Vergara v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 474

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicants are husband and wife. The application is for review of a decision of the Administrative Appeals Tribunal (as it was then) ("the Tribunal"), dated 10 August 2020, affirming the decision of a delegate of the Minister not to grant the first applicant, Jose Vergara a Student (Temporary) (Class TU) visa ("the visa"). The secondary applicant, Carmen Peutera's visa depends upon the first applicant, her husband, being granted his visa.
2. For the reasons set out below, the application must be dismissed.

1. Mr Vergara ("the applicant") is a national of Peru. The second applicant is also a national of Peru.
2. The applicant arrived in Australia in 2009, listed as a dependant on his wife's student visa. The applicant remained in Australia until May 2016, at which point the first and second applicants lodged a student visa application with the first applicant in this matter identified as the primary applicant.
3. At the time of this application, the applicant provided Confirmation of Enrolment (COE) in a Certificate III and Certificate IV in Business and Diploma of Leadership and Management, which would extend the Applicant's stay in Australia until September 2022.
4. On 17 July 2019, the applicants applied for the visa. The first applicant applied for a visa only under the student stream and not the Subclass 500 (Student Guardian) stream.
5. The delegate refused to grant the visa on 20 November 2019, the applicant's then sought merits review at the Tribunal.

1. The Tribunal provided the relevant background to the matter at [7]-[15].
2. In support of his visa application, the applicant provided documents including a written statement from the first applicant and copies of the written statement in the names of each of the other applicants. The file included evidence of the applicant's marital status, the applicant's English studies to date and untranslated property registration documents dated January 2016.
3. The delegate in their decision record indicated they had the following concerns:
   • The applicant has been residing in Australia on temporary visas or associated bridging visas since 2009 and were proposing to extend their stay to a period in excess of 13 years;
   • The presence of the applicant's wife and stepchildren provided him with significant onshore familial connections;
   • The applicant failed to provide a clear career plan, evidence to support his claim to be an independent entrepreneur with current projects in Peru, or a clear explanation about the value of the further studies to achieving his career goals.
   • The applicant's study proposal was primarily for maintaining ongoing residence in Australia, through exchanging the primary role of student with his wife and in turn, including her as a dependant in the current student visa application.
4. Prior to his hearing before the Tribunal the applicant provided documents listed at [12]. The Tribunal gave the applicant time until 3 August 2020 to provide further documentary evidence including the most recent 12 months of account statements of all bank accounts operated by the applicant and his wife in Australia and any Australian Taxation Office ("ATO") Notice of Assessment showing the applicants' annual income over the 2017, 2018 and 2019 income years.
5. The applicants provided bank records and a brief written submission from their representative stating that the applicants work as sole traders and had not filed an individual tax return, at that time for the three years requested. The representative also noted that the applicant's accountant advised of the applicants' intention of lodging their tax returns, with an estimate they may be available by the end of August.
6. In considering whether the first applicant intended genuinely to stay in Australia temporarily, the Tribunal had regard to Ministerial Direction No 69 (Direction 69), 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' made under s 499 of the Migration Act 1968 ( Cth) ("the Act").
7. In accordance with the factors highlighted in Direction 69, the Tribunal considered the following in relation to 'the relevance of circumstances in the applicant's home country'.
8. The applicant claimed that he his mother and four siblings currently reside in Peru. Although the Tribunal accepted that these familial connections provided him with an incentive to return to Peru at some stage, the Tribunal noted that the applicant had resided in Australia for 10 years at that point, and was not persuaded these familial connections provided the applicant with a strong incentive to return home. The Tribunal was not persuaded there was any familial factor impacting the applicant at the time which would incentivise him to return to Peru for the foreseeable future ([22],[25]).
9. As to whether the applicant had reasonable reasons for not undertaking the course of study in his home country, if a similar course of study was available there, the applicant claimed that he considered the option but concluded that an education obtained in Australia would be superior to one obtained at home. The Tribunal placed limited weight on this claim as it was not supported by evidence that demonstrated research undertaken into courses offered in Peru in comparison to Australia ([20]).
10. The Tribunal placed some weight on the first applicant's contention that he wanted to receive a formal education about Australian business methods, which he claimed were better than those in Peru ([21]).
11. The Tribunal noted the applicant's business interests with his older brother and the intention to return to Peru and resume working in the supermarket upon his return. At [24] the Tribunal noted this was not entirely consistent with claims made that he wants to return to Peru and operate as an independent entrepreneur. The Tribunal acknowledged that the applicant owned a block of land registered in his name and purchased by his brother with the understanding that he would work the debt off in the brother's supermarket. However, the Tribunal was not satisfied that this was indicative of independent entrepreneurship, irrespective of how the land was to be used in the future ([24]).
12. The Tribunal was not satisfied this offer of ongoing employment in his brother's business provided a strong incentive for the applicant to return to Peru. The Tribunal was influenced by evidence given at hearing that the applicant worked in Australia with different employers installing air conditioning systems and that the applicant's wife worked as a cleaner and then as a cook in a nursing home ([27)].
13. The Tribunal gave some weight to the applicant's land asset that he acquired in Peru and found that it would provide an incentive to return to his home country.
14. The Tribunal acknowledged that there was a disparity in the earning capacity in Australia and Peru, as such it held concerns whether there was an economic disincentive to returning to Peru. The Tribunal was also concerned with the character of the applicants, as they had not lodged taxation returns with the ATO for the 2017, 2018 and 2019 income years, noting that they had an obligation as sole traders to do this ([28]).
15. Upon reflection of the familial, economic and employment factors, the Tribunal was not satisfied the applicant had maintained the sort of ties to his home country over the ten years he had resided in Australia which would act as a strong incentive to return home ([29]).
16. The Tribunal considered 'the relevance of the applicant's potential circumstances in Australia' and was satisfied of the following matters:
    • The presence of the applicant's spouse and stepchildren provides the applicant with support and familial connection which would ameliorate any disincentives from his seeking to maintain residency in Australia ([34]).
    • The Tribunal was satisfied the applicant and his wife had held steady employment after their arrivals in 2009 ([35]).
    • As to the bank records provided by the applicant, the Tribunal noted the bank records did not reflect the applicant's evidence at the Tribunal hearing. The applicant had previously claimed that there was only one bank account in operation between he and his wife. The Tribunal accepted the applicant may have felt nervous but was not satisfied that the applicant would make such an error a fundamental aspect of his financial circumstances ([36]). The Tribunal was also concerned whether they had received, as requested. copies of all accounts operated by the applicants given there were regular transactions on the applicant's CBA account to another account which was not identified ([37]).
17. At [38] the Tribunal found that it was satisfied the applicants had an economic incentive to maintain residency in Australia, on the basis that the first applicant would have a slightly higher income in Australia installing air conditioning systems than working on his brother's supermarket.
18. In assessing 'The value of the course to the applicant's future', the Tribunal considered the applicant's written submissions and evidence at hearing and concluded the following at [43]:

