Bhopal v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 575
•23 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhopal v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 575
File number(s): MLG 3535 of 2019 Judgment of: JUDGE J YOUNG Date of judgment: 23 April 2025 Catchwords: MIGRATION – Application in a case seeking reinstatement of judicial review application – Student (Temporary) (Class TU) visa – where the applicants applied for judicial review of decision of Administrative Appeals Tribunal – where applicants judicial review application was dismissed due to non-appearance – consideration of principles relating to an application for reinstatement – where the applicants did not provide a reasonable excuse for their non-attendance at the hearing – whether the judicial review application has reasonable prospects of success – proposed grounds of review not reasonably arguable – application in a case dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 359A, 499(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2)(a)
Migration Regulations 1994 (Cth) sch 2, cl 500.212
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752
CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Kaur v Minister for Home Affairs [2019] FCA 2026
Minister for Immigration and Citizenship vLi [2013] HCA 18; 249 CLR 332
Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57
MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 30 January 2025 and 17 February 2025 Place: Melbourne Solicitor for the Applicants: Self-represented litigants Solicitor for the First Respondent: Ms Griffiths-Mark of Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3535 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAHIL BHOPAL
First Applicant
NIRMAL BHOPAL
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
23 APRIL 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 9 October 2024 is dismissed.
2.The name of the Second Respondent is amended to “Administrative Review Tribunal”.
3.The Applicants pay the First Respondent’s costs fixed in the amount of $3,977.00.
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 J YOUNG
INTRODUCTION
Before the Court is an Application in a Proceeding filed 9 October 2024 (Reinstatement Application), in which the applicants seek reinstatement of their Amended Application filed 15 August 2024 which sought judicial review of a decision of the second respondent (Tribunal) dated 25 September 2019 (Substantive Application). By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicants a Student (Temporary) (Class TU) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).
The applicants’ Substantive Application was dismissed on 11 September 2024 under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) consequent upon the applicants failing to attend a hearing before this Court on 11 September 2024.
BACKGROUND
The applicants are citizens of India. The first and second applicant are husband and wife, respectively.
The first applicant arrived in Australia on 7 August 2008 on a Student (TU 572) visa (Initial Student Visa) which was valid until 4 November 2010. Since the granting of the Initial Student Visa, the first applicant has held four additional temporary visas, being: three Student visas and one Graduate Work (VC-485) visa.
On 13 October 2017, the first applicant (Applicant) applied for the Visa. The second applicant was included in the Visa application as a member of the Applicant’s family unit.
On 11 December 2017, the Delegate refused to grant the Visa on the basis that the Applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of sch 2 of the Regulations requires the Delegate to be satisfied the Applicant was a genuine temporary entrant.
On 21 December 2017, the applicants applied to the Tribunal for review of the Delegate’s decision and appointed a registered migration agent to act as their representative.
On 8 April 2019, the Tribunal invited the applicants to provide information about the Applicant’s proposed course of study and his entry and stay in Australia as a student pursuant to s 359(2) of the Act (Tribunal Invitation). The Tribunal also provided the Applicant with a ‘Request for Student Visa Information’ form (Request Form) to be completed by the Applicant, and a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69). On 23 April 2019, the Applicant provided a response to the Request Form, a written submission addressing the issue of whether he was a genuine temporary entrant and supporting material.
On 20 May 2019, the Tribunal emailed the applicants’ migration agent enclosing an invitation for the applicants to attend a hearing on 12 June 2019 at 1.30pm with an information sheet attached (Hearing Invitation). The Tribunal requested the applicants provide the following documents within seven days of receipt of the invitation: a response to the Hearing Invitation; a copy of the Applicant’s current Confirmation of Enrolment (COE); documents evidencing his past studies in Australia; and a written statement addressing the issue of whether he was a genuine temporary entrant (GTE). The applicants provided a Response to the Hearing Invitation on 11 June 2019 which indicated that the Applicant’s mother and brother would provide evidence at the Tribunal hearing.
