The issue for consideration in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 was whether a decision-maker, deciding whether an applicant for a student visa intends genuinely to stay in Australia temporarily, have to make express findings in relation to all matters prescribed by Ministerial Direction 69 — Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications.
We have a separate article about GTE considerations for Student (Subclass 500) visas on our website here.
Brief Summary
The Appellant’s application for a student visa was refused on the basis that the delegate making the decision was not satisfied that the appellant genuinely intended to stay in Australia temporarily. In making this decision, the decision-maker had regard to Ministerial Direction 53.
The appellant applied to the Administrative Appeals Tribunal for review of the delegate’s decision, but the Tribunal affirmed the delegate’s decision. The Tribunal’s reasons for decision did not explicitly address a number of factors prescribed by Ministerial Direction 53 as relevant to determining whether a non-citizen genuinely intends to stay in Australia temporarily.
The appellant unsuccessfully applied to the Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia) for judicial review of the Tribunal’s decision on the basis that the Tribunal failed to consider mandatory relevant considerations prescribed by Ministerial Direction 53.
The Full Court of the Federal Court of Australia dismissed the appellant’s appeal from the Circuit Court’s decision. In doing so, the Full Court noted that the Tribunal’s decision is distinct from its reasons for decision, and that the Tribunal’s reasons need only set out material findings. In circumstances where there was no material before the Tribunal relevant to the prescribed considerations it did not explicitly address, the absence of reference to those prescribed considers did not give rise to an inference that it failed to consider those matters.
Background
The Appellant lodged an onshore application for a Student (subclass 572) Visa on 14 April 2015. The Applicant had previously been granted three student visas to allow him to complete studies in the vocational education sector. The applicant had ordinarily resided in Australia as the holder of a student visa since 2007.
The Appellant’s application for a student visa was refused on the basis that he did not satisfy Schedule 2 Criterion 572.223(1)(a), which required that he genuinely intended to stay in Australia temporarily (GTE criterion). In making reaching that conclusion, the delegate applied Ministerial Direction 59, which provided guidance on how decision-makers were to approach assessment of the GTE criterion, including by prescribing a number of matters which decision-makers had to consider when considering the GTE criterion.
The Appellant applied to the Administrative Appeals Tribunal (AAT) for review of the student visa refusal decision. However, the AAT affirmed the delegate’s decision to refuse the student visa application. In its reasons for decision, the Tribunal made a number of findings relating to the matters prescribed by Ministerial Direction 53, but did not make express findings in relation to all of the prescribed matters. Ultimately, the Tribunal concluded that it was not satisfied that the appellant genuinely intended to stay in Australia temporarily.
The Appellant applied to the Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia) for judicial review of the Tribunal’s decision.
Ground of review and appeal
Among the Appellant’s grounds of review was that the Tribunal failed to consider a number of matters prescribed by Ministerial Direction 53, including whether the economic circumstances of the applicant, any military service commitment and political/civil unrest in the appellant’s country of Citizenship. The Appellant argued that it could be inferred from the Tribunal’s failure to make express findings in relation to those prescribed matters that it did not consider the prescribed matters.
Full Court’s decision
The Full Court of the Federal Court of Australia dismissed the Appellant’s appeal. In doing so, the Full Court found that Ministerial Direction 53 required the Tribunal to turn its mind to the prescribed matters, but that it did not prescribe how the Tribunal was to conclude its consideration of those matters. As the Full Court stated in its reasons:
Some factors may weigh in favour of the visa applicant, some may weigh against, some may be neutral, some may be of marginal significance and some may be irrelevant in the particular circumstances. The weight to be given to the various factors mentioned in Direction 53 is a matter for the decision-maker.
Further, the Full Court noted that the Tribunal’s obligation to provide reasons for decision only extends to setting out the findings and conclusions that were material to its ultimate decision to affirm the student visa refusal. The Tribunal was not obliged to include immaterial findings in its reasons. Where there is insufficient material to make a finding in relation to a prescribed matter, the Tribunal is not obliged to make a finding. As the Full Court found:
There 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.
Importantly, while the Full Court in Kumar considered the refusal of a subclass 572 student visa and Ministerial Direction 53, the Court’s findings are equally applicable to a decision to refuse a Student (subclass 500) Visa for failure to satisfy the GTE Criterion following application of Ministerial Direction 69 (which related to applications for subclass 500 student visas).
What does this case illustrate?
In relation to the assessment of the GTE criterion for student visas, this case reaffirms the need to advance clear evidence and submissions responding to the matters prescribed by the relevant Ministerial Direction, as well as any other matter which may inform the decision-maker as to the visa applicant’s intentions. As is always the case, it is for a visa applicant to satisfy the decision-maker that they satisfy the criteria for grant of a visa; it is not the role of a decision-maker to find evidence or draw inferences supportive of the visa application.
In relation to applications for judicial review, this case provides a helpful illustration of the interaction between an administrative decision and the reasons given for that decision. While a failure to expressly refer to a matter in written reasons may provide grounds for inferring that a decision-maker failed to consider some relevant evidence, material or contention, it does not always provide a basis for making such an inference. Whether an inference can be drawn from a failure to refer to a particular matter in written reasons depends on whether, and to what extent, material or submissions were advanced by a visa applicant in relation to that matter and the relevance of the matter to the decision-maker’s ultimate conclusion.
Hannan Tew – About us
At Hannan Tew Lawyers we have a dedicated judicial review team that is experienced in making sure decisions made and actions taken by the Minister for Immigration, an immigration officer or the Administrative Appeals Tribunal are valid and lawful.
We offer a free, 20 minute judicial review consultation with our Special Counsel Joel McComber, who has extensive experience acting in judicial review applications of migration decisions before the Circuit Court, Federal Court and even High Court of Australia. At this consultation Joel will provide you with advice about the limitation period applying to your case, the Court that has the power to hear and determine your case, and the process of applying for judicial review.
Unfortunately we cannot provide you with advice regarding potential grounds of review or your prospects of success at a free initial consultation, but we do offer an assessment of judicial review prospects for a fixed fee of $2,000 (GST exclusive).
