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

THE STATUTORY SETTING 10 The genuine temporary entrant criterion referred to above is one of the primary criteria for the student visa for which the Appellants apply under para (a) of cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth), which provides as follows: 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 … 11 By virtue of s 499(2A) of the Migration Act 1958 (Cth), Direction No. 69 (Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications) (the 'Direction') bound the Tribunal in its consideration of the genuine temporary entrant criterion. 12 The most relevant clauses of Direction 69 to the present appeal are 6, 9(c) and 10, which are set out below: The applicant's circumstances 6. Decision makers should have regard to the applicant's circumstances in their home country and the applicant's circumstances in Australia. … The applicant's circumstances in their home country 9. When considering the applicant's circumstances in their home country, decision makers should have regard to the following factors: a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives 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 those circumstances 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. These circumstances may include consideration of the applicant's circumstances relative to the home country and to Australia. … 10. Decision makers may have regard to the applicant's circumstances in their home country relative to the circumstances of others in that country. [emphasis added] 13 In discussing Direction 69, in Kaur v Minister for Home Affairs [2019] FCA 2026 Steward J said at [30] and [31]: [30] Then, for the purpose of applying those factors, the Minister has made a Direction which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a "guide" in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a "checklist"; rather they are to guide a decision-maker "when considering the applicant's circumstances as a whole". In other words, a decision-maker is not required to check each identified factor in the Direction. In my view, this language is inconsistent with the first appellant's contention that every factor must be considered as a mandatory consideration. It is also inconsistent with the function and purpose of Direction No. 69 as a guide to assist in applying cl 500.212. [31] In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v. Minister for Home Affairs [2019] FCAFC 135; SZSSC v. Minister for Immigration and Border Protection (2014) 142 ALD 150 at 172-176 [75]-[81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v. Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v. Minister for Immigration and Border Protection (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ. 14 There may be some question whether the approach adopted in [31] by Steward J is in fact correct. A different approach to the construction of Direction 69 was taken by SC Derrington J in Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1861 at [22], having regard to the differences between Direction 69 and its predecessor, Direction No. 53: The text of Direction 69 differs in some minor respects from that of Direction 53. In particular, Direction 53 used language in terms that a decision maker "must have regard to [the relevant factor or factors]" (emphasis added). Direction 69 replaces "must" with "should". It was not suggested that this made any material change to the substance of the Direction, at least to the extent of lessening the strength of the Direction. Indeed, that it is unlikely that any such change was intended might be discerned from the Preamble, where the previous wording in Direction 53 to the effect that "factors should be considered" is replaced in Direction 69 with the "factors that require consideration" (emphasis added). 15 It is unnecessary for me to decide this difference. However, it seems to me that the appropriate approach to the Direction 69 is that taken by Steward J. In my view, the change of wording from "must" to "should" cannot be ignored. Further, the words of the preamble that the Direction "provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d" do not imply that the factors are mandatory considerations, but rather that the Direction indicates what factors are likely to and might require consideration in any given case. As Steward J points out, the decision-maker must only engage with the factors if they are the subject of clearly articulated claims or they arise clearly on the material.

