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

1. The name of the first respondent be changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".
2. The appeal be dismissed.
3. The appellants pay the first respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BEACH J: 1 The appellants appeal from a judgment of the Federal Circuit Court dismissing their application for judicial review of a decision of the Administrative Appeals Tribunal which had affirmed a decision of the delegate of the Minister refusing to grant a Student (Temporary) (Class TU) visa to the first appellant. The other appellants are family members of the first appellant. 2 For the reasons that follow I would dismiss this appeal. 3 The first appellant is a citizen of India born in 1985. He arrived in Australia in March 2008 as the holder of a student visa. He subsequently held a further four student visas. On 8 May 2015, he applied for the student visa the subject of the present matter. In order to be granted the visa, he was required to satisfy, inter alia, cl 573.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth), which provided: (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 … 4 On 12 June 2015, a delegate of the Minister refused to grant to the first appellant the visa. The delegate was not satisfied that he was a genuine applicant for entry and stay as a student and was not satisfied that he intended to stay in Australia temporarily. 5 On 25 June 2015, the first appellant sought review of the delegate's decision. On 28 February 2017 the Tribunal heard the matter at which, inter-alia, the first appellant was present. On 9 May 2017, the Tribunal affirmed the delegate's decision. 6 The Tribunal identified the principal issue on review as being whether the first appellant satisfied cl 573.223(1)(a) of Sch 2 of the Regulations. The Tribunal also observed that in determining whether he satisfied this criterion, it was required to have regard to Ministerial Direction No 53 - Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (the Direction) under s 499 of the Migration Act 1958 (Cth). 7 The Tribunal was not satisfied that the first appellant intended genuinely to stay in Australia temporarily and considered that he was attempting to pursue a Bachelor of Business degree to maintain ongoing residence in Australia. The Tribunal observed that despite the first appellant stating that it was his dream to undertake the Bachelor's degree, he could not provide any detailed information about the course, and his knowledge of it was wholly inconsistent with his stated intention to study it. The Tribunal also considered that the first appellant's future career planning was lacking in detail and foresight, and that his rationale for wanting to undertake the course was unpersuasive. It further observed that the first appellant was not able to provide any cogent reason why he could not complete a Bachelor of Business course in India. 8 The Tribunal also referred to the first appellant having been the subject of five 457 working visa applications. Indeed, one was pending at the time of the Tribunal's decision. The Tribunal observed that the first appellant's repeated 457 visa applications suggested that his intention was to find a way to maintain residency in Australia. 9 Further, the Tribunal noted that the first appellant had ties to India. It noted that his parents and brother lived there, as did most of his wife's family, but noted that the first appellant had resided in Australia for almost 9 years (at the time of the Tribunal hearing) but had only returned to India twice in that time. It also noted that his immediate family being his wife and child lived in Australia with him. The Tribunal stated that the first appellant's travel history, and the presence of his family in Australia, indicated that he did not have a strong incentive to return to India, and that his personal and family connections in India were not an inducement for him to cease residence in Australia. The Tribunal also stated that the first appellant had no income, assets, job offers or house in India, and that he and his wife had been working in Australia. This suggested that the first appellant and his wife had a stronger financial incentive to stay in Australia than return to India. 10 The Tribunal was not satisfied that the first appellant intended genuinely to stay in Australia temporarily. Accordingly, it concluded that the first appellant did not meet cl 573.223(1)(a) of Sch 2 to the Regulations. Accordingly, the Tribunal affirmed the delegate's decision. 11 Judicial review of this decision was sought, but the primary judge refused the application. For present purposes I do not need to detail his Honour's reasoning. 12 Before me, only one ground of appeal has been raised. It is in the following form: The learned judge erred at law in failing to determine that the decision of the AAT was affected by jurisdictional error because the AAT failed to have regard to relevant matters and took account of irrelevant matters in affirming the decision to refuse the applicant a work visa. Particulars The learned judge erred at law in adopting the analysis in Kaur and Khan and concluding that the Tribunal's failure to expressly refer to parts of Direction No. 53 which were not relevant to the applicant's claim did not place the Tribunal into error. The evidence before the Court was that the matters raised by the applicant for consideration raised facts which engaged particular matters identified by Direction No. 53 and were directly relevant to the applicant's claims. These matters were not considered and weighed up by the Tribunal. The learned judge erred at law in determining that the Tribunal's reference to a 'strong incentive' did not constitute jurisdictional error because the Tribunal was only considering the travel history and because the expressions 'strong incentive' and 'significant incentive' were synonymous. As was submitted by the applicant, in the decision of Singh her Honour Judge Riley stated the following in relation to paragraph 9(b) of the Direction at [32]-[33]: Item 9(b) required consideration of the extent of the applicant's personal ties to India and whether they served as a significant incentive to return there. The Tribunal acknowledged that the applicant had family in India, but considered that his family did not provide a strong incentive to return there. The Tribunal was not required to consider whether the applicant's ties to India would serve as a strong incentive to return to India. It was required to consider whether the applicant's ties would serve as a significant incentive to return. A significant incentive is somewhat less than a strong incentive. Consequently, the Tribunal imposed a higher standard than Direction No. 53 required and did not consider the correct question. It thereby fell into jurisdictional error. 