GTE: incentive to remain in Australia? Obiter in MZAPC limited to “ultimate decision”?

Federal Circuit Court. Although cl 9.d of Direction 69 refers only to the negative effect of military obligations in an applicant's home country, does the GTE criterion in cl 500.212(a) also encompass any positive effects of such obligations? Was the obiter dicta in MZACP at [33] and [181] according to which errors in the form legal unreasonableness are material by definition and therefore jurisdictional limited to errors in the "ultimate decision", therefore excluding errors in findings of fact?

The judicial review Applicant (Mr Domingos) and his then wife applied for a student visa (subclass 500), the Applicant as the primary visa applicant. The delegate refused to grant them the visas on the basis that he/she found that the Applicant did not satisfy cl 500.212(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth), which provided as follows: "The applicant is a genuine applicant for entry and stay as a student because: ... the applicant intends genuinely to stay in Australia temporarily, having regard to..." (GTE criterion).

The Applicant and his wife then applied to the Tribunal for review of the Department's decision. The Tribunal was bound to apply Direction 69, which included the following clause for the purpose of assessing the GTE criterion:

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:

...

d. military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

...

In detailed written submissions to the Tribunal arguing that he satisfied the GTE criterion and in an electronic form provided response to a request under s 359 of the Migration Act 1958 (Cth), the then self-represented Applicant stated that:

  • "Also, I remain available to military service commitments active due to the Brazilian law because they could request to me for doing military service until my 45 years old, the according to Presidency of the Republic DECREE-LAW No. 1,187, OF APRIL 4, 1939. Article 5: The obligation of military service in peacetime lasts 25 years for the Army or Navy and begins from the beginning of the calendar year in which the individual turns 21 years of age. Source: Presidency of the Republic Decree-Law http://www.planalto.gov.br/ccivil-03/decreto-lei/1937-1946/Del1187.htm (Attached 14)". "Attached 14" was the original in Portuguese and an English translation of the "Presidency of the Republic Decree-Law", which was attached to his submissions.
  • His annual salary in Brazil immediately before arriving in Australia was equivalent to AUD 30,000 (which the Tribunal accepted).
  • His anticipated salary in Brazil upon return would be equivalent to AUD 40,000 (which the Tribunal accepted).
  • His annual salary in Australia was AUD 28,800 and his annual expenses were AUD 18,800, therefore with a surplus of AUD 9,000 (which the Tribunal never rejected and on one view may be seen as having accepted).

All the Tribunal said in its reasons about the Applicant's military obligations in Brazil was as follows:

17. The applicants have also indicated in their response to the s359(2) letter that they do not have any concerns about potential military service in Brazil or political or civil unrest circumstances in Brazil.

The Tribunal also found as follows:

14. The applicant indicated they have $60,000AUD equivalent to support them while living onshore at the time of their application in 2017.6 The applicant also owns a house and investments in Brazil worth a total of $285,000AUD equivalent and a car in Australia worth $2,000AUD. He has been working as a cook at Marinara Restaurant Ltd. She has not pro since July 2017 earning $28,800AUD per annum and has expenses of $19,800AUD per annum.7 The Tribunal notes that the United Nations Human Development Index ranks Brazil as 79th in the world as compared to Australia’s ranking of 3rd in the world.8 Given this and the fact that the applicant is earning $9,000 in Australian currency per annum in excess of his expenses, the Tribunal considers that the applicants’ economic circumstances in Australia relative to Brazil may present as a significant incentive for them not to return.

18. There is not sufficient evidence before the Tribunal, to satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on: the fact that the applicant ought now to have completed the Cookery course; the significant downgrade in education level proposed by the applicant; his existing tertiary qualification in Business Administration and work experience as owner and manager; the consequential lack of benefit the Diploma course is likely to offer the applicant in the circumstances (including his own submissions that he only wanted to complete the cookery course); and the economic incentives the applicants have to remain onshore. The Tribunal considers that the visa is being sought primarily to maintain residence in Australia.

As a result, the Tribunal affirmed the delegate's decision, after which the Applicant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision. His ex-wife was not included in the judicial review application, as by that time they had separated.

In the recent decision of the High Court in MZAPC, Kiefel CJ, Gageler, Keane and Gleeson JJ stated as follows at [33] (emphasis added):

... The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.

And Edelman J held as follows at [181] (emphasis added):

In the same manner as the rules that have developed in relation to new civil or criminal trials, and subject to any express statutory provision to the contrary, some errors or failures to comply with statutory conditions will always involve a material breach irrespective of whether the result might have been inevitable. One type of statutory condition that will always involve material non-compliance is a duty to make the ultimate decision within the bounds of legal reasonableness. A decision that is legally unreasonable will, by definition, involve an error that is not trivial or harmless.

Some of the questions to the FCCA were as follows:

Question 1: Can it be said that, although cl 9.d of Direction 69 refers only to the negative effect of military obligations in an applicant's home country (i.e. a pull factor towards staying in Australia), the GTE criterion also encompasses any positive effects of such obligations (i.e. a push factor towards returning to their home country in order to have the honour of serving such country in times of war)?

Answer: It was not necessary for the FCCA to answer this question, as it impliedly assumed (without deciding) the answer to be "yes", but proceeded to dismiss Ground 1 of the judicial review application on the basis that, on the facts of the case, it held that the Applicant did not claim any positive effects of his military obligations. Nevertheless, as the the FCCA did not, strictly speaking, answer this question, it did not rule out the possibility of a positive answer to it, which means that it remains to be seen whether a similar argument can be made and accepted in future cases. The submissions made by the Applicant's representatives as to why the answer to Question 1 should be "yes" can be found in the decision extracted below.

Question 2: Was the Tribunal's finding that the Applicant had a significant incentive to remain in Australia legally unreasonable, especially in circumstances where (a) his previous and anticipated earnings in Brazil were higher than his earnings in Australia and (b) the Tribunal never stated that his surplus in Australia was higher than any expected surplus in Brazil?

Answer: Yes.

Question 3: Was the obiter dicta in MZACP at [33] and [181] according to which errors in the form legal unreasonableness are material by definition and therefore jurisdictional limited to errors in the "ultimate decision", therefore excluding errors in findings of fact?

Answer: No. [With respect, this answer seems to be consistent with the judgement of the Supreme Court of the ACT in Scentre Management Limited v ACT Planning and Land Authority [2021] ACTSC 171, where Crowe AJ held as follows at [169], without distinguishing between errors in the ultimate decision and errors in fact finding: "Scentre took issue with the argument that materiality was in issue in this case. This was on the basis that, as the majority in MZAPC explained at [33] some jurisdictional errors are necessarily material. Examples given by their Honours were actual or apprehended bias, and unreasonableness". It also seems to be consistent with the unanimous decision of the Full Court of the Federal Court in Contreras v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 154, handed down after the present judgement was delivered, where Middleton, Anastassiou and Cheeseman JJ held as follows at [60], also without drawing that distinction: "... There was no jurisdictional error of the type submitted by the appellant. It may be accepted that the exercise of a discretionary power of the kind found in s 109 is infected with jurisdictional error if it is legally unreasonable, illogical or irrational".]

