CXJ25 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 431
•3 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CXJ25 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 431
File number(s): SYG 2854 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 3 April 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether applicant satisfied genuine temporary entrant criterion in cl 500.212 of Schedule 2 – whether Tribunal failed to notify applicant of issue arising in relation to decision under review – whether findings illogical or irrational – whether costings on which medical officer relied relevant to Tribunal’s decision – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 359A, 360, 424A, 425, 476, 499
Migration Regulations 1994 (Cth) cls 500.211, 500.212, 500.217 of Sch 2, cl 4005(1)(c) of Sch 4
Cases cited: Le v Minister for Immigration and Border Protection [2019] FCAFC 178
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 12 March 2025 Place: Parramatta Counsel for the Applicant: Ms C Roberts of counsel Solicitor for the Applicant: HIV/AIDS Legal Centre Counsel for the Respondents: Mr J R Walker of counsel Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 2854 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CXJ25
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
3 APRIL 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 $10,000.
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 14 December 2020, the applicant lodged an application, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 9 November 2020. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
At the relevant time, Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) contained criteria for a subclass 500 student visa, including the following criteria which must be satisfied at the time of decision:
500.211 One of the following applies:
(a) the applicant is enrolled in a course of study; …
500.212 The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
500.217
…
(4) The applicant … satisfies public interest criterion 4005.
In connection with cl 500.212(a), decision-makers must have regard to Direction No. 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” made under s 499 of the Act (Direction 69).
In connection with cl 500.217(4), cl 4005(1)(c) of Schedule 4 to the Regulations, also known as Public Interest Criterion (PIC) 4005, required that an applicant:
is free from a disease or condition in relation to which:
(i) a person who has it would be likely to:
(A) require health care or community services; or
(B)meet the medical criteria for the provision of a community service;
during the period described in subclause (2); and
(ii)the provision of the health care or community services would be likely to:
(A)result in a significant cost to the Australian community in the areas of health care and community services; or
(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant; …
FACTUAL BACKGROUND
On 22 April 2015, the applicant, a citizen of Zimbabwe, first arrived in Australia on a subclass 572 student visa.
On 29 May 2017, the applicant lodged an application for a subclass 500 student visa to undertake a course in social work at Charles Darwin University.
On 25 July 2017, the applicant received a request for more information, which included a request that the applicant complete an Immigration Health Examination.
On 31 July 2017, after the applicant completed a health examination, a Medical Officer of the Commonwealth (MOC) evaluated the results of the health examination and formed the opinion that the applicant did not meet PIC 4005(1)(c)(ii)(A) on the basis that the applicant had an HIV infection and the provision of health care and community services to the applicant while he was in Australia would be likely to result in a significant cost to the Australian community. As stated in paragraph 3 above, cl 500.217(4) of Schedule 2 to the Regulations provided that a criterion for a subclass 500 visa was that the applicant satisfies PIC 4005.
On 4 October 2017, the applicant received an invitation to comment on this adverse information.
On 26 October 2017, the applicant responded.
On 13 December 2017, a delegate of the first respondent made a decision refusing to grant the applicant a student visa because he did not satisfy PIC 4005, and therefore did not satisfy cl 500.217.
On 18 December 2017, the applicant applied to the Tribunal for review of the delegate’s decision.
On 2 July 2020, the applicant was reassessed by an MOC against PIC 4005. The opinion of the MOC was that the applicant did not satisfy PIC 4005.
On 6 August 2020, in circumstances where information available to the Tribunal suggested that the applicant was no longer enrolled in a course of study and, as stated in paragraph 3 above, a criterion for a student visa was that the applicant is enrolled in a course of study, the Tribunal wrote to the applicant inviting him to provide information on this issue.
On 20 August 2020, the applicant’s solicitors wrote to the Tribunal stating that the applicant was taking steps to enrol in a further course of study and requested 28 days to provide a new certificate of enrolment.
On 24 August 2020, the Tribunal sent a letter to the applicant expressing concern that, with reference to cl 500.212 of Schedule 2, the applicant was seeking to enrol in further study for non-genuine purposes.