13 The ground of appeal refers to the Tribunal having refused to grant to the first appellant a "work visa", but this should be a reference to a "student visa". 14 No written submissions were filed by the appellants in support of their appeal. But at the hearing the first appellant indicated to me that he relied upon the written submissions filed below. I have obtained and reviewed such submissions which, of course, the primary judge also considered. 15 The first paragraph of the particulars to the ground of appeal alleges that the primary judge erred in concluding that the Tribunal's "failure to expressly refer to parts of the Direction which were not relevant to the [appellant's] claims did not place the Tribunal into error". 16 But in my view no error by his Honour is established. 17 The Tribunal was aware that it was required to have regard to the Direction, which required it to have regard to certain specified matters. In particular, the Tribunal identified this obligation, and then summarised the matters it was to have regard to. Further, the Tribunal correctly observed that the matters in the Direction were not to be used as a checklist, but rather were intended to guide the Tribunal in weighing up the first appellant's circumstances as a whole (Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [76], [79], [81] to [87] and [104] to [105] (Derrington and Thawley JJ). Further, the Tribunal quite properly gave the first appellant the opportunity to raise for consideration any matter he wished under the Direction; he raised nothing other than the matters that the Tribunal had discussed with him. 18 As I have noted, the first appellant asserted that the Tribunal's "failure to expressly refer to parts of Direction 53", even those that were "not relevant to the [Appellant's] claims", resulted in the Tribunal falling into jurisdictional error. But the primary judge was correct to reject this argument. 19 There is no obligation on the Tribunal in its written reasons to formulaically and laboriously set out each and every matter in the Direction in turn irrespective of materiality. As the Full Court stated in Kumar (at [96]): Direction 53 requires that, in reaching the state of satisfaction in cl 572.223(1)(a), the decision maker "have regard to" the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial. 20 The Full Court also stated (at [108]) that "[t]here was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no submission had been made, and which were not the subject of evidence, less still to make express findings about those factors". So, the first appellant's contention that the Tribunal fell into error by not referring to every part of the Direction, even those that were not relevant, cannot succeed. The primary judge's conclusion (at [71]) was therefore correct, albeit not reached on the basis of Kumar, which had not then been handed down. 21 Further, given the Tribunal's acknowledgement of the need to have regard to the Direction and its statement that the first appellant did not raise any factors other than those discussed at the hearing, which it had set out and discussed in its statement of reasons, I am prepared to infer that any factor referred to in the Direction, but not expressly discussed by the Tribunal, was considered by the Tribunal not to be material or sufficiently important to its decision. Accordingly, there was no jurisdictional error in not expressly making findings about those matters (see Kumar at [106] to [107]). 22 Moreover, in any event it is also difficult to see how a failure to consider a "not relevant" matter could be material to the Tribunal's decision such as to amount to a jurisdictional error. The Tribunal's decision could not realistically have been different if a "not relevant" matter had been taken into account. 23 Let me deal with another dimension to the first appellant's concerns. 24 The first paragraph of the particulars also alleges that there were matters raised by the first appellant for consideration which engaged particular matters identified by Direction 53 but were not considered. But those matters were not identified. Indeed at the hearing before me I invited the first appellant to identify what those matters were, but he was not able to do so. In the absence of any specification of those matters, the first appellant has not established any failure by the Tribunal to consider some relevant issue, and has not established any error by the primary judge in finding that the Tribunal did consider and weigh all relevant matters. 25 Let me now deal with a separate matter. 26 The second paragraph of the particulars alleges that the Tribunal erred because it referred (at [43]) to there being a "strong incentive", whereas [9b] of the Direction uses the words "significant incentive". But no error is shown. 27 First, [9b] of the Direction is dealing with the "extent of the applicant's personal ties to their home country…and whether they would serve as a significant incentive to return to their home country". The Tribunal dealt with the first appellant's ties to India. Moreover, in summarising its conclusion on this matter, the Tribunal stated that the "applicant's personal ties, asset and employment situation in his home country do not serve as a significant incentive for him to return to India and to make his stay in Australia a temporary one" (at [44]). So, it is clear that the Tribunal was aware of and did apply the "significant incentive" phrase employed in [9b] of the Direction. No error by the Tribunal is shown. In any event, the Tribunal's reference to a "strong incentive" (at [43]) was, as the primary judge observed, made in the specific context of assessing the first appellant's past "travel history". The use of the words "strong incentive" in that context does not detract from the Tribunal's use of the "significant incentive" words (at [44]), which are those employed in [9b] of the Direction. 28 Second, as the primary judge observed, the expressions "strong incentive" and "significant incentive" are reasonably synonymous. 29 Finally, in light of the findings actually made by the Tribunal (at [43] and [44]), the Tribunal's reference to "strong incentive" (at [43]), if it was an error, could not realistically have resulted in a different decision being made on the review. Any error by the Tribunal would not have been material to its decision. 30 In summary, no jurisdictional error by the Tribunal or error by the primary judge has been established. The appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.