Avramovic v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1356
•10 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Avramovic v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1356
File number(s): MLG 362 of 2020 Judgment of: JUDGE CUTHBERTSON Date of judgment: 10 December 2024 Catchwords: MIGRATION – application for judicial review – Student (Subclass 500) visa – decision of Administrative Appeals Tribunal – where delegate determined that applicant was not a genuine temporary entrant – whether Tribunal was required to consider hardship – whether the Tribunal properly applied Ministerial Direction No 69 – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 348(1), 476, 499
Migration Regulations 1994 (Cth) cll 500.211(a), 500.212 of Sch 2
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Kaur v Minister for Home Affairs [2019] FCA 2026
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179
Silva v Minister for Home Affairs [2024] FedCFamC2G 357
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submission/s: 16 October 2024 Date of hearing: 16 October 2024 Place: Melbourne Counsel for the Applicants: Mr S. Bandara Solicitor for the Applicants: Pls Lawyers Counsel for the First Respondent: Mr J. Mintz Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 362 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MICA AVRAMOVIC
First Applicant
ANDRIJA BOJOVIC
Second Applicant
MASTER JAKSA BOJOVIC
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
10 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The amended application filed on 18 September 2024 be dismissed.
4.The first and second applicants pay the first respondent’s costs of and incidental to these proceedings, fixed in the sum of $7,467.00.
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).
REASONS FOR JUDGMENT
JUDGE CUTHBERTSON
INTRODUCTION
The first applicant, a citizen of Serbia, first arrived in Australia on 26 April 2013 as the holder of a student visa. The applicant was granted a further student visa in 2015 and a Temporary Graduate visa in 2016. On 9 May 2018, the applicant applied for a Student (Temporary) (Class TU) Subclass 500 visa for the purposes of undertaking a program of vocational courses in Commercial Cookery and culminating in a Diploma of Hospitality Management. The second and third applicants (the applicant’s husband and son respectively) were included in the visa application as family members of the applicant. The visa applications were refused by a delegate of the first respondent (the Minister) on 15 June 2018 who was not satisfied the applicant was a genuine temporary entrant (GTE) as required by cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth).
The applicants then applied to the Administrative Appeals Tribunal for merits review of the delegate’s decision (the review application). On 14 January 2020, the Tribunal affirmed the delegate’s decision. The applicant has now filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of the Tribunal’s decision (the application).
The Minister opposes the application. For the reasons set out below, the application is dismissed.
BACKGROUND
The review application
The applicants filed the review application with the Tribunal on 2 July 2018.
On 16 September 2019, the Tribunal invited the applicant to provide further information about her eligibility for the visa. That invitation identified the relevant requirements for the visa (namely that the applicant must be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student), inviting the applicant to give information in writing about the course of study she was undertaking and her entry and stay in Australia as a student. A link was provided to an online ‘Request for Student Visa Information’ form which included specific details about the information being requested. The applicant was also directed to Ministerial Direction No 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (MD 69). A copy of MD 69 was attached to the invitation letter.
On 26 September 2019, the applicant requested an extension of time from the Tribunal in order to obtain a Confirmation of Enrolment letter from her education provider. The applicant was provided an extension until 7 October 2019. On 7 October 2019, the applicant submitted a completed ‘Request for Student Visa Information’ form to the Tribunal together with three pages of submissions and supporting documents which included an updated Confirmation of Enrolment (CoE).
In that form, the applicant identified previous courses of study undertaken in Australia, the most recent of which, a Masters of Professional Accounting, was completed in December 2015. The form also identified the applicant enrolled in a Master of Commerce (International Business) which commenced in February 2016. She did not complete that course with it ending in March 2016.
The applicant also indicated in the form that she had a current CoE in a registered course of study. The current enrolment consisted of the same package of courses referred to in her visa application with a commencement date of 20 January 2020 and end date of 16 January 2022. In response to a question asking details of how and why the applicant chose the education provider for the course she was currently studying or proposing to study in the future, the applicant answered:
Searching and looking for education provider I have found course which I believe would give me competitive skills and wide knowledge in hospitality industry .The details of the education provider shows that their programs are very professional.
In response to a question asking whether there are similar courses available in the applicant’s home country to those which the applicant is studying and/or propose to study in Australia, the applicant answered:
The main reason for undertaking a course in Australia is not only the quality of the course but also that it is different to what is available in my country. Studies in this field in Australia have that advantage that there is this uniqueness in the curriculum and the knowledge and skills obtained. I have learned that Australians are very sought after in hospitality industry even in France. When this is the case I find it silly to even mention the advantages with completed Australian hospitality studies that I would have in Serbia.
