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

The procedural history 5 Any criticism of the Tribunal's decision must be considered in the context of the course of the decision-making process and, in particular, the approach the appellant has taken within that process: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [93]. 6 The appellant arrived in Australia on 29 April 2016 as the holder of an Electronic Travel Authority (UD 601) valid until 29 July 2016. On 28 July 2016, the appellant applied for a Student (Subclass 500) visa. 7 On 13 January 2017, a Delegate refused to grant the visa on the basis that he was not satisfied that the appellant intended genuinely to stay temporarily in Australia. On 27 January 2017, the appellant applied to the Tribunal for review of the Delegate's decision. On 12 April 2018, the Tribunal invited the appellant, in accordance with s 359(2) of the Migration Act, to provide information about his proposed course of study, by completing an attached questionnaire and returning it to the Tribunal by 26 April 2018. The invitation attached a copy of Direction 69. 8 On 26 April 2018, the appellant's migration agent sent an email to the Tribunal returning the questionnaire and advising that the appellant "does not want to attend the hearing and wants the Member to make a decision in writing based on the evidence he has in front of him/her" and that "the client is experiencing some sign of depression and was unable to fill any of the forms attached except signing them". The appellant responded to only two questions on the questionnaire; consenting to the Tribunal deciding the review without a hearing and affirming that he had a current confirmation of enrolment or letter of offer in a course of study. No further information was provided to the Tribunal in response to the s 359(2) invitation. 9 On 19 June 2018, the Tribunal was informed that the appellant's migration agent had ceased to act on his behalf. On 20 June 2018, the Tribunal acknowledged receipt of the migration agent's correspondence and notified the appellant that it was required to continue to send correspondence to the agent unless and until the appellant informed the Tribunal otherwise. No further correspondence was received by the Tribunal from either the appellant or his agent. 10 On 16 July 2018, the Tribunal affirmed the Delegate's decision.

Statutory and legal framework 11 Section 29(1) of the Migration Act gives the Minister power to grant a non-citizen a visa to travel to and enter, or to remain in, Australia. There are prescribed classes of visas and regulations may prescribe the criteria for visas of a specified class: s 31(1) and (3). 12 A non-citizen who wants a visa must apply for a visa of a particular class: s 45. 13 After considering a valid application for a visa, the Minister must grant the visa "if satisfied" of the various matters identified in s 65(1)(a) of the Act. One of the matters of which the Minister or his delegate must be satisfied is that the criteria prescribed by the Act or Regulations for the visa have been met: s 65(1)(a)(ii). If the Minister is not satisfied of the matters identified in s 65(1)(a), the Minister is to refuse to grant the visa: s 65(1)(b). Section 65 provides (notes omitted): 65 Decision to grant or refuse to grant visa (1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of the same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. 14 The power to grant the visa is non-discretionary in that the Minister is under an obligation to grant the visa "if satisfied" of the various matters identified in s 65(1)(a). The satisfaction of the Minister (or the delegate or the Tribunal on review) that the prescribed criteria have been met is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa and is a "jurisdictional fact": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37] (Gummow and Hayne JJ).

Clause 500.212 of Schedule 2 to the Regulations 15 Regulation 2.01(1) of the Migration Regulations 1994 (Cth) provides that the prescribed classes of visas include the classes set out in Schedule 1 to the Regulations. Clause 1222 of Schedule 1 prescribes the Student (Temporary) (Class TU) visa. 16 The criteria for the prescribed classes of visa are located in Schedule 2 to the Regulations: reg 2.03. The criteria for the Subclass 500 visa for which the appellant applied included "primary criteria" and "secondary criteria". The primary and secondary criteria are both divided into "criteria to be satisfied at time of application" and "criteria to be satisfied at time of decision". 17 A "primary criterion" to be satisfied at time of decision, and that which is relevant in the present matter, is that provided by cl 500.212 which is in the following terms: 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. 18 The critical state of satisfaction for the purposes of this appeal is "that the applicant intends genuinely to stay in Australia temporarily". The Tribunal did not reach that state of satisfaction (at [18]) which meant that it could not be satisfied under s 65(1)(a)(ii) that the prescribed criteria had been met. 19 Clause 500.212(a) provides that the state of satisfaction "that the applicant intends genuinely to stay in Australia temporarily" must be reached "having regard to" the four matters identified in the clause as (i) to (iv). As discussed next, Direction 69 provides guidance to decision makers on the factors that "require consideration" in weighing those four matters - see: Preamble to Direction 69.

