Bhullar v Minister for Immigration
[2020] FCCA 3174
•26 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHULLAR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3174 |
| Catchwords: MIGRATION – Student visa – whether Tribunal erred in assessing genuine temporary student – where applicant has enrolled in twelve courses and completed two over nine years – whether Tribunals findings expression of concern rather than conclusive finding – whether Tribunal to consider entire operation of clause – where Tribunal did not accept claim that the applicant did not intend to stay in Australia permanently – where Tribunal did not err at law – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 65, 499(2A) Migration Regulations 1994 (Cth), cll. 5, 16, 572.223 Ministerial Direction 53 |
| Cases cited: Ali v Minister for Immigration and Border Protection [2018] FCA 998 Eros v Minister for Immigration and Border Protection [2020] FCA 1061 Husnain v Minister for Immigration and Border Protection [2016] FCCA 401 |
| Applicant: | GURBEER SINGH BHULLAR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 975 of 2017 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 19 November 2020 |
| Date of Last Submission: | 19 November 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 26 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Oldham |
| Solicitors for the Applicant: | VDG Lawyers |
| Solicitor advocate for the Respondents: | Ms M. Stone |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 27 October 2020 be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 975 of 2017
| GURBEER SINGH BHULLAR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 27 October 2020, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 20 April 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
The application should be dismissed. In summary, I have concluded that the decision was not affected by error by reason of an alleged failure to consider the requirements of par 572.223(1)(b) of the Migration Regulations 1994 (Cth). Having found that it was not satisfied the applicant was not a person who was a genuine student who intended to stay temporarily in Australia, the criterion provided by par 572.223(1)(a) of the regulations could not be satisfied. The making of that dispositive finding and the conduct of the review entailed no error.
Background
The applicant, a male Indian citizen now aged 30 years, first came to Australia in 2008 holding a Student (Class TU subclass 572) visa, doing so at a time when he was eighteen years of age.
As the applicant submitted, he has always been the holder of student visas or bridging visas associated with his student visa applications. As appears below, the Tribunal found, correctly, that over the course of his journey, the applicant had enrolled in some 18 courses. This was confirmed by the PRISMS records which were before it and which indicated he cancelled his enrolment in 13 of those courses.
On 26 February 2013, the applicant applied to the then Migration Review Tribunal for a review of a decision of the Minister in refusing to grant a further student visa.The matter was remitted to the delegate for reconsideration. On 19 March 2014, the applicant was granted a further student visa which was valid until 3 March 2015.
On 2 March 2015, the applicant applied for the visa which is the subject of the present application.
On 4 March 2015, the Minister made a request for more information. In responding to that request, the applicant provided a number of documents including a statement with respect to the genuine temporary entrant criterion stating that:
a)he had initially studied a hospitality course but was not interested in it. On the advice of his parents he had decided to change courses, and decided to study courses relevant to the automotive industry. He stated that he planned to open an automotive business in India and provided information about the growth of this sector;
b)in relation to a previous visa application, explained that the gap in his study was during the period his matter was before the MRT.
On 13 July 2015, a delegate of the Minister made a decision to refuse the application for the visa and provided a decisional record.
Delegate’s decision
The delegate set out the applicant’s enrolment history and found that the applicant had variously changed from studying hospitality to business and then to a series of automotive courses. Although the applicant had explained that he had decided hospitality was not his ‘cup of tea’, this decision had been made after five years. The delegate found that the applicant had not provided any evidence of course completion and had been enrolled in a number of short inexpensive courses, indicating that he was using the student visa system to maintain residency.
Following a consideration of Ministerial Direction No 53, the delegate refused the application as the applicant did not meet the requirements as set out in cl 572.223(1)(a).
The delegate invited the applicant to provide evidence, explanation or comment regarding a number of matters and observed that in his reply the applicant had stated that he had been “guided into Hospitality by your agent back in India and that you eventually realised (after 5 years) that this was not ‘my cup of tea’”.
The delegate took into account that the applicant had not completed any course above the Vocational Education and Training sector and that the applicant had maintained enrolment in short/inexpensive courses at the Vocational Education and Training sector ‘which indicates you are using the student visa program to maintain residence in Australia rather than due to a genuine interest in study and academic progress’.