There certainly would be more opportunities for myself in hospitality industry in Serbia if I finish the course here. Australian qualifications are worldwide recognised qualification, meeting different cultures, working with people from different countries. So doing the course here could give me better chance to work in hospitality industry all around the world. There are opportunities such as working on cruise ships, making career somewhere in Europe. But my heart and soul is in my plans for having my own business in this field in my home country.
In response to a question asking for details of the applicant’s plans, including employment plans, at the completion of the course(s) of study, the applicant answered:
In the beginning I would most likely be the only chef/cook. Hopefully with the relevant management knowledge as well as my accounting background I would be able to grow the business and employ other people and then my position would be the one of owner/manager rather than an owner/cook/manager. I am not talking only about setting up a bar or a restaurant but a catering business including banquet or event/function planner business or even a small health retreat. I am very excited about these plans as I see great possibilities because much of it would be new in Serbia.
In her written submissions, the applicant outlined the following:
·the applicant and the second applicant genuinely intend to stay in Australia temporarily;
·they had taken this path because they believe if the applicant studied and completed the new course she would get better career prospects in the future;
·since completing her accounting course, her career prospects in the field have changed in Australia, her home country and elsewhere. She realises due to her age, level of English and lack of work experience she does not have good chances for a career in accounting. There is a huge supply of qualified accountants;
·by contrast not many young people especially in her home country enrol in hospitality occupations;
·having become a mother, her outlook on life has changed. Her motherly instincts to feed her family with healthier food and television food shows ignited her interest in the food and hospitality industry;
·she did not get a job in accounting in either Australia or Serbia. At the same time she realised cooks and hospitality managers have better career opportunities in many countries including her home country where she would ultimately use her skills and knowledge to set up her own business. Her accounting background would help her to grow the business. Her plan was to set up a catering business, including banquet or event/function planner business or even a small health retreat;
·much of it would be new in Serbia. Tourism is getting better every year. Skills gained in Australia would give her an advantage;
·completing the course would help her gain endless career paths in the field of hospitality such as in food and beverage within hospitals, universities, museums, event management, entertainment, sports or hotels;
·when on a student visa she completed the courses in which she enrolled and always complied with visa requirements;
·both her and her husband have families in Serbia and no relatives in Australia. It is only the possibility of the applicant gaining new qualifications and relevant knowledge and skills that keeps them here. Staying away from families and close long-standing friends is very painful. But returning home with something that gives them better opportunity for their future would be worth spending all the time away from their dearest.
On 18 December 2019, the Tribunal wrote to the applicant inviting her to attend a hearing on 14 January 2020 to give evidence and present arguments relating to the issues in her case. The letter requested the applicant provide all documents she intended to rely on to establish she met the criteria for the visa. The letter advised that the applicant should have regard to the refusal decision and any changes in her circumstances in providing documents and preparing for the hearing. The Tribunal also requested it be provided the following information at least 7 days before the hearing date:
1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia. Please note, if you have recently provided these documents to the Tribunal, there is no need to submit them again, but please ensure that you have provided us with the most up-to-date information.
3. We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
The Tribunal hearing took place on 14 January 2019, and the applicant attended without representation. The Tribunal made an oral decision affirming the delegate’s decision. The hearing record records that no documentation was received during the course of the review hearing.
The applicants were provided a letter from the Tribunal enclosing a written record of the outcome of the review on 14 January 2019. The letter also advised of the applicant’s right under the Act to request a written statement of decision and reasons. On 31 January 2020, the Tribunal “as requested” emailed the applicant an audio copy of the hearing. On 4 February 2020, the applicant requested a written decision.
On 11 February 2020, the Tribunal sent the applicant a written statement of the decision and reasons which were given orally at the hearing.
THE TRIBUNAL’S DECISION
The Tribunal noted at [3] the applicant must satisfy a range of criteria set out in the Regulations to be eligible for the grant of the visa. At [5] the Tribunal stated:
5. To satisfy clause 500.212 an applicant must be both a genuine student and a genuine temporary entrant. To be a genuine student you must be engaged in and applying yourself to a meaningful program of study progressing academically along an identifiable academic pathway. To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily.
The Tribunal referred to the GTE requirement and MD 69 at [6]-[10] noting the delegate’s decision and the Tribunal’s hearing notice had put the applicant on notice of the issues in her case. The Tribunal at [7] noted MD 69 was “not intended as a check list but as a guide for decision makers in weighing up an applicant’s circumstances on the whole in deciding whether or not they are genuine temporary entrants”.
The applicant answered questions directed at the issues arising from the GTE requirements and provided evidence of past studies. The Tribunal noted the applicant’s study and student visa history. It noted at [13] she had completed the equivalent of a Bachelor’s degree in Economics and Accounting prior to coming to Australia. It also noted at [14] that since her arrival in Australia, the applicant had completed a Graduate Certificate of Commerce (International Business) and a Masters of Professional Accounting. Subsequently, the applicant participated in the Skilled Migration Internship Program in Accounting. The Tribunal observed that program is one designed as a pathway to permanent migration in fields where Australia has professional needs. The applicant had earlier obtained a 485 temporary graduate visa which is intended to enable graduates to gain experience in their field of study. The Tribunal noted at [16] the applicant did not use the time on the visa to gain experience as an accountant but worked as a bookkeeper for a short time and then in a factory before entering the internship program.