On 12 June 2019, the applicants appeared at a hearing before the Tribunal with the assistance of their registered migration agent. The Applicant’s mother and brother appeared as witnesses by telephone with the assistance of an interpreter in the Punjabi and English languages. At the hearing, the applicants provided an affidavit of the Applicant’s mother and supporting documents to the Tribunal.
On 17 June 2019, the applicants provided the Tribunal with a post-hearing written submission (Post-Hearing Submission) and statutory declarations from the applicants and the Applicant’s father.
On 23 August 2019, the Tribunal emailed the applicants’ migration agent inviting the applicants to comment on adverse information that was received at the hearing (s 359A Letter). The adverse information was detailed as being statements made at the hearing by the Applicant’s mother and brother which indicated the family’s view that the applicants will not return to India. The Tribunal requested that the applicants respond to the s 359A Letter by 6 September 2019. The invitation was sent pursuant to s 359A of the Act which relevantly provides:
(1)Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b)ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
On 6 September 2019, the applicants’ representative provided a response to the s 359A Letter and supporting documents, including statutory declarations of the applicants and of the Applicant’s father.
On 25 September 2019, the Tribunal affirmed the decision of the Delegate to refuse to grant the applicants the Visa (Tribunal Decision).
TRIBUNAL’S DECISION
On 2 October 2019, a copy of the Tribunal Decision was sent to the applicants via their representative’s email address.
At paragraphs [1] – [7] of the Tribunal Decision, the Tribunal set out the relevant background to the review, noting that it had received oral evidence from the Applicant’s mother and brother and that an interpreter was sourced on the day of the hearing to facilitate the participation of those witnesses.
At paragraphs [9] – [10] of the Tribunal Decision, the Tribunal identified that the issue was whether the Applicant was a genuine applicant for entry and stay as a student, as provided for in cl 500.212 of sch 2 of the Regulations. In considering whether the applicant satisfied the GTE criterion, the Tribunal had regard to Direction 69. The terms of Direction 69 required the Tribunal to have regard to factors including the Applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the Applicant’s course to his future, and his immigration history.
At paragraphs [13] – [18] of the Tribunal Decision, the Tribunal considered the Applicant’s circumstances in India. The Tribunal found the Applicant’s reasons for pursuing study in Australia as opposed to India were not reasonable, nor did it consider his ties to India a significant incentive for him to return home. The Tribunal noted that the Applicant was working full time as a forklift driver and that the second applicant was employed part time as a Chemist assistant, and considered that these economic circumstances in Australia were a significant incentive for the Applicant not to return home. The Tribunal placed some weight in favour of the Applicant’s financial circumstances relative to others in India.
At paragraph [19], the Tribunal considered the Applicant’s circumstances in Australia. The Tribunal noted that the applicants had been in Australia for 11 years and given that they had worked, studied and formed friendships, the Tribunal expected the applicants would have strong ties to the community and noted that they appeared to be “very settled in Australia”.
At paragraphs [20] – [23] of the Tribunal Decision, the Tribunal considered whether the Applicant genuinely intended to stay in Australia temporarily and summarised the oral evidence provided by the Applicant’s mother and brother at the hearing. The Tribunal found the evidence of the Applicant’s mother and brother to be very compelling and “extremely unfavourable to the applicant” and that it pointed to the Applicant’s desire to stay in Australia permanently. At paragraph [25], the Tribunal was inclined to accept the mother and brother’s spontaneous evidence as opposed to the second applicant’s explanation for the unfavourable evidence.
At paragraphs [24] – [29], the Tribunal considered the applicants’ background and immigration history. The Tribunal considered the evidence provided by the Applicant’s mother and brother, along with the applicants’ circumstances in Australia, demonstrated a desire by the applicants to stay in Australia permanently.