GROUND 1 16 The first ground of appeal relied upon by the Appellants was as follows: 1. The Federal Circuit Court erred by failing to find that the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error by misconstruing and/or misapplying the terms of Direction 69 (Direction). PARTICULARS A. The Appellants submitted to the Tribunal that they and their families were relatively wealthy in India and that this was an incentive for them to return to India. B. The Tribunal accepted that the First and Second Appellants' parents were "relatively affluent" in India: at [27]. C. Clauses 9(c) and 10 of the Direction, which bound the Tribunal, required the Tribunal to consider the Appellants [sic] circumstances relative to others in India. D. Whereas cl 9(c) was directed specifically to "economic circumstances ... that would present as a significant incentive ... not to return to their home country", cl 10 was not so limited and required the Tribunal to consider the Appellants' circumstances relative to others in India, including as potential incentive to return to India, a consideration weighing in favour of the Appellants. E. The Tribunal considered that there were no adverse reasons that would prevent the Appellants from returning to India, and made no findings against the Appellants based on their circumstances in India relative to others: at [30]. F. The Tribunal did not otherwise consider whether the Appellants' circumstances relative to others in India could provide an incentive to return to India and thereby weigh in favour of the Appellants. G. It is to be inferred from the matters in Particulars E-F that the Tribunal misunderstood the effect of cl 10 of the Direction by: (i) regarding cl 10 as being limited to considerations which would weigh against the Appellants; and/or (ii) not appreciating that the effect of cl 10 was that Appellants' circumstances relevant to others in India was a matter capable of weighing in the Appellants' favour. H. The error was material, because where Tribunal was engaged in a broad evaluative process under cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth), and where no single matter was determinative, correction of the error in favour of the Appellants might realistically have affected the outcome of the review. I. In the premises, the Tribunal committed jurisdictional error. 17 In the present case, the Tribunal accepted that the Appellants' families in India were "relatively affluent": [27]. Properly assessed through the rubric of Direction 69, this was a factor capable of weighing in the Appellants' favour. It was submitted by the Appellants that the Tribunal, however, misconstrued or misapplied Direction 69 with the result that this factor was given no weight in the Appellants' favour. 18 I do not accept this submission of the Appellants. 19 The reasons of the Tribunal focussed upon in this Appeal were as follows: 24. The applicant and her husband have both been continuously employed at SPG International for more than four years; according to his tax returns for 2015 to 2017 inclusive, he was earning an excellent salary notwithstanding the work rights limitation attaching to his dependent visa: • Jaspreet Singh: Australian Income Tax Returns - • FY 2015 - Taxable income of $35,574 • FY 2016 - Taxable income of $38,365 • FY 2017 - Taxable income of $40,928 25. The Tribunal finds that both the applicant and her husband have established a working lifestyle in Australia for the 10 or so years they have been in Australia. The dependent applicant, Jaspreet Singh, in particular, has been earning in recent years an annual salary well in excess of the average annual salary in India. The Tribunal finds that the applicant's slow progress in her studies over more than a decade in Australia is possibly because the applicants' primary motivation for wishing to remain in Australia is not for the primary applicant to progress academically but for both applicants to continue in well-paid employment in Australia. The applicant's circumstances in the home country 26. The Tribunal has regard to the applicant's circumstances in India. The applicant's parents and her in-laws "are well-settled and can [and do] support us ...". In oral evidence, the applicant stated that in 2015 her husband invested in a school in India. In response to the Tribunal's question regarding the source of his investment capital, the applicant stated that her husband's investment funds came "from agri-profits." However the applicant offered no supporting evidence of the source of these funds. 27. The Tribunal acknowledges the applicant has her own family and in-laws (who are relatively affluent) in their home country. To date these family ties have not been sufficient to motivate the applicant to conclude her studies or return home except for a few holiday visits. 28. The Tribunal accepts that the applicant's husband has since 2015, some investment in a school in India. There is a strong possibility that this investment has been financed by Mr. Singh's earnings in Australia. However the Tribunal makes no finding in this regard. 