The Tribunal then dealt with the applicant’s explanations for enrolling in the package of cookery and hospitality courses shortly before applying for the visa. It noted at [18] the applicant’s explanation that she was keen to provide security to her family. The Tribunal noted the applicant did not start that course in June 2018 despite there being no study restrictions on her visa. It further noted at [19] the applicant was unable to accurately answer a question about the number of units required to be completed to be granted the Certificate III in Commercial Cookery, as well as having “no idea” about the requirements for a Certificate IV or Diploma of Hospitality. The Tribunal stated this led it to believe she had done little or no research into her chosen courses.
The Tribunal then explained at [20] the history of the applicant’s previous studies and the timing of events led it to form the view that the applicant’s motivation was not the pursuit of academic progress, but rather a desire to remain resident in Australia.
The Tribunal did not believe the proposed course of study would provide the applicant any greater career opportunities than those already obtained. It noted at [21] that the Australian Government had identified a shortage of qualified professions in accountancy and yet the applicant claimed being unable to find work in this field, leading her to the decision to pursue study at the lower vocational education and training sector level.
The Tribunal at [22]-[23] described the applicant’s answers to questions about future plans to be inconsistent in various submissions. In one declaration she stated she would be seeking full time employment in accounting. By contrast, the applicant indicated previously and at the Tribunal hearing that she saw her future in the hospitality industry. She claimed completion of the proposed studies would make her a valuable asset as a chef in a restaurant. She also explained her aim was to set up her own business or have opportunities to work on cruise ships or make a career in Europe. She also mentioned working in hospitals, universities, museums or event management. Based on the applicant’s own evidence, the Tribunal found the proposed studies were “not guided by any considered business plan”.
The Tribunal at [24] did not consider the applicant’s responses when asked why she did not do her proposed studies at home to be satisfactory. The Tribunal records the applicant indicated she knew what courses are available at home, but that study in Australia is highly regarded and recognised worldwide. The Tribunal recorded its belief that similar courses were available in her home country or region and that the applicant had not provided any valid reason for not doing the studies there.
The Tribunal noted at [25] that if the visa were granted, it would bring the applicant’s time in Australia on temporary visas to more than nine years. It accepted that some educational and career pathways require extensive study, but was not satisfied the applicant’s future goals fell into this category. The Tribunal acknowledged the applicant had family and friends back home which may provide some incentive to return, but against this the applicant appeared settled in Australia. The applicant and her husband also had a long and strong history of work in Australia. The applicant is recorded saying on multiple occasions that her son deserves a better future. The Tribunal took this to mean the applicant’s choice would be for her son to remain in Australia. The Tribunal noted its belief the disparity in economic circumstances between Serbia and Australia together with her current circumstances presented a strong incentive to remain here.
The Tribunal concluded it did not believe the evidence of an incentive to return to Serbia outweighed the issues it discussed with the applicant or her migration history. Considering the applicant’s circumstances as a whole, including the issues in MD 69, the Tribunal recorded it was satisfied the applicant was not a genuine student who intends to stay temporarily in Australia and did not satisfy cl 500.212 of the Regulations.
THE APPLICATION FOR REVIEW IN THIS COURT
An amended application for judicial review was filed on 18 September 2024 setting out the following grounds:
1. The Administrative Appeals Tribunal erred in law when in exercising its discretion not to grant Student (Class TU) (Subclass 500) visa in that it did not have regard to all the relevant circumstances including but not limited to matters identified in the department's policy guidelines and as such the decision of the Administrative Appeals Tribunal was a denial of procedural fairness and breach of natural justice, relevantly including but not limited to the following;
(a) The purpose of the Applicant's travel to and stay in Australia. The Applicant was in Australia primarily on Subclass TU573 (Higher Education Sector) Master of Commerce (International Business) and English for Academic purposes
(b) The applicant realised that with her age, level of English language and no work experience in the accounting field she will not have good chances for career in accounting and decided to lodge a Student (Temporary) (Class TU) student (Subclass 500) visa for Certificate III in Commercial Cookery and Diploma hospitality Management.
(c) that the Applicant had satisfied all the requirements to be granted a visa to study in Australia
(d) The degree of hardship that may be caused to the Applicant and her family members. The Applicant had invested a lot of money and time in coming to Australia to further her education. She had completed her Master of Commerce (International Business and English for Academic Purpose in Australia. She was entitled to be granted a visa to complete her Certificate III in Commercial Cookery and Diploma of hospitality Management.
