Bunga v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 68
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bunga v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 68
File number(s): SYG 1675 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 28 January 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – whether applicant satisfied clause 500.212 – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 65, s 476
Migration Regulations 1994 Sch 2 cl 500.212
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 19 December 2024 Place: Parramatta Applicant: In person Solicitor for the Respondents: Ms M Kent of Australian Government Solicitor ORDERS
SYG 1675 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAKESH BUNGA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $5,400.
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 ZIPSER
INTRODUCTION
On 13 July 2020, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 June 2020. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
On 18 May 2018, the applicant applied for a Student (Temporary) (Class TU) visa.
On 21 June 2018, the first respondent’s delegate refused to grant the applicant the visa on the basis that he did not satisfy the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2).
On 10 July 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
On 17 February 2020, the Tribunal sent a letter to the applicant inviting him to attend a hearing on 10 March 2020. The letter informed the applicant that an issue at the hearing would be whether the applicant was a genuine applicant for entry and stay as a student.
On 10 March 2020, the applicant appeared before the Tribunal to give evidence and present arguments. At the hearing, the Tribunal put information to the applicant, obtained from Provider Registration and International Student Management System (PRISMS), which showed that the applicant had been enrolled in several courses of study since his arrival in Australia in 2014, but they had all been cancelled. The Tribunal told the applicant that the information may lead the Tribunal to affirm the decision under review. The Tribunal invited the applicant to comment on the information.
On 11 June 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
TRIBUNAL’S DECISION
Clause 500.212(a) in Schedule 2 stated:
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
…
The Tribunal stated that, in considering whether the applicant satisfied cl 500.212(a), it must have regard to Direction No. 69, ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69). Direction 69 required the Tribunal to have regard to a number of specified factors, including the applicant’s circumstances in their home country, the applicant’s potential circumstances in Australia, the value of the course to the applicant’s future, and the applicant’s immigration history.
The Tribunal considered the applicant’s circumstances in his home country and concluded that these circumstances were not “sufficiently strong reasons for the applicant to return to India”.
The Tribunal considered the applicant’s economic circumstances, noted that the applicant had not completed any courses of study since his arrival in Australia in 2014, and found that “his employment in Australia is an incentive for him to seek to remain” in Australia.
The Tribunal, after considering the applicant’s ties to Australia which would present as a strong incentive to remain in Australia, found, based on the applicant’s academic history in Australia, that he was using the student visa program to maintain ongoing residence.
The Tribunal was not satisfied that the applicant was seeking to undertake a course that was consistent with his level of education, nor that the course he had been enrolled in would be relevant to future employment in the applicant’s home country.
In conclusion, the Tribunal found there were some factors that weighed in the applicant’s favour, including his current enrolment in study, but on balance the weight of the evidence was against the applicant in assessing whether he was a genuine temporary entrant. The Tribunal was not satisfied that the applicant satisfied cl 500.212(a) and refused to grant the student visa.
PROCEEDINGS IN THIS COURT
Application and steps up to 18 December 2024
On 13 July 2020, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision (Application). The Application included two grounds as follows (as written):
1. The first Respondent (Department of Home Affairs) erred in its decision as
a) Due consideration was not given to the fact of the Applicant's circumstances.
Particulars
i)The Applicant have considerable tie-ups with home country including 3 properties and has an incentive to go back to his home country however the facts were not considered.
ii)The Applicants circumstances in which he was failing in the studies were not considered and an assumption was made that he is not a genuine student.
iii)The first respondent failed to provide an opportunity to the applicant to furnish further details of the compelling and compassionate circumstances.
2.The Second Respondent failed to consider that fact that required documents were provided by the Applicant before the decision was made.
a)The Administrative Appeal Tribunal failed to consider the current circumstances of the Applicant.
