Ashraf v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 655

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ashraf v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 655

File number(s):

SYG 3362 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

19 July 2023

Catchwords:

MIGRATION – Student visa – genuine temporary entrant – alleged denial of procedural fairness – template grounds

Legislation:

Administrative Decisions (Judicial Review) Act1977 (Cth)

Migration Act1958 (Cth) ss 349, 359A, 362A, 477

Migration Regulations 1994 (Cth) cl 500.212, 500.411 of Schedule 2

Cases cited:

AAI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 924

CQG15 v Minister for Immigration and Border Protection (2016) FCR 496

Gupta v Minister for Immigration and Border Protection [2016] FCA 1004

Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3150

Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23

MZXHY v Minister for Immigration and Citizenship [2007] FCA 622

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145

Unsab v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1704

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Division:

Division 2 General Federal Law

Number of paragraphs:

62

Date of hearing:

19 July 2023

Place: 

Sydney

The Applicant: 

In person

Solicitor for the Respondents:

Mr T Goodwin of Australian Government Solicitor

ORDERS

SYG 3362 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

NORMAN ASHRAF

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINSTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	19 JULY 2023

THE COURT ORDERS THAT:

1.The application filed on 2 December 2018, is dismissed.

2.The applicant must pay the first respondent’s costs and disbursements of, and incidental to, the application fixed in the amount of $6,000.

3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 1 and 2 above not be entered until the date of publication of written reasons for judgment (revised from transcript), which for the avoidance of doubt and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.

Note: The form of the order is subject to the entry in the Court’s records.

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).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE GIVEN:

1. By an application to show cause filed with this Court on 2 December 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 November 2018 which affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Student (Temporary) (Class TU) visa (visa). 

2. The following background to the application is derived from the submissions of the first respondent and, unless otherwise indicated, does not appear in dispute.

3. The applicant was granted his initial Student (Class TU subclass 573) visa offshore on 13 June 2014, which was valid until 30 September 2016.  He arrived in Australia on 3 July 2014.

4. On 29 September 2016, the applicant applied for the visa (Court Book (CB) 1 to 16).

5. On 3 February 2017, the delegate found that the applicant had not met the criteria required by cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulation), specifically the criterion known as the ‘genuine temporary entrant’ criterion (CB 65 to 73).

6. On 17 February 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 74 to 75).

7. On 27 February 2018, the Tribunal invited the applicant to attend a hearing (CB 91 to 95).  The applicant was also asked to provide a copy of his current Certificate of Enrolment (CoE) and documents relating to his past studies.  The applicant was informed the Tribunal would assess whether he was a genuine applicant for entry and stay as a student and provided a copy of Direction No. 69.  The applicant was asked to provide a written statement addressing the issue of whether he was a genuine applicant.

8. On 15 March 2018, the applicant’s representative responded to the Tribunal’s letter with written submissions and additional documentary evidence (CB 108 to 152).

9. On 22 March 2018, the applicant attended the hearing assisted by his representative (CB 153 to 154).

10. On 12 November 2018, the Tribunal affirmed the delegate’s decision (CB 178 to 184).

11. The applicant’s evidence to the Tribunal is summarised at [7] to [15] of the Tribunal’s decision, which, together with the material sent to the Department, was taken into consideration by the Tribunal (CB 180 to 181 at [16]).

12. The Tribunal considered the applicant’s evidence about his family in Pakistan and placed some weight on his ongoing ties to his home country (CB 182 at [22]).

13. The Tribunal accepted that the applicant had experienced back pain which required him taking some leave from his studies from 30 May to 12 July 2015 (CB 182 at [23]).  However, the Tribunal did not accept the applicant’s account of his medical history during 2015 to 2016, (which included a trip to Pakistan for treatment for a recurrence of typhoid) and was not satisfied that he was a genuine student when he remained in Australia “without studying or progressing academically” during this period (CB 182 to183 at [24] to [25]).