Direction 69 20 The Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions and the exercise of those powers: s 499(1) of the Migration Act. Those directions cannot be inconsistent with the Act or Regulations: s 499(2). 21 The delegate and Tribunal must comply with a valid ministerial direction: s 499(2A): 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 Direction 69 is a written direction to which s 499 applies. It commenced on 1 July 2016 and is the successor to Direction 53. It concerns the state of satisfaction in cl 500.212(a) about whether "the applicant intends genuinely to stay in Australia temporarily". 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). 23 As was explained by the Full Court in Kumar, in relation to the precursor to cl 500.212(a), at [29]: If there is a failure to comply with Direction 69 in reaching an adverse state of satisfaction under cl 572.223(1)(a) which is sufficiently material to the formation of that state of satisfaction, and consequently upon the state of satisfaction in s 65(1) of the Act then, depending on the nature of the non-compliance, jurisdictional error may be established. An example of such jurisdictional error is as follows. If Direction 53 required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated if the applicant established that he or she was thereby deprived of the possibility of the repository of power forming a favourable state of satisfaction: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ) and [72] (Edelman J); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]-[48] (Bell, Gageler and Keane JJ) and [84]-[95] (Nettle and Gordon JJ). Although the decision-maker was, in fact, not satisfied that the visa applicant had met the relevant criteria, that actual state of mind was reached through a "material" non-compliance with statutory requirements prescribed for that decisional process. Accordingly, the state of non-satisfaction was not of the kind upon which the legislature conditioned the exercise of power under s 65(1)(b). 24 Direction 69 is divided into two parts: "Part 1 Preliminary" and "Part 2 Directions". Part 1 includes: Preamble … The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: a. the applicant's circumstances; and b. the applicant's immigration history; and c. if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and d. any other relevant matter This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily. Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily. 25 Part 2 includes: Assessing the genuine temporary entry criterion 1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. 2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by: a. considering the applicant against all factors specified in this Direction; and b. considering any other relevant information provided by the applicant (or information otherwise available to the decision maker). 3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate. 4. Circumstances where further scrutiny may be appropriate include but are not limited to: a. information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny; b. the applicant or a relative of the applicant has an immigration history of concern; c. the applicant intends to study in a field unrelated to their previous studies or employment; d. apparent inconsistencies in information provided by the applicant in their Student visa application. 5. An application for a Student visa should 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. The applicant's circumstances 6. Decision makers must have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia. 7. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant's future. 8. Weight should be placed on an applicant's circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence 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 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 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; d. military service commitments that would present as a significant incentive for the applicant not to return to their home country; e. political and civil unrest in the applicant's home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant's home country and the influence these may have on an applicant's motivations for applying for a Student visa or a Student Guardian. 10. Decision makers may have regard to the applicant's circumstances in their home country relative to the circumstances of others in that country. The applicant's potential circumstances in Australia 11. In considering the applicant's potential circumstances in Australia, decision makers should have regard to the following factors: a. the applicant's ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties; b. evidence that the student visa programme is being used to circumvent the intentions of the migration programme; c. whether the Student visa or Student Guardian visa is being used to maintain ongoing residence; d. whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and e. the applicant's knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements. Value of the course to the applicant's future 12. Decision makers should have regard to the following factors in considering the value of the course to the applicant's future: 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; and b. relevance of the course to the student's past or proposed future employment either in their home country or a third country; and 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. The applicant's immigration history 13. An applicant's immigration history refers both to their visa and travel history. 14. When considering the applicant's immigration history, decision makers should have regard to the following factors: a. Previous visa applications for Australia or other countries, including: i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and ii. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal. b. Previous travels to Australia or other countries, including: i. 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 there circumstances beyond their control; ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances; iii. the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and iv. if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance. If the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant 15. If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant. Any other relevant matters 16. Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant's intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant. 26 Paragraph 1 of Part 2 states that the "factors" mentioned later in Part 2 are not to be used as a "checklist" but are "intended only to guide decision makers when considering the applicant's circumstances as a whole". The "factors" of which paragraph 1 speaks are the factors mentioned in each of paragraphs 9, 11, 12 and 14. 27 Paragraph 6 states that the decision maker "should have regard to" two matters: i. "the applicant's circumstances in their home country"; and ii. "the applicant's potential circumstances in Australia". 28 Paragraphs 9 and 11 set out the "factors" which the decision maker "should have regard to" in considering the two matters to which paragraph 6 states that the decision maker should have regard. 29 Paragraph 7 provides that the decision maker "should also have regard to the value of the course to the applicant's future". The "factors" which the decision maker "should have regard to" in respect of that matter are set out in paragraph 12. 30 In considering "immigration history", the decision maker "should have regard to" the factors in paragraph 14.