(e) The applicant’s past and present behaviour towards the department. The Applicant had been and was and is a visa holder without issues with the Immigration Department. She always with all her visa conditions that she had.
2. The Administrative Appeals Tribunal erred in law and/or in fact fell into jurisdictional error when despite the warnings it gave to itself, it considered the direction the Minister made under s 499 of the Migration Act 1958 which set out certain factors guiding decision makers in assessing whether an applicant for a visa "intends genuinely to stay in Australia temporarily" as a checklist and/or as a mandatory and/or binding checklist.
HEARING OF APPLICATION
The hearing in this matter was conducted on 16 October 2024. The applicants were represented by a solicitor, Mr Bandara. The Court Book filed by the Minister on 15 July 2020 was tendered and marked R1. Both parties filed written submissions.
RELEVANT LEGAL PRINCIPLES
The Court’s jurisdiction
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicants’ claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicants if they establish the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Statutory Context
Section 65(1)(b) of the Act provides that after considering a valid application for a visa, the Minister, if not satisfied that criteria prescribed by the Act or the regulations for the visa have been satisfied, is to refuse the visa. Conversely, if satisfied of the prescribed criteria, the Minister is to grant the visa. Section 65, therefore, casts an obligation on the Minister to grant or refuse to grant a visa: Minister for Immigration and Multicultural Affairs v SGLB[2004] HCA 32 at [37] per Gummow and Hayne JJ; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at [34], per Crennan, Bell, Gageler and Keane JJ. When undertaking its review function, the Tribunal is similarly required to consider whether the criteria prescribed by the Act or the regulations for the visa have been satisfied and grant the visa accordingly: SGLB at [37]. It is not correct, therefore, to characterise the Tribunal’s jurisdiction in this context as one involving the exercise of discretion as the applicants’ first ground of review does.
The relevant criteria required to be satisfied for the visa are set out in Sch 2 to the Regulations. Clause 500.2, which sets out the primary criteria for the visa, provides that all criteria must be satisfied “at the time a decision is made on the application”. This necessarily includes at the time of any decision made by the Tribunal on review.
The primary criteria for the visa include those set out in cl 500.212 of Sch 2 to the Regulations, which provides as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor–the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Clause 500.212(a) concerns the GTE criterion.
The proper construction of cl 500.212 was the subject of a decision of the Full Court of the Federal Court in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25 per Jagot, Bromwich and Lee JJ. At [31], the Full Court recognised the criterion “requires satisfaction of a single state of affairs”. The language of the provision and its components “creates a waterfall effect”, “giving rise to a ‘whole idea or conception: “a genuine applicant for entry and stay as a student”’”. Each of subcll (a), (b) and (c) demand discrete inquiries meaning that cl 500.212 requires the cumulative satisfaction of discrete elements. If one of those elements is not satisfied, “the decision-maker need not continue their inquiry”: at [32].
At [35], the Full Court summarised the following “mutually inclusive propositions” distilled from the authorities concerning the construction of cl 500.212 as follows (citations omitted):
(1) An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of “any other relevant matter” pursuant to subcl (c).
(2) Subclauses (a), (b) and (c) address separate matters and require separate analyses.
(3) It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly.
(4) An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa…If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the “whole idea or conception” contained in cl 500.212.
Satisfaction of cl 500.212 requires an applicant to be both a genuine temporary entrant and a genuine student: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [8], per Allsop CJ.
Section 499(1) of the Act provides the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Where such a direction has been made, the person or body must comply with it: s 499(2A). MD 69 is such a direction. It provides that it applies to members of the Tribunal who review the decisions of primary decision-makers in relation to a Student visa.
The preamble to MD 69 relevantly provides:
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a. the applicant’s circumstances; and
b. the applicant’s immigration history; and
c. if the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
The directions on assessing the GTE criterion relevantly state:
1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b. considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4. Circumstances where further scrutiny may be appropriate include but are not limited to:
…
c. the applicant intends to study in a field unrelated to their previous studies or employment; …
…
5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
In relation to the applicant’s circumstances, paragraph 6 of MD 69 provides that decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia. Paragraph 7 of MD 69 provides that for primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future. Paragraph 8 of MD 69 provides that weight should be placed on an applicant’s circumstances that indicate the visa is intended primarily for maintaining residence in Australia.
In relation to the applicant’s circumstances in their home country, paragraph 9 of MD 69 relevantly provides the decision makers should have regard to:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b. the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia….