14. In his statement, the applicant said that his failure to continue studying was due in part to the death of his uncle, who had been seriously ill for a long time and had eventually passed away in 2015.  The applicant also submitted a Death Certificate issued by the Government of Punjab which identified the deceased person with a differently spelt name, with the date of death as 10 August 2015 at home, and the nature of death as “normal”.  However, the applicant separately claimed that his failure to progress academically was due to the death of his uncle and aunt in a car accident in August 2015, photos of which were later shown to him which he claimed caused him to suffer from a post-traumatic condition (CB 183 at [26]).

15. The applicant’s evidence relating to which of his relatives had died and whether there was one uncle or two, led to the Tribunal’s conclusion that his evidence was “imprecise, contradictory and therefore unreliable” (CB 183 at [27]).  The Tribunal also noted that the applicant did not return to his home country following the death of his uncle in 2015, and had attended only one session with a psychologist in July 2016.  For these reasons the Tribunal was not satisfied that the death of an uncle was a genuine or sufficient reason for his failure to study and progress academically in 2015 and 2016 (CB 184 at [29]).

16. In relation to employment in Pakistan, the Tribunal noted that although the applicant provided a letter from a particular Company offering the applicant future employment, he had failed to declare that he had already been employed as an Assistant Account Manager with that company for one year during 2012 to 2013 (CB 184 at [30]).  The Tribunal also noted that, prior to his arrival in Australia, the applicant had obtained a Bachelor degree in Business Administration (CB 184 at [31]).

17. Taking this evidence into account, the Tribunal was not satisfied that the time and cost associated with his further study in Australia was justified nor that the applicant planned to complete his MBA and return home to take up the job offer (CB 184 at [30] to [31]).  The Tribunal was additionally not satisfied that the applicant’s enrolment in an MBA course was for reasons of genuine interest or career advancement, and placed weight on the applicant’s circumstances as indicating the visa was intended primarily for maintaining residence in Australia (CB 184 at [32]). 

18. Overall the Tribunal found the criteria for the grant of the visa were not met and that the decision under review should be affirmed (CB 184 [33] at [36]).

    PROCEEDINGS BEFORE THIS COURT

19. On 2 December 2018, the applicant commenced these proceedings, which were initially docketed to another Judge of the Court (first primary Judge).  On 14 January 2019, the applicant appeared before a Registrar of the Court with the assistance of an interpreter in the Urdu language, on which occasion orders were made by consent which provided, inter alia, for the applicant to file and serve any amended application and evidence by 22 April 2019.  The matter was adjourned to a callover on 13 June 2019, on which occasion it was further adjourned to a time notified administratively to the parties.  The matter was subsequently placed in the central migration docket, where it remained following the retirement of the first primary Judge.  On 15 March 2023, the proceedings were docketed to me, and I made orders on that date for the matter to be heard before me today.

20. At the time the applicant commenced these proceedings, he was resident in New South Wales, and the originating application was filed in the Court’s Sydney Registry.  On 13 June 2019, the applicant filed a Notice of Address for Service, to indicate that he resided in Tasmania.  Given that the applicant is resident in Tasmania and the Court is presiding in Sydney, the matter was listed for hearing using the Microsoft Teams platform.  It transpired at the commencement of the hearing that while the applicant confirmed that he while he remains resident in Tasmania, at the time of the hearing he is in Perth, from where he connected to the Microsoft Teams forum.  This is apparently because he has just arrived in Perth on return from a trip to Pakistan.

21. It was not made known to the Court prior to the applicant appearing this morning that he would be in Perth.  As a result, the hearing remained listed at 10.15am (AEST time), being 8.15am in Perth (AWST time).  Had the applicant notified the Court in advance, arrangements could have been made to at least change the hearing time so that the applicant was not required to attend an early hour.  However, given that is not presently daylight savings (which increases the time difference between Sydney and Perth) and that the applicant made no complaint regarding the time (either before or during the hearing) I am satisfied that the start was not anything which was particularly unfair or prejudicial to the applicant.  The applicant had the opportunity to indicate to the Court where he would be located, and did not do so.