On 25 August 2020, the Tribunal invited the applicant to attend a hearing on 14 September 2020.
On 11 September 2020, the applicant’s solicitors provided to the Tribunal a certificate of enrolment issued by Charles Darwin University for a Bachelor degree course from November 2020 to November 2022, and a written submission.
On 14 September 2020, the applicant attended a hearing before the Tribunal.
On 7 October 2020, the Tribunal invited the applicant to a further hearing on 26 October 2020. The letter stated in part:
We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached. Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No. 69.
On 21 October 2020, the applicant’s solicitors responded with a written submission and a statutory declaration from the applicant dated 21 October 2020 addressing why he was a genuine student.
On 26 October 2020, the applicant attended the further hearing.
On 9 November 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa, on the basis that it was not satisfied he intended genuinely to stay in Australia temporarily and he therefore did not satisfy cl 500.212(a).
TRIBUNAL’S DECISION
While the first respondent’s delegate refused to grant the applicant a student visa because he did not satisfy cl 500.217 of Schedule 2, the determinative issue for the Tribunal was whether the applicant satisfied cl 500.212 of Schedule 2.
Direction 69 required decision-makers, in considering whether an applicant was a genuine temporary entrant within the meaning of cl 500.212(a), to have regard to specified factors in relation to 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, the applicant’s immigration history, and any other relevant information provided by the applicant.
In relation to the applicant's circumstances in his home country, the Tribunal at [30] was not satisfied the applicant had a significant incentive to return to Zimbabwe.
In relation to the applicant's potential circumstances in Australia, the Tribunal at [33] “was concerned that [the applicant] … has re-enrolled to extend his residency in Australia” and at [34] found that the applicant “appears to be varying his [study] plans in Australia in order to meet the criteria for the grant of a student visa rather than for genuine purposes”.
In relation to the value of applicant's course to his future, the Tribunal at [36] “found the applicant did not demonstrate satisfactorily how he hopes to translate social work qualifications into a specific career”, and at [37] noted that the applicant “has not explained how social work will improve his career prospects in Zimbabwe” and had not provided “evidence regarding the renumeration the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study”.
After considering the above matters, the Tribunal at [42] found that it was “not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212”. Accordingly, the Tribunal affirmed the decision under review.
PROCEEDINGS IN THIS COURT
Steps up to hearing on 12 March 2025
On 14 December 2020, the applicant lodged an application in this Court which sought judicial review of the Tribunal’s decision.
Following a period of inactivity, on 21 January 2025 the parties were notified that the matter was listed for hearing on 12 March 2025.
On 19 February 2025, the applicant lodged a further amended application (Amended Application) which contained three grounds of review as follows (as written):
1.The Tribunal failed to afford the Applicant procedural fairness by not putting inferences that were not obvious and natural evaluations of the evidence to him for comment, including:
a. that the reason the Applicant had not travelled back to Zimbabwe since arriving in Australia was that he was intending to stay in Australia on a permanent basis and therefore not prioritising the maintenance of ties with his home country;
b. that the absence of any evidence about remuneration the Applicant might earn in Zimbabwe, or a third country, as compared to Australia, was relevant in assessing the impact of his studies on his employment prospects in his home country; and
c. that the Applicant’s attempts to curtail the length of his studies to reduce the assessed cost of his healthcare (a figure that he has never been informed of) weighed against a finding that he was a genuine applicant.
2.The Tribunal failed to afford the Applicant procedural fairness by never providing him with the costing relied on by the Medical Officer (or, if none had ever been prepared, informing him of that fact).
3.The Tribunal made findings that were illogical and irrational, including:
a. the finding at [19] that there was “no evidence” that as at 2019 the Applicant wanted to complete studies in social work;
b. the conclusion at [34] that the Applicant had enrolled in further study “because the opportunity to apply for a Subclass 485 visa” had passed; and
c. the conclusion that the Applicant’s efforts to compress the period of his education in order to meet the health requirement were not “genuine” (at [34]).
The Amended Application was accepted for filing on 18 March 2025.
On 19 February 2025, the applicant filed a written submission (AS). On 7 March 2025, the first respondent filed a written submission.