At paragraphs [30] – [36] of the Tribunal Decision, the Tribunal summarised the Applicant’s study history in Australia and found that the enrolled courses would be of little value to his future business plans. Further, the Tribunal considered that the Applicant’s remuneration in Australia was substantially better than what he could expect for similar work in India.
At paragraphs [37] – [51], the Tribunal noted that it had considered the additional information provided by the applicants following the hearing and considered the applicants’ response to the s 359A Letter. The Tribunal was not satisfied that the applicants had provided favourable evidence, even if the material provided by the witnesses were to be set aside.
Accordingly, the Tribunal was not satisfied that the Applicant intended genuinely to stay in Australia temporarily, and found that the Applicant did not meet cl 500.212 of sch 2 to the Regulations, and affirmed the decision not to grant the Visa.
PROCEEDINGS IN THIS COURT
As already set out, the application presently before the Court is an Application in a Proceeding that seeks reinstatement of the Substantive Application. As noted above, the Substantive Application was dismissed pursuant to r 13.06(1)(c) of the Rules because the applicants did not attend a hearing before this Court on 11 September 2024.
On 28 May 2024, Chambers notified the parties by email that the Substantive Application had been listed for an in-person hearing on 11 September 2024 at 2.00pm.
On 3 September 2024, Chambers emailed the parties confirming that the hearing on 11 September 2024 was listed in-person, provided the courtroom allocation and requested appearances from the parties.
On 4 September 2024, the solicitor for the applicants, Mr Imran Warraich of Huk Legal Services (Mr Warraich), emailed the Court confirming his appearance and requested that he be provided a “web link” as he was “unable to attend these proceedings in person”.
On 5 September 2024, Chambers notified the parties by email that Mr Warraich’s request to appear electronically was declined, noting that the request had not been made in the proper form and no evidence had been provided as to the necessity to appear electronically.
On 11 September 2024 at 12.19pm, Mr Warraich emailed the Court stating:
It is submitted that we and the Applicant are unable to attend the hearing in person today. We have already made the compliance of the Honourable Court orders dated 28th May 2024. We have submitted an amended application and the written submissions on 14th August 2024. It is requested to kindly adjourn the hearing for future date.
Thanking you in anticipation.
On 11 September 2024 at 12.28pm, the Court emailed the parties advising that any adjournment request would not be considered in Chambers unless it was by consent of all parties. Further, the Court noted that no evidence had been provided in support of the adjournment request and as such, the matter remained listed in-person for hearing at 2.00pm. Mr Warraich was advised that should an oral application for an adjournment be made at the hearing, evidence in support of any such request would be required.
On 11 September 2024 at 12.34pm, solicitor for the Minister emailed the Court confirming that it did not consent to an adjournment of the hearing.
As stated above, the Substantive Application was dismissed pursuant to r 13.06(1)(c) of the Rules because neither the applicants nor Mr Warraich appeared at the hearing on 11 September 2024.
On 9 October 2024, the applicants filed the Reinstatement Application.
On 23 January 2025, the applicants’ solicitor, Mr Warraich, filed a Notice of Intention to Withdraw as a lawyer, subsequently filing a Notice of Withdrawal on 30 January 2025.
Consequently, at the hearings before me on 30 January 2025 and 17 February 2025, the applicants appeared in person. Ms Griffiths-Mark, solicitor, appeared on behalf of the Minister.
The applicants relied on the affidavit filed 9 October 2024 in support of the Reinstatement Application.
The Minister relied upon its written submissions filed on 3 December 2024.
REINSTATEMENT LEGAL PRINCIPLES
The Court's power to set aside the orders made on 11 September 2024 is contained in r 17.05(2)(a) of the Rules which relevantly provides that:
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;
Whether or not to accede to the Reinstatement Application is a discretionary power which requires me to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] (FBS18).
