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

2. BACKGROUND 5 On 14 August 2019, the delegate found that the requirements for the grant to the appellants of Student (Temporary)(Class TU) visas under s 65 of the Migration Act 1958 (Cth) were not met. 6 The appellant applied to the Tribunal for review of that decision and appointed a legal representative to assist him. On 5 July 2019, the appellant consented to the Tribunal deciding the review without a hearing. On 14 August 2019, the Tribunal affirmed the decision of the delegate. 7 The Tribunal set out cl 500.212 and noted that Direction No 69 entitled "Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications", a Direction made under s 499 of the Act, applied. It noted that the Direction required it to have regard to: The applicant's circumstances in his home country, potential circumstances in Australia and the value of the course to the applicant's future; The applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries; If the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and Any other relevant information provided by the applicant or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant. 8 The Tribunal first considered the facts relevant to the circumstances in the appellant's home country. In this regard it made the following eight points: first, that the appellant has not lived in South Korea since 14 August 2007; secondly that he has completed his military service in South Korea and expressed no concerns about that or civil unrest in South Korea; thirdly that he has identified only one relative, a brother, in South Korea whom he last saw in April 2017 when he visited to attend his wedding; fourthly that the appellant has no community ties in South Korea and has demonstrated no commercial or economic ties to it; fifthly that since he arrived in Australia he has left only on three occasions for periods of two weeks or less; sixthly that he has undertaken a succession of courses in theology since December 2013 including a Master of Divinity degree, which he commenced on 31 July 2017 and is due to complete on 30 June 2020; seventhly that the appellant said that there are many theology courses in South Korea and has "sought to justify his decision to undertake the studies in Australia on the basis that Australia has a much more developed immigrant theology study program then [sic, than] South Korea has, because South Korea is not a multicultural country"; and eighthly: 16 The applicant has stated that after finishing the first year of his Master's degree study, he will be ordained as a minister, and he then intends to undertake doctoral studies in theology, however if his financial circumstances do not allow him to do so he has stated "I will be working as a full time minister in Australia to spread the gospel to various immigrants." 9 The Tribunal concluded in relation to the circumstances in the appellant's home country: 17 The Tribunal is not satisfied that the applicant [h]as demonstrated reasonable reasons for not undertaking his current studies in his home country. 18 The Tribunal is not satisfied that the applicant has demonstrated any intention or desire to return to his home country. This weighs heavily against the applicant. 10 The Tribunal next considered the appellant's potential circumstances in Australia. It noted that he has "significant family" in Australia, including his wife, two dependent children, his mother and stepfather. It found that he has a relatively settled life here. It said at [19]: The applicant has expressed a desire to work as a full-time minister in Australia, and anticipates earnings between $40,000 and $60,000 per year. 11 The Tribunal noted that the appellant was working in various voluntary roles whilst in Australia. It found at [22]: The applicant and his wife have now lived in Australia for 12 years, and their circumstances in Australia, particularly having regard to the applicant's circumstances in his home country discussed above, suggest that the applicant will if permitted, extend his stay in Australia as long as possible, by pursuing a doctoral degree following the completion of his current Master's degree. 12 The Tribunal found that the appellant had demonstrated "very strong incentives" to remain in Australia for as long as possible, which was not consistent with temporary entrant as a student. This, it found, weighed against the visa application. 13 The Tribunal then considered the value of the course to the appellant's future. It noted that he had been granted his initial student visa in July 2007, and entered the country in August 2007 with his wife to study in the field of tourism. He did not complete any qualifications in that field, but studied English and completed a certificate in financial services before moving to theology. It found that the appellant is now studying his fourth qualification in theology and foreshadowed a desire to study a fifth in the future. It said that the appellant anticipates earning between $40,000 and $60,000 per year as a minister "but has not provided sufficient information to the Tribunal to demonstrate that his current course of studies adds economic value to or otherwise enhances his future economic prospects". 14 The Tribunal found that it was unable to find that the appellant's current course of study was of value to his future economic circumstances. 15 The Tribunal next considered the appellant's immigration history, noting that he had lived in Australia for 12 years, been granted seven further student visas and a dependent graduate visa and "has demonstrated a desire to extend his stay in Australia indefinitely". It expressed the view that this is not consistent with his being a genuine applicant for temporary entry. 16 The Tribunal concluded that it was not satisfied that the appellant intended genuinely to stay in Australia temporarily and so did not meet the requirements of cl 500.212(a).

