Bhullar v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 909
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhullar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 909
File number(s): ADG 275 of 2020 Judgment of: JUDGE GERRARD Date of judgment: 20 September 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – whether Tribunal failed to consider applicant’s evidence – no jurisdictional error established – application dismissed. Legislation: Migration Act 1938 (Cth) s 476
Migration Regulations 1994 (Cth) sch 2 cll 500.212, 500.212(a)
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510, [1999] HCA 14
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Carrascalao v Minister for Immigration and Border Protection (2017) FCR 352
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, [2016] FCAFC 146
Craig v State of South Australia (1995) 184 CLR 163
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175, [2018] FCAFC 2
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, [1998] FCA 1126
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158, [2015] FCA 1392
SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294, [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Tickner v Chapman (1995) 57 FCR 451
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 8 August 2024 Date of hearing: 9 September 2024 Place: Adelaide Applicants: Self-represented first applicant on behalf of the other applicants Counsel for the First Respondent: Lucinda Taylor Solicitor for the First Respondent: Minter Ellison Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 275 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPREET SINGH BHULLAR
First Applicant
RANJIT KAUR BHULLAR
Second Applicant
ABEYJOT SINGH BHULLAR
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
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 GERRARD:
BACKGROUND
The first and second applicants are citizens of India. They first arrived in Australia on 4 September 2009 as the holders of Subclass 572 Vocational Education Sector Student visas, which were granted on 7 August 2009 (Court Book (CB) 88). Subsequently, the first and second applicants have remained in Australia following the grant of four further student visas (CB 88).
The third applicant is the child of the first and second applicants and was born in India in 2015. The third applicant appears to have first arrived in Australia on 4 March 2016 (CB 46).
On 14 December 2017, the applicants applied for Student (Class TU) (Subclass 500) visas (the visas) (CB 18-38). In that visa application, the first applicant (the applicant) indicated that he intended to study towards a Certificate IV in Commercial Cookery (CB 30).
On 15 February 2018, a delegate of the first respondent (the Minister) refused to grant the applicants the visas. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 86-92). That criterion provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) 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…
On 5 March 2018, the applicants applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision (CB 93-95).
On 30 March 2020, the Tribunal wrote to the applicants inviting them to provide further information in a ‘Request for Student Visa Information’ form by 14 April 2020 (CB 113-114). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) (CB 115-119).
On 13 April 2020, the applicant responded to the Tribunal providing a completed ‘Request for Student Visa Information’ form together with a confirmation of enrolment for the Certificate IV in Commercial Cookery, a genuine temporary entrant statement and certificates (CB 120-141).
On 2 July 2020, the applicants were invited to attend a hearing scheduled for 20 July 2020 (CB 146-149).
On 20 July 2020, the first applicant attended the hearing (CB 165-167). At the conclusion of that hearing, the Tribunal delivered an oral decision affirming the delegate’s decision not to grant the applicants the visas (CB 173-179). The Tribunal delivered reasons in writing on 6 August 2020 (CB 184-188).
On 13 August 2020, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 5 pages long and spans 44 paragraphs (CB 184-188).
The Tribunal began by identifying the visa decision under review, noting the applicants had applied for the visas on 14 December 2017 (at [4]). The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant did not claim to meet the criteria for the Subclass 590 (Student Guardian) visa. The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212 in Schedule 2 of the Regulations) (at [5]).
The Tribunal confirmed that the applicant had appeared at a hearing before it on 20 July 2020 to give evidence and present arguments (at [6]).
The Tribunal identified that the issue before it was whether the applicant was a genuine temporary entrant for stay in Australia as a student (as required by cl 500.212 in Schedule 2 of the Regulations) (at [7]). The Tribunal outlined the relevant legislative provisions in that regard.
The Tribunal stated that in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Direction 69. The Tribunal noted, however, that the factors set out in Direction 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant’s circumstances as a whole (at [7]-[8]).
The Tribunal summarised the applicant's evidence of his study history (at [9]-[10]). This included his evidence that his intention was to return to his home in India, which was in a tourist area, to open a multicultural restaurant as he believed there was significant scope for such a restaurant, particularly one which served Western cuisine (at [9]). The applicant told the Tribunal that the Certificate III in Commercial Cookery was not ideal as it only covered Asian cuisine. The applicant told the Tribunal that after completing a number of hospitality and business/marketing courses, he believed that he had sufficient qualifications; however, an unidentified consultant in India advised him that he would need to complete a Certificate IV in Commercial Cookery. The Tribunal observed that this claim was uncorroborated (at [10]-[11]).
