Dutta v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 982
•3 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dutta v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 982
File number: MLG 3415 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 3 October 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal failed to act according to substantial justice and the merits of the case – whether the Tribunal failed to consider the applicant’s enrolment and work towards completing a degree – whether the Tribunal wrongly speculated the applicant had a strong financial incentive to stay in Australia – whether the Tribunal incorrectly identified the applicant’s home country – whether the Tribunal failed to act in accordance with the immigration laws of Australia – whether the Tribunal’s finding was illogical or irrational – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 353, 357A, 359, 476, 477
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 1 October 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 3415 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHUTANU DUTTA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
3 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
The applicant is a non-citizen who applied for a student visa. A delegate of the Minister refused to grant the applicant a student visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on review. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant raises five grounds of application asserting that the Tribunal made a jurisdictional error by:
(a)failing to act in accordance with the substantial justice and merit of the case and in a way that is fair and just;
(b)failing to consider evidence about the courses the applicant had undertaken;
(c)speculating that the applicant had a financial incentive to stay in Australia because he was working part-time and owned his own car;
(d)incorrectly assessing the applicant’s home country as Oman when in fact it is India; and
(e)failing to exercise the discretion in the applicant’s favour in circumstances where the applicant has always complied with the immigration laws of Australia.
For the reasons explained below, I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant is a citizen of India. He first arrived in Australia in January 2011 on a student visa and has since held two further student visas.
The applicant applied for the student visa the subject of this judicial review application on 16 November 2016.
On 12 April 2017 a delegate of the Minister refused to grant the applicant a student visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
Also on 12 April 2017 the applicant applied to the Tribunal for merits review of the delegate’s decision.
On 31 May 2018 the Tribunal sent to the applicant an invitation to provide information under s 359(2) of the Migration Act, to which the applicant responded.
The applicant attended a hearing before the Tribunal to give evidence and present arguments relating to the issues in his case on 3 September 2018.
On 16 October 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the applicant intended genuinely to stay in Australia temporarily. The Tribunal identified that in considering whether the applicant met the genuine temporary entrant criterion in cl 500.212(a) in Sch 2 to the Regulations it was required to have regard to Ministerial Direction No 69, which was not to be used as a checklist but rather as a guide.
The Tribunal had regard to the applicant’s background and immigration history, noting that he arrived in Australia in January 2011 on a student visa to study a Diploma of Business Administration, which he did not complete, and that he had since been granted two further student visas so that he could study a Bachelor of Accounting, which he also did not complete. The Tribunal acknowledged the applicant’s evidence that since his arrival he had departed Australia on only one occasion in 2013 when he returned to India to visit his father, who had a health issue, and his mother and sister for a period of two months. The Tribunal also acknowledged the applicant’s evidence that Australia and Oman were the only two countries he had travelled to outside of India and that he had complied with the migration laws of those countries and relevant visa conditions. The applicant told the Tribunal that his father, mother and sister are now based in Oman and this is primarily where he grew up and went to school. The Tribunal gave little weight to the applicant’s travel movements.
In considering the applicant’s circumstances in his home country, the Tribunal noted the applicant’s evidence that he had completed his secondary schooling in Oman in 2010 and had never worked before coming to Australia. The Tribunal noted the applicant’s evidence that he had not completed his studies in India because it is difficult to gain a position as the competition is great and that his parents had sent him to Australia to receive the same level of education he had been provided in Oman. The Tribunal did not accept that the applicant had presented a reasonable reason for not undertaking studies in his home country. The Tribunal acknowledged the applicant’s evidence that he had no issues of concern back in his home country. The Tribunal recorded the applicant’s evidence that his parents and sister are currently based in Oman and that he has been able to manage personal relationships with them while living in Australia by making weekly contact via social media. The Tribunal did not consider the applicant’s personal connections overseas presented as a distinct incentive for him to cease residence in Australia.
The Tribunal considered that the significant time the applicant had been in Australia, including that he had established community ties and relationships with the people he lived and worked with, could present as a strong incentive for him to remain in Australia. The Tribunal considered the applicant’s confirmation of enrolment for a Bachelor of Hospitality Management and was not satisfied that the applicant was able to provide much detail about the course. The Tribunal found that, given the substantial time the applicant had been in Australia, his lack of overall academic progress and his lack of knowledge about his course of study, the student visa was being used to maintain ongoing residence in Australia. The Tribunal was concerned that the applicant had spent eight years in Australia and completed only one certificate level course, being a Certificate III in Commercial Cookery. The Tribunal noted that the applicant worked 20 hours a week as a waiter and that he owned a car. The Tribunal found that the economic circumstances of the applicant within Australia would present as a strong incentive for him not to return to his home country.