In relation to the applicant’s potential circumstances in Australia, paragraph 11 of MD 69 provides decision makers should have regard to:
a. The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b. evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c. whether the Student visa … is being used to maintain ongoing residence;
…
e. the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
In respect of the value of a course to the applicant’s future, paragraph 12 of MD 69 provides decision makers should have regard to the following factors:
a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b. relevance of the course to the student's past or proposed future employment either in their home country or a third country; and
c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
When considering an applicant’s immigration history (which refers to both their visa and travel history), paragraph 14 of MD 69 relevantly provides decision makers should have regard to whether previous applications for an Australian temporary visa were granted and the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence. This includes considering whether the applicant has undertaken a series of short, inexpensive courses.
Where a secondary applicant is a minor (as is the case with the third applicant), paragraph 15 of MD 69 provides decision makers should have regard to the intentions of a parent of the applicant. Finally, paragraph 16 provides decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia, including information that may be beneficial or unfavourable to the applicant.
In Kaur v Minister for Home Affairs [2019] FCA 2026, Steward J considered the interaction of cl 500.212(a) of the Regulations and MD 69. He observed at [29] that cl 500.212(a) set out four factors which must be applied when making the finding of fact whether an applicant does or does not intent to stay in Australia temporarily. MD 69, in turn, must be applied. However, the language of MD 69 directs that the factors identified in the direction should be considered and should not be treated as a checklist but as a guide. Consequently, those factors which a decision maker must take into account are those which are the subject of substantial, clearly articulated claims made by the applicant. A failure to do so may well constitute jurisdictional error. Further, a failure to consider a claim engaging a factor listed in MD 69 apparent on the face of the material before the Tribunal and which clearly emerges from that material, may also constitute jurisdictional error: Kaur at [30]; see also Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [15], per Middleton J.
CONSIDERATION
Ground 1
This ground alleges the Tribunal erred by not having regard to all the relevant circumstances including those identified in the department’s policy guidelines. It is asserted this constituted a denial of procedural fairness and a breach of natural justice. Five categories of circumstances were identified.
Applicant’s submissions
At the hearing, the applicant confirmed the reference to the “department’s policy guidelines” in ground 1 was a reference to MD 69.
The applicant first addressed particulars (a) and (b) which were directed at the applicant’s purpose in travelling to and staying in Australia and changing direction with her studies. In written submissions, the applicant argued the material provided to the Tribunal evidenced her commitment to further study and her potential capacity to undertake another course. It was submitted this evidence “was a sufficient basis for the Tribunal to be required to grant” the visa “and/or refer the matter back to the department for reconsideration”.
The applicant submitted the review was a de novo hearing but that the Tribunal had failed to consider the applicants’ circumstances and the value of the course to the applicant when affirming the decision to refuse the visa. Reference in this context was made to the applicant’s explanation for her decision to change her study to the hospitality industry “as there will be no prospect of obtaining career in accounting with her English knowledge” and absence of experience in the accounting field. It was also submitted in this respect that the applicant had “emphasised” in her submissions to the Tribunal that “she has always been responsible and now she has children, and she is more serious about all aspects of life. She wanted return to her home country with more competitive qualifications and skills”.
During the hearing, it was submitted on behalf of the applicant that she had “a right and legitimate expectation” to change her course. I sought to clarify whether the applicant disputed that the Tribunal was entitled to interrogate the applicant’s evidence and consider for itself whether it was satisfied with her explanation for the change of course. Mr Bandara accepted the Tribunal had a right to interrogate those explanations but argued it had failed to look objectively at the applicant’s circumstances and instead had arbitrarily decided the applicant had to follow the same pathway. When asked to identify what demonstrates the Tribunal’s decision was an arbitrary one as opposed to one arrived at by consideration of the entirety of the evidence and a process of accepting or not accepting parts of it, Mr Bandara referred to the applicant’s claims in her written submissions and oral evidence to the Tribunal. He also suggested the Tribunal had not even considered the applicant’s explanation.
It was further submitted the Tribunal’s questioning of the applicant was all going in one direction. It was asserted the Tribunal’s attitude as a whole was to find a basis to refuse the applicant’s visa including by questioning the applicant about the detail of the courses she was proposing to study. When questioned whether this was an assertion of bias (actual or apprehended) and whether this was raised in the grounds of the application, Mr Bandara suggested it was encompassed by the allegation of denial of procedural fairness set out in this ground.
Mr Bandara referred to the Tribunal’s questioning of the applicant as to the number of units required to be completed to be granted the Certificate III in cookery as an example of this conduct. In exploring this submission with Mr Bandara further, he did not assert the Tribunal was incorrect in its observation that twenty-five units were required to be completed when the applicant had suggested only eight units were required. He also did not dispute it was a legitimate course of questioning to ask details about the course the applicant proposed to study. The complaint was that all the questioning and conclusions went in one direction to give an unfavourable decision to the applicant.