29. The Tribunal takes into account the economic circumstances and political conditions in the applicant's home country relative to the economic and political conditions in Australia and finds that the disparity between the two offers a further incentive for the applicant to seek to use the Student visa program to maintain ongoing residence in Australia. 30. The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 69 that would prevent her from returning to India and the Tribunal makes no findings against the applicant based on: • any of the following factors in the home country, economic or political circumstances, potential military service or civil unrest; • circumstances in the home country relative to Australia or any other country; or • the applicant's circumstances in the home country relative to others in that country. 31. The Tribunal is of the view the applicant's personal ties do not serve as a significant incentive for her and her family to return to the home country. The applicant's potential circumstances in Australia 32. The Tribunal has regard to the applicant's potential circumstances in Australia. The applicant's economic circumstances in Australia appear to be well established and comfortable - the family is living in shared accommodation, thereby limiting their expenses, which, according to the applicant's GTE Statement, she "can easily afford" because of her and her husband's, continuous and well-paid employment. … 34. The Tribunal is of the view the applicant's family, social and economic circumstances in Australia, which have been established over a period in excess of 10 years, present as a significant incentive for the applicants to seek to maintain ongoing residence indefinitely. 20 A fair reading of the Tribunal shows at [27] the Tribunal (albeit briefly) found a factor in favour of the Appellants (namely, the Appellants' family's relative affluence in India) and then discounted this as a factor in favour of the Appellants. 21 The Tribunal's acknowledgement that the First Appellant's family and in-laws were "relatively affluent" indicates the Tribunal considered that fact (and any associated incentive it offered) in its overall evaluation of the First Appellant's economic circumstances. It is a fact that could tend to offer an incentive to return to India, but the strength of any incentive to return to India or the weight to attach to it was a matter for the Tribunal to determine in the broader factual matrix. In this regard, the Tribunal noted the First Appellant's ties to her (relatively affluent) family had not to date been sufficient to motivate her to conclude her studies and return home, except for a few visits. Counsel for the Appellants emphasised that the Tribunal's qualification - "to date" - indicates that the Tribunal did not properly complete its analysis by considering the First Appellant's motivation or intention to return home in the future. However, I find no such indication in the Tribunal's reasons, which must be read fairly rather than too minutely with an eye keenly attuned to the perception of error. 22 Accordingly, contrary to Particular F of the Appellants' pleading above, the Tribunal did consider the First Appellant's circumstances relative to others in India as a potential factor weighing in favour of the Appellants, as permitted by clause 10 of the Direction. 23 As to [30], this was just a confirmation of the First Appellant's position that no adverse matters existed pertaining to the First Appellant (relevantly to Direction 69), including in relation to the First Appellant's economic circumstances. The Tribunal's confirmation of its findings in this regard does not indicate that it only considered whether such matters had an adverse effect and neglected to consider whether the First Appellant's economic circumstances could be a factor weighing in her favour. It therefore does not indicate that the Tribunal misunderstood the effect of cl 10 of the Direction by regarding it as being limited to considerations which would weigh against the Appellants. 24 In any case, cl 10 of the Direction states that the decision-maker "may have regard to the applicant's circumstances in their home country relative to the circumstances of others in that country." Such a matter is clearly not a mandatory relevant consideration to the extent that it is in favour of the applicant, and so generally any failure to consider the matter would not constitute jurisdictional error and would not indicate a misconstruction or misapplication of the Direction. In the Appellants' visa application, the matter was raised and the Tribunal dealt with it. 25 There is no misconstruction or misapplication of Direction 69. The Tribunal applied the Direction by considering the relevant matters in favour of the First Appellant, but on an evaluation did not accept the Appellants' submissions. 26 Ground 1 has no merit.