3. DECISION OF THE PRIMARY JUDGE 17 The primary judge summarised the effect of the Tribunal's reasons and then noted that the appellant relied on one ground before him, namely that the Tribunal took into account an irrelevant consideration and applied the wrong legal test insofar as it considered what the appellant would do if his finances could not support his further studies in Australia. 18 The primary judge summarised counsel for the appellants' submissions and his reasons for rejecting them in the following paragraphs: 18 Mr Berg of counsel on behalf of the applicants contends that the Tribunal's reasoning in the reference to the possibility of the alternative future, if the applicant's financial position did not permit him to pursue his further studies, was an irrelevant consideration, or alternatively, an application of an erroneous test in respect of the ultimate criteria that had to be applied under cl 500.212 of Sch 2 to the Regulations. The applicant's observations as to his alternative future activities, if financial circumstances changed, was an obvious, logical, rational and relevant consideration. The scope of the provision under cl 500.212, which the Tribunal correctly identified in respect of the criteria, relevantly includes "any other relevant matter". 19 The prospects of the applicant teaching the gospel in Australia as a future intention, if unsuccessful in terms of financial position to support himself in his further studies, was an obvious relevant matter for the tribunal to take into account, consistent with the criteria under cl 500.212 of Sch 2 to the Regulations. The considerations referred to by the Tribunal in paragraph 16 and in paragraph 19 of its reasons were relevant considerations for the Tribunal to take into account. Those observations were not the ultimate application of the test required under the provision, but findings consistent with the obligations upon the Tribunal in respect of the considerations required by cl 500.212(a). The ultimate finding is that found in paragraph 29 of the Tribunal's reasons, which reflects a correct application of the relevant test. 20 No jurisdictional error as alleged in ground 4 is made out.

4.1 The appellants' submissions 19 The appellants plead as their grounds of appeal: (1) The Tribunal undertook its task of evaluating the appellant's intention at the time of its decision and found he intended to undertake doctoral studies. (2) The Tribunal then went further and found that if the appellant's intention is frustrated he will be working full-time in Australia as a minister to spread the gospel. (3) In going further the Tribunal took into account an irrelevant consideration that was distinct from the settled intention of the appellant. (4) In going further the Tribunal asked itself if the appellant was open to pursuing an opportunity to seek a permanent visa. In that way the Tribunal asked itself the wrong question. (5) His Honour Judge Street should have found that the Tribunal erred by taking into account the irrelevant consideration outlined in (3) and asking itself the wrong question in (4). 20 It will be observed that two substantive grounds of jurisdictional error are advanced. One is that the Tribunal took into account an irrelevant consideration by evaluating what the appellant's intention would be in the event that he is unable to undertake his doctoral studies. The other is that the Tribunal asked itself the wrong question and thereby erred in law for the same reason. 21 In his submissions the appellant focusses attention on the passage of the Tribunal's reasons at [16] which, he submits, is the only paragraph of the decision that contains an express statement of the appellant's intention. He submits that the quoted statement in the final sentence of that paragraph as to what he would do if financial circumstances do not allow him to do doctoral studies in theology amounted to an irrelevant consideration, citing Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217; 272 FCR 528 at [41] (Rares, Burley, O'Bryan JJ). 22 The appellant refers to a passage in the Direction which says: An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently. 23 He submits that the use of "notwithstanding" in this paragraph serves to distinguish two kinds of evidence, the first being evidence of intention at the time of the decision, the second being evidence of a potential change in intention over time, for an extended or permanent residence in Australia.