The Tribunal also outlined the applicant’s evidence that he withdrew from the Certificate IV in Commercial Cookery after the delegate's decision and re-enrolled when he received the information letter from the Tribunal (at [17]-[18]). The applicant told the Tribunal that, in the period of two and a half years between the time of the delegate’s decision and the time of the Tribunal’s review, he had not engaged in any study because he was awaiting the outcome of that review (at [19]). The applicant told the Tribunal that both he and the second applicant did work during that period (at [19]-[20]).
The Tribunal outlined the applicant’s evidence that his father would assist him financially in establishing a restaurant in India. The applicant told the Tribunal that his father had taken advice on what would be required financially to set up the restaurant, and the applicant gave evidence in relation to the capacity and anticipated revenue of that proposed restaurant (at [21]). The Tribunal observed that the applicant had nothing to corroborate these assertions (at [22]).
The applicant also gave evidence to the Tribunal that a Certificate IV and practical learning are not available in India (at [23]). The Tribunal observed that the applicant did not have any documentation which corroborated his evidence in this respect but that the applicant had said that he is from India and knows that the Australian Standard is higher in hospitality (at [23]).
The Tribunal did not find that the applicant had reasonable reasons for not undertaking the study in his home country and did not accept the applicant’s claim that no similar course is available there (at [24]).
The Tribunal accepted that the applicant has personal family ties to India. However, the Tribunal also observed that the applicant had spent very little time in India over the ten-year period he had lived in Australia. Consequently, the Tribunal placed little weight on these ties (at [25]-[28]). The Tribunal gave some weight to the evidence that the applicant's family in India were relatively affluent and noted the applicant was not liable for military service in India, that he feels happy and safe there, and that there is no political and civil unrest that would restrict his return to India (at [29]-[30]).
The Tribunal found that the presence of the applicant’s wife and child in Australia was likely to be the applicant’s most substantial tie to Australia and that that should be given some weight (at [31]).
The Tribunal did not accept the applicant’s evidence that he was not using the student visa program to circumvent its purpose and maintain ongoing residence (at [32]). The Tribunal was not persuaded by the applicant’s explanation as to why he had continually represented that he was a genuine temporary entrant for each of his student visas before changing his mind and enrolling in further study (at [32]). The Tribunal considered the value of the course to the applicant’s future and noted that the applicant had not provided any evidence to substantiate his claim to need to complete further study for the purpose of his business plan (at [33]-[38]).
The Tribunal found that the applicant’s immigration history was not of concern, and gave some weight to his compliance with visa conditions, but found that the amount of time the applicant had spent in Australia suggested that his student visa may be primarily used for maintaining ongoing residence (at [39]-[41]).
The Tribunal was ultimately not satisfied that the applicant intended to genuinely stay in Australia as a student as required by cl 500.212 of Schedule 2 to the Regulations (at [42]).
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [42]-[44]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 13 August 2020 contains the following grounds of review as follows (without alteration):
1. I wish to submit my application to review my case in court as it was dismissed by DIBP and AAT. I applied for Student visa subclass, which got refused as both the authorities refused my study intentions as genuine.
2. I have completed Certificate III in Hospitality (Commercial Cookery) and Asian cookery Certificate IV in Business. Now I want to study further in these fields to upgrade my qualification level by completing Certificate IV in Hospitality (Commercial Cookery). Since I have completed my previous education from Australia, I wish to complete further qualification from here only because I have realised so far that quality education here is far better, teachers have more experience to teach latest technologies and latest skills and the best part is that a lot of stress is given on practical aspect of study as compare to just imparting theoretical knowledge in Indian Institutions. So I have chosen Australia for completing my further studies.
3. In past I have also gained academic qualification in field of business and marketing which will greatly impact the success smooth running of my foreseen business venture in the of Hospitality (eatery/restaurant/catering) business in India because to be an entrepreneur and successful business man I personally believe that academic preparation goes and pays a long way in your business establishment and successful execution.
4. I am interested in the culinary business and aspire to eventually own restaurants after completion of my course studies from Australia.
