CCX22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 494
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCX22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 494
File number: SYG 864 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 24 June 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in finding that the applicant failed to meet the requirements for the grant of the visa – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 476 & 499
Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016
Migration Regulations 1994 (Cth), cll 570.223 & 572.223 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Song v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 469
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 16 June 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms C Dunn Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 864 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCX22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 JUNE 2022
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 KENDALL:
BACKGROUND
The applicant is a citizen of Taiwan (Court Book (“CB”) 2 & 29). She arrived in Australia in July 2007 as the holder of a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa (CB 48).
The applicant was subsequently granted three student visas, the last of which expired on 5 November 2015 (CB 48).
On 4 November 2015, the applicant applied for a Student (Temporary) (Class TU) (Subclass 570) visa (the “visa”) (CB 1-23). In her visa application, the applicant indicated that she intended to study an “Intensive IELTS” course between 9 November 2015 and 4 November 2016 (CB 4). Attached to the applicant’s visa application was a letter of offer for the Intensive IELTS course, a completed “Form 956” document, a copy of the applicant’s passport and various academic records (CB 24-37).
On 1 December 2015, the then Department of Immigration and Border Protection (the “Department”) asked the applicant to provide more information in support of her application (CB 42-53). Specifically, the Department asked that the applicant provide detailed evidence in relation to a number of items. She was also asked to address the “genuine temporary entrant criterion” (as outlined in cl 570.223 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”)) (CB 47).
On 16 February 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 58-63). The delegate was not satisfied that the applicant met cl 570.223 in Schedule 2 of the Regulations. Specifically, the delegate was not satisfied that the applicant intended to “genuinely stay in Australia temporarily” (CB 63).
On 5 March 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 64-65).
On 15 August 2016, the Tribunal invited the applicant (through her representative) to attend a hearing before it on 25 October 2016 (CB 87-96).
On 27 September 2016, the Tribunal re-sent the hearing invitation letter to the applicant (through her representative) (CB 101-110).
On 25 October 2016, the applicant appeared before the Tribunal with the assistance of her migration agent and a Mandarin interpreter (CB 116-119).
On 26 October 2016, the applicant’s representative provided further information to the Tribunal in support of the applicant’s review application (CB 120-152).
On 28 October 2016, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 156-161).
The applicant sought judicial review of the Tribunal’s decision in the then Federal Circuit Court of Australia (“FCCA”).
On 10 March 2017, a Judge in the FCCA made orders (by consent) remitting the matter to the Tribunal for reconsideration (CB 162-163).
On 10 May 2017, the applicant was invited by the Tribunal (through her representative) to attend a hearing before the Tribunal on 30 May 2017 (CB 177-186).
On 28 May 2017, the Tribunal wrote to the applicant’s representative to confirm an earlier telephone conversation in which it was agreed that the hearing would be rescheduled from 30 May 2017 to 1 June 2017. The Tribunal sought the consent of the applicant’s representative to shortening the notice period in that regard (CB 190-191).
On 29 May 2017, the applicant was invited by the Tribunal (through her representative) to attend a hearing before the Tribunal on 1 June 2017 (CB 192-201).
On 30 May 2017, the applicant’s representative provided a table detailing the applicant’s courses of study undertaken from September 1997 and further supporting materials (CB 207-245).
On 1 June 2017, the applicant appeared at a hearing before the Tribunal. The applicant was assisted at that hearing by her registered migration agent and an interpreter in the Mandarin and English languages (CB 246-249).
At that hearing (on 1 June 2017), the applicant provided a copy of correspondence between her and the Redfern Legal Centre which highlighted an “urgent appointment with a counsellor” (CB 250-254).
On 21 September 2017, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 258-263).
On 12 October 2017, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is six pages in length and spans 30 paragraphs.
The Tribunal first identified the type of decision under review (at [1]). The Tribunal acknowledged that the applicant had applied to the Department for the visa on 4 November 2015 and that the visa application was refused on 16 February 2016. The Tribunal also detailed the subclasses contained in a Class TU visa (at [2]).