22. The applicant is unrepresented, but was assisted at hearing by an interpreter in the Urdu language, who was present in the courtroom in Sydney with me.  The first respondent was represented by a solicitor to whom I also granted leave to appear via Microsoft Teams (despite their being in Sydney).  The online hearing connection appeared clear throughout, and the parties did not seem to have any difficulty in understanding each other or interacting with the Court.  The applicant connected to the Microsoft Teams forum without his camera on, but the audio quality was clear throughout.  The applicant and the Urdu interpreter did not appear to have any difficulty understanding one another.  The applicant is fluent in English and indicated at the commencement of the hearing that he wished to undertake the hearing in English but would use the interpreter if required.  He used the interpreter a few times during the hearing when he wished to have matters clarified and, at my direction, when each of the grounds of review was interpreted to him.

23. The first respondent filed a Court Book in accordance with the Court’s orders, which was received at hearing and marked as Exhibit “1R”.  The first respondent also filed written submissions as ordered.  Despite a grant of leave to do so, the applicant has not filed any amended application.  On 3 June 2019, the applicant filed written submissions which appeared to be a repurposed version of submissions made on his behalf by his (then) solicitor to the Tribunal.  Those submissions direct themselves to the merits of the application by reason of having been made to the Tribunal, whose task it was to determine for itself whether the applicant should be granted a visa.  I indicated to the applicant that I would have regard to the submissions to the extent that they were relevant to the task with which this Court is charged, but that they may therefore be of limited relevance.  

24. I explained to the applicant at the outset of the hearing that the role of this Court is to review the Tribunal’s decision for jurisdictional error, which concept was also explained.  The applicant indicated that he understood.

25. Overall, the written submission of the applicant advanced in this Court is of little assistance in understanding what legal errors the applicant contends are present in the Tribunal’s decision.  The submissions cross-refer to, and attach an array of documents.  The Minister’s solicitors have very diligently prepared a table which compares the annexures to that submission with material in the Court Book.  That exercise, which was of assistance to the Court and for which the solicitors are to be commended, reveals that all but two documents annexed to the applicant's written submissions are already before the Court.  As such, it was unnecessary for me to have regard to those documents.

26. Of the remaining two documents, the first document appears to be an earlier unsigned version of a document which appears already in the Court Book and, to that extent, I have had regard to the document in the Court Book instead.  The second document, a Confirmation of Enrolment document which, by the Minister’s written submissions was explained to have been overlooked for inclusion in the Court Book but ought to have been in there on the basis that it was, in fact, before the Tribunal.  That document has been excised from the written submission and was separately tendered for the Minister and marked as Exhibit “2R”. 

27. An application for judicial review is ordinarily confined to the material put before the Tribunal.  Fresh evidence is not admissible unless it bears on some jurisdictional error: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] per McKerracher J. The first respondent objected to any tender of folios 2, 3 and 5 into evidence on the basis that they are not relevant. This is because the documents post-date the Tribunal’s decision and were not before the Tribunal. The applicant sought to tender the documents so as to invite the Court to disagree with the factual conclusions reached by the Tribunal: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] per Nicholson J and Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 at [27] per Perry J.

28. As noted above, the applicant’s written submissions in these proceedings appear to be an altered version of the submissions which were provided to the Tribunal (Cf CB 109 to 119).  The submissions challenge the merits of the Tribunal’s decision including by reference to events which post-date the delegate’s decision.  The first respondent submitted that it is impermissible for the Court to engage in merits review in the manner sought by the applicant, citing Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 at [55] per Reeves, Robertson and Rangiah JJ.