The delegate further identified that ‘[e]ven though you held a Student (Class TU subclass 573) these are from 29 April 2008 and
30 August 2012, you never commenced the course at that level. Further, you were not enrolled in a Higher Education course between 12 July 2010 and 30 June 2012 and were in breach of condition 8516 of your last Student (Class TU subclass 573) visa’.The delegate found that ‘[o]verall, given your lack of academic progress, your study history, your potential circumstances in Australia, your immigration history and the lack of value of the courses to your future, I find that you are using the student visa program to circumnavigate permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily . . . On balance, I am not satisfied that you are a genuine applicant for entry and stay as a student because I am not satisfied that you intend to genuinely stay in Australia temporarily having regard to your circumstances and immigration history and other relevant matters. On this basis, I am not satisfied that you meet the requirements of clause 572.223(1)(a)’.
Tribunal’s decision
On 29 July 2015 the applicant applied to the Tribunal for review of the delegate’s decision. On 2 December 2015, the applicant was granted a bridging visa, allowing the applicant to remain lawfully in Australia until after a decision was made on his present visa application.
On 27 March 2017, the applicant was invited to attend a hearing scheduled for 20 April 2017. He was also supplied a copy of Ministerial Direction No 53.
By email dated 29 March 2017, the applicant made a request for an adjournment, doing so on the basis that there was a pending freedom of information request.The request was refused. It appears that on 5 April 2017, the Tribunal provided full access to the material sought.
On 11 April 2017, the applicant made a further request for an adjournment and on 13 April 2017, the Tribunal confirmed that the matter would proceed as scheduled on 20 April 2017.
On 19 April 2017 the applicant’s agent provided a number of documents to the Tribunal, including a statement prepared by the applicant addressing the genuine temporary entrant criterion as follows:
a)the applicant repeated his claim to have studied hospitality on the advice of an agent, and asserted that it had been reasonable to study this for five years before deciding to change courses. He stated that he had then studied automotive studies as this was his interest;
b)the applicant acknowledged that at the time of the visa application, he had not completed any courses in Australia. He stated that he had now completed a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis, and evidence of this was provided;
c)the applicant stated that he was currently enrolled in a Diploma of Leadership and Management, and evidence of this was also provided. He claimed that this was related to the automotive industry as he wanted to run a business;
d)the applicant disputed the delegate’s finding that he had enrolled in short and inexpensive courses, explaining that he had not studied a higher education sector course when he arrived in Australia as it was too difficult and he wanted to complete other courses first;
e)the applicant claimed an intention to return to India and denied that he was trying to maintain residence in Australia. He stated that he planned on opening a business in India and his parents owned a property for this purpose.
On 20 April 2017, the applicant attended a hearing before the Tribunal. following which the Tribunal delivered an oral decision affirming the delegate’s decision to refuse the visa application. On 28 April 2017, the Tribunal provided written reasons for its decision.
In summary, the Tribunal found that:
a)the applicant had been enrolled in a number of courses, most of which had been cancelled: [18]. The Tribunal found that the applicant had been in Australia for nine years and had only completed two courses, being a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. It found that these courses would normally be completed in less than two years and that this was not indicative of the progress of a genuine student: [20];
b)when asked about his claim that he intended on opening a business in India, the applicant had been unable to provide any details on the costs of establishing the business and had no plans in place. The Tribunal found that the applicant had no business plan which was motivating his studies: [21];
c)despite his inability to complete business courses at a Certificate IV and Diploma level, the applicant wished to study a Bachelor of Business. The Tribunal found that the applicant had been unable to explain the relevance of this course to his plan to open an automotive business: [22];
d)the applicant had no business plan as the motivation for his studies, and that the courses he had studied and planned to study did not provide any value to any business plans: [23];
e)the courses chosen by the applicant frequently comprised units already completed in previous studies (and provided examples of this), finding that he had chosen courses, not for academic progression but to maintain residence in Australia: [24]-[25];
f)the applicant’s explanation for studying in Australia rather than India was not satisfactory: [26]. The Tribunal had regard to the applicant’s evidence that he had been working in Australia, and the fact that he had remained here for a number of years, and found that he had incentive to remain in Australia despite the fact that he had family in India: [27];
g)the applicant’s explanation for the gap in his study (being that he had applied for a visa and stopped studying as he did not know what to do), was unsatisfactory: [28].
The Tribunal was not satisfied that the applicant was a genuine student who intended to stay in Australia temporarily, concluded that he did not satisfy cl 572.223(1)(a) and affirmed the delegate’s decision: [29]-[31].
Procedural history
On 12 May 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons.
By his affidavit, the applicant provided a detailed response to particular aspects of the Tribunal’s Reasons and said that despite the number of courses in which he had enrolled and cancelled this did “not mean that I have been doing this enrol and cancel game since I arrived in Australia.” The applicant exhibited a statement which he had apparently addressed to his ‘Case Officer’, which I have also considered.
On 14 June 2017, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.