Question 4: If the answer to Question 3 is "yes", can it be said that the Tribunal's error in finding that the Applicant's surplus in Australia provided an incentive for him to stay in Australia was material in any event in that it was "counter intuitive for the Minister to assert that the Tribunal’s finding that the applicant’s economic circumstances in Australia presented as a “significant” incentive for him remain in Australia was an “insignificant” feature of its assessment under clause 500.212(a) of Schedule 2 to the Regulations of whether the applicant “intend[ed] genuinely to stay in Australia temporarily”"?

Answer: Although the FCCA answered Question 3 in the negative, it nevertheless proceeded to answer Question 4 in the alternative.

Question 5: In determining whether the GTE criterion was satisfied, the Tribunal took into account the United Nations Human Development Index from 2018, where the only countries raked higher than Australia are Norway and Switzerland. Is the Index "unhelpful and apt to distract from the obligation of the Tribunal to deal with Ministerial Direction 69 concerning the economic circumstances" of an applicant?

Answer: Yes, in obiter. [His Honour made reference to his earlier decision Ji Hyang Lee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1084, some passages of which are extracted below under square brackets].

Question 6: If the answer to Question 5 is "yes", does that mean that the Index is an irrelevant consideration for the purpose of the GTE criterion?

Answer: [No: see Ji Hyang Lee, some passages of which are extracted below under square brackets].

Question 7: In determining whether the GTE criterion is satisfied, if the Tribunal embarks upon an analysis of whether an applicant has economic incentives to remain in Australia by calculating the surplus between that applicant's earnings and expenses in Australia, is it required to compare that surplus against any surplus the applicant might have between their expected earnings and expenses in their home country upon return?

Answer: Yes.

Question 8: In determining whether the GTE criterion is satisfied, if the Tribunal embarks upon an analysis of whether an applicant has economic incentives to remain in Australia by calculating the surplus between that applicant's earnings and expenses in Australia, is it required to deduct the amount the applicant would be required by the Income Tax Rates Act 1986 (Cth) to pay in income taxes?

Answer: Yes.

Question 9: In determining on judicial review whether the Tribunal made a jurisdictional error in its assessment of whether the Applicant satisfied the GTE criterion, can it be said that, although the secondary applicant to the visa application was no longer the Applicant's wife at the time of the judicial review decision, her "own economic circumstances in Brazil are within the nature, scope and purpose of 500.212(a), as it would not be fanciful to suggest that whether an applicant’s spouse had incentives to return to their home country was capable of having a bearing on whether that applicant himself or herself had such an incentive"? In other words, can it be said that, if the Tribunal made an error in assessing the extent to which the Applicant's then wife's circumstances had a bearing on the Applicant's own circumstances, such an error cannot be discounted on the mere basis that they are no longer spouses, in determining whether that error was jurisdictional?

Answer: Yes.

The above questions and answers are not necessarily expressly asked or answered in the decision. That terminology (questions and answers) is used only for the purpose of briefly summarising the decision.

Extract

Domingos v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 864

Court: Federal Circuit Court of Australia

Applicant: FELIPPE DOMINGOS

Respondents: Minister; AAT

Judgement (for the Applicant): JUDGE DRIVER

[Question 1: Can it be said that, although cl 9.d of Direction 69 refers only to the negative effect of military obligations in an applicant's home country (i.e. a pull factor towards staying in Australia), the GTE criterion also encompasses any positive effects of such obligations (i.e. a push factor towards returning to their home country in order to have the honour of serving such country in times of war)?]

Mr Domingos’ contentions

Ground 1

Relevant law

19 The Tribunal would fail to observe its obligation under s 348(1) of the Migration Act 1958 (Cth) (Migration Act) if it “failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of [their] case”.[27]

20 It was relevantly held as follows in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2):[28]

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error ...

21 A lack of reference in the reasons of the Tribunal to a claim made by an applicant does not necessarily lead to an inference that it failed to consider that claim, as it is “not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons”,[29] because: “[i]t may be that some evidence is irrelevant to the criteria and some contentions misconceived”;[30] it may be “unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality”;[31] and there may be “a factual premise upon which a contention rests which has been rejected”.[32]

22 Another principle that militates against the drawing of that inference is that the reasons of administrative decision-makers “are not to be scrutinised ‘with an eye keenly attuned to error’”.[33] However, this principle “cannot overcome the plain reading of the reasons”.[34]

23 An inference that the Tribunal has failed to consider an issue is “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”.[35] However, a “conspicuous absence from otherwise detailed reasons of any reference [to a consideration might indicate that] it is unlikely that the Tribunal incorporated this consideration in its reasons”.[36] Further, where “there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked”.[37] Ultimately, “[e]very case must be considered according to its own circumstances”.[38]

24 The Tribunal was bound by s 499(2A) of the Migration Act to comply with the Direction,[39] issued under s 499(1).

25 The factors to be considered by the Tribunal under clause 500.212(a) may be neutral or weigh in favour or against satisfaction of this provision.[40]

26 An error is only jurisdictional if it was material to the decision in the sense that, had it not been made, the outcome of the decision could (not necessarily would) have been different.[41] Materiality is said to be “not a high threshold”.[42] In fact, the threshold is said to be very low. Otherwise, it would invite courts to engage in impermissible merits review.[43]

Applying the law to the facts

27 Mr Domingos contends that, as his claim concerning his military obligations in Brazil was made in the context of giving the reasons he had to return to that country,[44] that claim was plainly to the effect that such military commitments would provide an incentive for him to return to Brazil, which is reinforced by the fact that such a claim started with “[a]lso”, if requested “for doing military service”. This incentive is hereafter referred to as the potentially positive effect that those military service obligations could have on the satisfaction clause 500.212(a), which constitutes the clearly articulated claim referred to in Ground 1 of the amended application.

28 The Tribunal is said to have made an error in that, as argued below, it failed to consider that claim[45] and/or misunderstood it.[46]

29 Although the Tribunal did not expressly say so, a plain reading of [17] of the decision record indicates that the Tribunal was considering whether there were any circumstances in Brazil that could serve as an incentive for Mr Domingos not to return to that country, such as concerns about “potential military service” (see clause 9(d) of the Direction) or “political or civil unrest” (see clause 9(e) of the Direction). This consideration is referred to by Mr Domingos as a consideration of the potentially negative effect that those military service obligations could have on the satisfaction clause 500.212(a).

30 A claim that can give rise to a finding that the evidence given by an applicant does not have a negative effect is very different from a claim that can give rise to a finding that the evidence given by an applicant has a positive effect: the absence of a negative effect results in a neutral consideration, which cannot be equated to a positive effect. Mr Domingos asserts that his claim concerning his military obligations concerned the potentially positive effect, not the potentially negative effect.

31 The question which thus arises is whether it should be inferred from the lack of an express reference in the decision record to the potentially positive effect that the Tribunal failed to consider it. Mr Domingos submits it should, for a number of reasons.