    Adjournment request

29. While identifying the documents before the Court, the applicant sought an adjournment on the basis that he wanted further time to submit documents.  He also said that he was unwell.  There was no evidence before the Court that the applicant is unwell, let alone of the requisite level to indicate that whatever medical condition from which he claimed to be suffering: see NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6] to [11] per Lindgren J. No details of any malady were given orally. Accordingly, there is nothing probative to suggest that any illness affecting the applicant is such as to prevent him from participating in today’s hearing. To the extent that the applicant wanted further time to submit documents, he did not particularise what those documents are. I note in the circumstances where the proceedings have been on foot for four and a half years that the applicant has had ample time to do so. Accordingly, the adjournment request was refused

    Grounds of review

30. In the absence of an amended application, the grounds which arise for consideration are those contained within the originating application as follows:

    1.There is breach of the rules of natural justice occurred in connection with the making of the decision;

    2.that procedures that were required by law to be observed in connection with the making of the decision were not observed;

    3.that the person who purported to make the decision did not have jurisdiction to make the decision;

    4.that the decision was not authorised by the enactment in pursuance of which it was purported to be made;

    5.that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

    6.that the decision involved an error of law, whether or not the error appears on the record of the decision;

    7.that the decision was induced or affected by fraud;

    8.that there was no evidence or other material to justify the making of the decision; and

    9.that the decision was otherwise contrary to law.

31. The difficulty with these grounds is that, like the applicant’s written submissions, they are not directed specifically to the review at hand.  That is because, as I discussed with the applicant at the hearing, they appear to be template grounds which have been used in other cases.  The Court indicated that there was reason to believe that the grounds may not have been drafted specifically for this matter and asked the applicant to explain the provenance of the grounds.  The applicant said that he had gone to a “MARA”[1] agent to discuss his matter and that the agent had prepared the grounds for him.  The applicant conceded that he had filed the application himself.  This was explored later with the applicant in the hearing, given that the application bears his signature, and I will refer later to the discussions had with the applicant.

    [1] Which the Court assumes is an abbreviated reference to the Migration Agent Registration Authority

32. The applicant said that his application is now four and a half years old, and he did not know whether, after drafting grounds for the applicant the agent might have given them to other persons in the course of giving other persons advice.  I indicated to the applicant that it is not possible to ascertain whether or not the grounds were drafted for him and given to others or vice versa.

33. The Court has located at least two cases (and there may be more waiting in the Central Migration Docket awaiting a hearing) in which Pakistani nationals seeking student visas have raised identical grounds before this Court: see Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3150 at [11] per Judge Humphreys and Unsab v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1704 at [13] per Judge Driver. The existence of these cases raising identical grounds gives rise to the inference that there is someone in the Pakistani community who is circulating grounds of review for indiscriminate use in this Court. It is certainly hoped that said person has not been paid for the grounds, which can generously be described as generic and, at least in respect of ground 4, stems from the Administrative Decisions (Judicial Review) Act1977 (Cth), which has no application to a review of this kind having been brought under s 477 the Migration Act1958 (Cth) (Act).

1. In similar circumstances in AAI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 924, this Court discussed the risks involved in applicants raising generic template grounds:

   It is open to infer, and I do, that these grounds have been circulated by a person or persons within the Malaysian community for indiscriminate use in this Court. It is hoped that the applicant has not paid for the opportunity to use these grounds. However, given the explanation proffered by the originating application, together with what the applicant said at the hearing about her brother following the advice of a particular person, sadly I fear it may be the case. In SZLHM v Minister for Immigration and Citizenship [2008] FCA 754 at [35] to [36] Flick J said the following about the use by unrepresented litigants of template grounds:

   [35] First, there is a self-evident difficulty if a ground which may have prevailed in one set of circumstances is sought to be transposed to different proceedings in which the ground is simply not apposite. The success of a particular argument in the circumstances of a particular case obviously does not mean that the same argument will always prevail and does not mean that the argument is even appropriate to be advanced in other proceedings.

   [36] It may well be understandable that an unrepresented litigant may wish to call upon all possible arguments and that an unrepresented litigant may well lack the ability to discern whether an otherwise successful argument is even relevant to his own circumstances. Indiscriminate reliance, however, upon arguments transposed from other proceedings may simply provide false hope to the unrepresented. And indiscriminate reliance upon grounds divorced from the circumstances of the particular proceedings under consideration may well only serve to detract from such prospects of success as an application may otherwise present.