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (which was cited with approval by the Full Court in FBS18), Ryan J considered the principles relating to an application for reinstatement of a matter dismissed in the absence of a party. His Honour found at [7] that where reinstatement is sought, a discretion falls to be exercised by the Court which requires consideration of certain factors which his Honour listed as:
(a)first, whether there is a reasonable excuse for the party’s absence;
(b)secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and
(c)thirdly, whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level: see MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475.
While those decisions dealt with the discretion to extend time, which carries with it a clear prescribed time period in which to commence proceedings, there appears to me to be no material difference to using this standard of assessment in the exercise of the Court’s discretion as to whether to reinstate under r 17.05 of the Rules: see AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J.
The matters referred to in the preceding paragraph are not a definitive list, but are consistently considered in the exercise of the Court’s broad discretion to reinstate (see CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said:
…that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05...
CONSIDERATION
Explanation for non-attendance
Despite remaining on the record until 30 January 2025, Mr Warraich did not file any material explaining his non-appearance at the hearing on 11 September 2024. As I have commented in previous decisions, this is entirely consistent with the appalling manner in which Mr Warraich conducts proceedings in this Court.
The applicants explanation for their non-attendance at the hearing on 11 September 2024 is set out in an affidavit of the Applicant filed in support of the Reinstatement Application on 9 October 2024. The affidavit states the following:
…
4.I do declare that I could not attend the hearing on 11 September 2024 due to unforeseen and spontaneous personal circumstances that was not under my control.
5.I do declare that Lawyer also could not attend the hearing as the adjournment was not granted for the hearing.
…
At the hearing, when asked to inform the Court as to the “unforeseen and spontaneous personal circumstances” that prevented him from attending the hearing on 11 September 2024, the Applicant said there were no such circumstances and this statement in his affidavit was not true. The Court views the provision of false affidavit evidence with utmost seriousness.
The Applicant also said he was unaware of the hearing. Firstly, there is no evidence in support of this assertion. Notice of the time and date of the hearing was provided to the applicants’ representative on 28 May 2024. I find it implausible that the Applicant was unaware that a matter of such significance had been listed for hearing. Secondly, the Applicant has provided false evidence to the Court in his affidavit as to the reasons for his non-attendance at the hearing and on this basis I consider the Applicant’s evidence as to the reasons for his non-attendance to be unreliable.
As to the second reason advanced in the affidavit, Mr Warraich provided no evidence in support of the adjournment sought on 11 September 2024. Nor have the applicants provided any evidence to support their assertion that Mr Warraich could not attend the hearing or the basis upon which an adjournment was sought.
These reasons do not provide a reasonable excuse for the applicants’ non-attendance at the hearing on 11 September 2024. As submitted by the Minister:
(1)the applicants and their solicitor were provided substantial notice of the date, location and format (i.e. in-person) of the hearing, being from at least 28 May 2024;
(2)on 5 September 2024, the Court declined Mr Warraich’s request to appear by video link and outlined that:
(a)a practitioner seeking to appear via electronic communication should apply by submitting to Chambers a ‘Request to attend by electronic communication’ form no less than 28 days before the date of hearing; and
(b)Mr Warraich’s request to appear by video link was not made in the proper form, nor was any evidence provided as to the necessity to appear electronically.
(3)Mr Warraich did not respond to the Court’s email of 5 September 2024 until the day of the hearing, less than two hours before it was to proceed, when he sought an adjournment as he and the applicants were unable to attend the hearing in person that day. Mr Warraich did not provide any explanation or evidence as to the reasons that he or the applicants could not attend the hearing.
The absence of a reasonable excuse for non-attendance at the hearing on 11 September 2024 weighs against reinstatement.
Prejudice
The Minister did not contend it would suffer any particular prejudice if the Substantive Application were reinstated and accepted that should any prejudice arise it could be cured by an award of costs.
I do not consider the absence of prejudice to weigh in favour of reinstatement. Rather, I consider it to be a neutral consideration.
