Consideration
29 The Tribunal's reasons demonstrated that it had engaged in a detailed evaluation of all of the matters to which cl 500.212(a) required it to have regard in arriving at its ultimate conclusion. When legislation requires a decision-maker to "have regard to" one or more particular criteria that it specifies, the decision-maker has to take each criterion into account and give it weight, as a fundamental element, in making his or her determination: R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J with whom Gibbs J agreed at 324, applied in R v Toohey; Ex Parte Meneling Station Pty Limited (1982) 158 CLR 327 at 333 per Gibbs CJ. In Telstra Corporation v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267], Jacobson, Lander and Foster JJ approved Rares J's discussion (in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[112]) of the principles applicable when a decision-maker must approach the making of a decision under legislation that requires him or her "to have regard to" one or more factors. Rares J said (176 FCR at 182-183 [107]-[108], [110]):
107 Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at [52] per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed (East Australian Pipeline 233 CLR 229 at [102]):
It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them.
108 Because s 152CR(1) required it to take into account each of the seven specified factors, the Commission had to give each of them appropriate consideration in arriving at its final determination. The number and variety of factors which a statute requires a decision-maker to take into account or to have regard to in arriving at a decision necessarily affects the weight any one of those factors must be given in the deliberative process. In Sean Investments 180 CLR 322, the costs were fundamental - or foundational - because they were the only matter which the statute prescribed. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [22]-[23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at [32].
[…]
110 I am of opinion that the sense in which the High Court used the expression "fundamental weight" in this context is to require the decision-maker to treat the consideration of the factors, as opposed to the factors themselves, as a central element in the deliberative process: Meneling Station 158 CLR at 338 per Mason J. In this way the decision-maker will give appropriate weight to those factors. The Parliament sought to ensure that the Commission would give proper, genuine and realistic consideration to each of the factors it specified in s 152CR(1) but without confining it to those matters, as s 152CR(2) showed. Such consideration must be reflected in the Commission's reasons for its decision.
(bold emphasis added)
30 Moreover, if the legislation requires a decision-maker to have regard to more than one criterion or factor in making a decision, but gives no fixed weighting to any of them, then none of the factors has any presumptive or fixed weighting in relation to any or all of the other criteria: Telstra 176 FCR at 183 [112].
31 The ultimate issue for decision under cl 500.212 is whether the "applicant is a genuine applicant for entry and stay as a student" because he or she meets each of the criteria in cl 500.212(a), (b) and (c). In considering each of criterion (a) and (b), the decision-maker must have regard to each of the prescribed factors for that criterion (so far as it may apply in the circumstances). The Minister, or decision-maker standing in his or her shoes, after considering a valid application for a visa, must grant it, by force of s 65(1)(a)(ii) of the Act, relevantly here, if he or she is satisfied that the criteria prescribed for the visa in the Act and or Regulations have been satisfied.
32 The purpose of cl 500.212(a) was to ensure that the decision-maker considered, among other matters, any statements of intention or conduct revealing of intention for the purpose of evaluating whether or not, ultimately, the applicant for the visa had satisfied the decision-maker about the genuineness of his or her stated intention to stay in Australia temporarily.
33 Here, the Tribunal (as the decision-maker exercising the Minister's powers under s 65(1)) had to be satisfied, for the purposes of cl 500.212(a), that the wife, as an applicant for the student visa for which she had applied, was a genuine applicant for entry and stay as a student because she intended genuinely to stay in Australia temporarily, having regard to her circumstances, immigration history, and were he or she a minor, the intentions of his or her parent or other guardian, and any other relevant matter.
34 We reject the appellants' argument that the criterion of "any other relevant matter" in cl 500.212(a)(iv) excludes or limits the ability of a decision-maker to make or use any finding as to what an applicant for a visa intended, were he or she to have an opportunity to apply for permanent residence. Such a construction cannot be reconciled with the language of the clause. The state of mind of the applicant for the visa is necessarily a relevant matter, because cl 500.212 requires the applicant to satisfy the Minister that he or she has a genuine intention about the length and circumstances of his or her stay in Australia. It follows that, a decision-maker, such as the Tribunal, in its evaluation of that state of mind, may have regard to matters that bear on the identification and establishment of the intention of the applicant for the visa.