   However, despite being template grounds, and even if it was unscrupulous for whomever drafted them to proffer them to the applicants for generic use, the grounds must still be considered for the purpose of assessing whether, when applied to the facts of this case, they are sufficiently meritorious at an impressionistic level to warrant their consideration on a final basis, such that it would be necessary in the interests of justice to extend time in order to enable that to occur.

2. As was the approach taken in AAI18 (supra), I will nonetheless consider the grounds as raised to the extent that they may intersect with the Tribunal’s decision in the immediate applicant’s case and could still give rise to jurisdictional error.  The Court had each of the grounds interpreted to the applicant, who was given an opportunity to say what he wished to in respect of each of them.  The applicant was also given an opportunity to make submissions in reply, albeit he did not avail himself of that opportunity. 

   Grounds 1, 2 and 5

3. Grounds 1, 2 and 5 overlap sufficiently as to warrant being grouped together.  These were interpreted to the applicant, and he was asked to address them.  Specifically he was asked to explain to the Court what aspects of the Tribunal’s hearing or the procedures that it was required to follow had not been adhered to such that he said he was denied procedural fairness or natural justice.

4. The applicant commenced his submissions by saying that his application had been decided on the basis that he was not found to be a genuine temporary entrant.  The applicant said that he was studying and that at the time his Tribunal hearing was conducted, he had been in the third semester of his MBA course.  The applicant said that at the Tribunal hearing, he submitted all of the documents to prove that he was a genuine student both in Australia and previously in Pakistan as well.  The applicant made reference to an accident involving his uncle and said that this had affected his studies.  The Court indicated that these matters seemed to be going to the merits of whether or not the applicant ought to have been granted the visa.  The Court attempted to redirect the applicant’s submissions to the task at hand, namely, addressing the allegation that he had been denied procedural fairness.

5. The applicant said that he did not think that the Tribunal had not followed proper procedures.  He said that he was satisfied.  He said that he thought that there was an error in his application.  The Court sought to ascertain to which application the applicant was referring, and he said that he was referring to his Federal Circuit Court application which his agent had drafted for him and that he thought that the agent had made an error in the preparation of it.  Using the services of the interpreter, I sought to clarify this, and the applicant said that he had spoken to his migration agent, that the agent was the one who had drafted the application to this Court, but that he had submitted the application by himself.  He said that as far as these grounds were concerned, the Tribunal did not listen to his evidence properly.

6. When asked if there was specific evidence to which the applicant was referring or whether or not he felt that he had not being listened to by virtue of the fact that the Tribunal had not accepted that he was a genuine temporary entrant, the applicant made reference to documents having been submitted which were not taken into account.  The Court asked the applicant to identify the documents.  The first document was said to be a psychologist’s report which the applicant submitted to the Tribunal.  A copy of it appears in the Court Book.  As can be seen from [28] and [29] of the Tribunal’s decision, the Tribunal specifically made reference to, and considered this psychologist report.

7. The applicant next made reference to his academic record and in particular the fact he had made progress in his MBA.  As can be seen from [23] of the Tribunal’s reasons for decision, this was also taken into account.  The applicant concluded his submissions in relations to ground 1, 2 and 5 by saying that he just felt that he was a genuine student.  Even after the Tribunal, he had completed his studies, and that was all that he had to say.

8. The first respondent submits that the Tribunal complied with its obligations for the following reasons:

   (a)the Tribunal invited the applicant to appear in accordance with ss 360 and 360A of the Act;

   (b)at the hearing, the applicant was provided with a meaningful opportunity to give evidence and present arguments relating to whether he was a genuine temporary entrant;

   (c)the Tribunal was not required to put the applicant’s academic history to him pursuant to s 359A of the Act because this was information provided by the applicant to the Tribunal: s 359A(4)(b) of the Act and CB 110 to 116;

   (d)‘information’ for the purpose of s 359A does not include the “existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Nor does it include “the Tribunal's subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn, Merkel and Stone JJ; and

   (e)the applicant was granted access to written material given to the Tribunal for the purpose of the review: s 362A of the Act and CB 88 to 90.