Hearing on 12 March 2025
At the hearing in this Court on 12 March 2025, Claire Roberts of counsel appeared for the applicant, and James Walker of counsel appeared for the first respondent. They made oral submissions which supplemented their written submissions. The submissions are referred to and addressed below. At the hearing, in addition to the tender of a Court Book (CB) which contained the Tribunal’s decision and documents before the Tribunal, Ms Roberts tendered an affidavit annexing a transcript of the hearing before the Tribunal and an affidavit annexing some documents obtained from the Department.
CONSIDERATION
Ground 1
It is contended in ground 1 that “the Tribunal failed to afford procedural fairness to the applicant by not putting inferences that were not obvious and natural evaluations of the evidence to him for comment” in respect of three particulars in sub-paragraphs (a) to (c).
The applicant’s written submission relied on the principle explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL). In that case, the High Court stated at [26] that “the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires”. The High Court continued that the relevant statutory provision in the case before it, which involved a hearing by the Tribunal under Part 7 of the Act, was s 425(1) of the Act. In the present matter, which involved a hearing by the Tribunal under Part 5 of the Act, the relevant statutory provision, which was almost identical to s 425(1), was s 360(1). Section 360(1) provided in 2020:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
As explained in SZBEL, one aspect of the Tribunal’s obligation to accord procedural fairness to an applicant at a hearing to which the Tribunal invites the applicant under ss 360 or 425 of the Act is to inform the applicant of “the issues arising in relation to the decision under review”. Subsequent Full Federal Court decisions have considered the meaning of “the issues arising in relation to the decision under review”, including SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 (SZHKA) and SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 (SZTAP).
In SZHKA at [103] Besanko J stated in relation to s 425(1) of the Act:
An invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review is an essential part of the review conducted by the Tribunal … I would add the following observations on the third argument advanced by the first respondent. The argument assumes that a broad meaning is to be given to the word issues in s 425(1) and that there is a far-reaching obligation on the Tribunal to advise the applicant for review of the issues. Those assumptions require examination. In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue. In addition to these considerations, it must be remembered, as the High Court pointed out in SZBEL 228 CLR 152, that there may be many ways in which it will become apparent to an applicant for review that a particular matter is an issue.
His Honour, after recording two matters which the appellants contended were “issues” within the meaning of s 425(1), continued at [113]-[115]:
[113] …Whether a matter such as this constitutes an issue depends upon two requirements.
[114] The first is that the matter play a part in the Tribunal member’s decision on the application for review. Matters not playing any part cannot, in my view, be said to arise in relation to the decision.
[115] The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
In SZTAP the appellant contended that the question of whether a family member would be able to provide surety for the appellant was a dispositive issue within the meaning of s 425(1). Robertson and Kerr JJ stated at [79]:
However, on the facts of the present case, we would not accept that it was critical to the Tribunal’s finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal.
During the hearing, Ms Roberts accepted that, to persuade the Court that the Tribunal failed to afford the applicant procedural fairness in respect of any of the three particulars in subparagraphs (a) to (c) in ground 1, she must persuade the Court that:
(a)the particular involved “an issue arising in relation to the decision under review” within the meaning of s 360(1); and
(b)the Tribunal had not notified the applicant of the issue, either in writing before the hearings on 14 September and 26 October 2020 or orally during the hearings.
Ground 1(a): Paragraphs 6 and 9 of Direction 69 required decision-makers, in assessing whether an applicant for a student visa was a genuine temporary entrant, to have regard to the applicant’s circumstances in their home country, including “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 Tribunal at [21] stated:
The applicant confirmed that he has not returned to his home country since he arrived in Australia. He claimed he did not do so in the first two years and then his visa was refused.