The Tribunal finds there is a lack of academic progression in the applicant's study history since he commenced English language and business studies in 2016. The Tribunal has concerns that the applicant's enrolments in relatively brief, inexpensive courses reflects a pattern associated with persons seeking to maintain residency for reasons other than study.

1. In addressing the applicant's immigration history, the Tribunal did not find the applicant's explanation as to his delay in commencing studies until some five years after his wife had completed her own studies to be convincing ([46]). Although the Tribunal acknowledged that the applicant is a family-oriented person, it held concerns about the applicant's intention to use the student visa programme to circumvent the intentions of the migration program. The Tribunal had "unresolved concern[s]" that the student visa was being used to maintain ongoing residence and the applicant had an economic incentive for seeking to remain in Australia.
2. The Tribunal was satisfied that the applicant had a sufficient understanding of Australian society to undertake the proposed further period of study.
3. At [51] the Tribunal made the following conclusion upon the genuine temporary criterion assessment:

However, for the reasons outlined above, I do not accept the applicant is undertaking the current study for reasons other than his wish to maintain the residency of him and his wife in Australia. I find the applicant has an economic, rather than study incentive for wishing to maintain residency in Australia. The Tribunal is not persuaded the applicant is a genuine applicant for entry and stay as a student but rather is using the Student visa programme as a pathway to maintaining residence in Australia. The Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

1. The Tribunal found that the second applicant was unable to meet the criteria under cl 500.212 of the Migration Regulations 1994 (Cth) ("the Regulations") and affirmed the decision not to grant the applicants student visas.

1. The applicant's three grounds of judicial review are contained in an Originating Application filed on 8 October 2020. They are as follows (less particulars):
   1. Not pressed at hearing.
   2. The manner in which the Tribunal dealt with the factual material before it relating to the applicants' circumstances in Australia was irrational, illogical and lacking material foundation in critical aspects.
   3. The Tribunal failed to comply with its obligation under s 360 of the Act to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