Prospects of success of the substantive application
The Substantive Application contains the following two grounds for judicial review, however ground one contains multiple limbs that appear to overlap (without amendment):
1.FAILURE TO CONSIDER MANDATORY FACTORS
PARTICULARS
(a)The AAT has committed jurisdictional error by failing to consider mandatory criteria specified under the Ministerial Direction 69 and deciding the matter by excluding the information favored the applicant.
(b)The Learned Tribunal member fell into jurisdictional error when the Tribunal failed to consider several mandatory considerations as specified in the Ministerial Direction. The Tribunal completely ignored mandatory concerning the applicant’s circumstances and which related to other relevant information provided by the applicant, in this matter, the circumstances which explained the applicant’s study plan and future endeavours.
2.FAILED TO TAKE RELEVANT CONSIDERATIONS
PARTICULARS
(a)The AAT failed to take relevant considerations, and unreasonably decided that the academic progress would not assist the applicant in future endeavors. The Tribunal also not justified in Evaluation of the whole academic progress and the future value of the proposed course.
The applicants also raised further matters in their written submissions filed on 15 August 2024, being submissions 7 – 12 (Submissions), which overlap considerably with the above grounds (without amendment):
…
7.It is submitted that Learned Tribunal fell in jurisdictional error as just affirming the decision without considering the personal reasons of the applicant and ignored very peculiar circumstances of the Applicant at the time of review.
8.The Learned Tribunal failed to consider previous academic progression and achievements made by the applicant. The Learned Tribunal just affirmed the delegate’s decision on another ground without considering the overall situation of the applicant.
9.The Learned Tribunal member fell into jurisdictional error when the Learned Tribunal failed to consider several mandatory considerations as specified in the Ministerial Direction.
10.The Learned Tribunal completely ignored mandatory criteria concerning the Applicant’s circumstances and which related to other relevant information provided by the Applicant, in this matter, the circumstances which explained the Applicant’s study plan and future endeavors.
11.The Learned Tribunal has committed jurisdictional error by failing to consider mandatory criteria specified under the Ministerial Direction and deciding the matter by excluding the information that favored the applicant.
12.The Learned Tribunal also not justified in ignoring the whole academic progress and the future value of the proposed course.
Submissions 9, 10 and 11 assert that the Tribunal failed to take into account mandatory criteria contained in Direction 69. The specific mandatory criteria said not to be considered are not articulated.
Submission 7 asserts that the Tribunal did not consider the personal circumstances of the Applicant and ignored very peculiar circumstances of the Applicant. The personal circumstances said to have been ignored are not articulated.
Submission 8 asserts, amongst other things, that the Tribunal failed to consider previous academic progression of the Applicant and submission 12 asserts that the Tribunal ignored the Applicant’s academic progress and the future value of the proposed course.
I address the Submissions in conjunction with the grounds contained in the Substantive Application.
Issue before the Tribunal
The issue before the Tribunal was whether the Applicant genuinely intended to stay in Australia temporarily, pursuant to cl 500.212 of sch 2 of the Regulations.
Clause 500.212 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.
In considering whether an applicant satisfies cl 500.212, the Tribunal must have regard to Direction 69, which is issued by the Minister pursuant to s 499(1) of the Act.
Direction 69 requires the Tribunal to have regard to certain specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
Ground 1
By Ground 1 of the Substantive Application the applicants contend that the Tribunal erred in failing to consider “several mandatory considerations as specified in the Ministerial Direction”, in particular by excluding information that favoured the applicants. For the following reasons this ground has no reasonable prosect of success.
Firstly, Direction 69 is a guide only and contains factors that should be considered, not factors that must be considered: Kaur v Minister for Home Affairs [2019] FCA 2026 (Kaur) at [30]. The factors in Direction 69 which the Tribunal must take into account are those which have been the subject of substantial, clearly articulated claims made by the applicant: Kaur at [31]. Accordingly, any submission that the Tribunal erred because it did not consider “mandatory” considerations contained in Direction 69 must fail.