The Tribunal at [30], as required by paragraphs 6 and 9 of Direction 69, had regard to the applicant’s circumstances in his home country. The Tribunal stated:
The Tribunal considered the applicant’s circumstances in his home country. The applicant’s evidence is that he completed high school in his home country and did not undertake any further study in Zimbabwe. He submitted his mother and two siblings continue to live there while one sister resides in Australia. According to his statutory declaration of 21 October 2020, the applicant claims he has a strong connection to his native country and an incentive to return. He stated he chose to study in Australia due to the quality of education. The Tribunal accepts the applicant has reasonable reasons for not undertaking further study in his home country but is concerned his economic circumstances in Australia would present as a significant incentive not to return to Zimbabwe. The applicant did not provide evidence of any economic or employment ties to his home country while in Australia he has regular and ongoing part time work gained through certificate courses he completed upon arrival in Australia. The Tribunal accepts the applicant has personal ties to his home country in the form of family members but is not satisfied those circumstances would serve as a significant incentive to return to Zimbabwe. He has lived independently in Australia for more than five years without returning and based on his enrolment to study, intended to remain for at least a further 18 months to two years.
One of a number of matters on which the Tribunal relied at [30] in concluding that it was “not satisfied those circumstances would serve as a significant incentive to return to Zimbabwe” was that the applicant had not returned to Zimbabwe for more than five years.
It is stated at AS [33], with reference to the Tribunal’s reasons at [30]:
First, the Member appeared to conclude that the fact that the Applicant had not returned to Zimbabwe in the past five yeas weighed against the grant of the visa (see particularly [21], [30]).
Ms Roberts did not specify to the Court “the issue arising in relation to the decision under review” which she contends the Tribunal did not notify to the applicant. As stated above, on 7 October 2020 the Tribunal sent the applicant an invitation to attend a further hearing which:
(a)expressly stated that an issue arising in relation to the decision under review was whether the applicant was a genuine applicant for entry and stay as a student within the meaning of cl 500.212 of Schedule 2; and
(b)attached to the letter a copy of Direction 69 and asked the applicant to provide a written statement addressing whether he was a genuine applicant for entry and stay as a student with reference to Direction 69.
I consider that this letter notified the applicant that the factors listed in Direction 69 were relevant in determining whether the applicant was a genuine temporary entrant, including “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”: paragraph 9(b). If the factors listed in Direction 69 were “issues arising in relation to the decision under review” within the meaning of s 360 of the Act, I consider that the Tribunal notified the applicant of those issues by its letter dated 7 October 2020. Further, as recorded on page 24 of the transcript annexed to the affidavit of Ms Stratigos, the Tribunal member asked the applicant, in connection with the factor in paragraph 9(b) of Direction 69, whether he had been home since he arrived in Australia.
It appears that Ms Roberts must contend that a “more specific” (SZHKA at [115]) issue arising in relation to the decision under review was that “the fact that the applicant had not returned to Zimbabwe in the past five years weighed against” (AS [33]) a conclusion that the applicant’s personal ties to Zimbabwe would serve as a significant incentive to return to Zimbabwe. However, I do not consider this was a separate issue arising in relation to the decision under review. That some evidence given by the applicant weighed against him in considering the factor in paragraph 9(b) of Direction 69 was not a “more specific” or separate issue arising in relation to the decision under review.
Further, s 359A of the Act contained the Tribunal’s statutory obligation in Part 5 of the Act to put specified information to an applicant for comment, and defined the scope of the obligation. In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 (SZGUR) at [9] French CJ and Kiefel J, in considering s 424A in Part 7 of the Act, which was equivalent to s 359A in Part 5 of the Act, stated that the statutory obligation “does not extend to the Tribunal’s subjective appraisals, thought processes or determinations”. Their Honours continued that:
The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. the decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
The matter the subject of ground 1(a) is more a “provisional view for comment” or “a running commentary upon what [the Tribunal] thinks about the evidence that is given” (SZBEL at [48]) rather than “a critical issue not apparent” or an “adverse conclusion which would not obviously be open on the known material”.
Ground 1(b): Paragraphs 7 and 12 of Direction 69 required decision-makers, in assessing whether an applicant for a student visa was a genuine temporary entrant, to have regard to the value of the course to the applicant’s future, including “whether the course will assist the applicant to obtain employment or improve employment prospects in their house country” and “remuneration the applicant could expect to receive in the home country … compared with Australia, using the qualifications to be gained from the proposed course of study”.