On 22 November 2017, orders were made, by consent, dispensing with a show cause hearing and listing the matter for final hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions. As those opportunities were not taken in a timely way, the submissions filed on behalf of the Minister were responsive to the matters set out in the application.
On 27 October 2020, the applicant’s solicitors filed an amended application, withdrawing the original grounds for review and substituted in their place, a single ground for review.
Judicial review
If the Tribunal’s decision was a privative clause decision,[1] it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2] Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[5] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[6] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[5]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[6] Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Ground of review – misconstruction of cl 572.223
The amended ground for review reads:
The Second Respondent misrepresented the entire effect of cl.572.223 of Schedule 2 of the Migration Regulations 1994 (Cth) and limited itself to cl.573.223(1)(a) only. Accordingly, the Tribunal misdirected its consideration to the matter by asking itself the wrong question and failed to reveal a rational and in intelligible reasoning process to its conclusion.
As observed in the course of argument, it was to the credit of counsel that the matter was advanced upon the ground considered to represent a substantive basis for complaint and that others were not pursued.
The applicant submitted that the Tribunal based its decision solely on the criteria set out at cl 573.223(1)(a) in Sch 2 of the Regulations which sets out the basis for the Genuine Temporary Entrant criteria applicable to the grant of a student visa in the then vocational education stream. Relevantly, it provides:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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). . .; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (1A) or (2).
In substance, the applicant complains that the decision is attended by error in that the Tribunal did not address the requirements of cl 572.223(1)(b) and confined itself to the criteria in par (a)(i)-(iv) of that regulation. The ground and the nature of the error so pressed derive from Eros v Minister for Immigration and Border Protection.[7]
[7] [2020] FCA 1061 (Eros).
Under the heading, “Statement of Decision and Reasons” the Tribunal stated that “to be a genuine temporary entrant your circumstances must support a genuine intention to remain in Australia temporarily”: [4]. While this statement correctly summarised the operative effect of par 572.223(1)(a) of the regulation, the applicant complained that the Tribunal’s decision made no reference to the matters in cll 572.223(1A) or cl 573.223(2), being matters which were required to be addressed by operation of par 572.223(1)(b) and which related to the capacity of a student to undertake a course of study which applies to the visa type in question (both academically and financially) and the applicant’s intention to comply with the conditions of the visa. So it was said that the Tribunal's decision was based solely on cl.572.223(1)(a) which is concerned with genuine intention as to length of stay, “and nothing else.”
The applicant submitted that he had made pre-hearing submissions to the Tribunal respecting his genuine intention to remain temporarily in Australia, including the following:
a)he sought to qualify as a mechanic and then undertake management courses for the purpose of running an automotive business in India;
b)he sought an education that is recognised globally and could be used in his home country to advance the knowledge and skills in the automotive repair industry;
c)he did not wish to remain in Australia permanently;
d)had he intended to remain in Australia permanently, he would have selected an alternative study and/or visa pathway;
e)his family ‘financial position is strong’ and he ‘has no intention of running after money in Australia’; and
f)his family held property that would, in time, be the premises for his proposed automotive business.
It was said that the applicant had expressly claimed in his submission that he had no intention of remaining in Australia permanently and that he had provided confirmation of enrolment documents for the remainder of his proposed courses with those submissions.
The applicant accepted that the Tribunal’s decision referred to some of the criteria set out in Ministerial Direction No 53 (Direction No. 53) made under s 499 of the Act which was in force at the time. On the basis of matters extracted from Direction No 53, the Tribunal raised concerns that the applicant’s academic progress was “not that of a genuine student” and observed that his employment as a truck driver combined with the length of time spent in the country to date indicated that the applicant intended “to remain rather than return.”[8]
[8] Reasons, [20].
It was submitted that the Tribunal’s observations above were made in regard to the applicant’s capacity to complete his studies and his willingness to comply with conditions on a student visa rather than making specific findings that the applicant did not genuinely intend to stay as a student. It was further submitted that the Tribunal made no finding in respect of any breaches of visa conditions by the applicant, in particular the work limitation condition and furthermore, made no express finding rejecting the applicant’s statement that he did not intend to remain in Australia permanently.
As framed by the applicant, it was said that the issues raised in the Tribunal’s reasons were expressions of concern rather than a conclusive finding that, on the basis of all the material before it, the applicant was not a genuine applicant for temporary stay in Australia as a student. In this respect, reliance was placed upon Eros.[9]
[9] [2020] FCA 1061.
It was submitted that the Tribunal had therefore incorrectly considered the entire operation of cl 572.223 and so misdirected its consideration of all factors relating to the GTE criteria by asking itself the wrong question and thereby failing to follow a rational and intelligible reasoning process which, it was said, would not support an upholding of the original decision to refuse the applicant’s student visa.