Secondly, as set out in paragraphs [18] – [22] above, the Tribunal’s decision demonstrates that it considered the matters contained in Direction 69 and I discern no error in the Tribunal’s approach to this.
Thirdly, in relation to the assertion in Ground 1 that the Tribunal excluded information that “favoured the applicant”, the applicants were unable to particularise what information the Tribunal excluded for the purposes of Ground 1. However, in oral submissions the applicants submitted that the Tribunal did not consider that two Marketing and Communications courses that the Applicant had enrolled in were not completed due to the colleges at which the courses were offered being closed and that but for those closures he would have completed those studies. The Applicant submitted that he was enrolled at the Victorian Institute of Culinary Arts (VICA) in 2018 and ceased those studies because VICA closed. He also submitted that he was enrolled in a course at the Australian National College (ANC) in 2019 which also closed, precluding him from completing his studies. I infer that this is the information that is said to have “favoured the applicant”.
At paragraphs [30] – [34] of its decision, the Tribunal considered the Applicant’s study history and future plans.
At paragraph [30] the Tribunal set out the courses studied and completed by the Applicant. At paragraph [31] the Tribunal set out the courses undertaken but not completed by the Applicant, which do not include an express reference to the course said to have been undertaken by the Applicant at VICA. There is no evidence before the Court that this material was before the Tribunal and at the hearing the Applicant conceded that information regarding the closure of VICA was not before the Tribunal. Accordingly, no error can arise from the Tribunal’s failure to consider material that was not before it.
As to studies at ANC, the closure of ANC occurred after the hearing before the Tribunal. At paragraph [32] and [34] of its decision, the Tribunal noted that the Applicant was currently enrolled at ANC in a Diploma in Marketing and Communication until 4 October 2020 and an Advanced Diploma of Marketing and Communication due to be completed on 8 May 2022. Accordingly, the closure of ANC post-dated the Tribunal’s hearing and the Applicant conceded that information regarding the closure of ANC was not before the Tribunal at the time of the hearing. Further, the Applicant provided the Post-Hearing Submission and statutory declaration for himself, the second applicant and his father on 17 June 2019 but did not provide any information regarding the closure of ANC. Accordingly, no error can arise in relation to the failure by the Tribunal to consider the closure of ANC.
At paragraphs [33] – [34] the Tribunal said:
The applicant has undertaken similar courses of a similar standard since his arrival and at the time of writing has made little academic progress. In the Tribunal’s view the applicant has sufficient qualifications to undertake his proposed business in his home country if that is in fact what he proposed to do. If the applicant were to be granted this Student visa to undertake his current enrolment which will be completed in May 2022, the applicant will have resided in Australia for fourteen years from the time of his arrival in Australia. The Tribunal does not accept that this additional study will provide increased remuneration or assist the applicant to obtain or improve employment opportunities based on his current plans, and so places little weight in the applicant’s favour in this regard.
Details of the applicant’s studies were provided by the applicant’s immigration agent including previous studies and current Certificate of Enrolment detailing current enrolment at the Australian National College studying for a Diploma in Marketing commencing 8 May 2019 and which will be followed by an Advanced Diploma in Marketing finishing 8 May 2022. The applicant seems intent on continuing his study despite his current course being an Advanced Diploma ion Marketing and communications, which will be of little benefit to his business plans and contrary to his working in a garage or workshop.
Accordingly, contrary to the assertions contained in Submissions 8, 10 and 12 the Tribunal did consider the Applicant’s past studies, academic progress and future plans.
For completeness, I note that the Tribunal did consider information favourable to the applicants and placed some weight in favour of them at paragraphs [15], [18], [48] – [49] and [51] of its decision.
Accordingly, Ground 1 and the associated Submissions have no reasonable prosect of success.
Ground 2
By Ground 2 the applicants submit that the Tribunal failed to take into account relevant considerations and “unreasonably decided that the academic progress would not assist the applicant in future endeavour”.