5. Today there are a lot of entrepreneurs entering the restaurant business because of the low entry barriers that the business has. Launching a new brand and then working to establish them could take much longer, but I want to set up in this field and take the plunge and want to be successful in my business ventures.
6. My economic situation in India is pretty good and as my parents, to help me starting my career in India, therefore I have no money issues. Moreover, we have our own property there with no mortgage and other assets as well. Now about social ties I would say that all my social ties are with India only, because my parents, relatives, cousins are all living in India. I am truly attached to my parents and younger brother. I have few friends here but staying away from family for long period is not possible because it's emotionally and mentally very challenging and one feels lack of warmness and support while away from family. I am very keen to establish my business plans in India after completion of the course studies.
7. Therefore I wish to complete my academic journey in Australia but Department of Immigration and AAT overlooked my intentions and has not given weight age to the fact that I have only studied the courses in the past which were relevant and beneficial to my business portfolio. And hence AAT has made jurisdictional error in considering the facts in my case.
8. So I am sure that all above-mentioned facts are appropriate in elucidating reasons for undertaking the course package for my future growth and career enhancement. Kindly consider my case for student visa.
The applicants filed an affidavit, affirmed by the first applicant, with that judicial review application on 13 August 2020. The affidavit annexed a copy of the Tribunal’s decision and repeated the grounds set out above.
The applicant appeared before the Court on 9 September 2024 without legal representation but with the assistance of a Punjabi interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 13 August 2020 (the affidavit being taken as read and in evidence at the hearing on 9 September 2024), a Court Book numbering 188 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 8 August 2024.
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [61]. Accordingly, at the hearing of this matter on 9 September 2024, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang)) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged by the applicant, common categories of alleged jurisdictional error included:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at 330, [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111], [2013] FCA 317 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27, [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648, [2010] HCA 16 at [131] (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28] (Li); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445, [2014] FCAFC 1 at [44] (Singh)).
However, it was also explained to the applicant that this was not an exhaustive list, and he should attempt to articulate why he said the Tribunal had fallen into error.
Against this background, the applicant briefly outlined his study history and asserted that without completing the Certificate IV in Commercial Cookery, his study was “not yet fully complete”. When taken to the grounds he had raised, and asked if there was anything he wished to say in respect of those grounds, the applicant again reiterated that without the Certificate IV in Commercial Cookery, his study was not complete. He added that Australian qualifications were more practical than the more theoretical study in Indian courses. In his submissions in reply, the applicant said that his intentions to study in Australia and then return to India were clear.
CONSIDERATION
As outlined above, there are a number of grounds pressed in these proceedings. However, most of those are not grounds per se, but rather restate the factual and procedural background to the matter. That is not uncommon in applications by unrepresented applicants unfamiliar with drafting legal documents.
Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158, [2015] FCA 1392). Having regard to what the applicant has said in his application and affidavit, and in his submissions before the Court, it appears that the applicant’s principal complaint is that identified at ‘ground’ 7 as follows:
… [The] AAT overlooked my intentions and has not given weight age to the fact that I have only studied the courses in past which were relevant and beneficial to my business portfolio. And hence AAT has made jurisdictional error in considering the facts in my case.
The Minister submitted that grounds one, two, three, four, five, six and eight, in effect, restate the evidence that was before the Tribunal and request that the Court reconsider the applicant’s case. The Minister went on to submit that these grounds go no higher than to request the Court reconsider the merits of the applicant’s case, thereby inviting the Court to engage in impermissible merits review (citing Wu Shan Liang at 272). The Minister submitted that they are not proper grounds of review and should be dismissed.
Whilst there is force to the Minister’s argument, the Court is conscious that self-represented applicants are often unfamiliar with the niceties of legal drafting. In respect of this matter, it seems reasonably clear that what the applicant has attempted to do is set out the relevant background to his ultimate complaint. This is that the Tribunal did not properly take into account his intentions (which the Court takes as a reference to his evidence before the Tribunal in respect of his stated intention to return to India to establish a business) and failed to give weight to his evidence that his prior studies were relevant and beneficial to his ultimate aim. At the hearing, the applicant and counsel for the Minister agreed with that construction. In that sense, whilst the Minister is correct to say they are not proper grounds in and of themselves, the Court has endeavoured to have regard to the matters stated within those grounds as informing the applicant’s principal complaint that the Tribunal did not have regard to his intentions and did not give proper weight to his evidence.