Ground one 31 The first ground of appeal is the same as that raised before the primary judge, namely, that the Tribunal failed to consider claims or evidence before it, or else failed to comply with Direction 69. 32 The Tribunal found, at [17], that there was "no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on [those factors]" (emphasis added). Those factors were: (i) Whether the applicant has reasonable reasons for not undertaking the study in their home country; (ii) The extent of the applicant's personal ties to their home country; (iii) Any potential military service in the home country; (iv) Political circumstances and civil unrest in the home country; (v) The economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to the home country; (vi) Remuneration the applicant could expect to receive in the home country compared with Australia; (vii) The applicant's ties with Australia which would present a strong incentive to remain in Australia; (viii) The value of the course to the applicant's future and whether the applicant is seeking to undertake a course that is consistent with their current level of education; (ix) The value of the course to the applicant's future employment; (x) Circumstances in the home country relative to Australia or any other country; and (xi) The applicant's circumstances in the home country relative to others in that country. 33 The primary judge observed that it was properly conceded by the Minister that there was some evidence before the Tribunal (FCC Reasons [18]). 34 The appellant drew attention specifically to the following evidence that was before the Tribunal: (a) The appellant's representation that he needs English skills to be able to communicate with other technicians on the job as well as third parties who speak English and that he intends to do an intensive language course in Australia and return to his employment at the completion of these studies; (b) The statutory declaration of his employer, dated 25 July 2016, which corroborates the appellant's representation; (c) The representation made on the appellant's behalf that he is a married man, who has left his wife and child under 18, his job, his family and properties he is going to inherit from his father to come to Melbourne to study English and return once he has completed his studies. He has nobody in Australia and his employment was happy for him to study English and return back to his work; (d) His statement of his employment history; (e) The details of his wife, daughter and parents; (f) His statement of his military service; (g) Certificates of properties in the name of the appellant's father; (h) Certificates of family status relating to the appellant and his family members; (i) Certificate of completion of 8 years of schooling. 35 The Tribunal recorded, at [14], that it had had regard to the Delegate's decision and recorded, inter alia, details of the appellant's prior employment in Greece, details of the appellant's familial ties in Greece, in particular that he is married and has a child (neither of whom were included as dependents on his student visa application), and that the appellant's employer will re-employ the appellant on his return to Greece. These were matters evidenced by the materials referred to in paras (a), (b), part of (c), (d), and (e) above. 36 Nevertheless, and despite the Tribunal's statement in [10] that "[t]he Tribunal has reviewed the decision of the delegate … and the Tribunal brings an independent view to the review application", it is difficult to reconcile the Tribunal's findings in [17] with the Tribunal's statutory duty to consider the claims and evidence before it. 37 The extent of the evidence that was before the Tribunal has been summarised above at paragraph [34]. As observed by the primary judge (FCC Reasons [22]), the appellant had provided the Tribunal with limited information and there was very little evidence before the Tribunal. The Tribunal was correct to record that there was indeed no relevant evidence in respect of some of the factors referred to by the Tribunal at [17] - being those outlined above at [32] (i), (iv), (v), (vi), (x) or (xi). Nevertheless there was at least some evidence relevant to the other matters and which had not been mentioned by the Tribunal in [14]. That evidence included: the certificates of the various properties in his father's name and the representation that he would inherit those properties; the evidence that he had already completed his military service; the representation that he had "no one in Australia"; and the evidence that his wife, child and parents reside in Greece. This gives rise to the inference that the Tribunal did not in fact consider the claims or the evidence that were before it. 38 Again, in Kumar, when considering the predecessor to Direction 69, the Full Court said, at [83]-[84]: 83. In Direction 53, where it provides that the decision-maker "must have regard to" the factors mentioned, the phrase - read in context - means that the decision-maker should turn his or her attention to each factor during the decision-making process and consider whether and how it should be brought to bear in reaching the decision. As Colvin J explained in Jan at [26]: [T]he Tribunal must advert to [the factors] 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. The word "advert" is there being used to indicate that the matter should be considered in the decision-making process: whether it should be adverted to in the statement of reasons is a different question. See also: Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 at [23] (Perry J); Bala at [17]. 84. Where a decision-maker is required to have regard to several mandatory considerations, he or she must actively engage with each of the considerations by determining how and to what extent, if at all, each of them might feed into the deliberative process and ultimate decision: Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, at [47]-[54]; Khadgi at [63]. The consideration of the factor in the process of reaching a decision must be genuine: Tickner v Chapman (1995) 57 FCR 451 at 462 and 464 (Black CJ), 476 (Burchett J), 495 and 496 (Kiefel J); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]; Khadgi at [57]. 39 The Tribunal was obliged to consider those claims and the evidence before it and to actively engage with each of the factors by determining how and to what extent, if at all, each of them might feed into the deliberative process and the ultimate decision: Kumar at [84]. 40 The Tribunal took into consideration the fact that the appellant had no current enrolment in a course of study and that, despite being onshore since 2016, he has not successfully completed a qualification ([15]-[16]). Although the weight to be given to the various factors mentioned within Direction 69 is a matter for the decision maker alone (Kumar at [85]), the Tribunal must at least bring to account in the decision-making process those factors considered to be sufficiently material to the decision. As the High Court observed in ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003, at [14], "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". 41 The plain, unequivocal words of the Tribunal that there was no relevant evidence about a range of factors in Direction 69, and which the Tribunal thought fit to mention, leads to the clear inference that the Tribunal overlooked, or chose not to consider, any material other than that contained in the Request for Student Visa Information Form under s 359(2). Contrary to the conclusion reached by the primary judge, by ignoring relevant material, the Tribunal has made a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[84]. 42 Ground one must be upheld.

Ground two 43 Given the conclusion I have reached in relation to ground one, it is unnecessary to consider the second ground of appeal.

Disposition 44 For the reasons set out above, the appeal should be allowed with costs. It follows that orders should be made setting aside orders 2 and 3 of the primary judge dismissing the appellant's application and requiring the appellant to pay the Minister's costs below. The Tribunal's decision should be set aside and the matter should be remitted for redetermination by the Tribunal. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice SC Derrington.