The Tribunal noted that the delegate had refused to grant the applicant the visa because she did not satisfy cl 570.223 in Schedule 2 of the Regulations (noting that the applicant was not enrolled to study between April 2015 and February 2016 and had enrolled in different fields of study without explanation) (at [3]).
The Tribunal explained that the FCCA had remitted the matter to the Tribunal on 8 March 2017 for redetermination (at [4]).
The Tribunal confirmed that the applicant had appeared at a hearing before it on 1 June 2017 with her registered migration agent and was assisted by a Mandarin interpreter (at [5]-[6]).
The Tribunal then summarised the applicant’s evidence given at the hearing as follows:
(a)the applicant came to Australia in 2007 on a working holiday visa and stayed in Australia because she wanted to study. She invested in a business with a friend;
(b)in 2009, the applicant applied for a student visa for studies in business and aged care;
(c)when asked about her overall plans, the applicant said that she wanted to continue her nursing studies (having studied in Taiwan), but did not do so because of the cost (at [7]);
(d)the applicant had not returned to Taiwan since her arrival and has no immediate family in Taiwan or in Australia;
(e)the applicant still planned to study medicine and had applied to university but was not accepted (although she still intends to study medicine) (at [8]);
(f)the applicant provided a Confirmation of Enrolment for an Advanced Diploma of Accounting but stated that she plans to apply to university again to study medicine or nursing because she plans eventually to return to the medical field (at [9]);
(g)in explaining the gaps in her study, the applicant said that she had been living with a partner in 2015 (who she later found out was married) and he had prevented her from leaving their house. She claimed that she was very scared but that a friend had helped her (at [10]);
(h)the Tribunal referenced the Department’s findings that the applicant had undertaken many short courses. The applicant explained that this was because she had taken English courses during the school holidays so that she would be “continuously studying”. Further, the applicant was not working but she had a massage business with a friend from which she earned an income (at [11]);
(i)the Tribunal took into account the applicant’s claims about family violence interrupting her studies, noting that the applicant had explained that she did not initially speak to the police but had subsequently applied for an AVO. She also said that she wanted to return to her studies and needed the help of a psychologist in that regard (at [12]);
(j)the applicant said that the Advanced Diploma of Accounting would assist her management role within her business. Further, the applicant said that she had no family or anything to return to in Taiwan and, for that reason, she keeps studying and remaining in Australia (at [13]);
(k)when the Tribunal explained that the applicant needed to have a study and career plan (as well as an intention to return to her home country), the applicant said that she wanted to study nursing because she believed that she could then apply to stay in Australia (at [14]); and
(l)the applicant has no “ongoing connection to Taiwan”, however, there is nothing preventing her from returning (at [15]).
The Tribunal also summarised the applicant’s submissions (as provide by the applicant’s representative) as follows:
16.The representative submitted that the applicant continued to study all the time however, around September 2015, the applicant could not be contacted. This was because of the family violence that occurred and had severely impacted her. Ms Fang said the applicant completed a Diploma of Accounting and was taking an Advanced Diploma to benefit her business. It was submitted the applicant is in fact a genuine student.
17.During April to October 2015 the representative said she was unable to contact the applicant and previously, the applicant had no mood for study because of the family violence that occurred. Ms Fang said the applicant is seeking assistance and this will benefit her. In addition the police have helped her and there is a court hearing to prevent the ex-partner contacting the applicant. The applicant was said to have become very depressed but is currently able to study without issue.
The Tribunal had regard to the applicant’s proposed study and found that the relevant subclass in this matter was a Subclass 570 (at [19]). The Tribunal also identified that the issue before it was whether the applicant met the “time of decision criterion” set out in cl 570.223 in Schedule 2 of the Regulations (at [20]).
The Tribunal then explained that, when considering whether the applicant satisfied the relevant criterion, it had regard to “Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications”, made under s 499 of the Act (at [21]). The Tribunal also noted that the factors set out in Direction No. 53 were not to be used as a checklist. Rather, those factors were intended to be a guide to decision-makers (at [22]).