35 The appellants' argument seeks to treat a state of mind, being intention, as in some way capable of subdivision into legally discrete categories, some of which are relevant, some of which are irrelevant, in a way that has no regard to the general statutory language that the Minister must have regard to "any other relevant matter" in considering whether he or she is satisfied as to whether the applicant for visa "intends genuinely to stay in Australia temporarily".
36 Nothing in the text of cl 500.212 or in the subject matter, scope and purpose of the Act and Regulations supports a construction that cl 500.212(a)(iv) is subject to any limitation as to the way in which a decision-maker can arrive at his or her findings as to what a visa applicant's intention is or what weight he or she may, or must give, to any of the four relevant considerations prescribed in cl 500.212(a) when arriving at a state of satisfaction as to whether the applicant has satisfied the decision-maker that he or she intends genuinely to stay in Australia temporarily.
37 In its reasons, the Tribunal referred to what Logan J had held in Saini 245 FCR at 246 [30]. His Honour expressed the test as requiring the decision-maker to undertake an evaluation of intention at the time of his or her decision, as he explained thus:
That means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention "genuinely to stay in Australia temporarily". What is required is an evaluation by the decision-maker of intention as at the time of decision.
(emphasis added)
38 We do not understand Logan J to have held that the existence of a settled intention, at the time of the decision, later to seek a visa that would lead to other than temporary residence as necessarily negating any capacity of a decision-maker to find that the applicant for the visa genuinely intended to remain in Australia temporarily. Rather, his Honour stated that the existence of that settled intention was "not consistent" with an intention to "genuinely to stay in Australia temporarily".
39 Ordinarily, that lack of consistency may be expected to lead a decision-maker to examine closely whether its presence should result in the decision-maker not being able to form the requisite state of satisfaction justifying the grant of the visa. But as we read Logan J's reasons, he did not hold that the decision-maker had to decide that the existence of the settled intention, at the time of the decision, if the opportunity to do so arose, later to seek a visa that would lead other than temporary residence, necessarily negated the entitlement to seek a visa.
40 Contrary to the appellants' submission, we do not consider that the Tribunal misapplied the reasoning of Logan J in Saini. In our view, the Tribunal in this case made an evaluation of the wife's intention as at the time of the decision, based on all of the material before it, including the appellants', and in particular the wife's, statements of her and his intentions.
41 A person's intention is a question of fact for the decision-maker, applying cl 500.212, based on all of the material before it. A person may genuinely wish to return home after a course of study and thus entertain a genuine intention to stay temporarily, even though, at the same time remaining open to pursuing in the future, what the person considers to be unlikely, an opportunity, if it presents itself, to seek a permanent visa to do so. The decision in such cases, ultimately, depends on the decision-maker's evaluation as to whether the applicant for the visa has satisfied him or her for the purposes of s 65(1)(a)(ii) of the Act, that the criteria for the visa prescribed by cl 500.212 have been satisfied, in which case the Minister must grant the visa, or otherwise, if not so satisfied, refuse it.
42 Here, the Tribunal stated at [37] that it was not satisfied on the evidence that the wife unqualifiedly, genuinely intended to stay in Australia temporarily. That factor was a matter that it took into account, as it was bound to do under cl 500.212(a)(iv), in coming to its conclusion that, overall, it was not satisfied that she genuinely intended to stay in Australia temporarily. Rather, as it found in numerous places in its reasons, it considered that she was using the student visa program to maintain residence in Australia until an opportunity presented itself for her and her husband to pursue a legitimate pathway to permanent residency. That finding was open to the Tribunal, and we are not able to perceive any jurisdictional error in its reasons for that conclusion.