The Tribunal at [37], as required by paragraphs 7 and 12 of Direction 69, had regard to the value of the course to the applicant’s future, including “remuneration the applicant could expect to receive in the home country … compared with Australia using the qualifications to be gained from the proposed course of study”. The Tribunal stated at [37]:
The Tribunal considered whether the applicant is seeking to undertake a course that is consistent with his current level of education and whether the course will assist him to obtain employment or improve employment prospects in his home country. The applicant explained at the second Tribunal hearing that his passion has always been social work, but due to not meeting the health criteria he did not choose it for his degree. His evidence is that he wishes to study further to complete his original choice of degree major. While the applicant has reenrolled at a tertiary level which is consistent with his qualifications, he has not explained how social work will improve his career prospects in Zimbabwe. The Tribunal has no evidence regarding the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
It is stated at AS [34] that “the Member appeared to attach significance in [37] to the fact that it had received ‘no evidence regarding the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study’” and “had the applicant been informed that his silence in relation to earning potential was considered relevant by the Member he might have addressed this orally during the evidence or by filing evidence following it”.
Ms Roberts appears to complain that the applicant was not put on notice by the Tribunal that his earning potential in Zimbabwe was relevant in considering whether the applicant was a genuine temporary entrant. Yet, paragraph 12(c) of Direction 69, which was sent to the applicant’s representative on 7 October 2020, expressly put the applicant on notice that decision-makers would have regard to “remuneration the applicant could expect to receive in the home country compared with Australia”. Ms Roberts did not explain the additional issue about which the Tribunal should have put the applicant on notice. If Ms Roberts’ complaint is that the Tribunal should have merely repeated to the applicant at the hearing on 26 October 2020 the matter stated in paragraph 12(c) of Direction 69, I do not accept the Tribunal was required to take this step in order to accord the applicant procedural fairness.
Ground 1(c): Paragraphs 6 and 11 of Direction 69 required decision-makers, in assessing whether an applicant for a student visa was a genuine temporary entrant, to have regard to the applicant’s potential circumstances in Australia, including “evidence that the student visa programme is being used to circumvent the intentions of the migration programme” and “whether the Student visa … is being used to maintain ongoing residence”.
The Tribunal stated at [17]:
The Tribunal put to the applicant that according to his representative’s submission in December 2019, he was only seeking a visa for one year so he could graduate and apply for a subclass 485 visa. There was no indication at the time that the applicant wanted to complete studies in social work …
The Tribunal at [34], as required by paragraphs 6 and 11 of Direction 69, had regard to the applicant’s circumstances in Australia. The Tribunal stated:
After considering the evidence the Tribunal finds the applicant’s circumstances in Australia weigh against him in assessing whether he is a genuine temporary entrant for study. He had been planning to apply for a Subclass 485 visa prior to the first Tribunal hearing but because the opportunity to do so had passed, the applicant enrolled in another course of study. The applicant stated he had undertaken a Bachelor of Humanitarian and Community Services as he wanted to be able to meet the health criteria based on a shorter study period, but the evidence indicates his intended length of stay was not limited to three years. Although the applicant may have been able to meet the health criteria for a shorter amount of time than the usual five year period of assessment, he appears to be varying his plans in Australia in order to meet the criteria for the grant of a Student visa rather than for genuine purposes. The applicant gave evidence his sister resides in Australia and while they live in different states, he said she provides him with financial support. In addition, he has had regular, ongoing employment as a care worker. The Tribunal finds the applicant has some incentives to seek to remain in Australia.
It is stated at AS [35], with reference to the Tribunal’s reasons at [34], that:
The Member found that the applicant appeared to be varying his study plans in Australia to meet the criteria for the grant of a visa rather than for genuine purposes. The applicant was candid and consistent about his willingness to reduce the length of his course … if this would assist him in meeting the health criteria … An inference that seeking to compress the length of his course to satisfy visa requirements had the consequence that the applicant was not ‘genuine’ in his desire to study was not an obvious or natural evaluation of the facts, and he was entitled to have his mind directed to this in order to address it.