Mr Bandara also asserted the Tribunal had impliedly forced the applicant to follow the same educational pathway, one which she had decided not to proceed with. He also submitted the Tribunal had “without any evidence” decided this preferred pathway would not provide greater career opportunities. Mr Bandara acknowledged, however, that aside from the applicant’s claim not to be able to obtain work as an accountant in Australia or Serbia, there was no other information before the Tribunal to substantiate that assertion.
As to particular (c) of ground 1, it was submitted this should read that the applicant has satisfied all other requirements for the grant of a visa.
In respect of the allegation at particular (d) that the Tribunal failed to have regard to the degree of hardship that would be caused by the refusal of the visa, Mr Bandara was asked to identify what evidence of such hardship was before the Tribunal. Mr Bandara referred to the statements made by the applicant to the effect that the applicants had put their lives on hold and had taken the path to seek the visa because they believed it would be the best for their family. It was submitted that it should be inferred the refusal of the visa would cause hardship if those plans could not be realised. Reference was also made to the money and time invested by the applicant so far to pursue education in Australia. The applicant submitted hardship was a relevant consideration capable of meeting the description of “any other relevant matter” referred to in cl 500.212(c) and paragraph 16 of MD 69.
As to particular (e), it was submitted the applicant had not breached any of her former visa conditions and was not otherwise the subject of adverse findings. It was submitted this supported the visa application.
The Minister’s submissions
The Minister submitted, consistent with the decision of the Full Court of the Federal Court in Dait, that the Tribunal’s finding that the applicant did not satisfy subcl (a) of cl 500.212 meant it was not required to consider subcl (b) or (c).
The Minister submitted none of the particulars supported an argument the Tribunal failed to have regard to relevant circumstances or that it denied the applicant procedural fairness.
First, in respect of particular (a) of this ground, the Tribunal had regard to the applicant’s visa and study history and indicated an awareness of the applicant’s purported purpose in staying in Australia, being her continued study. The applicant’s submission that the applicant’s asserted “commitment to further study and evidence of potential capacity to undertake another course” was a sufficient basis to grant the visa did not reflect the requirements of cl 500.212(a), MD 69, or the Tribunal’s task of assessing the matters in MD 69 which are the subject of substantial and clearly articulated claims.
Secondly, as to particular (b), the Minister submitted it was a matter for the Tribunal to consider the applicant’s own assessment of her employment prospects in the absence of further study as it bore upon one of the factors in MD 69. It was also relevant to the question of whether the applicant genuinely intended to stay in Australia temporarily. For the purposes of MD 69, what was relevant was whether the proposed course of study was consistent with the applicant’s current level of education and would assist the applicant to obtain employment or improve employment prospects in her home country: MD 69, paragraph 12(a). Contrary to the applicant’s submissions, the Minister submitted the Tribunal properly considered the value of the proposed courses to the applicant but did not believe it would provide any greater career opportunities than those which already existed for her. Further, the Tribunal considered, but did not accept, the applicant’s purported reason for further study, instead finding her motivation was a desire to remain resident in Australia.
Thirdly, as to particular (c), the Minister submitted the applicant’s satisfaction of other requirements was not a relevant consideration but a conclusion the Tribunal was required to reach before granting the visa. In fact, the Tribunal found the applicant did not satisfy the visa requirements.
Fourthly, as to particular (d), the Minister submits hardship is not a factor in MD 69 that the Tribunal should have regard to. Further, it is not a factor which has bearing on the Tribunal’s assessment of whether the applicant genuinely intended to say in Australia temporarily. In support of that submission, the Minister relied on the decision of Judge J Young in Silva v Minister for Home Affairs [2024] FedCFamC2G 357 where her Honour dealt with an identical complaint. In that case, her Honour concluded hardship was not a matter described in cl 500.212 that the Tribunal was required to consider and it was not a matter described in MD 69 that the Tribunal should have regard to. In that particular case, she also found there was no evidence or information of such hardship before the Tribunal. In this case, the Minister argues no evidence or information of such hardship was before the Tribunal. The Minister submits the mere fact that the applicants were experiencing stress with respect to the visa application can be understood, but this falls short of making a clear claim of potential hardship should the visas be refused. Here, there was no claim of hardship at all, let alone a clear and substantially articulated one.
Fifthly, the Minister conceded that the applicant’s past and present behaviour towards the Department may be relevant when considering an applicant’s migration history in accordance with MD 69 paragraph 14(b)(i). The Minister argues, however, that the Tribunal is only required to take into account the MD 69 factors which are the subject of substantial and clearly articulated claims make by the applicant. To the extent the applicant asserts this factor related to the question of whether the applicant met the criteria in subcl 500.212(a), it was not clearly articulated. The Tribunal also considered those matters generally in the context of its consideration of the applicant’s immigration history. The Minister submits the absence of reference to past visa conditions is an indication the Tribunal did not consider it a matter adverse to the applicant. To the extent that matter relates to the applicant’s intention to comply with future visa conditions pursuant to subcl 500.212(b), the Minister submits the Tribunal did not need to consider this criterion having found that subcl 500.212(a) was not satisfied.
