caused the Tribunal “to doubt whether the applicant was genuinely involved with the business”. The Tribunal notes that when the first appellant was asked about the role he performed in the business during those visits, the response was “almost everything”. The Tribunal notes that it asked the first appellant to identify some “specific details” of the things he did and the tasks he performed in the business and the response was that he “would go to the market and organise the deals” and “undertook touring for his father”. The Tribunal notes that there were no specific details of responsibilities he had undertaken: [24].

57    These matters at [24] caused the Tribunal to conclude that it was “not satisfied that there was a role [for] the applicant in his father’s business as he had claimed, or that this opportunity acted as an economic or professional incentive for the applicant to return to his home country”.

58    Paragraphs [23] and [24] of the Tribunal’s reasons are to be read together and the reasons are to be read overall as a whole. The finding that the Tribunal could not reach a state of satisfaction, on the facts, that there was a role for the first appellant in his father’s business or that the claimed opportunity acted as an incentive either economically or professionally for the first appellant to return to India was a conclusion open on the evidence and not one capable of being characterised as either irrational or illogical or unreasonable. The circumstances concerning whether the first appellant had worked from time to time in his father’s business on his return to India and in what way, and whether the course of study was consistent with a claim that he planned to take over his father’s business as the source of a comfortable life for him and his wife, were factors plainly relevant to the question of whether the Tribunal could be satisfied that the first appellant intends genuinely to stay in Australia temporarily having regard to the first appellant’s “circumstances”.

59    On the findings arising out of its review of the evidence, the Tribunal could not reach the statutory state of satisfaction having regard to the applicant’s circumstances including those circumstances brought within the Tribunal’s consideration by Direction 53.

60    Thus it can be seen that there is a logical connection between the relevant factual matters and the statutory question required to be addressed by the Tribunal in the discharge of its statutory review function, notwithstanding the submissions of the appellants as set out at [29] and [30] of these reasons.

61    These matters were not discussed in isolation. The Tribunal took into account aspects of the family circumstances of the appellants as set out at [25] of the Tribunal’s reasons apart from those circumstances already mentioned and discussed at [23] and [24] of the Tribunal’s reasons.

62    At [26], the Tribunal observed that, as to the first appellant’s immigration history, “there is no evidence before the Tribunal [that] he has previously travelled to Australia or anywhere else before 2008”. Also at [26], the Tribunal notes the submissions of the first appellant that his family “have lodged an application and are awaiting a permanent visa to the USA, and that he intends to accompany them”. Again, the Tribunal notes that it finds it “difficult to reconcile” these intentions with the claim that the first appellant “intends to take over the ancestral family business and expand it in his home country”.

63    At [27], the Tribunal concludes that having considered the circumstances of the appellant discussed in the process of reasoning reflected in the Tribunal’s reasons, the first appellant’s immigration history and the Direction 53 circumstances, the Tribunal is not satisfied that the first appellant is a genuine applicant for entry and stay as a student, because the Tribunal was not satisfied that the first appellant intends genuinely to stay in Australia temporarily having regard to its conclusions on the statutory factors.

64    As to the grounds of appeal, grounds 1 and 2 assert that the primary judge denied the appellants procedural fairness because they were denied a reasonable opportunity to present their case and the primary judge dismissed their primary application in circumstances where they were self-represented and had not filed and served evidence said to be relevant to their application.

65    There is no content to this contention.

66    There is no basis upon which the ground can be sustained.

67    It is clear that the appellant’s were given an opportunity to be heard and were heard in fact. They appeared in person before the primary judge and as appears from the reasons of the primary judge, the grounds of the application for the constitutional writs were considered in the course of the primary judge’s reasons.

68    The Minister contends that the appellants were given an opportunity in accordance with the Court’s procedural directions of 21 November 2017 to file and serve any amended application, any additional evidence by affidavit and an opportunity to put on written submissions in advance of the hearing before the Federal Circuit Court. The Minister submits that the appellants did not seek an adjournment of the primary hearing on 8 April 2019 and did not seek additional time at or prior to the hearing to file and serve further evidence. The Minister also observes that the appellants were granted two earlier adjournments of the hearing of the proceeding on 30 October 2018 and 14 February 2019. They also sought to transfer their primary application to the Melbourne Registry of the Federal Circuit Court. That application was refused and the appellants appeared at the hearing of the application consistent with the orders made on 29 March 2019.