Ms Roberts did not specify to the Court “the issue arising in relation to the decision under review” which she contends the Tribunal did not notify to the applicant. As stated above, if the factors listed in Direction 69 were “issues arising in relation to the decision under review” within the meaning of s 360 of the Act, I consider that the Tribunal notified the applicant of those issues by its letter dated 7 October 2020. This includes the factors in paragraph 11(b) and (c) of Direction 69, being “evidence that the student visa program is being used to circumvent the intentions of the migration programme” and “whether the Student visa … is being used to maintain ongoing residence”. Further, as recorded on page 25 of the transcript annexed to the affidavit of Ms Stratigos, the Tribunal member asked the applicant, in connection with the factors in paragraph 11(b) and (c) of Direction 69, “what do you say about the suggestion that you have re-enrolled to study to extend your residency in Australia rather than for reasons of genuine interest?”
Ms Roberts appears to contend that the fact that an inference may be drawn against the applicant because of:
(a)his various course changes; and
(b)the inconsistency between the representative’s December 2019 submission and the applicant’s subsequent enrolment in a social work course (discussed by the Tribunal at [17]),
was a “more specific” (SZHKA at [115]) issue arising in relation to the decision under review.
However, I do not consider this was a separate issue arising in relation to the decision under review. An issue arising in relation to the decision under review may have been “evidence that the student visa programme is being used to circumvent the intentions of the migration programme” and “whether the Student visa … is being used to maintain ongoing residence” as stated in paragraph 11(b) and (c) of Direction 69. The Tribunal notified the applicant of this issue through its letter dated 7 October 2020. The Tribunal’s reasons for decision suggest that the Tribunal discussed this issue with the applicant at the hearing on 26 October 2020. Further, the Tribunal expressly asked the applicant at the hearing on 26 October 2020: (T25/7)
What do you say about the suggestion that you have re-enrolled to study to extend your residency in Australia rather than for reasons of genuine interest?
That some evidence given by the applicant weighed against him in considering the factors in paragraph 11(b) and (c) of Direction 69 was not a “more specific” or separate issue arising in relation to the decision under review.
Further, as for ground 1(a), with reference to the discussion by French CJ and Kiefel J concerning the common law obligation to accord procedural fairness in SZGUR, the matter the subject of ground 1(c) is more a “provisional view for comment” or “a running commentary upon what [the Tribunal] thinks about the evidence that is given” (SZBEL at [48]) rather than “a critical issue not apparent” or an “adverse conclusion which would not obviously be open on the known material”.
During the hearing on 12 March 2025, Ms Roberts contended that there was significant confusion at the second hearing on 26 October 2020 because of an error in the Tribunal’s letter dated 7 October 2020 to the extent that the letter stated (incorrectly) that whether the applicant was a genuine applicant for entry and stay as a student “was the reason for the delegate’s decision”, and the confusion was part of the context in which the matters in ground 1 became issues arising in relation to the decision under review. However, first, the transcript of the second hearing indicates that the Tribunal member clarified the error at the start of the hearing. Following clarification, I do not accept that the applicant or his representative was confused. Second, even if the applicant was confused up to the point of clarification by the Tribunal member, this does not turn the matters in ground 1 into issues arising in relation to the decision under review.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
It is contended in ground 2 that “the Tribunal failed to afford the Applicant procedural fairness by never providing him with the costing relied on by the Medical Officer (or, if none had ever been prepared, informing him of that fact)”. It is stated at AS [37] and [38] that “the applicant has consistently sought access to the costing used to support a finding that the costs of medication he needed to take for his asymptomatic HIV exceeded the applicable threshold at the relevant time”, but “this has never been provided to him”, and “in the absence of this information the applicant was not able to meet it with responsive evidence”.
There are two problems with this submission.