The Tribunal outlined the courses that the applicant had completed since arriving in Australia, noting the courses the applicant enrolled in but which had subsequently been cancelled. The Tribunal detailed the applicant’s evidence that she owned a “massage business” with a friend and was financially supported by the income from that business. The Tribunal also explained that the applicant hoped to complete further study at an Australian university and secure work in a hospital or in aged care to allow her to be able to stay in Australia (at [23]).
The Tribunal noted that, despite being in Australia as a student for eight years, the applicant had not studied health care or nursing (save for one course in aged care). The Tribunal also detailed the explanation provided by the applicant’s representative in relation to gaps in the applicant’s study – noting that the applicant had claimed to suffer from family violence which led to “depression and low mood” (for which the applicant had sought treatment) (at [24]).
The Tribunal ultimately found as follows:
25.The Tribunal accepts the applicant had a valid reason that prevented her from studying for a period of time, that she has completed several courses while in Australia and has progressed from Certificate to Advanced Diploma level. The Tribunal is not satisfied the completed Diploma of Accounting or the Advanced Diploma that is currently being studied are of any value to her future because she does not intend to pursue accounting or any related field as a career. While it was claimed they are of value to her massage business, the applicant did not explain how or in what way she intends to apply her knowledge. The applicant said she has tried to gain admission to university in the past to study nursing and that she intends to try again in future. The applicant has studied nursing in Taiwan before coming to Australia and it is therefore unclear why she enrolled in unrelated courses here. The applicant stated she hopes to be able to stay in Australia after further studies in health care and does not have anything to go back to Taiwan for. The Tribunal finds this is inconsistent with the behaviour of a genuine student and indicates the student visa program is being used to maintain ongoing residence in Australia.
26.The applicant’s circumstances in her own country, as submitted in evidence is that she does not have any immediate family in Taiwan and no ongoing connections there. She has not returned since her arrival in Australia in 2007 and hopes to be able to stay in Australia. The applicant has part-ownership of a business in Australia and earns an income from it. The Tribunal is not satisfied the applicant has any incentive to return to Taiwan because she has declared she has no reason to, she has not returned for approximately ten years and has established a life in Australia.
27.Regarding the applicant’s immigration history in Australia, she originally came on a working holiday and was then granted student visas. Although she has not applied for a permanent visa before, she intends to in future which is not consistent with the requirements of the genuine temporary entrant criteria. The applicant said there are no military or civil or political issues that would prevent her from returning to Taiwan but she has openly declared she has nothing to return to and wants to be able to work and stay in Australia in future.
The Tribunal was not satisfied that the applicant intended to “genuinely stay in Australia temporarily” and, as such, did not meet cl 570.223(1)(a) in Schedule 2 of the Regulations (at [28]).
On the basis of the above, the Tribunal affirmed the decision refusing to grant the applicant the visa (at [30]).
PROCEEDING IN THIS COURT
In her application for judicial review filed with this Court on 12 October 2017, the applicant provides a sole “ground of review” as follows:
1.I met all the requirements to grant the student visa.
The applicant also filed an affidavit, deposed by the applicant, in support of her application for review. The affidavit annexes a copy of the Tribunal’s decision and states (without alteration):
1. My student visa was refused despite I met the requirements.
2. Please revoke the AAT decision & remit my case.
On 1 November 2021, procedural orders were made by this Court giving the applicant an opportunity to file an amended application, any further affidavit evidence and written submissions.
No further material was provided by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 12 October 2017, a Court Book numbering 263 pages (marked as Exhibit 1) and written submissions filed by the Minister on 2 June 2022.
The applicant appeared before this Court without legal representation. She was assisted by an interpreter in the Mandarin and English languages. The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister’s written submissions.
The Court noted that the applicant’s application for judicial review only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister was agreeable to the applicant “orally amending the application to rectify the oversight”. The Court explained this issue to the applicant and, with her agreement, made an order amending the application for judicial review to include a request for a writ of mandamus.
Further, noting that the applicant was unrepresented, the Court gave the applicant an opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that she had relied entirely on her agent and her agent’s advice when submitting her visa application and that she was not sure what went wrong or what had happened. She explained that she did not intend to meet a man and live with him or have fights. Rather, her intention was to “apply for a student visa and to stay and study in Australia”. The applicant also asked if she needed to engage a lawyer.