9. In the absence of a failure to comply with procedures required by law, it is not apparent how the Tribunal decision could be said to have been an improper exercise of power.  Nor is there evidence to support a complaint of an improper exercise of power.

10. The Tribunal was required to accord to the applicant a fair process by reference to the parameters of the Act and certain requirements at common law. On the materials before the Court, there is nothing to suggest that the Tribunal departed from the requirements of procedural fairness or natural justice, to the extent that the applicant has used both expressions.

11. To the extent that from the submissions he made to the Court today it appears that he is dissatisfied with the Tribunal’s ultimate conclusion that he was not a genuine temporary entrant, this does not in and of itself give rise to a jurisdictional error.  Moreover, it does not demonstrate that the applicant was in any way denied natural justice or procedural fairness.  As was made clear in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ “what is required by procedural fairness, is a fair hearing, not a fair outcome”.

12. The applicant may well be aggrieved by the fact that he was not accepted as being a genuine temporary entrant.  However, that does not mean that the procedures of the Tribunal were not followed.  For the reasons that I’ve already set out, none of grounds 1, 2 or 5 is made out.

    Grounds 3 and 4

13. Grounds 3 and 4 can also be grouped together.  They were interpreted to the applicant, and he was asked to explain to the Court how, or why, it was that he alleges that the Tribunal had no jurisdiction to make its decision or why it was not authorised by the enactment in pursuance of which it was purported to be made.  When asked to speak to these grounds, the applicant said that this was not what he had intended to say.  Again, this was taken to be a reference to the agent who had drafted the grounds, not having encapsulated what the applicant’s particular grievance with the Tribunal's decision was.  This was understood by the Court to be an allegation that the Tribunal unfairly decided his application.

14. The Tribunal has jurisdiction to review Part 5 reviewable decisions where an application is made under s 347 of the Act: see s 348(1) of the Act. The first respondent submitted that the delegate’s decision was a Part-5 reviewable under s 338(2) of the Act because:

    (a)it concerned a decision to refuse to grant the applicant a visa;

    (b)the visa could be granted while the applicant was in the migration zone: see cl 500.411 of Schedule 2 of the Regulations; and

    (c)the applicant applied for the visa while in the migration zone (CB 71 to 118).

15. The applicant applied to the Tribunal for review under s 347 of the Act (CB 74 to 75). As such, the Tribunal had jurisdiction to review the application and make a decision pursuant to s 349(2) of the Act.

16. On my reading of the decision and of the statute, there is no basis to conclude that the Tribunal was acting beyond jurisdiction, nor that there was anything defective in relation to that jurisdiction.  The fact, again, that the applicant is not satisfied that the Tribunal found in his favour or more specifically that he was found to be a genuine temporary entrant does nothing to affect the jurisdiction of the Tribunal.  

17. Accordingly, grounds 3 and 4 do not establish error.

    Grounds 6 and 9

18. Ground 6 and 9 of the application alleges that the Tribunal’s decision involved an error of law or was made contrary to law respectively. These grounds were interpreted to the applicant, and he was asked to address them and to explain to the Court the basis of the allegations that the Tribunal’s decision was contrary to law. The applicant said in relation to these grounds that, he had nothing to say. There is nothing before me to suggest that the Tribunal proceeded otherwise than according to law. It has set out the relevant criteria for the grant of the visa and has addressed those. The Tribunal was not satisfied on the basis of the material before it that the applicant was a genuine applicant for entry and stay as a student required by cl 500.212, and that conclusion appears to be open on the material before the Tribunal and for the reasons which it gave.