69    I accept the submissions of the Minister as to these matters.

70    I am not satisfied that the appellants were denied procedural fairness in the proceeding before the primary judge.

71    Ground 3 of the grounds of appeal asserts error on the part of the primary judge in “failing to take into account the evidence presented”. There is no content to this ground. The “evidence” relevant to the question of whether the Tribunal fell into jurisdictional error was the evidence before, and analysed by, the Tribunal. That evidence is the evidence before the Tribunal examined by the primary judge in dismissing the application. It is true that the reasons of the primary judge are relatively brief, but the basis for the conclusions reached by the primary judge are properly identified. I will return to that matter shortly.

72    Ground 4 of the grounds of appeal asserts that the primary judge did not provide sufficient reasons for the decision or make any rulings of fact on the alleged grounds. It was not the role of the primary judge to make findings of fact. The primary judge was called upon to examine the findings of the Tribunal and the reasoning of the Tribunal to determine whether the findings of fact were open to the Tribunal and whether the reasoning in reaching its conclusions or conclusions along the way to the ultimate conclusion, gave rise to jurisdictional error on the basis contended for by the appellants.

73    The Minister correctly observes that the primary judge is required to provide reasons in support of the conclusions reached in dismissing the application before him and the reasons must expose the basis for the conclusions. The conclusions cannot simply be stated at such a high level of generality that a party is not truly aware of the basis for the conclusion. The reasoning must address the grounds of challenge to the decision-maker’s decision, in this case the Tribunal: DAO16 v Minister for Immigration and Border Protection and Another (2018) 258 FCR 175 at [47] and [48], Kenny, Kerr and Perry JJ; BKL15 v Minister for Immigration and Border Protection and Another (2016) 241 FCR 450 at [13]-[16], Flick J.

74    The primary judge heard the application on 8 April 2019 and dismissed the application that day delivering ex tempore reasons for doing so. At [1] to [17], the primary judge set out aspects of the chronology of events and at [5] to [17], the primary judge set out aspects of the Tribunal’s findings and reasoning at [3], [5], [8]-[14], [17], [19], [20], [21], [22], [23], [24], [25] and [27] of the Tribunal’s reasons. The primary judge also addressed the matters at [26] of the Tribunal’s reasons. The primary judge then set out the grounds of challenge to the Tribunal’s decision based on the contended errors on the part of the Tribunal.

75    At [19] to [24], the primary judge set out the conclusions he had reached as to the grounds of challenge and at [23] and [24], matters of principle informing his decision-making are set out. It should be noted that the grounds of review before the primary judge were unparticularised and no written submissions were filed by the appellants. The decision-making on the part of the primary judge did not involve any exercise of a discretion on the part of the primary judge. The reasons of the primary judge were required to disclose the basis upon which the grounds of challenge were dismissed.

76    The grounds of challenge before the primary judge were these (in the language as framed):

1.    The Department of Immigration and Border Protection and Migration & Refugee Division erred in determining on the basis that applicants (Mr Sharanbeer Singh and Mrs Navjot Kaur) didn’t satisfy requirement of cl572.22 of Schedule 2 to the Regulations for study and stay in Australia

2.    That the Department of Immigration and tribunal erred in not taking into account that Mr Sharanbeer Singh and Mrs Navjot Kaur at all time substantially complied with conditions of their previous student visa subclass 572. Applicant has been a genuine student since her arrival to Australia. She never had any gap in her study while she was holding study rights in Australia.

3.    The DIBP and Tribunal failed to give a genuine opportunity [to] provide suitable documents by the applicants. DIBP and MRD failed to have regard to applicant’s circumstances and failed to check whether there was no compliance from applicants while holding previous student visas.