It was unclear whether the applicant was seeking an adjournment so that she might engage legal services. To the extent that the applicant was requesting additional time to seek legal representation, the Court did not think it appropriate to adjourn the matter for the reasons that follow:
(a)the application was filed in this Court more than four and a half years ago;
(b)the applicant attended a directions hearing before this Court in November 2021 and did not suggest at that time (or at any time prior to the hearing) that she required any additional time to obtain legal assistance or that she sought for the matter to be adjourned;
(c)there is no evidence before the Court to suggest that the applicant has sought the assistance of a lawyer at any point since the directions hearing (or in fact, since the filing of her application);
(d)there is no evidence before the Court that the applicant would be able to seek legal representation even if the matter were adjourned; and
(e)if the matter were adjourned, it would be some time before the matter could be brought back on for a hearing.
Accordingly, the Court did not consider it was in the interests of the administration of justice to adjourn the hearing and further delay the matter.
Unfortunately, the issues otherwise raised by the applicant at the hearing do not point to any jurisdictional error on the part of the Tribunal and are not matters of the sort that this Court can assist with. In the circumstances, the Court is left to assess the applicant’s grounds of review as articulated. This Court’s preferred approach is to be mindful that, where an applicant is unrepresented and may not have adequate knowledge or an ability to prepare for a hearing, or understand, what is required of them, the Court should read the applicant’s grounds of review as broadly as possible and remain astute to the possibility of legal error in the Tribunal’s decision and raise any concerns in that regard with the Minister. Further, in its duty to the applicant as an unrepresented litigant, this Court has remained astute to error in the Tribunal’s Non-Appearance Decision and to the extent that this decision reveals any material error, the Court will say so: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392.
CONSIDERATION
Ground of review
The applicant’s sole ground of review provides:
1.I met all the requirements to grant the student visa.
The affidavit deposed by the applicant (in support of her application for review) states (without alteration):
1. My student visa was refused despite I met the requirements.
2. Please revoke the AAT decision & remit my case.
The application for judicial review and supporting affidavit filed by the applicant claim that the applicant’s visa application was refused, despite her meeting all of the requirements for the grant of that visa.
This fails on a factual level.
As recently explained by this Court in Song v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 469, the subclass 570 visa was repealed by the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (the “Amending Regulation”). Item 32 in Schedule 4 of the Amending Regulation states that:
32 Parts 570 to 580 of Schedule 2
Repeal the Parts, substitute:
…
Schedule 5 of the Amending Regulation contains the “[a]pplication and transitional provisions” and states that:
5404 Operation of Schedule 4
(1)The amendments of these Regulations made by Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (other than items 44, 48 and 49 of that Schedule) apply in relation to an application for a visa made on or after 1 July 2016.
(2)The amendments of these Regulations made by items 44, 48 and 49 of Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 apply in relation to a visa granted before, on or after 1 July 2016.
Note:Schedule 4 to the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 commences on 1 July 2016.
As the applicant applied for the visa prior to 1 July 2016, the Amending Regulation does not apply. In those circumstances, the provisions relating to the subclass 570 visa continue to apply and the Tribunal was required to assess the applicant against the criteria for the grant of that subclass of visa.
The subclass 570 visa contained time of application criteria and time of decision criteria. Relevantly, at the time of the Tribunal’s decision, cl 570.223 in Schedule 2 of the Regulations required that, at the time of decision:
570.223
(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)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 meets the requirements of subclause (2).
In considering whether the applicant satisfied the visa criterion, the Tribunal in this matter correctly identified that it was required to have regard to the factors outlined in Ministerial Direction No. 53, relevantly as follows (at [21]):
•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.
As outlined by the Minister in written submissions (filed on 2 June 2022), in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, the Full Court of the Federal Court stated:
96.Direction 53 requires that, in reaching the state of satisfaction in cl 572.223(1)(a), the decision maker “have regard to” the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial.
