Grounds 1 and 3: Alleged failure to comply with the Direction
13 The first and third grounds both allege that the primary judge should have found jurisdictional error by reason of the alleged failure by the Tribunal to have regard to factors to which the Tribunal was required to have regard to by reason of the terms of the Direction.
14 The Direction begins by stating in paras 1 and 2:
Decision makers should not use the factors specified in this Direction as a checklist. Rather, they are intended to guide decision makers to weigh up the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Decision makers should assess whether or not, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b. taking into account any other relevant information provided by the applicant (or information otherwise available to the decision maker).
15 The Direction then refers to the circumstances in which decision-makers may request additional information. It then states in para 5:
An application for a Student visa must be refused if, after weighing up the applicant's circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
16 Then, under the heading, 'The Applicant's Circumstances', the Direction identifies three matters in paras 6, 7 and 8, namely:
Decision makers must have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.
For primary applicants of subclass 570, 571, 572, 573, 574, 575 and 576 Student visas, decision makers must also have regard to the value of the course to the applicant's future.
Weight should be placed on an applicant's circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.
17 Then, the Direction lists more detailed matters as to each of the matters identified in paras 6, 7 and 8. In the case of circumstances in the home country of the applicants, the Direction says that the decision-maker must have regard to certain factors. Relevantly for present purposes, they include the following three matters (para 9):
a. Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives as established by the applicant.
b. The extent of the applicant's personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country.
c. Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. This may include consideration of the applicant's circumstances relative to the home country and to Australia.
18 In the case of potential circumstances in Australia, the Direction says that the decision-maker must have regard to certain factors, including '[t]he applicant's ties with Australia which would present as a strong incentive to remain in Australia' (para 11).
19 In the case of the value of the course to the applicant's future, the Direction says (para 12) that the decision-maker must have regard to:
a. Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.
b. Relevance of the course to the student's past or proposed future employment either in their home country or a third country.
c. Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
20 The submissions for the appellants were premised upon three implicit claims:
(1) the Tribunal was obliged by the terms of the Direction to have regard to each of the matters specified in the Direction;
(2) a failure by the Tribunal to refer to a particular matter meant that it had failed to have regard to that matter; and
(3) a failure by the Tribunal to refer to a particular matter (and thereby have regard to that matter as required) would be a jurisdictional error.
21 As to these propositions, it may be accepted that the Tribunal was obliged to apply the Direction: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [19] (French CJ, Kiefel, Bell and Keane JJ).
22 The view has been expressed in the Federal Circuit Court that the consequence is that the Tribunal must make findings as to every matter identified in the Direction is a matter to which a decision-maker 'must have regard' and therefore it is necessary to consider which of those factors have been considered by the Tribunal expressly or impliedly: Singh v Minister for Immigration and Border Protection [2018] FCCA 3423 at [16]-[24] (Riley J). Counsel for Mr Jan pressed the case on that basis. I note that in Bala v Minister for Immigration and Border Protection [2019] FCA 600, Anastassiou J was presented with a similar argument but found that it was not necessary to decide the point because his Honour concluded that each criteria was considered: at [14].
23 It is the case that the Direction contains a number of provisions which identify matters to which decision-makers must have regard. However, those references must be construed in the context of the opening description in the Direction. As has been noted, it states that decision-makers should not use the factors specified as a checklist, but rather they are intended to guide decision-makers to weigh up the circumstances as a whole. 'Checklist', is a word of some generality. It may describe a convenient list of matters to be investigated or verified. It may be a ready means of reference. It carries with it the notion of a complete reference for the purpose of ensuring that nothing is missed.
24 Therefore, the instruction not to use the factors listed in the Direction as a checklist appears to indicate that the Direction was not intended to express a complete list that was to be traversed in every case. Rather, the use of the word guide and the stated need to weigh up the circumstances as a whole command an approach that requires the decision-maker to evaluate what is significant in the particular case and to consider those significant matters in a holistic way. In that context, the requirement to have regard to each of the matters mentioned does not require the decision to be the outcome of an assessment that brings to bear each of the factors. If a factor is considered by the decision-maker to be one that is not significant in the particular instance, then it need not be brought to account.
25 The preamble to the Direction states that it 'provides guidance to decision makers on the factors that should be considered in weighing up: the applicant's circumstances; the applicant's immigration history [and other matters] to determine whether the applicant intends to stay in Australia temporarily'. It then states that the Direction 'is binding on all decision makers' (being no more than a reflection of the terms of s 499). The use of the words 'should be considered' rather than 'must be considered' together with the reference to 'guidance' lends support for the view I have just expressed as to the intended meaning of the Direction.
26 It is also to be noted that para 8 of the Direction requires that weight is to be placed on circumstances that indicate that the visa is intended primarily for maintaining residence in Australia. The same words are not used in paras 6 and 7 which use the words 'must have regard'. Again, this aspect of the overall terms of the Direction indicates that the use of the expression 'must have regard' does not require particular weight, or indeed any weight, to be given to the matters stated in paras 6 and 7. Rather, the Tribunal must advert to them for the purpose of considering whether they should be brought to bear, but if the Tribunal forms the view that they are not significant in the particular case then they can be put to one side based upon that assessment. The Tribunal is not obliged to go down and check off each one irrespective of the circumstances and bring it to account in its reasons.
