Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

ALLSOP CJ: 1 This is an appeal against orders of the Federal Circuit Court of Australia dismissing an application for judicial review. The first appellant, Ms Eros, was denied a student visa by a delegate of the Minister in February 2017. That decision was affirmed by the Administrative Appeals Tribunal in January 2019. The Federal Circuit Court dismissed her application for review in November 2019. The second appellant is the husband of Ms Eros and his application was secondary and dependent upon his wife's application. 2 I will first examine the approach of the Tribunal, because the essential submission of the appellants is that the primary judge erred in failing to conclude that the Tribunal's decision reflected a misunderstanding of the relevant clause of the Migration Regulations 1994 (Cth) governing the grant of the visa, and thereby involved legal unreasonableness in the approach and reasoning to its conclusion. 3 There are other complaints as to the Tribunal's procedure with which it will be necessary to deal. 4 Also, there was a complaint as to the failure of the primary judge to provide, on a timely basis, his settled written reasons for an extempore judgment. Though no criticism of the primary judge can legitimately be made in this case on this subject, it will be necessary to say something of the procedural approach that he followed. 5 The application of Ms Eros was for a Student (Temporary) (Class TU) Subclass 500 (Student) visa under s 65 of the Migration Act 1958 (Cth). 6 Under s 65 the Minister (here, the delegate and then the Tribunal) is required to consider whether he or she or it is satisfied that the criteria prescribed by (relevantly here) the Regulations have been satisfied. 7 The relevant Regulations setting out the criteria to be satisfied include, most relevantly, cl 500.212 of Sch 2 to the Regulations which is in the following terms: 500.212 The applicant is a genuine applicant for entry and stay as a student because: (a) the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant's circumstances; and (ii) the applicant's immigration history; and (iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and (iv) any other relevant matter; and (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to: (i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and (ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and (c) of any other relevant matter. 8 It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: "a genuine applicant for entry and stay as a student". This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause. 9 The expression is followed by the word "because" and a list of various matters in subcll (a)(i)-(iv), (b)(i)-(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise. That said the width of subcll (a)(iv) and (c) are to be recognised: that is "any other relevant matter". Such a wide frame of reference is, of course, limited by reference to the subject matter, scope and purpose of cl 500.212: Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505. 10 For reasons that will become apparent, the terms of cl 500.212 can be compared with the terms of prior regulations for a previous Subclass 572 (Vocational Education and Training) visa, being cl 572.22 and cl 572.223, as follows: 572.22 - Criteria to be satisfied at time of decision 572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because: (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant's circumstances; and (ii) the applicant's immigration history; and (iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and (iv) any other relevant matter; and (b) the applicant meets the requirements of subclause (2). (2) An applicant meets the requirements of this subclause if: (a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and (ii) any other relevant matter; and (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity. 11 One can see the textual similarities and differences between cl 500.212 and former cl 572.223: each is directed to the applicant being a genuine applicant for entry and stay as a student; and each requires the assessment of that by (through the word "because") the satisfaction of the criteria in (1)(a), and (2) (the latter through (1)(b)) in cl 572.223, and (a), (b) and (c) in cl 500.212. 12 In Saini v Minister for Immigration and Border Protection [2016] FCA 858; 245 FCR 238, Logan J dealt with cl 572.223. Significant reliance was placed on his Honour's judgment by the Minister in this case. I will deal with those submissions in due course. As shall be seen from the discussion of the Tribunal's reasons shortly, that decision, and this appeal, turn on the meaning of, and what can be used to inform a conclusion about the question whether, "the applicant intends genuinely to stay in Australia temporarily" in subcl (a). In Saini 245 FCR at 245 [28] Logan J said the following about that part of the equivalent provision in subcl 572.223(1)(a) (with which I agree in relation to the equivalent words in subcl 500.212(a)): The words … are concerned with how long the visa applicant intends to stay in Australia and nothing else. 13 The proper approach to the application of the clause requires an appreciation of the relationship between the disaggregated elements of cl 500.212 in subcll (a), (b) and (c), and the whole question requiring evaluation in the chapeau. There are many considerations that may be relevant to assessing whether someone is genuine in his or her intention to stay temporarily for subcl (a) or whether he or she is a genuine applicant for entry and stay as a student for the chapeau to cl 500.212. Those considerations will be taken up in (a)(ii) and (iii) and especially (iv) insofar as they relate to the applicant's intention as to how long to stay; and in (b) and (c) (especially (c)) as to whether the applicant is genuine in his or her desire to be a student. But subcl (a) is concerned, as Logan J said in Saini, with the genuine intention as to length of stay, and nothing else. 14 The terms and structure of cl 500.212 require a careful treatment of three distinct criteria: the intention concerning length of stay, that is, that there is a genuine intention to stay temporarily: (a); that there is an intention to comply with any visa conditions: (b); and any other matter relevant to the subject matter, scope and purpose of the clause and grant of the underlying visa. These three considerations all feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student. 15 The clarity of structure of disaggregated elements to inform one overall evaluation demands separate attention to each element so that appropriate attention is given to relevant considerations, and so that appropriate focus is given to the relevant considerations.