Insofar as the applicant alleged during the hearing bias or apprehended bias on the part of the Tribunal, the Minister submits there is no supporting evidence (such as a transcript), nor any particularisation as to how the Tribunal may not have brought an impartial mind to the review. The Minister accepted the Tribunal did weigh many of the MD 69 factors against the applicant, but it was not the case that it failed to consider anything in the applicant’s favour. For example, the Tribunal referenced the applicants’ family and friends in Serbia may provide some incentive to return. The mere fact the Tribunal found other factors weighed against the applicant being a GTE does not in and of itself give rise to any error. The Minister argued this assertion therefore ought to be rejected.
The Minister rejected that questioning about the number of units required to be completed to gain a Certificate III was indicative of unfairness. Rather, such matters are relevant to the factor referred to at MD 69 paragraph 11(e) (applicant’s knowledge of their intended course of study and level of research undertaken by the applicant into their proposed course).
The Minister, for the sake of completeness, submitted in response to the allegation of breach of procedural fairness that the Tribunal complied with its obligations pursuant to Div 5 of Pt 5 of the Act, as the applicant was invited to a hearing (which she attended) and was put on notice of the issues arising in relation to the decision under review, from:
·the delegate’s decision which was made on the same basis as the Tribunal’s;
·the Tribunal’s letter to the applicant inviting the applicant to complete the student visa information form and which expressly stated that she must be a genuine applicant for entry and stay as a student; and
·the Tribunal’s letter inviting the applicant to a hearing, which stated it will assess whether the applicant was a genuine applicant for entry and stay as a student, and which also contained a copy of MD 69.
The Tribunal did not fail to consider a relevant consideration and did not breach procedural fairness requirements
This ground of review is beset with conceptual and factual difficulties. It is asserted the Tribunal failed to have regard to relevant circumstances including those set out in MD 69. The first thing to observe is that the particulars set out at (b) and (d) are not “circumstances” but contestable assertions. Particular (b), for example, sets out the applicant’s explanation for her proposed change of course and career, an explanation which was not accepted.
The applicant’s argument failed to grapple with nature of the Tribunal’s obligations when conducting a review pursuant to s 348(1) of the Act. The submission, for example, that the applicant had a “right and legitimate expectation” to be able to change her study and career pathway seemed to suggest it was not open to the Tribunal to consider and form its own view as to the reason why the visa was being sought.
The duty of the Tribunal is to arrive at the correct or preferable decision based on the material before it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [93], per Gageler J (as the Chief Justice then was). The discharge of the obligation imposed by s 65 of the Act to grant or refuse a visa is premised on the Tribunal reaching a state of satisfaction that the applicant meets or does not meet the relevant visa criteria. That state of satisfaction is a jurisdictional fact, conditioning the exercise of authority pursuant to s 65: SGLB at [37], per Gummow and Hayne JJ.
In the context of the GTE criterion, it was the Tribunal’s task to satisfy itself whether the applicant was or was not a genuine applicant for entry and stay as a student. In that regard, it was required to consider whether the applicant intended genuinely to stay in Australia temporarily having regard to the matters set out in (i)-(iv) of subcl 500.212(a). It was also directed to have regard to the factors set out in MD 69. It had to find whether the applicant satisfied (or did not satisfy) the GTE criterion.
In undertaking that task, the Tribunal first had to make findings. MD 69 directs that a decision maker should assess whether, on balance, the GTE criterion is satisfied by considering the applicant in the context of the MD 69 factors and any other relevant information provided by the applicant or which is otherwise available to the decision maker. This is what it did here. In my view, the Tribunal’s decision demonstrates it engaged with the evidence, considered the applicant’s explanations in light of the whole of the information before it which included the applicant’s circumstances in Australia and Serbia, the value of the course to her future and her study and visa history. The Tribunal ultimately formed the view the applicant’s circumstances indicated the visa was intended primarily to maintain residence in Australia. This meant the Tribunal was not satisfied the applicant met the GTE criterion in subcl 500.212(a).
In my view, the Tribunal considered the purpose of the applicant’s travel and stay in Australia. It relevantly concluded the applicant’s circumstances indicated the visa application was intended primarily to maintain residence in Australia. Particular (a) is not supported by a fair reading of the Tribunal’s decision. Similarly, the Tribunal also considered the applicant’s explanation for changing her study and career path but rejected it. Contrary to the applicant’s submissions, the applicant’s “indications” of a willingness to undertake further study were not a sufficient basis to require the Tribunal to grant the visa. Particular (b) is not made out. As to particular (c), it was not necessary for the Tribunal to consider whether the applicant met the further requirements for the visa as cl 500.212(a) was not met: see Dait.