19. Accordingly, I am not satisfied that grounds 6 or 9 are made out.

    Ground 7

20. By ground 7, the applicant alleged that the decision of the Tribunal was induced, or affected, by fraud.  Having regard to the earlier observations about the grounds not apparently being directed to the decision in question, nor to the applicant’s particular circumstances, a serious allegation of this kind being made without basis is concerning.  However, the applicant was asked to explain this ground.  He said that he told the agent that the decision was not a fair one but the allegation as contained in ground 7 was not what the applicant told the agent to include.

21. At this point, I asked the applicant whether or not, given that his signature appears on the application, he had read the grounds before he submitted the application, which is something that he readily concedes he did by himself.  The applicant said he did read them but he “wasn't sure about them” and that the agent had told him that it didn’t really matter what was in the application, that he should just come to the Court and explain himself.  Notwithstanding the fact that the applicant is an educated person who has completed a number of tertiary qualifications, he concedes that he did not properly read the grounds or seek to understand them.  He says that he thought that he would come to the Court and explain himself.  The applicant has been given the opportunity to do so today.  The essence of his complaint about the Tribunal’s decision is simply that it did not accept him to be a genuine temporary entrant and that this was the basis upon which he was refused the visa.

22. In all the circumstances of this case and overall, there is no properly particularised allegation of fraud before the Court, let alone any evidence to substantiate it.  The bar to establish fraud in an administrative context such that the Tribunal’s decision would be vitiated, is a high one.  The applicant by his own admission has not attempted to meet that evidential burden, let alone has he done so. 

23. Ground 7 must be dismissed.

    Ground 8

24. In relation to ground 8, which is the final ground to be addressed, it alleges that there was no evidence or other material to justify the making of the Tribunal’s decision.  The ground was interpreted to the applicant, and he was invited to make submissions in relation to it.  The applicant said that he felt that the documents that he had provided as evidence ought to have been fairly considered by the Tribunal.  The applicant said, “This is all my case.  I wanted them to make a fair decision.”  The applicant said that he has nothing against the Tribunal or the Minister, and that he came before the Court in the hope that he would be given a fair outcome.  Again, as I explained to the applicant at the outset, it is not a matter for the Court to determine whether or not he should be granted the visa, nor whether or not he is a genuine temporary entrant.

25. Ground 8, in essence, cavils with the Tribunal’s factual findings.  The basis of the Tribunal’s decision and its lack of satisfaction that the applicant was a genuine applicant for entry and stay as a student was open to it, on the materials before it, and for the reasons that it gave.  It was for the applicant to satisfy the Tribunal of those matters and, it appears, that he did not.  It is also well-established that a decision-maker is not obliged to uncritically accept an applicant’s evidence and does not require rebutting evidence before holding that a factual assertion is not made out: CQG15 v Minister for Immigration and Border Protection (2016) FCR 496 at [65] per McKerracher, Griffiths and Rangiah JJ.

26. Ground 8 is also not established.

    CONCLUSION

27. In the absence of any of the grounds of review being made out on the evidence before the Court, the decision of the Tribunal is not affected by jurisdictional error.  Absent jurisdictional error, the decision is a privative clause decision and should be dismissed.  I will so order.

    COSTS

28. Consequent upon the dismissal of the application, the solicitor for the Minister sought costs fixed in the sum of $6,000.  The applicant was asked to say anything he wished to as to whether or not costs ought follow the event and, if so, in what amount.  The applicant indicated that he could pay approximately half of this amount.  The impecuniosity of the applicant is not a basis upon which the Court would otherwise deny the successful party, in this case the Minister, a reasonable amount of their costs on a party/party basis.  The matter was concluded at a final hearing. 

29. The Court scale for a final hearing presently provides for an amount for proceedings concluded at a final hearing of $8,371.30.  In the circumstances of this case, I am satisfied that costs ought follow the event.  I am also satisfied that the amount sought, both by reference to the work done in the matter and its complexity and by reference to the scale amount (which is significantly higher than the amount sought) is reasonable.

I certify that the preceding sixty-two (62 numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated: 28 August 2023