Nevertheless, in the sense that they are to be treated as formal and distinct grounds of review, the Court accepts that they do not reveal jurisdictional error.
As observed, the applicant only advanced one ground, notionally ground 7, by which he contended that the Tribunal erred by overlooking the applicant's intentions and not giving sufficient weight to the applicant's previous studies in Australia.
The Minister submitted that the Tribunal did not overlook any of the applicant's evidence and gave extensive consideration to the applicant’s stated intentions. Further, the Minister submits that it was open to the Tribunal to reach the conclusion that the applicant's student visa may be used primarily for maintaining ongoing residence in Australia. Given its findings that the applicant’s evidence of his intentions was uncorroborated, speculative and inconsistent, it found that it should be given little weight.
In support of the submission that the Tribunal gave extensive consideration to the applicant’s stated intentions, the Minister drew the Court’s attention to the following paragraphs in the Tribunal’s decision.
9. The applicant gave evidence to the Tribunal that he arrived in Australia in September 2009. He said that he came to study commercial cookery and enrolled in a Certificate III course. He said that his studies were interrupted when the college closed after about six months, but he was referred to another college, in which he was able to enrol in a Certificate III in Asian Cookery. He started that in March 2010 and finished it in September 2010. The applicant’s evidence was that he planned to return to India and open a restaurant but that the Certificate III in Commercial Cookery was not ideal for this ambition because it only covered Asian cuisines, such as Vietnamese and Chinese cookery. The applicant said that he wished to return to his home in India, which was in a tourist area, and he wanted to open a multicultural restaurant, as he believes that there was significant scope for a restaurant serving foods from across the world and in particular Western foods.
…
14. The applicant said that the proposal is that his father will support him in opening a restaurant in his hometown and so he only needed to concentrate on getting his qualifications. The certificate IV that he enrolled in December 2017 was at Durban College and that is the course that he is enrolled in now.
…
21. The applicant indicated that his father will provide him with about 25 to 30 lakh rupees in order to setup a restaurant when he returns to India. He said that that will cover rent, and that he understands that is enough because he understands his father has taken advice from local businesses. The applicant said that he plans to open a restaurant that has the capacity to seat 40 to 50 for dining in, and he expects to make 20 to 30,000 rupees per day, but that will increase as the business becomes more efficient and established.
…
27. The applicant gave evidence that he hoped to make about 3 lakh rupees per year in the restaurant when it becomes established. And said that his father would not be taking a share of the profits, and that the setting up of him in a restaurant will effectively be because his brother is taking the family farm, and so his family will set him up in his own business.
…
32. The applicant strongly denied using the Student visa program to circumvent the intentions of the migration program and in particular using his Student visa to maintain ongoing residence. He said that he intends to return to India when he finishes his study. It was put to him that he had applied for several Student visas to Australia and on each occasion had represented that he was a genuine temporary entrant but had changed his mind and elected to do further study. The applicant said that on this occasion it was different and that he was determined to return to India. The Tribunal is not convinced by the applicant’s evidence and places little weight on it. The Tribunal accords no weight to the applicant’s evidence that he is not attempting to stay in Australia.
…
35. The applicant insisted that he needed to study this certificate IV in order to be able to effectively run a restaurant in India. The Tribunal was concerned that the applicant was attempting to suggest that there was a rule or law that required him to have a certificate IV.
36. Ultimately the applicant made it quite clear that there is no such rule or law and that that was not what he was trying to say. The applicant made it clear that he believed that it would be a commercial advantage to serve Western food in his restaurant in India, and it was for that reason that he wished to do the certificate IV. The Tribunal notes that the applicant has not provided any corroboration of that evidence and affords it no weight.
37. The applicant is not proposing to obtain employment in the sense in which he will need to appeal to employers in his home country. And it is not clear whether or not he would.
38. The applicant’s evidence as to his potential remuneration in India is entirely speculative and the Tribunal accords that no weight.