For the following reasons Ground 2 and the associated Submissions also have no reasonable prosect of success.
Firstly, as set out above, the Tribunal did give consideration to the Applicant’s academic progress and the value of the proposed course to the Applicant’s future endeavours.
Secondly, as to the assertion that the Tribunal’s finding that the Applicant’s academic progress would not assist his future endeavours was unreasonable, legal unreasonableness is a stringent test. In Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57 CJ Mortimer said at [82]:
Legal unreasonableness involves a “necessarily stringent” test: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [108] (Gageler J). It involves a conclusion by the Court on review that “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” the decision that was made, or exercised the power in the way it was exercised: SZVFW at [69] (Gageler J), citing Li at [71] (Hayne, Kiefel and Bell JJ), quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.
Where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Minister for Immigration and Citizenship vLi [2013] HCA 18; 249 CLR 332 at [105].
The Tribunal’s reasons for its conclusions are contained in paragraphs [33] and [34] of its decision, the full text of which is set out above. At paragraph [33] the Tribunal found that the additional study would not provide increased remuneration or assist the Applicant to obtain or improve employment opportunities based on his current plans and so placed little weight in the Applicant’s favour in this regard. At paragraph [34] the Tribunal found that the Applicant’s course of study would be of little benefit to his business plans and contrary to him working in a garage or workshop.
I consider that the above findings disclose an evident, transparent and eligible justification and were open to the Tribunal on the evidence before it. No reasonably arguable legal unreasonableness arises.
Submissions
As to Submission 7, 9 and 11, those submissions are entirely unparticularised and do not expand on or assist with the applicants’ grounds. They have no reasonable prospect of success.
Oral Submissions
In addition to the oral submissions referred to in paragraph [66] above, the applicants made the following oral submissions:
(a)the interpreter for the Applicant’s mother was formal and authoritarian and did not speak in the mother’s dialect. It was submitted that the Applicant’s mother was scared and confused; and
(b)the applicants intend to return to India to start a business after completion of the Applicant’s studies. The second applicant holds an MBA and will help the Applicant with his business on their return to India.
In relation to the first oral submission, that the Applicant’s mother was said to be scared and confused, this submission was included in the Post-Hearing Submission. Further, that the interpreter spoke to the mother in a dialect of Punjabi which was formal and authoritarian and not the dialect of the family was included in the response dated 6 September 2019 provided by the applicants’ representative to the s 359A Letter. It was submitted on behalf of the applicants that:
…in view of the difficulties in the phone conversation, the translation and the last minute arrangements (for which our client is grateful that the Tribunal did make the effort) we submit that the Member’s interpretation that the “family have formed the view that you and Mrs Bhopal will not be returning to India and will make your life in Australia” may not be entirely accurate.
The Tribunal addresses these submissions at paragraphs [43] – [45] of its decision. The Tribunal concluded that despite some intial confusion the mother answered all questions with conviction, did not appear confused and was a convincing witness. I consider that this finding was open to the Tribual for the reasons that it gave. Further, the Tribunal concluded at paragraph [51] that it was not satisfied that the Applicant had presented favourable evidence to it, even if the Applicant’s mother’s evidence was set aside.
As to the second oral submission, this information was included in the Post-Hearing Submission and in the statutory declarations dated 17 June 2019 supplied by the applicants at that time. Those matters were considered by the Tribunal, are referred to in paragraph [48] and [49] of its decision and are given “some weight in favour” by the Tribunal. Accordingly, this submission does not assist the applicants.
Conclusion
For the reasons set out above, none of the grounds advanced by the applicants have any reasonable prospects of success.
DISPOSITION
For all of the above reasons, it is not in the interests of justice to reinstate the Substantive Application.
Accordingly, the Application in a Proceeding filed 9 October 2024 is dismissed. The Minister seeks that the applicants pay its costs in the amount of $3,977. I shall order accordingly.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 April 2025
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