First, as explained above, while the first respondent’s delegate refused to grant the applicant a student visa because the applicant did not satisfy PIC 4005, the Tribunal refused to grant the applicant a student visa because it was not satisfied he was a genuine temporary entrant. Prima facie, the costings relied on by the MOC were immaterial to the Tribunal’s decision. If the costings were immaterial to the Tribunal’s decision, procedural fairness would not require the Tribunal to provide the costings to the applicant: Le v Minister for Immigration and Border Protection [2019] FCAFC 178 at [41]. Ms Roberts, in an effort to overcome this point, contended at AS [39] that the Tribunal’s failure to provide the costings to the applicant “deprived him of the opportunity to make precise submissions about how he could complete his studies while remaining under the cost threshold – a topic to which … the Member attached considerable significance in assessing whether he was a genuine applicant for entry and stay as a student”. The meaning of this submission is not entirely clear. During the hearing, I asked Ms Roberts to identify a part of the Tribunal’s decision which suggested that the costings relied on by the MOC were material to the Tribunal’s decision. Ms Roberts proposed the following sentence at [34]:
Although the applicant may have been able to meet the health criteria for a shorter amount of time than the usual five year period of assessment, he appears to be varying his plans in Australia in order to meet the criteria for the grant of a student visa rather than for genuine purposes.
I do not consider that the costings relied on by the MOC were relevant to the Tribunal’s reasoning process in this sentence. I do not consider that the costings relied on by the MOC were material to the Tribunal’s decision.
Second, as stated in the first respondent’s written submission, this ground assumes that the Tribunal was in possession of the costings. But the applicant has not established that the Tribunal was in possession of the costings. The Tribunal could not provide to the applicant information not in its possession. During the hearing on 12 March 2025, Ms Roberts accepted that she could not persuade the Court that the Tribunal was in possession of the costings.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
It is contended in ground 3 that the Tribunal made three findings, set out in sub-paragraphs (a), (b) and (c), that were illogical or irrational.
Ground 3(a): The Tribunal stated at [17]:
The Tribunal put to the applicant that according to his representative’s submission in December 2019, he was only seeking a visa for one year so he could graduate and apply for a subclass 485 visa. There was no indication at the time that the applicant wanted to complete studies in social work …
It is stated at AS [45] that “the finding that there was ‘no indication’ that in 2019 the applicant wanted to complete studies in social work was at odds with the evidence”. Although ground 3(a) refers to the Tribunal’s decision at [19], it is clear from the balance of ground 3(a) and the applicant’s written submission that the applicant challenges a finding of the Tribunal at [17] and not [19].
The “representative’s submission” referred to by the Tribunal in the first sentence of [17] is a submission dated 5 December 2019 in which the representative wrote (CB 125) (One Year Visa Representation):
At the time of writing, [the applicant] is only seeking a visa of approximately one year to allow him time to graduate from Charles Darwin University [in respect of his current course ending in June 2020] and apply for a Graduate Visa subclass 485.
The representative’s submission says nothing about the applicant wanting to undertake further studies in social work. In and around December 2019, the applicant provided no other evidence, or made no other submission, to the Tribunal that he wanted to undertake further studies in social work. The statement by the Tribunal at [17] that “there was no indication at the time that the applicant wanted to complete studies in social work” appears to be an accurate statement. I do not accept that it is “at odds with the evidence”, let alone a finding tainted by illogicality or irrationality.
Ground 3(b): The Tribunal was concerned about the inconsistency between the One Year Visa Representation made by the applicant’s representative in December 2019, and the fact that in September 2020 the applicant enrolled in a further course of study. The Tribunal at [17] recorded its discussion of its concern with the applicant as follows:
The Tribunal put to the applicant that according to his representative’s submission in December 2019, he was only seeking a visa for one year so he could graduate and apply for a Subclass 485 visa.
The Tribunal at [23] recorded a submission by the applicant’s representative addressing the inconsistency as follows:
The representative submitted the fact the applicant had indicated he may apply for a subclass 485 visa was not inconsistent with his current plans as there is no ban on further study. It was claimed the applicant had given a detailed explanation of his plans and had shown he understood the differences between his courses of study.
The Tribunal then stated at [34]:
[The applicant] had been planning to apply for a subclass 485 visa prior to the first Tribunal hearing but because the opportunity to do so had passed, the applicant enrolled in another course of study.