32 First, that the Tribunal overlooked the potentially positive effect claim is not to scrutinise its decision “with an eye keenly attuned to error”. A “plain reading”[47] of the decision record indicates that, in circumstances where the Tribunal expressly referred only to the potentially negative effect and did not refer to the potentially positive effect at all, it is unlikely that the Tribunal considered the latter, especially where, as here and in contrast, Mr Domingos made an express reference to the latter and the latter only.

33 Secondly, it cannot be said that the potentially positive effect claim or its corroborating evidence were “irrelevant to the criteria”[48] found in clause 500.212(a), for the following reasons:

(a) clause 500.212(a)(iv) prescribed “any other relevant matter”; and

(b) an applicant’s military obligations in their home country were within the nature, scope and purpose of clause 500.212(a).

34 Although only the potentially negative effect was set out in the Direction (under clause 9.d), the very fact that military commitments were set out in the Direction and set out under the heading “[t]he applicant’s circumstances in their home country” suggests that the potentially positive effect was also a relevant consideration under cl 500.212(a)(i), which was about “the applicant’s circumstances”.

35 Although the Direction did not expressly address the potentially positive effect, the Direction was not an exhaustive list of the factors that should be taken into account in determining whether a person satisfies clause 500.212(a). In fact, the Direction stated at clause 1 that it provided mere guidance and was not a checklist and at clause 16 that decision-makers should “have regard to any other relevant information provided by the applicant”.

36 The claim is said to be relevant to clause 6 of the Direction, which called for consideration of an “applicant’s circumstances in their home country”.

37 Neither can it be said that the potentially positive effect claim amounted to a “misconceived” contention,[49] as it was cogent and based on intelligible evidence.

38 Thirdly, nothing in the decision record suggests that any findings the Tribunal may otherwise have made on the potentially positive effect claim was “subsumed in findings of greater generality”.[50]

39 Fourthly, nothing in the decision record suggests that there was a “factual premise upon which [the potentially positive effect] contention rests which has been rejected”.[51]

40 Fifthly, even if it could be said that the decision record is “otherwise comprehensive”,[52] the “conspicuous absence from otherwise detailed reasons of any reference [to the potentially positive effect claim indicates that] it is unlikely that the Tribunal incorporated this consideration in its reasons”.[53]

41 Sixthly, although the Tribunal did identify the potentially negative effect, this does not amount to “the issue [having] at least been identified at some point”,[54] as “the issue” in the relevant sense in this case was not the existence of a potentially negative effect, but rather the existence of a potentially positive effect, as this is how Mr Domingos’ claim was framed in that regard.

42 Considering the case in its totality “according to its own circumstances”,[55] they are said to raise a “strong inference”[56] that the potentially positive effect claim was overlooked and/or misunderstood.

43 Unless the Minister rebuts that “strong inference”, it is said to follow that the Tribunal overlooked and/or misunderstood Mr Domingos’ potentially positive effect claim, thus constructively failed to exercise its jurisdiction under s 348(1) of the Migration Act and made an error. The error is said to have been material and therefore jurisdictional in that, had it not been made, the Tribunal could have placed weight on the potentially positive effect, which in turn could have “tipped the balance”[57] in favour of Mr Domingos, especially as some factors weighed “significantly” in his favour.[58] Whether it would have tipped the balance is not a question for the Court to answer on judicial review. Rather, it is for the Tribunal and the Tribunal only to decide whether to ascribe weight to the potentially positive effect claim and how much weight to place on it.

44 Mr Domingos submits that, surely, had the Tribunal neither overlooked nor misunderstood Mr Domingos’ claim that his military commitments had a potentially positive effect, it would have been open to it not to accept such claims on the evidence before it. It would also have been open to the Tribunal to treat any military service commitment as also having a potentially negative effect. However, what was not open to the Tribunal was to overlook or misunderstand Mr Domingos’ claim, as it did.

Resolution

50 I prefer the Minister’s submissions in relation to the first ground. The information provided by Mr Domingos to the Tribunal concerning his military service obligations in Brazil were in my view clearly intended to demonstrate that he was not seeking to avoid military service obligations by remaining in Australia. In other words, Mr Domingos was seeking to avoid military service obligations being used against him.

51 However, Mr Domingos put nothing before the Tribunal to claim that his military service obligations provided an incentive for him to return to Brazil. Neither did any such claim squarely (or “fairly”)[61] arise from the available material. That material established plainly that for as long as Mr Domingos remained in Australia, he was deferring his military service obligations. It could also be assumed that he treated those obligations as a lower priority than his studies. The Tribunal recognised these salient facts at [17] of its reasons.[62]

52 As I put to the representatives during oral argument, it appears to me that the question of military service obligations in Brazil was neither a pull factor to Australia or a push factor to Brazil. It was neutral. As such, it needed no further consideration by the Tribunal.

[Question 2: Was the Tribunal's finding that the Applicant had a significant incentive to remain in Australia legally unreasonable, especially in circumstances where (a) his previous and anticipated earnings in Brazil were higher than his earnings in Australia and (b) the Tribunal never stated that his surplus in Australia was higher than any expected surplus in Brazil?]

Ground 2 – unreasonableness

Mr Domingos’ contentions

Relevant facts

55 Mr Domingos also claimed that his ex-wife had contributed to the National Institute of Social Security in Brazil for almost 14 years towards the 30 years of contribution required “[i]n order to receive the Pension for Period of Service”.[69]

56 Given the surplus and that the United Nations Human Development Index (Index) “ranks Brazil as 79th in the world as compared to Australia’s ranking of 3rd in the world”,[70] the Tribunal found that the “the applicants’ economic circumstances in Australia relative to Brazil may present as a significant incentive for them not to return”.

Relevant law

57 As a canon of statutory interpretation at common law, a statutory provision conferring power upon an administrative decision-maker should be construed as implying a condition to the valid exercise of power that it be exercised legally reasonably.[71] Although Li concerned the exercise of a discretionary power, it is well settled that the principles in Li also apply to the exercise of non-discretionary powers. There is no reason why the same canon should not apply to s 348(1) of the Migration Act. It follows that a condition to the validity of the Tribunal’s power of review, including its assessment of clause 500.212(a), is that its exercise be legally reasonable.

58 The question of whether the Tribunal has made a legally unreasonable decision is not answered by considering whether a court emphatically disagrees with the decision. Rather, the question is whether the decision in question was rationally “open to” the Tribunal on the evidence before it.[72] “The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision”. In other words, although an argument of legal unreasonableness will be made out if a court finds that a decision was “so unreasonable that no reasonable person could have arrived at it”, that finding is not necessary for a court to hold that a decision was affected by error.[73]

59 Further, “an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified”.[74] “Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.[75]

60 The Tribunal is required by s 348(1) of the Migration Act to review decisions based on a correct understanding and application of the relevant law,[76] which presupposes the identification of relevant pieces of legislation. In exercising its powers under s 348(1), the Tribunal should be mindful of the relevant personal income tax rates applicable to an applicant if it chooses to take their Australian income into account in assessing whether clause 500.212(a) is satisfied. Those rates are contained in Part I of Schedule 7 to the Income Tax Rates Act 1986 (Cth), according to which the tax for a person earning $28,800 is of $2,014.[77]

61 The same materiality principles discussed under Ground 1 apply to Ground 2.

Applying the law to the facts

62 Mr Domingos contends that there are several issues with [14] of the decision record, each of which is sufficient to establish jurisdictional error. Further or in the alternative, the aggregate of those issues is said to establish jurisdictional error.