Resolution
The regulation has been set out above at [32] and bears a marked similarity to analogue provisions found elsewhere in the regulations. The text of the regulation contains a series of distinct and cumulative requirements. The repeated use of ‘and’ throughout the regulation express an imperative requirement that each criterion must be satisfied. Conversely, if the Minister is not satisfied that any of those criteria are not satisfied, the visa application must be refused: Act, par 65(1)(b).
In Eros, Allsop CJ described the phrase “a genuine entrant for entry and stay as a student” as a chapeau expressing a whole idea or concept which involved the making of value judgments about the applicant and his or her genuineness to enter and stay as a student. His Honour held that upon a plain reading of an analogue regulation, it was clear that the Ministerial satisfaction as to that concept was to be reached by reason of all of the criteria in the regulation “and not otherwise.”[10]
[10] [2020] FCA 1061, [8]-[11].
Allsop CJ explained that the regulation was to be construed in this way as the expression “a genuine entrant for entry and stay as a student” was linked to the criteria through the word “because” in that chapeau. The same reasoning was adopted in Saini v Minister for Immigration and Border Protection,[11] where Logan J described the presence of the conjunction, ‘because’ as indicating that “this overarching satisfaction must be reached by reason of particular criteria specified in cl 572.223(1)(a) and (b)”. It was also applied in Ali v Minister for Immigration and Border Protection.[12]
[11] [2016] FCA 858; 245 FCR 238, [23].
[12] [2018] FCA 998, [16] (Burley J).
It is apparent from the text of the regulation that ‘genuineness’ is employed as a concept both in the chapeau (with reference to the requirement of Ministerial satisfaction that the applicant is “a genuine entrant for entry and stay as a student”) and in par 572.223(1)(a) (creating a requirement that “the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to” the factors enumerated in sub-pars (i)-(v) inclusive).
In Saini,[13] Logan J held that: “[t]he words [in cl.572.223(1 )(a),] ‘intends genuinely to stay in Australia temporarily’ are concerned with how long the visa applicant intends to stay in Australia and nothing else.” His Honour further held that if, at the time of decision, the decision-maker was satisfied that an applicant’s intention was not to stay in Australia temporarily, the criterion in cl 572.223(1) would not be met. In Eros, Allsop CJ considered this reasoning in Saini and agreed in that construction of par 572.223(1)(a) of the regulations.[14]
[13] [2016] FCA 858; 245 FCR 238, [28].
[14] [2020] FCA 1061, [12]-[13].
However, the Chief Justice further observed that the proper approach to the application of the clause required “an appreciation of the relationship between the disaggregated elements of” the whole of the regulation (in this case, both of par 572.223(1)(a) and par 572.223(1)(b)), together with the whole of the question posed by the chapeau; namely, whether the Minister was satisfied that the applicant was “a genuine entrant for entry and stay as a student” because of the matters in both paragraphs. As concerned the proper application of the subject regulation, Allsop CJ held as follows:[15]
The terms and structure of cl 500.212 require a careful treatment of three distinct criteria: the intention concerning length of stay, that is, that there is a genuine intention to stay temporarily: (a); that there is an intention to comply with any visa conditions: (b); and any other matter relevant to the subject matter, scope and purpose of the clause and grant of the underlying visa. These three considerations all feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student.
The clarity of structure of disaggregated elements to inform one overall evaluation demands separate attention to each element so that appropriate attention is given to relevant considerations, and so that appropriate focus is given to the relevant considerations
[15] [2020] FCA 1061, [14]-[15].
However, once the Tribunal found that the criterion in par 572.223(1)(a) was not met, it was required to dismiss the application irrespective of whether the criteria in par 572.223(1)(b) had been satisfied. More precisely, in such circumstances, it was not required to consider the criteria in par 572.223(1)(b) before it could lawfully decide to affirm the delegate’s decision to refuse the application: Vidiyala v Minister for Home Affairs;[16] Sanjel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[17] The principle that all of the criteria in the subject regulation must be considered in the formation of the requisite level of Ministerial satisfaction does not deny that where any applicable criterion is not satisfied, the application must be refused.
[16] [2018] FCA 1973, [28] (Perry J).
[17] [2019] FCA 1966, [18] (Thawley J).
For those reasons, I agree that Eros does not decide that an administrative decision-maker will err where it is concluded that the criteria in par 572.223(1)(a) have not been satisfied and makes a decision to refuse the visa application without considering par 572.223(1)(b).