The Tribunal's statement of decision and reasons 16 The Tribunal based its entire decision on whether Ms Eros had satisfied subcl (a): whether she intended genuinely to stay in Australia temporarily. This can be seen from the heading above [9] of the reasons, the conclusion at [31] and the reasoning between those two paragraphs. The conclusion in [31] was as follows: On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a). Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review, in respect of both applicants, must be affirmed. 17 The Tribunal commenced its reasons by recognising that it was obliged to have regard to Direction Number 69 made under s 499 of the Migration Act. In [9] the Tribunal identified four features taken from Direction 69 to examine: • 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. 18 It should be noted parenthetically that these considerations would also be relevant to subcl (c) in cl 500.212, but, as will become apparent, no findings were made about such matters and how they may inform any conclusion that Ms Eros did not genuinely intend to be a student for the purposes of the ultimate evaluative question in the chapeau. 19 The reasons reveal that Ms Eros openly placed her circumstances before the Tribunal. They can be taken from the following paragraphs of the reasons: [11] The applicant is a 45-year-old Hungarian mother who first arrived in Australia on a tourist visa on 2 November 2016. The second named applicant is her husband. [12] In her application for a tourist visa, the applicant wrote: I would like to go on a holiday for two months with my family, Rebeka, Mate and with my husband, Jozsef. My son has just graduated from high school and we would like to celebrate with this holiday. In Sydney we would like to see the Opera House with the Harbour Bridge, visit the Taronga Zoo and have a rest at Bondi Beach. We are planning to rent a car and spend some time in the Gold Coast, too. We would like to explore several cities in Australia, visit also the Australia Zoo, hold a koala and see kangaroos. [13] The applicant asked the Tribunal to accept that she arrived in Australia for a short holiday with her family and shortly thereafter decided that she would study here. Whilst the Tribunal accepts that plans can change, the Tribunal does not accept the applicant's evidence. The Tribunal considers that the applicant used the visitor visa program to circumvent the more rigorous student visa assessment process. … [15] The applicant provided a document entitled "genuine temporary entrant criterion statement" dated 9 November 2016 to the Department (df 26). In this document the applicant outlines her reasons for proposing to study an English language course and how she came to identify a course provider. She explains that, as at 9 November 2016, her son and daughter were due to begin their own studies in Australia and "I would like to be next to them in the first few months to ensure a smoother adjustment to this new environment and culture". The applicant asserted that English language study would assist her in her own business back in Hungary. … [17] The Tribunal has also read and had regard to the written submission of the applicant's representative dated 22 October 2018. The applicant is currently enrolled in a vocational level Certificate IV in Marketing and Communication. This course commenced on 23 July 2018 and is due to finish on 30 June 2019. In her oral testimony the applicant said that she would find it difficult to find a similar course in Hungary where the instruction was in English. She also said that such a course would be expensive in terms of tuition. Whilst the Tribunal accepts that the applicant might benefit from a higher quality education in Australia, the Tribunal is unconvinced in relation to the value of the course to the applicant's future. The Tribunal observes that, in her application to the Department, the applicant listed her occupation as a "financial consultant" and her highest level of education as that of a chartered accountant. The representative's submission dated 22 October 2018 makes the broad claim that "improved knowledge of the English language coupled with greater business, marketing and communication skills will enhance the family business and lead to greater opportunities throughout Europe". [18] It is convenient to observe that the applicant has completed the English-language courses that she proposed at the time of application to the Department. The Tribunal considers that the value of the vocational Certificate IV qualification to the applicant's future would be marginal. The Tribunal considers the Certificate III in Business which the applicant has already achieved should provide the applicant with a knowledge base that may be deployed to solve disparate business challenges, including in relation to marketing and communication. As such, the Tribunal does not consider that the course proposed will really assist the applicant to obtain employment or improve her employment prospects in Hungary. [19] The applicant's pattern of behaviour since first applying to the Department on 16 November 2016 has involved always identifying a further course, further extending her stay in Australia each time. The Tribunal observes that the applicant completed an English language course at Ability English between 14 November 2016 and 19 May 2017. The applicant completed a further English course between 25 September 2017 and 15 December 2017. Between 5 February 2018 and 1 July 2018 the applicant completed the vocational level Certificate III in Business. [20] The applicant told the Tribunal that she has not returned to Hungary since arriving in Australia as a tourist more than two years ago. The applicant gave evidence that her son completed a diploma in Australia before returning to study medicine in Romania. The applicant could not tell the Tribunal the