63 It was not open to the Tribunal on the evidence before it to conclude that the surplus supported its finding that the “the applicants’ economic circumstances in Australia relative to Brazil may present as a significant incentive for them not to return”, for many reasons.

64 First, to say, without more, that given the surplus and the Index, “the applicants’ economic circumstances in Australia relative to Brazil may present as a significant incentive for them not to return” is to merely state a conclusion without disclosing the rationale for it. In other words, the Tribunal failed to explain why and how the surplus contributed to it arriving at its conclusion. As held by Hayne, Kiefel and Bell JJ in Li, the fact that it is not “possible for a court to comprehend how the decision was arrived at” does not prevent it from concluding that a decision was legally unreasonable. In fact, the very difficulty in ascertaining how a decision was arrived at supports a finding of legal unreasonableness.

65 For completeness:

(a) while it is true that the Tribunal said at [14] that the surplus and the Index “may” present a significant incentive for Mr Domingos not to return to Brazil, a “plain reading” of the decision record reveals that it expressly found at [18][78] that the surplus and the Index didpresent that incentive; and

(b) the incentive finding was informed not only by the Index; importantly, it was also informed by the surplus. In other words, the Tribunal’s finding about the surplus was integral to its finding about the existence of the incentive.

66 The Tribunal referred to the “applicants’” (plural) economic circumstances, as opposed to Mr Domingos’ economic circumstances. Contrastingly, it referred only to Mr Domingos’ salary and expenses, as the salary and expenses of his ex-wife were not provided to the Tribunal, perhaps because the Information form sought information only from the “main applicant” in that regard. Therefore, for the sake of clarity and consistency, references to the “applicants’” economic circumstances in the decision record are treated as references to Mr Domingos’ economic circumstances by Mr Domingos.

67 Secondly, both Mr Domingos’ previous salary in Brazil and the salary he claimed he was expected to earn upon return were higher than his salary of $28,800AUD in Australia. Therefore, the only ways in which the surplus could possibly contribute to the Tribunal’s finding that Mr Domingos’ economic circumstances in Australia presented a significant incentive for him not to return to Brazil were if:

(a) the surplus were higher than the difference between his expected earnings and living expenses in Brazil; 

(b) the Tribunal had not accepted his claim concerning his expected salary upon return to Brazil; or 

(c) the Tribunal had found that Mr Domingos was unlikely to find employment in Brazil upon return.

68 However, the Tribunal:

(a) did not engage in any analysis of how much Mr Domingos’ expenses in Brazil were or were expected to be upon return, let alone a calculation of the difference between his expected salary and living expenses and taxes in that country, in order to compare that difference to the surplus; 

(b) never rejected his claim concerning his expected salary in Brazil; and

(c) found that the cookery course was “likely to assist and improve his employment prospects upon his return to Brazil”.[79]

69 Thus, Mr Domingos submits that the surplus offered no rational or intelligible basis to support the Tribunal’s conclusion that “[Mr Domingos’] economic circumstances in Australia relative to Brazil may present as a significant incentive for [him] not to return”.

70 Thirdly, in order to accurately calculate the surplus, the Tribunal was required to know that Mr Domingos was required to pay $2,014 in income tax, which would result in an actual surplus of $6,986, not $9,000. By not deducting $2,014 from the $9,000, the Tribunal erroneously added almost 29 per cent to the actual surplus.

71 Fourthly, it cannot be sensibly suggested that the Tribunal’s reference to Mr Domingos’ earnings was to earnings after income tax, for a reasonable person would interpret the question at CB 143, responded to with “$28,800AUD” and (as it seems) found by the Tribunal to be at this amount, as referring to salary before taxes.

72 Fifthly, the unintelligible reference at [14] that “[s]he has not pro since July 2017 earning $28,800AUD” compounds the irrationality of the finding concerning Mr Domingos’ economic circumstances, as it is impossible to know what was meant by the phrase starting with those words. As a result, one is left to speculate that it seemsthat the Tribunal arrived at the amount of $9,000 in the way discussed above.

73 Sixthly, the words “[s]he has not pro” suggest that the Tribunal intended to say something about the ex-wife’s economic circumstances, but never did. That invites speculation as to what the Tribunal intended to say about her own economic circumstances and whether and how that affected its assessment of clause 500.212(a). After all, for the same reasons discussed above in the context of Ground 1, the ex-wife’s own economic circumstances in Brazil are within the nature, scope and purpose of 500.212(a), as it would not be fanciful to suggest that whether an applicant’s spouse had incentives to return to their home country was capable of having a bearing on whether that applicant himself or herself had such an incentive.

74 Seventhly, Mr Domingos provided evidence that his ex-wife had contributed to the National Institute of Social Security in Brazil for almost 50 per cent of the period required “[i]n order to receive the Pension for Period of Service”. That was an argument clearly made, which was never addressed by the Tribunal, to the effect that the ex-wife had an incentive to return to Brazil and thus so did Mr Domingos. One is left to speculate whether the Tribunal meant to address that claim at the sentence starting with the terms “[s]he has not pro”.

75 Eighthly, as that sentence was never intelligibly completed, it is impossible to know how and why that claim regarding the ex-wife’s own economic circumstances and the incentives it may have created for both of them to return to Brazil was assessed in the context of clause 500.212(a). For the reasons discussed above, Mr Domingos submits that not being able to identify how a finding was arrived at bespeaks legal unreasonableness. It is of no moment that Mr Domingos is no longer married to his ex-wife, as judicial review focuses on the time of the administrative decision, at which point it is not fanciful to suggest that her circumstances could have a bearing on his own intentions to return.

76 In summary, Mr Domingos submits that either it is impossible to understand how the Tribunal arrived at the conclusion that the surplus supported its finding that Mr Domingos’ economic circumstances represented an incentive for him not to return, or that finding was illogical or irrational. In either case, the Tribunal’s decision was legally unreasonable.

Resolution

84 It is difficult to attribute any meaning to the fourth sentence in the middle of the paragraph but, when read by reference to the preceding paragraphs, it can probably be assumed that, notwithstanding the use of the personal pronoun “she”, the Tribunal was intended to refer to Mr Domingos’ income and expenses in Australia as put by him. The following reference to the Index is problematic for reasons I have given in earlier cases.[90]

85 The Tribunal’s proposition that the simple fact that Mr Domingos has a small surplus of income over expenditure in Australia presents a “significant incentive” for him not to return to Brazil is, to say the least, curious, especially when read with [9] of the Tribunal’s reasons[91] where the Tribunal accepted Mr Domingos’ submissions concerning his greater earning capacity in Brazil than in Australia. If the Tribunal had intended to state that the cost of living in Brazil was higher than in Australia then it should have said so. Neither is there any reference to the exchange rate as between Australia and Brazil.

[Question 3: Was the obiter dicta in MZACP at [33] and [181] according to which errors in the form legal unreasonableness are material by definition and therefore jurisdictional limited to errors in the "ultimate decision", therefore excluding errors in findings of fact?]