It is plain from the structure of cl 572.223(1) that the criteria in both cll 572.223(1)(a) and 572.223(1)(b) needed to be satisfied by the applicant before the Minister could be satisfied that he was “a genuine entrant for entry and stay as a student”. I also accept that the requirements of these provisions are discrete and cumulative.[18] Consequently, in the circumstance where an applicant has not satisfied cl 572.223(1)(a), he or she could not satisfy cl 572.223(1), and, this being dispositive, there would be no need in such cases for a decision-maker to go on to consider the requirements of cl 572.223(1)(b).
[18] Husnain v Minister for Immigration and Border Protection [2016] FCCA 401, [36]-[37]; Vidiyala v Minister for Home Affairs [2018] FCA 1973, [28].
In the course of argument, it was accepted that the facts of Eros were distinguishable from the present case, including in the important respect that Allsop CJ held the Tribunal’s affirmative finding that ‘the applicant intended to remain in Australia for a period of two years’ was inherently temporary in nature. As his Honour held, the Tribunal had employed its finding that the applicant was to remain in Australia for two years in concluding that she did not intend to stay temporarily in Australia as a student. On the facts, the Tribunal considered the applicant (whose daughter was also studying in Australia), was not a genuine student by reason that she was remaining to care for her daughter. By contrast, Allsop CJ held that the Tribunal had asked itself the wrong question and erred in making no finding that she did not genuinely intend to stay in Australia as a student. The Chief Justice accepted that if the Tribunal had made a finding that the applicant intended to stay indefinitely in Australia: “then plainly she would not genuinely intend to stay temporarily in Australia.”[19] Eros, thus concerned a failure to properly construe the requirement in par (a) of the applicable regulation.
[19] [2020] FCA 1061, [20]-[22], [30]-[33].
In this case, the Tribunal assessed whether the applicant genuinely intended to stay in Australia temporarily, and did so by reference to the factors set out in cl 572.223(1)(a)(i) to (iv) and in Direction 53. It concluded that the applicant was engaging in (whether by enrolling, cancelling or completing) courses of study in order to maintain residence in Australia and that he was not a genuine student who intended to stay temporarily in Australia: [25], [29]. The Tribunal plainly did not accept the applicant’s claim that he did not intend to stay in Australia permanently. The Tribunal properly considered and answered the question posed by cl 572.223(1)(a). As the Minister submitted, any failure to ‘parrot’ the wording used in cl 572.223(1)(a) does not disclose a failure to properly understand or apply that provision.[20]
[20] CfAli v Minister for Immigration and Border Protection [2018] FCA 998, [21].
As concerned the complaint of considering other matters, I also agree that the Tribunal was required to do so. Paragraph 572.223(1)(a)(iv) expressly provides that in considering the question whether the applicant is a genuine applicant for entry and stay as a student, one of the factors to which regard must be had is “any other relevant matter.”
In Eros,[21] Allsop CJ observed that such a wide frame of reference was necessarily limited by reference to the subject matter, scope and purpose of the regulation; in this case, the grant or refusal of a student visa. By force of s 499(2A) of the Act, the Tribunal was required to have regard to Direction No 53.
[21] [2020] FCA 1061, [9] citing Water Conservation and Irrigation Commission(New South Wales) v Browning (1947) 74 CLR 492, 505.
In turn, Direction No 53 provided that the direction applied to persons performing functions or exercising powers in assessing the genuine temporary entrant criterion for student visas including under cl 572.223. Pt 2 of Direction No 53 contained a series of directions for assessing the genuine temporary entrant criterion and provided, by cl 5, that an “application must 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:” see also cl 16 of Direction No 53.
As Vidiyala and Sanjel confirm, so here, the Tribunal was entitled to place significant weight on the applicant’s lack of academic progress and the lack of convincing evidence to the contrary in concluding that he was not “a genuine entrant for entry and stay as a student”. The weight which the Tribunal assigned to the evidence and the inferences which it was prepared to draw were matters for the administrative decision-maker, not this court. Particularly is that so where the question of Ministerial satisfaction turns upon a decision-maker’s consideration of the matters in a Ministerial Direction.[22]
[22] Vidiyala v Minister for Home Affairs [2018] FCA 1973, [29] citing Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297, [5].
I agree with the Tribunal’s finding that the applicant did not satisfy cl 572.223(1)(a) and therefore discloses no jurisdictional error. Having concluded that the applicant did not satisfy cl 572.223(1)(a) the Tribunal was bound to conclude that he did not meet cl 572.223(1), and it was not required to go on to consider whether he satisfied cl 572.223(1)(b).
The amended ground of review is rejected.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 26 November 2020
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