As to particular (d), the submissions failed to identify what was in fact meant by hardship, and, more importantly, how any such hardship bore on the assessment of whether the applicant was a genuine temporary entrant. The submission in some respects pulled in the other direction, particularly to the extent the “hardship” related to not being able to remain in Australia. The Tribunal made reference to the submissions directed at the benefits of remaining in Australia to the applicant and her family forming the view they supported the conclusion the visa was being sought for a migration purpose.
As to the particular (e), it is true the applicant’s past compliance with her visa conditions and absence of issues with the Department were not expressly referred to by the Tribunal. Such matters are directly relevant to the assessment required under subcl 500.212(b), that is, whether the applicant intends to comply with the conditions of the visa. As I have already noted, it was not necessary for the Tribunal to continue its assessment of the 500.212 criterion, having found that subcl (a) was not satisfied. It is not otherwise clear how those matters are relevant to the assessment of the GTE criterion.
The suggestion the Tribunal engaged in a one-sided approach to its task directed at identifying reasons for refusing the visa is not supportable. As the Minister highlighted, there were matters the Tribunal considered and weighed in favour of a conclusion the applicant was a GTE, particularly her ties to Serbia. Ultimately, that factor was outweighed by other factors.
Otherwise, this ground and the supporting submissions essentially express disagreement with the result and seek impermissible merits review: Liang at 272. There is not the least suggestion the Tribunal’s findings were irrational or illogical. In my view, they were plainly open.
Finally, I agree with the Minister that the Tribunal appears to have complied with its procedural obligations pursuant to Div 5 of Pt 5 of the Act.
Ground 1 is not made out.
Ground 2
This ground alleges the Tribunal erred in considering the MD 69 factors as a check list, or mandatory or binding checklist. It sits in some tension with ground 1 which alleges a failure to consider all relevant matters including those identified in MD 69.
Applicant’s submissions
The applicant’s written submissions acknowledge the Tribunal warned itself to the effect that the MD 69 factors should not be used as a checklist, but submits the Tribunal did this anyway. This is said to be evident because the Tribunal analysed the application for review against those factors, using them as a checklist to refuse the applicant the visa.
When asked to explain how that was evident, Mr Bandara in oral submissions submitted that MD 69 sets out factors that may be favourable or unfavourable, but that the Tribunal went on a one-sided journey looking for grounds for rejection and not considering the applicant’s circumstances.
Minister’s submissions
The Minister noted the Tribunal’s decision notes it was mindful the MD 69 factors were intended to guide decision makers and not be used as a checklist. In light of that, the Minister submits this Court should be slow to infer the Tribunal did not adhere to the terms of MD 69 in that respect.
The Minister submitted the direction that the factors in MD 69 are not to be used as a checklist does not mean the Tribunal can disregard evidence which may weigh against the applicant. The direction simply means the Tribunal does not have to check each identified matter and may have regard to the other matters which relevantly bear on the question of whether the applicant is a GTE. The Minister submitted the Tribunal considered the MD 69 factors clearly raised by the applicant in written and oral submissions as it was required to do: Kaur at [30], per Steward J. The fact it had regard to factors unfavourable to the applicant did not give rise to error, rather it demonstrated the Tribunal going about its task.
The Tribunal also did not consider the factors for which there was no evidence. For example, the Tribunal did not consider whether the applicant had any military service commitments which may present an incentive not to return to Serbia. The Minister submitted the Tribunal properly applied MD 69, and no error arises out of ground 2.
The Tribunal did not consider the MD 69 factors as a checklist
This ground is without merit. First, the argument raised by the applicant undermines the premise; how can it be said the Tribunal considered the factors as a checklist when it is asserted the Tribunal only considered matters weighing against the applicant? Secondly, this argument fails at a factual level. The Tribunal considered the applicant’s ties to Serbia, a factor mentioned in MD 69 and one it found weighed in favour of a conclusion the applicant may have an incentive to return to her home country. Further, the Tribunal’s reasons show it did not consider factors that did not arise on the evidence before it.
In my view, the Tribunal’s reasons demonstrate it approached its task to the assessment of the GTE criterion in an entirely unexceptional way, that is by reference to the material and submissions before it and by reference to the MD 69 factors. No error is demonstrated.
CONCLUSION
For the above reasons, I dismiss the application as amended.
In the event the application was dismissed, the Minister sought costs in the fixed sum of $7,467.00. This was the scale amount prescribed in Sch 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) at the time the judicial review application was filed. The applicants did not make any submissions opposing the making of this order.
I am satisfied that the costs should follow the event in this matter. I am also satisfied the amount sought by the Minister represents a reasonable indemnity. Accordingly, I order the first and second applicants pay the Minister’s costs of and incidental to the proceedings in the fixed sum of $7,467.00.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 10 December 2024
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