27 Therefore, this is an instance where 'have regard to' requires the particular consideration to be considered as a matter that might be brought to account with other considerations in forming the overall judgment required, but does not require the matter to be given particular weight (whether in a fundamental way or otherwise) in reaching the required decision. I recently considered the relevant authorities in Nguyen v Minister for Home Affairs [2019] FCA 892 at [6].
28 Therefore, the fact that a particular matter listed in the Direction as a matter to which the Tribunal 'must have regard' is not expressly referred to by the Tribunal in its reasons does not indicate that there has been a failure to comply with the Direction.
29 However, I note that a failure to comply with a ministerial direction made under s 499 has been held to amount to jurisdictional error: see the analysis by Mortimer J in Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112, particularly at [34]-[35]; and the authorities referred to by Burley J in VKTT v Minister for Home Affairs [2019] FCA 1018 at [19]. In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [42], I found that a different direction under s 499 did not offer mere guidance or a statement of policy that may be departed from if the circumstances justify departure. However, the direction there considered was expressed in terms that were materially different to the Direction. It is important to consider the obligation imposed upon a decision-maker by the particular direction. It is only a material failure to conform to that obligation that may give rise to jurisdictional error.
30 To these matters may be added the jurisprudence as to the nature of the factual conclusions that might be drawn if a matter is not referred to expressly by the Tribunal in its reasons. Recently, the principles were summarised by the High Court in ETA067 v The Republic of Nauru [2018] HCA 46 at [13]-[14] in the following terms:
The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any 'material questions of fact' and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim or that would be dispositive of the review.
(citations omitted)
31 Also relevant is the oft-quoted statement to the effect that reasons given by the Tribunal are not to be scrutinised minutely and finely with an eye attuned to the perception of error in a manner that disregards their role as a means of informing as to the matters required to be stated: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
32 For the appellants, it was submitted that there was a failure to comply with the Direction in the following respects.
33 First, the appellants referred to evidence that was submitted to the Tribunal showing that he had financial reasons to return to Pakistan after his studies because he belonged to a notable business family with properties and businesses in Pakistan, the business would be expanded when he returned, he had a social tradition of living in a joint family system and he would inherent a share of the properties and businesses.
34 It was said that the Tribunal gave no consideration to those matters when the Direction required the Tribunal to have regard to personal ties with Pakistan (his home country) and economic circumstances that would present as a significant incentive to return to Pakistan.
35 It was accepted that there was some reference to the financial circumstances of Mr Jan's family in Pakistan but that was said to be confined to the context of considering the level of financial support that they offered while he was in Australia. It was submitted that the evidence was also relevant to his incentive to return, an aspect that was not considered.
36 However, the Tribunal did accept that Mr Jan had some family ties in Pakistan. Even if this finding is confined to his connections with family rather than his connections to the family business, it is plain that the Tribunal had in mind the family pharmacy business and the evidence that his goal was to return to that business. However, it found, in effect, that if that were truly the goal then the studies that had already been completed were sufficient for that purpose. Inherent in that conclusion was a view that the family business in Pakistan was not drawing him back.
37 Further, for reasons I have given, it was for the Tribunal to determine whether a particular matter was to be brought to account as part of the overall evaluation to be undertaken by the Tribunal. It did not need to weigh every specified matter in the balance. Its obligation was to consider whether each of the matters (and any other matter it considered to be relevant) should be brought to account in reaching the required conclusion. It could form the view that some matters were not to be brought to account in the weighing process because they did not have relevant significance. In the context of the Tribunal's reasons and the significance that it gave to the history of Mr Jan's education in Australia over a number of years, the evidence concerning the financial connection to Pakistan has not been shown to be so significant or compelling that it might be inferred that the Tribunal's failure to refer to that evidence manifested a failure to turn its mind to whether that matter should be brought to bear when reaching the required overall conclusion.
38 Therefore, the failure to refer specifically to that evidence in the Tribunal's reasons does not indicate that there has been a failure to conform to the requirements of the Direction.
39 Second, it was submitted that there had been a failure to consider whether there were sound reasons why Mr Jan was not undertaking further study in Pakistan. It was said that there was evidence about why he chose Australia and that evidence was not considered. Again, the Tribunal did address this matter when considering Mr Jan's professed goal for studying. It formed the view that the extent of study that was required for his stated goal had been completed. In those circumstances, there was no relevance in considering whether there were study opportunities in Pakistan.
40 Third, it was submitted that the Direction required the Tribunal to consider whether the proposed Bachelor degree course was consistent with his current level of education and whether it would assist Mr Jan to obtain employment in his home country. These matters were addressed by the findings by the Tribunal about its concerns as to whether he would be able to complete the degree and the fact that he had already completed a level of education commensurate with his goal.
41 Fourth, it was submitted that on the evidence the future employment prospects relied upon by Mr Jan were not confined to the family business and the general manager role that the Tribunal did not accept. It was said that he also advanced a claim that it would help him to compete and work as 'self-employed business personnel'. These general claims are not of a kind that a failure to refer to them might lead to the inference that the Tribunal failed to consider those matters as required by the Direction. They are of a kind that might be expected to not be expressly referred to in reasons which give weight to the education history of Mr Jan in Australia.
42 In general, the thrust of the submissions proceeded from a false premise, namely that jurisdictional error could be demonstrated by a failure by the Tribunal to refer in terms to each of the matters listed in the Direction.
43 Grounds 1 and 3 have not been made out.