It is clear from the above passages that the Tribunal was well aware of the applicant’s stated intentions in respect of returning to India to study and, importantly, clearly engaged in an active intellectual process with that evidence and its relation to the dispositive issue before it (Tickner v Chapman (1995) 57 FCR 451 at [452]; Carrascalao v Minister for Immigration and Border Protection (2017) FCR 352 at [364]). In that respect, the Court agrees with the Minister’s submission that the applicant is simply disagreeing with the conclusions that the Tribunal drew in respect of this evidence. It is, of course, entirely understandable that an applicant takes issue with the ultimate findings of a Tribunal where there is an outcome which is adverse to them. It is equally understandable that an applicant may feel that because they disagree with the outcome, the Tribunal either did not consider or did not understand their evidence. However, in this matter, the Court finds that the Tribunal did consider and understand the applicant’s evidence. The Court accepts that the applicant’s request for this Court to reach a different conclusion on that evidence is ultimately an invitation to engage in merits review and, as the Minister correctly submitted, that is not something this Court can engage in.
The Court held some concern with the Tribunal’s statement at [35] set out above. Looking at that paragraph in isolation, it seemed tenuous for the Tribunal to construe the applicant’s assertion that he needed to complete the Certificate IV in order to effectively run a restaurant in India as a contention that the applicant said this was a legal requirement. Had that been the finding of the Tribunal, the Court is of the view that this would have evidenced illogicality as there is no nexus between the applicant’s assertion and such a conclusion. However, the subsequent paragraph makes it clear that this was not the finding of the Tribunal but rather an issue that the Tribunal sought to clarify with the applicant. That was a permissible and appropriate line of enquiry for the Tribunal to pursue. Once the applicant confirmed that was not the submission he was advancing, the Tribunal made no finding on that aspect and merely recorded the concern it had held (and the answer given). The Tribunal was entitled to reject (for lack of any corroborative evidence) the applicant’s answer that there was a commercial advantage to serving Western food which was why the applicant claimed he needed to complete the Certificate IV.
In relation to the applicant’s complaint that the Tribunal has “not given weight” to the nature of the applicant’s study history, the Minister submitted that the weighing of evidence is a matter for the Tribunal (citing Abebe v Commonwealth (1999) 197 CLR 510 at 580, [1999] HCA 14 at [197] (Abebe)). The Minister submitted that the Tribunal's conclusions could not be construed as illogical, irrational or without an evidentiary foundation.
As the Minister has submitted, it is well established that the weight to be given to evidence is a matter for the Tribunal (Abebe at 580; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]). A complaint about failing to give proper weight to evidence before the Tribunal does not ordinarily give rise to a finding of jurisdictional error. That is because such a complaint implies that the Tribunal should have given greater weight to evidence and essentially invites the Court to review the factual findings made by a Tribunal rather than review the process by which it arrived at its conclusions (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 178, [2010] HCA 48 at [36]). That does not mean that such findings are unassailable if they can be seen to be illogical or irrational.
In this matter, the Court agrees that there is nothing illogical or irrational about the weight placed on any of the matters by the Tribunal. The matters it had regard to were clearly relevant, and the conclusions it reached, including as to weight, were clearly open on the evidence before it and within its “area of decisional freedom” (Li at [28] per French CJ; Singh at [44] per Allsop CJ, Robertson and Mortimer JJ)
The Minister further submitted that the Tribunal clearly set out the relevant legislation and direction, and had regard to the applicant’s situation in his home country, his situation in Australia, the value of the courses the applicant proposed to undertake, and his immigration history. The Minister submitted the Tribunal correctly interpreted and applied clause 500.212 of Schedule 2 to the Regulations, as well as Direction 69, and made findings that were open to it. On the basis of the extensive consideration given to these factors by the Tribunal, the Minister submitted that the Tribunal’s findings with respect to the applicant’s family ties, enrolment history, or otherwise, were not illogical. The Court agrees.
Having regard to the entirety of the Tribunal’s decision, it is clear that the Tribunal understood the relevant task before it. It considered all claims made by the applicant and all evidence given by the applicant in support of those claims. Where it had concerns, those concerns were put to the applicant and the applicant’s responses were considered. All matters considered by the Tribunal were clearly relevant and there is no evidence that it failed to consider relevant material. The Tribunal’s findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, [2016] FCAFC 146; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, [1998] FCA 1126 and DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175, [2018] FCAFC 2). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS).
The Court also asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. There were none.
The Court is satisfied that, even adopting the broad approach referred to in [37] of these reasons, no jurisdictional error is apparent.
CONCLUSION
The application for judicial review, supporting affidavit and additional submissions made by the applicant have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 20 September 2024
0
30
2