Particulars
i)The Applicant have considerable tie-ups with home country including 3 properties and has an incentive to go back to his home country however the facts were not considered.
ii)The Applicants circumstances in which he was failing in the studies were not considered and an assumption was made that he is not a genuine student.
iii)The second respondent also considered the credibility of the Applicant in forming the decision although all the facts were disclosed to them
On 13 August 2020, a registrar made procedural orders, including that the applicant file and serve by 5 November 2020 any amended application with proper particulars and a written submission. The applicant did not file any documents in response to this procedural order.
Following a period of inactivity, on 24 July 2024 there was a directions hearing attended by the applicant at which a registrar made procedural orders, including that the applicant file and serve by 7 August 2024 any amended application, written submissions, and further evidence. The applicant did not file any documents in response to this procedural order.
On 17 October 2024, the Court informed the parties that the matter was listed for final hearing on 19 December 2024.
By 19 December 2024, the applicant had not filed any documents, other than the Application and a supporting affidavit in July 2020, in support of his application to this Court.
Hearing on 19 December 2024
At the hearing on 19 December 2024, the applicant appeared before the Court unrepresented. In the Application, he stated that he did not require an interpreter. During the hearing, the applicant appeared to understand communications in English at the hearing and he did not complain that he did not understand. Megan Kent from Australian Government Solicitor appeared for the first respondent.
Although the applicant confirmed at the directions hearing on 24 July 2024 that he had received a copy of the Court Book, he did not bring his copy of the Court Book, nor any other documents associated with the court proceeding, to the hearing. At the commencement of the hearing, the applicant was provided with a copy of the Application, his affidavit filed on 14 July 2020, and the decision of the Tribunal dated 11 June 2020.
At the commencement of the hearing, I explained to the applicant the limited role of the Court in a judicial review application, and the need for the applicant to persuade the Court that there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal’s decision. I directed the applicant’s attention to the reasons for decision of the Tribunal. I explained the main categories of jurisdictional error. After I explained these matters to the applicant, I offered the applicant a 10 minute adjournment to consider any oral submissions he wanted to make to the Court. The applicant declined the offer of a 10 minute adjournment.
I read the applicant’s affidavit filed on 14 July 2020 and accepted the Court Book (CB) into evidence.
I then invited the applicant to make oral submissions. The applicant stated that he did not wish to make a submission. The applicant made no effort to persuade the Court that there was a jurisdictional error in the Tribunal’s decision. While the applicant’s conduct at the hearing is not relevant to whether or not he should be granted the relief sought in the Application, he appeared to show no real interest in persuading the Court that there was an error in the Tribunal’s decision.
Ms Kent made brief oral submissions on behalf of the first respondent and otherwise relied on a written submission filed on 3 December 2020.
I invited the applicant to make an oral submission in reply. The applicant did not wish to make a submission.
CONSIDERATION
Ground 1 in Application
Ground 1 complains about the decision of the first respondent dated 21 June 2018. However, first, as correctly stated in the written submission of the first respondent, in light of s 476(2)(a) of the Act, this Court has no jurisdiction to review the decision of the first respondent. Second, even if there was a procedural or substantive error in the first respondent’s decision, this does not mean there is a jurisdictional error in the Tribunal’s decision.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2 in Application
It appears to be contended in particular (i) of ground 2 that the Tribunal “failed to consider the current circumstances of the applicant” to the extent that “the applicant [has] considerable tie-ups with home country including 3 properties and has an incentive to go back to his home country”.
Paragraph 9(b) of Direction 69 states that decision-makers should have regard to “the extent of the applicant’s personal ties to their home country … and whether those circumstances would serve as a significant incentive to return to their home country”. The applicant, in a submission accompanying his visa application in May 2018 (see CB 41-43), provided some information concerning this factor. The applicant, in a written submission to the Tribunal dated 10 March 2020 (see CB 77-84), provided further information concerning this factor, in particular under the heading “Ties to the home country”. The applicant stated, as a personal tie to his home country, that he has “ample financial assets in the name of my mother such as a land title and house in an amount of AUD 200,000 [which] I will inherit … as per inheritance law of India”.