4.    According to AAT decision applicant does not meet cl 572.223(1)(a) applicant has been genuine student since his initial arrival.

5.    DIBP and MRD were absent of any consideration with respect to applicant circumstances in accordance to the requirement. When exercising its jurisdiction both DIBP and MRD erred in making finding that were in direct conflict without explanation of the reason being provided.

6.    MRD was failed to provide the instructions and direction to provide the further documents from the Applicant. There has been negligence to access the circumstances of the applicant as [his] family member wasn’t well.

7.    Both DIBP and MRD failed to judge whether there was any non-compliance from applicants when holding previous visa. They were unable to determine the compliance for previous visa.

8.    The applicant seeks to be eligible for the grant of a subclass 572 student visa has been a genuine student.

9.    All facts and information provided are true and correct to best of applicant’s knowledge at the time of application.

77    It can be seen that the text of many of these grounds is itself entirely conclusionary and lacking any real content. A number of the grounds simply assert a difference of opinion on the part of the appellants. At [19], the primary judge said this:

The grounds as set out in paragraphs 1, 2, 4, 5, 7 and 8 seek an impermissible merits review by this court. The court is not entitled to do that, nor does it have jurisdiction to do that. There is no merit to those grounds. As to grounds 2, 3 and 7 of the application for review, the Tribunal correctly identified the matters which it had to direct its attention to for the purpose of determining whether the [first appellant] met the relevant criteria or not.

78    At [20], the primary judge said this:

The Tribunal was entitled to form the view that the nature of the study undertaken by the applicant was not indicative of a person who only wished to stay temporarily in Australia. There is no validity to the assertion that the Tribunal did not appropriately address all of the relevant issues before it in relation to relevant matters going to the satisfaction of the relevant criteria. To the extent that reference was made to compliance with the provisions of a “previous visa”, such consideration was irrelevant to the matters which were properly to have been considered by the Tribunal.

79    As to grounds 3 and 6, the primary judge said this at [21]:

Further, grounds 3 and 6 of the application for review lack any particularity so as to allow a consideration of what the [first appellant’s] contentions were in that regard. The [first appellant] was given the opportunity to put his case fully before the Tribunal, and was at no time denied the opportunity of doing so.

80    At [22], the primary judge said this:

It cannot be said that during the course of its consideration of the issues before it, the Tribunal failed to make an obvious enquiry about a critical fact.

81    At [23], the primary judge set out the observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 (“SZMDS”) at [130] and observed that it cannot be said of the Tribunal’s decision that no rational or logical decision-maker could have made the decision.

82    At [24], the primary judge quoted the observations of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332 (“Li”) at [66] and [76], and applying those principles concluded that the Tribunal’s decision could not be considered legally unreasonable or one lacking an evident and intelligible justification.

83    At [25], the primary judge reached the ultimate conclusion that no jurisdictional error had been established on the part of the Tribunal.

84    The question for this Court in the exercise of the appellate jurisdiction is to determine, in the context of the grounds of appeal, whether the primary judge was right or wrong. This Court must decide that question for itself framed by the grounds of appeal identifying the contended errors. The ground described at [28] of these reasons is simply an assertion that the appellants put on sufficient evidence and demonstrated sufficient reasons to enable the Tribunal to reach a state of satisfaction about the statutory questions. That contention is simply an emphatic disagreement with the Tribunals conclusions.

85    To the extent that the grounds of appeal as described at [28] to [31] of these reasons assert that the Tribunal asked itself the wrong questions, I have already observed that those grounds have no merit, having extensively examined the fact-finding and reasoning of the Tribunal. I have done so in some detail having regard to the circumstance that the appellants are self-represented and were self-represented before the primary judge.

86    To the extent that the appellants suggest that there is no logical connection between aspects of the fact-finding by the Tribunal criticised by them, and the statutory questions to be examined by the Tribunal (see [29] of these reasons), I have already observed that that ground is not made out.