86 The view of a court that particular reasoning by the Tribunal is unpersuasive does not, however, establish legal unreasonableness. While the Tribunal’s reasoning is in part unintelligible and on balance unpersuasive, at the conclusion of the trial of this matter I was unable to say that the errors in fact finding made by the Tribunal were material to the outcome. The impugned reasoning must also be read in the context of the ultimate conclusions of the Tribunal at [18].[92]

87 After judgment was reserved, Mr Domingos’ representatives brought to my attention the decision of the High Court in MZAPC v Minister for Immigration and Border Protection[93] which was dealt with in post hearing submissions.

88 On the question of materiality, Mr Domingos submits as follows.

Types of materiality assessment

89 In order for the power and duty to grant a visa to be enlivened, all of the criteria imposed for the grant of that visa must be satisfied. That is because that power and duty are enlivened under s 65 of the Migration Act if, and only if, all of the relevant criteria are satisfied. In other words, a single finding that a criterion is not satisfied is sufficient to allow and require refusal to grant a visa. It is also important to appreciate that there are, broadly speaking, two types of materiality assessments: one involving “independent” findings[94] and another involving “intermingled”[95] or single findings, as discussed below.

Independent findings

90 It follows from the effect of s 65 that, if an administrative decision-maker finds that relevant criterion “A” is not satisfied, the decision-maker is required to refuse to grant the visa. It does not matter whether that decision-maker erroneously finds that relevant criterion “B” is not satisfied either. The findings concerning criteria “A” and “B” are thus “independent” in the sense that each of them is sufficient, regardless of the other, to allow and require refusal to grant the visa.

91 In Hossain, the Tribunal had reviewed a decision to refuse to grant a visa. The majority of the High Court held that the Tribunal had erroneously found that a criterion (ie clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations, the equivalent to criterion “B” above) was not satisfied, but that the error was immaterial, as the Tribunal had correctly found that (independent) criterion (ie clause 820.223(1)(a), the equivalent to criterion “A” above) was not satisfied either.

92 To the majority, the assessment of the materiality of the error about the finding on criterion “B” involved a simple question (Question 1): was there an independent finding (eg a finding that criterion “A” above is not satisfied) that sufficed to allow and require refusal to grant the visa? As the answer was “yes”, the visa could not have been granted, due to the effect of s 65, with the result that the error was not material and thus not jurisdictional. That was the end of the matter.

Intermingled or single findings

93 In other cases,[96] the only adverse finding made by an administrative decision-maker concerns only one criterion (eg criterion “B” above), in which case there is no equivalent to criterion “A” above that would suffice to allow and require refusal to grant the visa. In those cases, as there are no “independent” findings, the answer to Question 1 is “no”, in which case a further question (Question 2) arises: had the error concerning criterion “B” not been made, could (as opposed to would)[97] a different outcome have ensued? If the answer to Question 2 is “no”, the error was not material and thus not jurisdictional. Otherwise, the error was material and thus jurisdictional and “there is no need to make any further assessment of the likelihood of the [error] affecting the decision”.[98]

94 In the context of Question 2, two types of findings can possibly be involved in the making of the error (concerning criterion ‘B’) whose materiality is being assessed: intermingled findings or a single finding. An example of intermingled findings is where a criterion involves a balancing exercise of multiple factors. Axiomatically, that exercise involves intermingled findings, as they all speak to one criterion. An example of a single finding is where there is no weighing exercise and the decision-maker must answer a single question concerning a criterion: for instance, whether a visa applicant has given the Minister evidence of arrangements for health insurance, pursuant to clause 500.215 of Schedule 2 to the Regulations. In either case, there is no equivalent to a finding on criterion “A” that could provide an independent basis for the refusal.

Legal unreasonableness is material by definition

95 In MZAPC, five justices of the High Court held that a legally unreasonable decision is, by definition, vitiated with jurisdictional error.[99] Such a holding concerned only Question 2. That is because, unlike Hossain, there were no “independent” findings made by the Tribunal in MZAPC.

These proceedings

96 The Tribunal affirmed the delegate’s decision on the basis of only one criterion, namely clause 500.212(a) of Schedule 2 to the Regulations, which, axiomatically, involved a balancing exercise of intermingled findings. Applying MZAPC and the above principles to these proceedings, if the Tribunal made the error claimed in Ground 2 of the amended application (i.e. legal unreasonableness), that error was jurisdictional, without the need to assess the materiality of the error. In any event, even if there were a need to assess materiality, each of the following alternative arguments would be sufficient to establish that the error in Ground 2 was material.

97 First, even if the intermingled findings weighed overwhelmingly against satisfaction of the relevant criterion (clause 500.212(a)), which is not conceded, it would not be possible for a court on judicial review to conclude that, had an error in a finding involving one of those factors not been made, the outcome could not have been different. That is because such a conclusion could only be reached if the Court found that the absence of the erroneous finding could not have tipped the balance in favour of satisfaction of the relevant criterion, which in turn would necessarily involve the court itself ascribing weight to those findings and thus engaging in impermissible merits review.[100]

98 Secondly, even if those multiple factors weighed overwhelmingly against satisfaction of the relevant criterion and although “there is a significant element of reconstruction involved”[101] in assessing materiality, the reconstruction “is not to be undertaken by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision”, otherwise “emphatic adverse findings in a particular decision... would effectively immunise decisions from scrutiny on judicial review”.[102] In other words, and contrary to the Minister’s oral submissions that any errors could be “severed” so as to save the Tribunal’s decision from invalidity, the error cannot be “severed”[103] or “surgically excised from the Tribunal's reasons, leaving the framework surrounding it intact”.[104]

99 Thirdly, the factors weighing against satisfaction of the relevant criterion were, in any event, not overwhelming, especially as some factors weighed “significant[ly]” in favour of satisfaction of the relevant criterion.[105]

100 Fourthly, the materiality test poses a very low threshold,[106] lest courts engage in impermissible merits review. Indeed, the threshold has been thus described: “a matter of real and not marginal or fanciful relevance”;[107]whether the result was “inevitable”;[108] there being “at least some prospect, however remote”,[109] or a “realistic”,[110] more than “derisory”[111] or “non-existent”[112] chance or “possibility”,[113] of a different decision, had the error in question not been made.

101 In summary, the Tribunal clearly placed appreciable weight on its (unreasonable) finding impugned in Ground 2 that Mr Domingos’ economic circumstances presented a “significant incentive” (emphasis added) for him not to return to Brazil.[114] Given the above principles, the absence of that error clearly could have made a difference to the outcome.

102 The combination of the errors made by the Tribunal in the findings relating to Ground 2, as discussed in the written outline of submissions filed for Mr Domingos on 1 April 2021 (ie ignoring that Mr Domingos’ income in Australia was lower than in Brazil, not comparing whatever income “surplus” Mr Domingos would have in Brazil to his “surplus” in Australia, ignoring the effect of income tax, unintelligibly discussing Mr Domingos’ “incentives” to remain in Australia, among others), itself is also sufficient to establish materiality.[115]

103 The arguments made [89]-[94] and [97]-[100] above equally apply to the materiality of the error in Ground 1 of the amended application, with the result that the error impugned in Ground 1 was also material and thus jurisdictional.