1. Ground two is a complaint that the Tribunal's conclusion at [34] of the decision record was unreasonable in relation to the applicant's circumstances in Australia. The Tribunal found that the fact that the applicant's family reside with him in Australia and provided him with a source of support and familial connection ameliorated what might otherwise be a disincentive from seeking to remain in Australia.
2. The applicant contends that the Tribunal erred in their reasoning as the applicant's families right to stay in Australia entirely depends on the first applicant's right to stay in Australia. Their presence with him in Australia does not thus act as an incentive for him to stay.
3. Grounds three is in regard to the Tribunal's view as to the applicant's failure to lodge tax returns. The Tribunal reached this conclusion on the basis of information they requested after the hearing.
4. Counsel for the applicant relied on SZBEL v Minister for Immigration (2006) 228 CR 152 ("SZBEL"), at [36]-[37] in which the High Court held that in circumstances where the Tribunal had not noted an issue arising in relation to the decision under review (in this example, the applicant's nationality) then it does not follow that the Tribunal could decide the review on the basis of that issue, there would be noncompliance with s 425(1).
5. In SZDFZ v Minister for Immigration [2008] FCA 390; (2008) 168 FCR 1 ("SZDFZ") Flick J held at [23] that, "The term "issues" is a term of wide import". Counsel for the applicant submits that in that matter, a new issue arose before a reconstituted Tribunal. As a result, the new information was required to be disclosed to the applicant for comment.
6. The applicant argues then that there is no reason why s 360 of the Act does not apply to an issue which arises during or after a first Tribunal hearing. The implications of the Tribunal's conclusions flowing from the non-lodgement of tax returns should be classified as an "issue arising in relation to the decision under review" in accordance with s 360.
7. The issue of the non-lodgement of tax returns did not arise from the delegate's decision, as however it was, in the Tribunal's mind, relevant to its decision. The issue arose after the Tribunal hearing. In those circumstances, the Tribunal had a duty to invite the applicant to another hearing so he could give evidence in relation to that issue. The failure to do so was in breach of s 360.

1. As to ground two, the first respondent submits that [34] of the Tribunal decision record, properly understood, expresses that because the first applicant has the family unit with him in Australia, the applicant does not have this acting as a disincentive to him seeking to remain in Australia. In assessing this, the Tribunal did not articulate a standalone proposition that, because the applicant's wife and stepchildren are in Australia, this would act as an incentive for the applicant to be in Australia. This argument by the applicant lacks an evident and intelligible justification.
2. The applicant must demonstrate that any asserted error by the Tribunal was material, in that it could have "realistically" deprived the applicant of the opportunity of a successful outcome: Minister for Immigration and Border Protection v SZMTA (2019) 263 CLR 421 ("SZMTA") at [2]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 ("LPDT") at [6]-[7] and [14]-[17]. The Tribunal's finding at [34] was one of several, independently leading the Tribunal to its conclusion. The error asserted by ground two does not meet the requisite threshold of materiality.
3. By ground three, the applicant complains that the Tribunal failed to comply with its obligations under s 360 of the Act and references [28] of the decision record. It reads as follows:

At hearing the applicant acknowledged his employment earning capacity in Australia was higher in Australia than Peru but contended this was not his motivation for seeking to remain in Australia. He said he wants to complete his business studies and then return to Peru. It is of concern that the applicants have not lodged taxation returns with the ATO, at the very least in the 2017, 2018 and 2019 income years, as a sole trader is under an obligation to lodge an individual taxation return upon an annual basis.1 In my view, this raises concern both as to their character and also as to whether they have an economic disincentive to return to Peru, given the disparity in their earning capacity in Australia and Peru.

1. Section 360 at the time of the Tribunal's decision provided:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

1. Counsel for the first respondent relies upon [32] - [35] and [48] of SZBEL where the High Court (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) considered an analogous provision of the Act (s 425).
2. It is submitted that SZDFZ stands in contrast to the applicant's case, as the decision by the Refugee Review Tribunal at that time, was described as being "devoid of input" by the visa applicant as to the particular issues. Reliance was placed on SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 138; (2008) 172 FCR 1 at [77] where the Full Court considered s 425 equally to SZDEF, and found that whether the Tribunal contravened s 425 in a particular case is "fact specific".
3. The transcript of proceedings held before the Tribunal shows that the Tribunal member raised taxation issues during the course of the hearings. This is relevantly referenced at 16:23 and 20:23 - 20:29 of the transcript of the Tribunal hearing**.** The applicant also addressed the taxation issues by responding to the Tribunal's request for the provision of the Notice of Assessment through assistance from their migration agent and tax agent (CB 183, 253).
4. The request for the Notice of Assessment should be considered in light of the first applicant's "unprompted" and "unqualified" assertion at 16:23 of the Transcript that "I pay for my tax and the GST". The Tribunal's request thus put the applicants on notice that their tax returns were an issue of concern to the Tribunal.
5. It was submitted in these circumstances, there was no breach by the Tribunal of procedural fairness as in SZDFZ, or s 360 of the Act, understood in light of SZBEL.
6. Further, to succeed, the applicant would also have to prove the error asserted by ground three was material in light of the decisions in SZMTA and LPDT. It is submitted the error asserted at [28] of the Tribunal decision record does not meet the threshold of materiality.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it; (see: Minister for Immigration arid Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 ("Li") at [28] per French CJ), or where a decision has been made that lacks an "evident and intelligible justification"; (see: Li at [76]; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234 ]). The test for unreasonableness is "stringent" and only arises in rare cases; (see: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11]). Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker; (see: Li at [30], [113]).
2. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:

The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

1. Ground two is a complaint that the finding at [34] of the Tribunal decision record was irrational, illogical and lacking a material foundation in critical aspects. That finding noted that the applicant's wife and two stepchildren were with him in Australia and 'provides him with a source of support and familial connection that ameliorates what might otherwise be a disincentive from him seeking to maintain residency in Australia'.
2. It was submitted that since the applicant's family, were dependent upon the grant of his own visa the presence of the applicant's spouse and stepchildren were logically incapable of providing the applicant with an incentive to remain in Australia.
3. The task of the Tribunal was to consider whether or not the applicant intended to remain in Australia on a temporary basis for the purpose of study. In so doing, it was required to consider the material that was before it pursuant to cl 500.212(a) and Ministerial Direction No 69. This included, any 'push or pull' issues that might point towards the applicant having either an incentive to remain in Australia or to otherwise return to his native country.
4. The Court accepts the first respondent's submission that, the fact that the applicant's wife and stepchildren were in Australia with him, rather than in Peru, meant that the applicant did not have close family and community ties which provided an incentive for him to return to Peru. The Court does not consider that this finding, lacked an evident and intelligible justification, rather, it was simply a statement of fact of the applicant's family circumstances. The Court is also satisfied, that there was no finding that because the applicant's wife and children were in Australia, this was an incentive to remain in Australia. Ground two has no merit.

1. Ground three is a complaint the Tribunal failed in its obligation under s 360 to invite the applicant to further appear before the Tribunal relating to the material that was additionally provided to it regarding the applicant's payment of tax.
2. This arose in circumstances where the applicant had clearly indicated to the Tribunal that 'I pay for my tax and the GST" (Transcript 16:23). The Tribunal at page 20 of the transcript asked the applicant to provide, within 14 days, 12 months of bank account statements in respect of the CBA bank account that had been referred to together with any ATO Notices of Assessment for the last three (3) years.
3. The material provided by the applicant indicated that he had not lodged tax returns with the Ato for the years 2017, 2018 and 2019 income years. The Tribunal at [28[ of the decision record concluded:

In my view, this raises concerns both as to their character and also as to whether they have an economic disincentive to return to Peru, given the disparity in their earning capacity in Australia and Peru.

1. A footnote to the above indicates that there is a discrepancy between minimum wages per country with Australia being US $30,152.00 as compared to Peru of US $8,254.00 per annum.
2. Counsel for the applicant submits the Tribunal drew an extremely adverse view of the applicant's due to their failure to lodge tax returns. As this issue did not arise in or from the delegate's decision, and only arose after the Tribunal hearing, it was the duty of the Tribunal to invite the applicant to another hearing so that he could give evidence in relation to their failure to lodge tax returns.
3. The applicant was clearly on notice as a result of the request to provide not only a copy of their bank statements, but also a copy of the last three tax returns that the Tribunal was looking out for any economic incentive for the applicant to remain in Australia, as compared to returning to Peru. It was the applicant who had claimed that he paid his tax and any GST. The applicant was free to provide any material or submission he wished to as to the reasons why he had not lodged individual tax returns for the three years that were sought. For whatever reason, he simply chose not to, when it was open for him to do so.
4. A proper reading of the entirety of [28] reveals that the Tribunal was more concerned about the economic disparity between Australia and Peru rather than issues as to the applicant's character. The fact that no tax returns had been lodged, and any tax which may be payable paid, simply served to reinforce the Tribunal's conclusion that there was an economic incentive for the applicant to remain in Australia rather than return to Peru. The character issue, in my view, formed no part of the ultimate decision of the Tribunal, or if it did, it was not material to the ultimate outcome.
5. While accepting that what is an 'issue' as found by Flick J in SZDFZ is of wide import, the Court is not satisfied that this particular matter reached a level that required, pursuant to s 360 the Tribunal to hold a further hearing to allow the applicant to explain why he failed to lodge tax returns. As noted by the High Court in SZBEL at [48] 'procedural fairness does not require the Tribunal to give the applicant a running commentary upon what it thinks about the evidence that is given'.
6. Even if I am wrong in this regard, I do not accept that the asserted error is material, in the sense that it deprived the applicant realistically of an opportunity for a successful outcome. The asserted error does not reach the threshold of materiality required by LPTD at [6] - [7] and [14] - [17]. Ground three has no merit.

1. As none of the two grounds of judicial review relied upon have merit, the application must be dismissed. The Court will hear the parties as to costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.