GROUND 2 27 The second ground of appeal relied upon by the Appellants was as follows: 2. The Federal Circuit Court erred by failing to find that the Tribunal fell into jurisdictional error by engaging in illogical or irrational reasoning by considering the general economic conditions in India as relevant to the Appellants' incentive to remain in Australia, divorced from the Applicants' actual financial circumstances. PARTICULARS A. The Appellants refer to and repeat Particulars A-B to ground 1. B. The Tribunal took into account the economic conditions in India relative to the economic conditions in Australia and found that "the disparity between the two offers a further incentive for the applicant to seek to use the Student visa program to maintain ongoing residence in Australia": at [29]. C. In the premise of having accepted the Appellants' actual financial circumstances to be above-average, the general or average economic conditions in India could not logically or rationally have led the Tribunal to conclude that those general conditions provided further incentive to remain in Australia. D. In the premises, the Tribunal reasoned illogically or irrationally and thereby committed jurisdictional error. 28 As to the second ground, the Appellants contended as follows. 29 First, paragraph (a) of the genuine temporary entrant criterion required the Tribunal to have regard to a number of matters, including "the applicant's circumstances". The statutory obligation to "have regard to" matters means "the decision-maker has to take each criterion into account and give it weight, as a fundamental element, in making his or her determination": Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 528; [2019] FCAFC 217 at [29]. According to the ordinary background principles against which legislation is construed, the obligation to "have regard to" the visa applicant's circumstances must be understood to be conditioned on a requirement that the decision-maker do so logically and rationally. 30 It was contended that the illogical or irrational reasoning with respect to the Appellants and their families' economic circumstances occurred at [24], [25] and [29] of the Tribunal's reasons set out above, and that there were two ways in which that reasoning was illogical or irrational. 31 First, as to [25] of the Tribunal's reasons, it was contended that the observation about the Second Appellant's annual salary in Australia (as compared to the average annual salary in India) was meaningless in circumstances where the Tribunal made no finding as to what the Second Appellant's annual salary might be in India. Second, as to [30] of the Tribunal's reasons, it was contended that the disparity between the general economic conditions in India and Australia could not rationally provide an "incentive" for the Appellants to remain in Australia absent consideration of the particular economic circumstances of the Appellants and a finding that those particular circumstances correlated to the general circumstances. 32 It was finally contended that had the Tribunal engaged in the reasoning process that logic required, it would have noted that the Appellants' relative affluence in India was in fact capable of providing an incentive for them to return. 33 In my view, there is nothing in the Tribunal's reasoning at [24], [25] and [29] that involves illogicality or irrationality. In assessing an applicant's intention to stay temporarily in Australia, a decision maker will likely be required to consider various facts which each tend to support competing incentives of differing degree, for an applicant to return to their home country. 34 The factual finding at [25], that the Appellants, particularly the Second Appellant, were earning an annual salary well in excess of the average annual salary in India, was plainly open on the evidence available to the Tribunal. That fact is one that could, rationally, tend to support a finding that the Appellants had an incentive not to return to India. Such a conclusion was apparently reached by the Tribunal when it went on to say at [25]: …The Tribunal finds that the Applicant's slow progress in her studies over more than a decade in Australia is possibly because the Applicants' primary motivation for wishing to remain in Australia is not for the primary Applicant to progress academically but for both Applicants to continue in well-paid employment in Australia. 35 The Appellants' submission also invites speculation about what the Second Appellant's actual annual salary might have been in India in circumstances where there was no clear evidence of the Second Appellant's actual earning capacity in India (nor were submissions made about what it might be). On the contrary, the Second Appellant in the 2017 financial year, earned almost double the annual salary in India at the time of the decision and also well above the First Appellant's annual income in India. It was not irrational or illogical for the Tribunal in those circumstances to reason in the manner that it did. 36 Further, the "relative affluence" of the First Appellant's family and in-laws in India could offer less of an incentive to return to India than the incentive to remain in Australia provided by the Appellants' ability to earn income well above the average salary in India. Such a conclusion was rationally open to the Tribunal. 37 As to [29] of the Tribunal's reasons, it is not irrational to conclude that there is an incentive offered to remain in Australia, having regard to the disparity between the general economic and political conditions in India and Australia. There was no issue taken with the Tribunal's finding that such a disparity exists. Such a disparity can rationally offer opportunities, including for employment and education and accordingly provide an incentive to remain in Australia, despite any personal economic circumstances. 38 In any case, the Tribunal did consider the Appellants' particular economic circumstances in India. As is evident from [26]-[28] of the Tribunal's reasons, the Tribunal considered the First Appellant's circumstances in India, including family support, the Second Appellant's supposed "agri-profits" and his investment in a school in India. The Tribunal made findings regarding each of those particular circumstances. 39 It is only after that particularised analysis that the Tribunal considered the general relative disparity in economic and political conditions between Australia and India. The Tribunal's reasons do not indicate any illogicality or irrationality. 40 Ground 2 has no merit.

DISPOSITION 41 In light of my conclusions, I do not need to consider the issue of materiality. 42 The appeal is dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Middleton.