104 The Minister relevantly responds as follows.

109 It is unnecessary for this Court to consider, let alone resolve, any disharmony between MZAPC and earlier judgments of the Full Federal Court. This Court is bound by MZAPC. That case does not however lead to the conclusions advanced by Mr Domingos in his supplementary written submissions. Even accepting, and it must be accepted, that a decision that is legally unreasonable is affected by jurisdictional error without the need additionally to consider whether the legal unreasonableness is material in the sense discussed in Hossain, and SZMTA, that does not mean that a conclusion by the Court in this case that the Tribunal’s reasoning or findings expressed at [14] of its decision record results in a determination of jurisdictional error in the Tribunal’s decision to affirm the decision under review.

110 The following steps need to be followed:

(1) the Court must determine whether the reasoning or findings in [14] are legally unreasonable or irrational, applying orthodox principles; and

(2) if the Court is satisfied in the affirmative of that question, the Court must then determine whether that results in a conclusion that the Tribunal’s ultimate decision on the review constituted an exercise of power that lay beyond the scope of the authority conferred by the power.

111 If the answer to the second question is in the affirmative, it is implied that the nature of the error infecting the Tribunal’s decision warrants the characterisation of a jurisdictional error without the need for any additional consideration of materiality.

112 The question then is whether the Tribunal’s findings at [14], which Mr Domingos contends is unreasonable or irrational (which is resisted by the Minister), were so central to the ultimate conclusion expressed by the Tribunal at [18]-[20] that any unreasonableness or irrationality in that paragraph can be said to infect the ultimate decision.[117]Another way of putting is, is whether the erroneous feature of the decision “leads to the end result”.[118] The Minister submits that on a fair reading of the Tribunal’s reading, the findings at [14] can be severed. It is clear from the Tribunal’s conclusions at [18] that the Tribunal’s primary concerns lay with the fact that Mr Domingos had completed his cookery course, and that the course was a significant downgrade in education level that would not benefit Mr Domingos. Applying common sense to the limits of the exercise of power, it cannot be envisaged that the Parliament would have intended decisions such as this to be invalid simply because one insignificant feature of the reasoning in the decision was found to be unreasonable or irrational.

113 Mr Domingos’ supplementary submission (at [98] above) that one aspect of an “intermingled finding” cannot be severed from the rest is not supported by authority. Rather, cases such as ARG15 and MKBL require a more evaluative approach. It is not to be overlooked that the Full Federal Court in ARG15 restated the high bar to be met of “extreme” illogicality or irrationality. For the reasons set out in the Minister’s earlier written submissions, and oral submissions made at hearing, Mr Domingos has not established error in the Tribunal’s decision to the requisite standard.

114 I prefer Mr Domingos’ submissions on the issue of materiality in relation to the second ground.

115 It appears that what the Minister submits by reference to Ground 2 of the amended application, is that, although a “decision that is legally unreasonable is affected by jurisdictional error without the need additionally to consider whether the legal unreasonableness is material, ... that does not mean that a conclusion by the Court in this case that the Tribunal’s reasoning or findings expressed at [14] of its Decision Record [were legally unreasonable] results in a determination of jurisdictional error in the Tribunal’s decision to affirm the decision under review”.

116 That amounts to a proposition that a legally unreasonable finding only amounts to jurisdictional error if it is material to the decision in question. The Minister’s argument, subject to what is discussed below, is hard to reconcile with the High Court’s ruling in MZAPC,[119] according to which decisions affected by legal unreasonableness are vitiated with jurisdictional error by definition, that is without the need to establish materiality. In effect, the Minister seems to be contending, subject to what is discussed below that courts are required to take the further step of assessing whether a legally unreasonable finding was material to the decisionin question.

117 I cannot reconcile the Minister’s argument with MZAPC unless it could be said that what the High Court had in mind in MZAPC was that legal unreasonableness can arise in two contexts, namely in decision-making processesand in decisions themselves. However, the High Court’s decision does suggest that it had those two contexts in mind. To avoid doubt, Mr Domingos does not dispute that legal unreasonableness can arise in those two contexts. Rather, he disputes that the High Court had those two contexts in mind for the purpose of the ruling. I prefer that approach.

118 Although it is true that the High Court did refer to the “ultimate decision” in MZAPC, such a reference in and of itself does not resolve whether the High Court had the two contexts above in mind:

(a) MZAPC was not a case concerning legal unreasonableness, let alone any potential difference between those two contexts for the purpose of the materiality test;

(b) to say that legal unreasonableness in the ultimate decision is material by definition does not say that legal unreasonableness in the decision-making process is not material by definition;

(c) although legal unreasonableness can, broadly speaking, arise in those two contexts, that does not support a proposition that different tests of materiality should apply to each of those contexts; and

(d) in any event, a distinction between the test for materiality of legally unreasonable decision-making processes and the test for materiality of legally unreasonable decisions themselves is illusory. Wigney J, in dissent but not on this point, held in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[120] at [138] that “defective, illogical, or irrational reasoning or fact finding may support a finding that the ultimate decision or exercise of discretion was legally unreasonable”. Although it is true that Wigney J went on to say at [138] that that was the case “particularly where the illogicality relates to a critical matter upon which the decision or exercise of discretion turned”, a test of criticality (which on one view might be seen as another way of expressing the materiality test) is not necessary for the distinction to be shown to be illusory, as the word “particularly” indicates.

119 The Minister refers to two decisions in support of the further step, namely SZUXN at [55] (Wigney J) and ARG15 at [47] (Griffiths, Perry and Bromwich JJ). However, those decisions of, respectively, the Federal Court and the Full Federal Court, cannot prevail over the High Court’s decision in MZAPC.

120 If anything, [55] of SZUXN only supports Mr Domingos’ argument that, instead of re‑introducing the further step, which would contradict the ruling, the Court is rather tasked to assess whether “the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion”. Here, as discussed above in Mr Domingos’ supplementary submissions in chief, the finding impugned in Ground 2 was not one of a number of ‘independent’ findings, but rather part of ‘intermingled’ findings.

121 The Minister refers to the “bar” for irrationality or illogicality being high, but the simple fact of the height of the bar does not support the Minister’s arguments:

(a) materiality concerns the “gravity” of an error to the decision in question, which is simply another way of describing how high a “bar” is;[121]

(b) given the high bar, a legally unreasonable finding is necessarily of gravity to the decision: in fact, according to Edelman J in MZAPC at [181], “[a] decision that is legally unreasonable will, by definition, involve an error [such as in fact finding] that is not trivial or harmless”;

(c) were the gravity of a legally unreasonable finding to be assessed also by means of the further step (ie the materiality step), that gravity would be assessed twice, once as part of the inherently high bar involved in the assessment of legal unreasonableness, the other as part of the further step; and

(d) assessing the gravity of a legally unreasonable finding twice would be absurd, which explains why five Justices of the High Court held in MZAPC, without drawing the distinction, that materiality is established by definition in cases of legal unreasonableness.