87    I have also addressed the contentions described at [30] of these reasons.

88    To the extent that the appellants contend that the primary judge did not examine the fact-finding and reasoning of the Tribunal, I am satisfied that the primary judge did so and that that examination needs to be taken into account when considering the conclusions reached at [19] to [25] of the primary judge’s reasons. This contention is taken up in ground 5 by which the appellants contend that the primary judge did not adequately turn his mind to the grounds of review set out in the appellants’ application and merely stated that the majority of the grounds seek merits review. The appellants criticise the decision and reasoning of the primary judge on the basis that the primary judge largely repeated the findings of the Tribunal without engaging in a “meaningful review”.

89    The role of the primary judge was to determine whether the findings reached by the Tribunal were open to it and to assess whether the reasoning leading to the ultimate conclusion reflected error in the sense contended for within the text of the grounds of challenge. Although the grounds of challenge do not adopt a criticism of the Tribunal’s findings and reasoning on the footing that the Tribunal made findings simply not open to it or that it engaged in reasoning properly characterised as illogical, irrational or unreasonable, the primary judge examined the findings and reasoning of the Tribunal to determine whether any finding was open to criticism in accordance with the principles set out in SZMDS and whether the Tribunal’s decision was legally unreasonable in accordance with the principles set out in Li. The appellants assert irrationality and illogicality in fact-finding as a ground of appeal and unreasonableness on the part of the Tribunal as a further ground of appeal. The primary judge concluded that it could not be said that the Tribunal’s decision reflected illogicality or irrationality and nor could it be said that the decision was legally unreasonable. The primary judge was correct about those matters even though they were not expressly raised. None of those grounds are made out on appeal either. To the extent that the appellants contend that the primary judge merely repeated the findings of the Tribunal without engaging in a meaningful review, it was of course necessary for the primary judge to examine the fact-finding and the reasoning of the Tribunal in order to identify whether the Tribunal had engaged in jurisdictional error. In doing so, the primary judge was undertaking a true review of the decision under challenge. The primary judge correctly concluded that many of the grounds simply asserted an emphatic disagreement with the Tribunal’s conclusion.

90    By ground 6, the appellants contend that the primary judge failed to assess whether the Tribunal had assessed the genuine temporary entrant criteria “according to law”. As indicated earlier, the Tribunal asked itself the correct questions arising under cl 572.223(1)(a) of Schedule 2 to the Migration Regulations and the matters raised by Direction 53. At [20] of the reasons of the primary judge (quoted earlier), the primary judge made an observation that to the extent that the Tribunal made reference to the appellants’ “… compliance with the provisions of a ‘previous visa’, such consideration was irrelevant to the matters which were properly to have been considered by the Tribunal”. At [26] of the Tribunal’s reasons, the Tribunal took into account the first appellant’s immigration history and observed that “there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else before 2008”. Direction 53 required the Tribunal to take into account the first appellant’s immigration history and any other relevant information provided by the visa applicant. The immigration history included the question of previous travel to Australia including “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 their circumstances beyond their control …”: Direction 53, cl 14(b)(i).

91    The circumstances contemplated by cl 14(b)(i) were not engaged on the facts because these were not the circumstances of the appellants. The Tribunal observed that there was no evidence before it of previous travel to Australia by the first appellant or travel anywhere else before 2008. The consideration was addressed by the Tribunal but the evidence did not suggest previous travel to Australia before 2008. The Tribunal considered the immigration history of the appellants at [17], [19], [22], [26] and [29] of the Tribunal’s decision. I am satisfied that the Tribunal properly considered the immigration history of the appellants. Moreover, the issue of compliance with previous visa conditions formed no part of the contentions advanced before the Tribunal.

92    The observation of the primary judge at [20] was not correct to the extent that the primary judge concluded that references to the immigration history of the appellants was irrelevant to the Tribunal’s consideration. It formed part of Direction 53 and was properly taken into account. The observation at [20] was, however, not material to the decision reached by the primary judge.

93    For all these reasons, the appeal must be dismissed with an order that the appellants pay the costs of the first respondent of and incidental to the appeal. There is to be a further order amending the title of the first respondent from Minister for Immigration and Border Protection to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

Associate:

Dated:    7 May 2021