discipline of the diploma which her son completed. The applicant said that here daughter has recently completed a Master of Business Administration degree in Australia and wants to stay in Australia for at least two years. The applicant explained how she understood her daughter to be eligible for a graduate visa to remain in Australia to work. [21] The applicant's evidence is that the balance of her family, and her friends, remain in Hungary. In this case the Tribunal does not consider the before mentioned personal connections overseas to be a distinct incentive for the applicant to cease residence in Australia. The Tribunal acknowledges the family who remain in Hungary but at the same time considers the presence of her immediate family in Australia is significant. The Tribunal considers the presence of the applicant's daughter in Australia a strong incentive for the applicant to remain in Australia, particularly when coupled with the other incentives which exist to remain in Australia. [22] The Tribunal has had regard to the applicant's evidence in relation to real estate holdings in Hungary, including a small business. The Tribunal has had regard to the web extracts provided concerning the business. The Tribunal considers that real estate can be readily sold for cash, or indeed, may never be sold and may instead produce income in the form of rent. The applicant also provided evidence concerning owing a vehicle. Such assets are no real incentive to cease residence in Australia. … [24] It is common knowledge that there is an economic disparity between Australia and Hungary. In these circumstances, the Tribunal questioned the applicant about her economic circumstances. She told the Tribunal that she is supported by the second named applicant who works in self-employed carpentry type jobs. The applicant provided a copy of the second named applicant's taxation documentation. On the applicant's evidence, the Tribunal considers that the second named applicant could earn more in Australia compared to Hungary. The Tribunal considers this presents a significant incentive for the applicant not to return to Hungary. … [26] In accordance with the ministerial direction, the Tribunal questioned the applicant concerning any circumstances in her home country that may induce her to apply for a student visa as a means of remaining in Australia indefinitely. The applicant told the Tribunal that there aren't any reasons why she cannot return to Hungary and that she does not have any concerns in relation to military service, political or civil unrest. The Tribunal accepts this and considers that she simply chooses not to return. [Footnote omitted.] 20 One can see in these paragraphs consideration of factors that might inform some conclusions about various aspects of the chapeau, such as whether she intended genuinely to be a student, in particular, through the operation of subcl (c). But the Tribunal made no finding that she did not genuinely intend to stay as a student. To do so it would have had to grapple with the apparent genuineness of Ms Eros in undertaking the courses, even if they were a way she would be able to remain in Australia. The dispositive reasoning so far as it concerns subcl 500.212(a) is to be found in [30] of the reasons: The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. In our view, the applicant has an intention to remain in Australia, at least while her daughter is here, but she did not articulate a lawful means of doing so outside of the student visa program. It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia. 21 The express finding is that Ms Eros intends to remain in Australia while her daughter is here. The evidence was that this was for two years: see [20] of the reasons. On any view that is a temporary stay, by reference to the accepted meaning of the word "temporary" referred to by Wilcox J in the context of construing the phrase "temporarily absent from Australia" in Hafza v Director-General of Social Security [1985] FCA 201; 6 FCR 444 at 451, applied by Logan J in Saini 245 FCR at 243 [19] and [20]: The Shorter Oxford Dictionary defines "temporary" as "Lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need". The Macquarie Dictionary definition is to similar effect, with the addition of "not permanent". … I think that the adjective "temporary" was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of "temporary" absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose. 22 What the Tribunal appears to have done in its reasoning is to raise doubts about the primary purpose or motivating purpose of staying in Australia (to be with her family, now specifically her daughter) and treat it as relevant to the meaning of "temporary stay". Of course, those matters could be so relevant. If they informed a finding that Ms Eros intended to stay indefinitely in Australia (as the discussion in [19] hinted at, but without any conclusion) then plainly she would not genuinely intend to stay temporarily in Australia. But no such finding was made. The concern in the last sentence of [30] is not a finding. It is an expression of a concern. Subclause (a) is concerned and only concerned with the intention as to length of stay. The finding is not that she genuinely intends to stay indefinitely but for a defined, relatively short period related to an apparent desire to be near her daughter and to study. There is no finding (though there are hints) that Ms Eros is not a genuine applicant to stay as a student. To make that finding the Tribunal would have to deal with other considerations beyond the intended length of stay, and evaluate her evidence including the fact, if it is the case, as it appears to be, that Ms Eros has dutifully undertaken the various courses that she has enrolled in, and, if it be the case, that she genuinely wants to do the courses.

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