[Question 4: If the answer to Question 3 is "yes", can it be said that the Tribunal's error in finding that the Applicant's surplus in Australia provided an incentive for him to stay in Australia was material in any event in that it was "counter intuitive for the Minister to assert that the Tribunal’s finding that the applicant’s economic circumstances in Australia presented as a “significant” incentive for him remain in Australia was an “insignificant” feature of its assessment under clause 500.212(a) of Schedule 2 to the Regulations of whether the applicant “intend[ed] genuinely to stay in Australia temporarily”"?]

Materiality established in any event

122 In any event, even if it were accepted that the Court should take the further step, the errors made by the Tribunal were nevertheless material, for the following reasons.

123 The Minister argues that “[i]t is clear from the Tribunal’s conclusions at [18] that the Tribunal’s concerns lay with the fact that [Mr Domingos] had completed his cookery course, and that the course was a significant downgrade in education level that would not benefit [Mr Domingos]”. There are two problems with that proposition.

124 First, the Tribunal never found that Mr Domingos had completed his cookery course. Rather, the Tribunal found that he “ought now to have completed” that course by the time of its decision. Secondly, and most importantly, even if one were to view the finding that he “ought now to have completed” the course in cookery and that it represented a “downgrade” as a concern to the Tribunal, that would be far from its primary concern. In fact, another concern expressly stated by the Tribunal at [18] was, in its words, the “economic incentives the applicants have to remain onshore”, which is the object of Ground 2.

125 Also, the Minister submits that “it cannot be envisaged that the Parliament would have intended decisions such as this to be invalid simply because one insignificant feature of the reasoning in the decision was found to be unreasonable or irrational”. I do not accept the characterisation of the findings at [14] as an “insignificant” feature of the reasoning of the Tribunal. That is because the Tribunal found at [14] and [18] that the applicant’s economic circumstances presented as a “significant” incentive for him to remain in Australia. Further, there were eight (as opposed to only one) significant features involved, namely those described in Mr Domingos’ initial outline of submissions.

126 It is counter intuitive for the Minister to assert that the Tribunal’s finding that the applicant’s economic circumstances in Australia presented as a “significant” incentive for him remain in Australia was an “insignificant” feature of its assessment under clause 500.212(a) of Schedule 2 to the Regulations of whether the applicant “intend[ed] genuinely to stay in Australia temporarily”.

127 Although the findings at [14] were not the only reason for the Tribunal’s decision, they formed a significant part of intermingled findings which cannot be severed, as the assessment of materiality “is not to be undertaken by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision”, otherwise “emphatic adverse findings in a particular decision... would effectively immunise decisions from scrutiny on judicial review”.[122] That the error cannot “be surgically excised from the Tribunal's reasons, leaving the framework surrounding it intact”[123] is especially so where, as here, the Tribunal found that some factors weighed “significant[ly]” in favour of satisfaction of clause 500.212(a).[124]

128 In summary, the High Court made it clear in MZAPC that an error in the form of legal unreasonableness is material by definition and thus jurisdictional. To suggest that the High Court was only referring to legal unreasonableness in decisions, as opposed to legal unreasonableness in decision-making processes adds an unwarranted gloss to MZAPC, leads to an absurd outcome whereby the gravity of an error is assessed twice and empties the ruling of any real meaning. In any event, even if the further step were to be taken, materiality is established in relation to Ground 2, as the Tribunal’s legal unreasonableness concerned its finding that Mr Domingos’ economic circumstances presented as a “significant” incentive for him to remain in Australia.

129 Accordingly, upon reflection as to legal unreasonableness, I would concede that the impugned findings at [14] were material notwithstanding what the Tribunal states at [18]. The findings at [18] are a “rolled up” set of findings which do not lend themselves to deconstruction and the allocation of relevant weight. I also have regard to the cautions issued by the Full Federal Court in Chamoun at [70] and PQSM v Minister for Immigration[125] at [71] concerning the assessment of materiality.

[Question 5: In determining whether the GTE criterion was satisfied, the Tribunal took into account the United Nations Human Development Index from 2018, where the only countries raked higher than Australia are Norway and Switzerland. Is the Index "unhelpful and apt to distract from the obligation of the Tribunal to deal with Ministerial Direction 69 concerning the economic circumstances" of an applicant?]

84 It is difficult to attribute any meaning to the fourth sentence in the middle of the paragraph but, when read by reference to the preceding paragraphs, it can probably be assumed that, notwithstanding the use of the personal pronoun “she”, the Tribunal was intended to refer to Mr Domingos’ income and expenses in Australia as put by him. The following reference to the Index is problematic for reasons I have given in earlier cases.

[From Ji Hyang Lee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1084:

  1. The second issue concerns [25] of the Tribunal’s reasons (footnotes omitted):

The applicant has been working onshore as set out above, now earning $60,000AUD per annum. Her expenses onshore are $46,200AUD per annum. She holds $40,000AUD equivalent in savings and personal belongings in Korea and $18,000AUD assets (savings, car and personal belongings) in Australia. The Tribunal notes that the United Nations Human Development Index ranks Korea as 22nd in the world as compared to Australia’s ranking of 3rd in the world. The Tribunal considers that, on balance, the applicants’ economic circumstances in Australia relative to Korea are likely to present as a significant incentive for them not to return, particularly given the significant amount the applicant has been earning in Australian dollars in excess of her expenses.

  1. It is noteworthy that the Tribunal referred to Korea’s ranking as 22nd in the Index as compared to Australia’s ranking of 3rd. In my view, the Tribunal’s reference to the Index is unhelpful and apt to distract from the obligation of the Tribunal to deal with Ministerial Direction 69 concerning the economic circumstances of Ms Lee, not her country.
  2. My concern is amplified by reference to the Index, which is annexed to Ms Stone’s affidavit. The Index is divided into categories. The first category are countries with very high human development. As well as financial measures, there is also a measure of life expectancy and education. The only countries ranked above Australia are Norway and Switzerland. Korea is ranked at 22, above most of Europe and many of the second-world countries of the Middle East and South America.
  3. When one examines the figures relating to Australia and Korea, there does not appear to me to be very much to choose between them. In my view, the Index is singularly unhelpful when comparing countries with very high human development. Below these countries are countries ranked with high, medium and low human development.
  4. China is ranked at 86 as a high human-development country. India is ranked at 130 as a medium human-development country. Australia’s near neighbours, the Solomon Islands and Papua New Guinea, are ranked at 152 and 153 respectively as low human-development countries. If the Index was meant to carry some particular weight in the Tribunal’s deliberations it would seem that putative students from China, India, the Solomon Islands, and Papua New Guinea and elsewhere would face real difficulties.]

[Question 6: If the answer to Question 5 is "yes", does that mean that the Index is an irrelevant consideration for the purpose of the GTE criterion?]

[From Ji Hyang Lee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1084:

  1. hile I consider the Tribunal’s use of the Index should be discouraged, it is not open to me to conclude that it was an irrelevant consideration, in the sense of something that the Tribunal was prohibited from considering. The Tribunal’s reasoning in relation to Ms Lee’s financial circumstances generally, at [25], is unconvincing. I am unable to conclude, however, that the Tribunal’s reasoning was not open to it on the material before it.]