The applicant in ground 3(b) challenges the Tribunal’s finding that the applicant enrolled in another course of study in September 2020 “because the opportunity [to apply for a subclass 485 visa] had passed”. It is stated at AS [46] that this is “not a conclusion that would be reached rationally on the evidence”. I disagree. In a submission dated 5 December 2019, the applicant’s representative communicated to the Tribunal the applicant’s instructions or intentions at the time that that he “is only seeking a visa of approximately one year to allow him time to graduate from Charles Darwin University and apply for a Graduate Visa subclass 485”. Yet, as recorded by the Tribunal at [33], in September 2020 the applicant enrolled in “a Bachelor of Psychological Science starting on 2 November 2020 and ending on 30 November 2022”, and stated at the hearing on 26 October 2020 that “he intends to commence the Bachelor of Psychological Science then transfer to social work”. During the hearing on 26 October 2020, the Tribunal put to the applicant its concern about his change of position and recorded the applicant’s answer at [17] that “his pursuit of further study was dependent on the Tribunal’s decision”. The meaning of the applicant’s answer is not entirely clear. I consider that it was open to the Tribunal to find at [34] that in September 2020 the applicant enrolled in the further course “because the opportunity [to apply for a subclass 485 visa] had passed”. Whether or not there were other reasons the applicant enrolled in the further course in September 2020, it appears likely, in light of the One Year Visa Representation in December 2019, that one reason was because the opportunity to apply for a subclass 485 visa had passed.
Ground 3(c): The Tribunal stated at [34]:
Although the applicant may have been able to meet the health criteria for a shorter amount of time than the usual five year period of assessment, he appears to be varying his plans in Australia in order to meet the criteria for the grant of a student visa rather than for genuine purposes.
The applicant in ground 3(c), as developed at AS [47], contends that the conclusion that the applicant’s enrolment in the Bachelor of Psychological Science in September 2020 was not “for genuine purposes” was “illogical” because “the applicant’s diligent and consistent efforts to bring his studies below the threshold … were rational steps he was entitled to take”. There are a number of difficulties with this contention. First, it may well be that the applicant’s conduct, in attempting to remain in Australia, involved “rational steps he was entitled to take”. However, this has little, if any, bearing on whether it was open to the Tribunal to be concerned that the applicant’s enrolment in the Bachelor of Psychological Science in September 2020 was not “for genuine purposes”. For this reason alone, I am not persuaded that the Tribunal’s reasoning process was illogical in the manner advanced in ground 3(c). Second, the applicant’s submissions did not address or explain the meaning of “for genuine purposes”. The meaning of “for genuine purposes” is not entirely clear. One possible meaning is that the Tribunal was expressing concern that the applicant was not “a genuine temporary entrant for study”, a phrase used by the Tribunal in the first sentence of [34]. Another possible meaning is that the Tribunal was expressing a concern that the applicant did not have a genuine interest in undertaking the further course of study in which he had enrolled. It is difficult for the applicant to persuade the Court that the Tribunal’s reference to “for genuine purposes” involved illogicality if the applicant does not explain the meaning of the phrase as used by the Tribunal. Third, it is not evident that the Tribunal made a “finding” (term used in the opening sentence of ground 3) that some aspect of the applicant’s conduct was not genuine, in contrast to expressing a concern that the applicant’s conduct “appears to be” not “for genuine purposes”.
On a fair reading of the Tribunal’s decision at [34], the Tribunal’s conclusion that the applicant’s enrolment in the Bachelor of Psychological Science course was not “for genuine purposes” involved consideration of a number of matters. I agree with the first respondent’s written submission that “the applicant’s real complaint is that the Tribunal interpreted the evidence or drew inferences from it in a way that was adverse to him”, but “that does not make the finding illogical or irrational”. I consider that the Tribunal’s expression of concern that the applicant’s enrolment in the Bachelor of Psychological Science course was not “for genuine purposes” was open to the Tribunal, and for reasons stated by the Tribunal at [34] was not illogical.
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the end of the hearing, the parties requested that they make submissions on costs at the time of delivery of judgment.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 3 April 2025
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