4.2 Consideration 24 Section 29(1) of the 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 visa and regulations may prescribe the criteria for visas of a specified class: s 31(1) and (3). 25 A non-citizen who wants a visa must apply for a visa of a particular class: s 45. 26 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. 27 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). 28 The criteria for the prescribed classes of visa, including that now sought by the appellant, are located in Schedule 2 to the Regulations: reg 2.03(1). The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. In the present case the primary criteria was applicable to the appellant. The secondary criteria applied to the appellant's family members. 29 The relevant primary criteria for the present application is that set out in cl 500.212 of Schedule 2 of the Regulations, which is set out earlier in these reasons. 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, which meant that it could not be satisfied under s 65(1)(a)(ii) that the prescribed criteria had been met. 30 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). The Direction provides guidance to decision makers on the factors that "require consideration" in weighing those four matters: see Preamble to the Direction. 31 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). Those directions cannot be inconsistent with the Act or Regulations: s 499(2). 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; 256 CLR 203 at [19] (French CJ, Kiefel, Bell and Keane JJ). 32 The Tribunal was obliged to apply cl 500.212 which required it to "have regard to" the three matters identified being: (a) the applicant's intention genuinely to stay in Australia temporarily having regard to (i) - (iv); (b) the applicant's intention to comply with any conditions subject to which the visa is granted; and (c) any other relevant matter. 33 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: see Inderjit at [29] and the cases cited there. If the legislation requires the 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 of the other criteria; Inderjit at [30]. 34 The ultimate issue for decision under cl 500.212 is whether an applicant is a genuine applicant for entry and stay as a student because he or she meets each of the criteria in that clause. In considering the intentions of an applicant within cl 500.212(a) the four matters identified are: (i) the applicant's circumstances; (ii) the applicant's immigration history; (iii) if the applicant is a minor, the intentions of a parent guardian or spouse of the applicant; and (iv) any other relevant matter. 35 In the context of a ground of appeal based on taking into account irrelevant considerations, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at p 40 (Mason J). 36 The appellant's primary contention is to the effect that it is an irrelevant consideration for the Tribunal to take into account his future intentions when determining whether he intends genuinely to stay in Australia temporarily. However, as the Full Court said in Inderjit at [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 The Full Court further found at [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. 38 In the present case, the Tribunal at [16] noted the appellant's statement of his intention to undertake doctoral studies in theology. It also quoted his statement of intention that, should it be the case that his financial circumstances do not permit him to conduct such further studies, he would remain in Australia and work as a minister. 39 I am not satisfied that, in ascertaining the appellant's genuine intention as a matter of fact, the contingent future intention of the appellant to work as a minister in Australia was an irrelevant consideration. Although a present intention may be more relevant, it is not irrelevant to consider the stated intention for the future, and evaluate that stated intention in the mix as something to be taken into account. The Tribunal accurately quoted the appellant's stated future intention as one of the eight factual matters that it took into account in arriving at the conclusion at [18] that the appellant had not demonstrated any intention or desire to return to his home country. It cannot be said that this was an irrelevant consideration. 40 The primary judge did not err in concluding that this ground should fail. Accordingly, the first ground of appeal must be dismissed. 41 The appellant's second substantive ground is that the primary judge erred in failing to find that the Tribunal asked itself a wrong question in assessing the appellants' claim for visas. In its submissions the appellants submit that by relying on the sentence "I will be working as a full time minister in Australia to spread the gospel to various immigrants" the Tribunal relied on a statement that was contingent upon a change in the financial position of the appellants. 42 The appellants submit that by relying on this statement the Tribunal fell into error by acting inconsistently with the following passage in the Direction where it says on page 3: An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently. 43 In my view the ground as articulated cannot have life independent of the first ground, and must fail for the same reason. It is plain that the Tribunal weighed this evidence in the mix with other considerations in order to arrive at its evaluation of the appellant's intentions. The quoted passage in the Direction does not suggest that the Tribunal should, or must, take any different approach. 44 The primary judge did not err in rejecting this argument. Accordingly, this ground of appeal must also fail.

5. DISPOSITION 45 For the reasons set out above, the appeal must be dismissed. The appellants must pay the Minister's costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

SCHEDULE OF PARTIES NSD 428 of 2021 Appellants Fourth Appellant: JOONWOO SHIN