[Question 7: In determining whether the GTE criterion is satisfied, if the Tribunal embarks upon an analysis of whether an applicant has economic incentives to remain in Australia by calculating the surplus between that applicant's earnings and expenses in Australia, is it required to compare that surplus against any surplus the applicant might have between their expected earnings and expenses in their home country upon return?]

67 Secondly, both Mr Domingos’ previous salary in Brazil and the salary he claimed he was expected to earn upon return were higher than his salary of $28,800AUD in Australia. Therefore, the only ways in which the surplus could possibly contribute to the Tribunal’s finding that Mr Domingos’ economic circumstances in Australia presented a significant incentive for him not to return to Brazil were if:

(a) the surplus were higher than the difference between his expected earnings and living expenses in Brazil; 

(b) the Tribunal had not accepted his claim concerning his expected salary upon return to Brazil; or 

(c) the Tribunal had found that Mr Domingos was unlikely to find employment in Brazil upon return.

68 However, the Tribunal:

(a) did not engage in any analysis of how much Mr Domingos’ expenses in Brazil were or were expected to be upon return, let alone a calculation of the difference between his expected salary and living expenses and taxes in that country, in order to compare that difference to the surplus; 

(b) never rejected his claim concerning his expected salary in Brazil; and

(c) found that the cookery course was “likely to assist and improve his employment prospects upon his return to Brazil”.[79]

69 Thus, Mr Domingos submits that the surplus offered no rational or intelligible basis to support the Tribunal’s conclusion that “[Mr Domingos’] economic circumstances in Australia relative to Brazil may present as a significant incentive for [him] not to return”.

125 Also, the Minister submits that “it cannot be envisaged that the Parliament would have intended decisions such as this to be invalid simply because one insignificant feature of the reasoning in the decision was found to be unreasonable or irrational”. I do not accept the characterisation of the findings at [14] as an “insignificant” feature of the reasoning of the Tribunal. That is because the Tribunal found at [14] and [18] that the applicant’s economic circumstances presented as a “significant” incentive for him to remain in Australia. Further, there were eight (as opposed to only one) significant features involved, namely those described in Mr Domingos’ initial outline of submissions.

[Question 8: In determining whether the GTE criterion is satisfied, if the Tribunal embarks upon an analysis of whether an applicant has economic incentives to remain in Australia by calculating the surplus between that applicant's earnings and expenses in Australia, is it required to deduct the amount the applicant would be required by the Income Tax Rates Act 1986 (Cth) to pay in income taxes?]

70 Thirdly, in order to accurately calculate the surplus, the Tribunal was required to know that Mr Domingos was required to pay $2,014 in income tax, which would result in an actual surplus of $6,986, not $9,000. By not deducting $2,014 from the $9,000, the Tribunal erroneously added almost 29 per cent to the actual surplus.

71 Fourthly, it cannot be sensibly suggested that the Tribunal’s reference to Mr Domingos’ earnings was to earnings after income tax, for a reasonable person would interpret the question at CB 143, responded to with “$28,800AUD” and (as it seems) found by the Tribunal to be at this amount, as referring to salary before taxes.

125 Also, the Minister submits that “it cannot be envisaged that the Parliament would have intended decisions such as this to be invalid simply because one insignificant feature of the reasoning in the decision was found to be unreasonable or irrational”. I do not accept the characterisation of the findings at [14] as an “insignificant” feature of the reasoning of the Tribunal. That is because the Tribunal found at [14] and [18] that the applicant’s economic circumstances presented as a “significant” incentive for him to remain in Australia. Further, there were eight (as opposed to only one) significant features involved, namely those described in Mr Domingos’ initial outline of submissions.

[Question 9: In determining on judicial review whether the Tribunal made a jurisdictional error in its assessment of whether the Applicant satisfied the GTE criterion, can it be said that, although the secondary applicant to the visa application was no longer the Applicant's wife at the time of the judicial review decision, her "own economic circumstances in Brazil are within the nature, scope and purpose of 500.212(a), as it would not be fanciful to suggest that whether an applicant’s spouse had incentives to return to their home country was capable of having a bearing on whether that applicant himself or herself had such an incentive"? In other words, can it be said that, if the Tribunal made an error in assessing the extent to which the Applicant's then wife's circumstances had a bearing on the Applicant's own circumstances, such an error cannot be discounted on the mere basis that they are no longer spouses, in determining whether that error was jurisdictional?]

33 Secondly, it cannot be said that the potentially positive effect claim or its corroborating evidence were “irrelevant to the criteria”[48] found in clause 500.212(a), for the following reasons:

(a) clause 500.212(a)(iv) prescribed “any other relevant matter”; and

(b) an applicant’s military obligations in their home country were within the nature, scope and purpose of clause 500.212(a).

73 Sixthly, the words “[s]he has not pro” suggest that the Tribunal intended to say something about the ex-wife’s economic circumstances, but never did. That invites speculation as to what the Tribunal intended to say about her own economic circumstances and whether and how that affected its assessment of clause 500.212(a). After all, for the same reasons discussed above in the context of Ground 1, the ex-wife’s own economic circumstances in Brazil are within the nature, scope and purpose of 500.212(a), as it would not be fanciful to suggest that whether an applicant’s spouse had incentives to return to their home country was capable of having a bearing on whether that applicant himself or herself had such an incentive.

74 Seventhly, Mr Domingos provided evidence that his ex-wife had contributed to the National Institute of Social Security in Brazil for almost 50 per cent of the period required “[i]n order to receive the Pension for Period of Service”. That was an argument clearly made, which was never addressed by the Tribunal, to the effect that the ex-wife had an incentive to return to Brazil and thus so did Mr Domingos. One is left to speculate whether the Tribunal meant to address that claim at the sentence starting with the terms “[s]he has not pro”.

75 Eighthly, as that sentence was never intelligibly completed, it is impossible to know how and why that claim regarding the ex-wife’s own economic circumstances and the incentives it may have created for both of them to return to Brazil was assessed in the context of clause 500.212(a). For the reasons discussed above, Mr Domingos submits that not being able to identify how a finding was arrived at bespeaks legal unreasonableness. It is of no moment that Mr Domingos is no longer married to his ex-wife, as judicial review focuses on the time of the administrative decision, at which point it is not fanciful to suggest that her circumstances could have a bearing on his own intentions to return.

125 Also, the Minister submits that “it cannot be envisaged that the Parliament would have intended decisions such as this to be invalid simply because one insignificant feature of the reasoning in the decision was found to be unreasonable or irrational”. I do not accept the characterisation of the findings at [14] as an “insignificant” feature of the reasoning of the Tribunal. That is because the Tribunal found at [14] and [18] that the applicant’s economic circumstances presented as a “significant” incentive for him to remain in Australia. Further, there were eight (as opposed to only one) significant features involved, namely those described in Mr Domingos’ initial outline of submissions.


Disclaimer: the above is a mere tentative extract of a court decision. The views there expressed might not reflect the views of the OMARA, Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.


Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au

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