The Tribunal stated at [19]:
The Tribunal assessed the applicant's circumstances in his home country including the extent of his personal ties and whether those circumstances would serve as a significant incentive to return to India. The applicant stated his mother has passed away and he does not have any other family members in India. He claimed he will have responsibility for property that was owned by his mother and submitted evidence of title documents in the name of Shubha Esther Rani Bunga in this regard. The applicant has claimed he wants to open his own business in his home country; however, the Tribunal is not satisfied any property that may have been left to him by his mother, or bare assertions about establishing a business are sufficiently strong reasons for the applicant to return to India.
The Tribunal at [19] considered the applicant’s evidence and submissions concerning his ties to his home country, including his claims relating to land owned by his mother, but was “not satisfied [the circumstances] are sufficiently strong reasons for the applicant to return to India”. That the Tribunal was not persuaded by the applicant’s evidence and submissions does not mean the Tribunal did not have regard to the evidence and submissions. The applicant did not identify to the Court any particular aspect of his evidence or submissions which the Tribunal did not consider. The Court agrees with the first respondent’s written submission that “particular (i) amounts to no more than a disagreement with the Tribunal’s conclusion that none of the factors were a sufficiently strong reason for the applicant to return to India”.
Particular (i) of ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
It is contended in particular (ii) of ground 2 that the Tribunal “failed to consider the current circumstances of the applicant”, specifically “the applicant’s circumstances in which he was failing in the studies were not considered”.
The applicant, in his written submission to the Tribunal dated 10 March 2020 at CB 79-81, under the headings “Reasons of not performing well academically”, “My mother’s illness, her death and the stress it caused”, and “Assault case”, addressed the issue of why, despite arriving in Australia on a student visa in 2014, by 2020 he had not completed a course of study. The Tribunal referred to a number of these matters in its decision at [22]. The Tribunal stated at [22] that the illness and death of his mother, and other difficulties referred to by the applicant in his evidence, “does not account for his lack of progress over more than five years”. That the Tribunal was not persuaded by the applicant’s explanation as to why he had not completed a course of study in five years does not mean the Tribunal did not give the applicant’s evidence due consideration. The applicant did not identify to the Court any particular aspect of his evidence or explanation which the Tribunal did not consider.
Particular (ii) of ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
The meaning of particular (iii) of ground 2 is unclear. The applicant complains that the Tribunal “considered the credibility of the applicant in forming the decision although all the facts were disclosed to them”. In an effort by the Court to match this particular with an aspect of the Tribunal’s decision, the applicant appears to complain about the Tribunal’s reasoning process at [22] where the Tribunal stated:
During the hearing the applicant did not disclose his employment with a data company that he claimed in his police report had been for three years as of 2017. It was only when presented with his own evidence that he acknowledged this employment and the Tribunal has concerns about his credibility overall for this reason. Based on the applicant's academic history in Australia to date, the Tribunal considers the student visa is being used to maintain ongoing residence.
The applicant, in his lengthy written submission to the Tribunal dated 10 March 2020 at CB 78-84, did not disclose that he had been employed by a data company in Australia for a period of time. To the contrary, he stated in the submission that “I have not joined a job … that would indicate I planned to stay longer than what my education needs”. The applicant did not, before the Court, disagree with the Tribunal’s finding at [22] that he “did not disclose [to the Tribunal] his employment with a data company” until the Tribunal raised the matter with the applicant based on information in a police report provided by the applicant to the Tribunal. In the circumstances, it was open to the Tribunal at [22] to “[have] concerns about his credibility overall for this reason”.
Particular (iii) of ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
It also appears to be contended in the first sentence of ground 2 that the Tribunal failed to consider some “required documents … provided by the applicant”. The applicant did not identify to the Court a particular document in the Court Book which he contends the Tribunal failed to consider. There is force in the first respondent’s written submission that “the particulars do not identify which documents it is said were not considered by the Tribunal” and “without further particularisation this complaint fails to identify a jurisdictional error”. The bare assertion that the Tribunal failed to consider some unparticularised document does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Ms Kent sought costs in the amount of $5,400. The applicant did not oppose this amount. This amount, which is below the scale amount, appears reasonable.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 28 January 2025
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