The Court notes that the provisions set out in cl 572.223(1)(a) in Schedule 2 of the Regulations are relevantly identical to those set out in cl 570.223(1)(a) in Schedule 2 of the Regulations which is considered in this matter.
Here, the Tribunal had regard to the factors set out in Direction No. 53 as was required.
Specifically, the Tribunal considered the applicant’s evidence in relation to the applicant’s circumstances in Taiwan (at [8] & [15]), her potential circumstances in Australia (at [8]-[9] & [14]-[15]) and the value of the applicant’s proposed Advanced Diploma of Accounting course to her future (at [9] & [13]).
The Tribunal then made findings in relation to the applicant’s circumstances in her home country and her immigration history as follows:
26.The applicant’s circumstances in her own country, as submitted in evidence is that she does not have any immediate family in Taiwan and no ongoing connections there. She has not returned since her arrival in Australia in 2007 and hopes to be able to stay in Australia. The applicant has part-ownership of a business in Australia and earns an income from it. The Tribunal is not satisfied the applicant has any incentive to return to Taiwan because she has declared she has no reason to, she has not returned for approximately ten years and has established a life in Australia.
27.Regarding the applicant’s immigration history in Australia, she originally came on a working holiday and was then granted student visas. Although she has not applied for a permanent visa before, she intends to in future which is not consistent with the requirements of the genuine temporary entrant criteria. The applicant said there are no military or civil or political issues that would prevent her from returning to Taiwan but she has openly declared she has nothing to return to and wants to be able to work and stay in Australia in future.
The Tribunal also considered other evidence provided by the applicant’s representative (being the reason for the gap in her study) as follows:
16.The representative submitted that the applicant continued to study all the time however, around September 2015, the applicant could not be contacted. This was because of the family violence that occurred and had severely impacted her. Ms Fang said the applicant completed a Diploma of Accounting and was taking an Advanced Diploma to benefit her business. It was submitted the applicant is in fact a genuine student.
17.During April to October 2015 the representative said she was unable to contact the applicant and previously, the applicant had no mood for study because of the family violence that occurred. Ms Fang said the applicant is seeking assistance and this will benefit her. In addition the police have helped her and there is a court hearing to prevent the ex-partner contacting the applicant. The applicant was said to have become very depressed but is currently able to study without issue.
In this regard, the Tribunal ultimately found as follows:
25.The Tribunal accepts the applicant had a valid reason that prevented her from studying for a period of time, that she has completed several courses while in Australia and has progressed from Certificate to Advanced Diploma level. The Tribunal is not satisfied the completed Diploma of Accounting or the Advanced Diploma that is currently being studied are of any value to her future because she does not intend to pursue accounting or any related field as a career. While it was claimed they are of value to her massage business, the applicant did not explain how or in what way she intends to apply her knowledge. The applicant said she has tried to gain admission to university in the past to study nursing and that she intends to try again in future. The applicant has studied nursing in Taiwan before coming to Australia and it is therefore unclear why she enrolled in unrelated courses here. The applicant stated she hopes to be able to stay in Australia after further studies in health care and does not have anything to go back to Taiwan for. The Tribunal finds this is inconsistent with the behaviour of a genuine student and indicates the student visa program is being used to maintain ongoing residence in Australia.
Ultimately, after a forensic consideration of the applicant’s circumstances, immigration history and other matters that the Tribunal considered relevant and after weighing those factors, the Tribunal was not satisfied that the applicant intended to genuinely stay in Australia temporarily (at [28]).
On that basis, the Tribunal found that the applicant did not meet the requirements of cl. 570.223(1)(a) in Schedule 2 of the Regulations.
The Court is satisfied that Direction No. 53 was properly applied and considered. Further, the Tribunal made findings which were legally reasonable and open to it on the information provided by the applicant and her representative.
No error arises in relation to ground 1.
Otherwise
Having reviewed the factual background of this matter, the Court determined that it was appropriate to assign a pseudonym to the applicant and to issue a new court file number to protect the applicant’s identity. The Court did so (following a discussion with and the consent of the parties) at the hearing of this matter.
CONCLUSION
The application for judicial review filed by the applicant on 12 October 2017 has not identified any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 June 2022
0
12
0