The Tribunal was concerned about the applicant’s future plan to work as a general worker up to the management level in hotel chains and travel the world. The Tribunal noted the applicant’s evidence at the hearing that he would prefer to stay and live in Australia rather than return to his home country and found this was not the behaviour of a genuine temporary entrant. The Tribunal found that the student visa program was being used to circumvent the intentions of the migration program to maintain ongoing residence in Australia.
Overall, the Tribunal was not persuaded that the applicant genuinely intended to return to his home country and that he will be enrolled in approved courses of study to meet the student visa requirements. The Tribunal found that the applicant was not a genuine temporary entrant and affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The applicant’s application for judicial review was filed on 13 November 2018. It was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains the following five grounds:
1.The Tribunal Member failed to act according to substantial justice and merits of the case, in breach of s 353(b) of the Migration Act 1958 (Cth) and failed to act in a way that is fair and just in breach of s 357A(3) of the Act.
2.The Tribunal Member failed to consider that I have been enrolled and am working towards completing Bachelor of Hospitality Management since early 2017 and that prior to that I have successfully completed a Certificate III in Commercial Cookery.
3.The Tribunal Member speculated that I have a strong financial incentive to stay in Australia because I am working as a part-time waiter and that I own my own car. Most students have part-time work whilst they are studying.
4.The Tribunal Member incorrectly assessed the criteria against Oman when in fact my home country is India.
5.The Tribunal Member did not act in accordance with the immigration laws of Australia as discretion should have been exercised in this matter because I have always complied with the immigration laws of Australia.
The applicant’s application was accompanied by an affidavit in which he provided further detail about his grounds.
The applicant had an opportunity, pursuant to an Order made by a Registrar of this Court on 28 August 2020, to file and serve any amended application with proper particulars of the grounds of application, any supplementary court book and written submissions 28 days before the hearing. He did not file any documents in accordance with this Order. The Minister filed written submissions as required by the Registrar’s Order.
At the hearing, I referred the applicant to the grounds in his application and invited him to address those grounds, or any other jurisdictional error he believes the Tribunal made, in his oral submissions to the Court. The submissions of both parties are addressed below.
The evidence before the Court comprises the applicant’s affidavit filed on 13 November 2018 and the court book filed on behalf of the Minister on 8 January 2020.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 (Eshetu) at [40].
CONSIDERATION OF THE GROUNDS OF APPLICATION
Ground 1
By ground 1, the applicant asserts that the Tribunal failed to act according to the substantial justice and merits of the case, in breach of s 353(b) of the Migration Act, and failed to act in a way that is fair and just, in breach of s 357A(3) of the Migration Act.
This assertion of error has not been explained in any further detail in the applicant’s affidavit or in his submissions to the Court.
The Minister submitted that the complete answer to ground 1 is that the provisions of the Migration Act referred to are facultative, not restrictive, and do not provide a basis for seeking judicial review. The Minister submitted that the ground is not particularised and, to the extent that some meaning in the ground might be inferred from the applicant’s assertion in his affidavit that he is a genuine temporary student, the ground rises no higher than merits review.
Section 353 of the Migration Act provides that the Tribunal, in reviewing a Part 5-reviewable decision, is not bound by technicalities, legal forms or rules of evidence and shall act according to the substantial justice and merits of the case. Section 357A of the Migration Act sets out the provisions of the Migration Act that are taken to comprise an exhaustive statement of the natural justice hearing rule. Subsection 357A(3), which is the subsection referred to by the applicant in the ground, requires that, in applying Division 5 of Part 5 of the Migration Act, the Tribunal must act in a way that is fair and just.
In Eshetu, the High Court considered s 420 of the Migration Act, which is the Part 7 equivalent of s 353. Gleeson CJ and McHugh J explained at [49] that the provision is intended to be facultative, not restrictive, and its purpose is to free the Tribunal, at least to some degree, from the constraints that are applicable to courts of law.
I am satisfied that the Tribunal did not make any error of the type alleged by the applicant in the present matter.
I accept the Minister’s submission that s 353 of the Migration Act is not of itself a provision that can be the basis for finding jurisdictional error. As best as I can understand the applicant’s case, the applicant is not asserting that the Tribunal denied him procedural fairness in this matter but is rather asserting that the Tribunal did not act in a way that was fair and just because it did not find in his favour on the substantive issues in the review. Understood in this way, the applicant appears to be inviting the Court to engage in merits review, which is beyond the Court’s jurisdiction.
The applicant has not made any assertion that the Tribunal breached one of the provisions that comprise an exhaustive statement of the natural justice hearing rule under s 357A and it is not apparent on the face of the materials before the Court that any provision has been breached. Subsection 357A(3) relates to how the provisions in Division 5 of Part 5 of the Migration Act should be interpreted. In the absence of any assertion that the Tribunal breached one of the provisions of Division 5 of Part 5, the applicant’s assertion that the Tribunal breached s 357A(3) does not amount to jurisdictional error.
Ground 1 is not established.
Ground 2
By ground 2, the applicant asserts that the Tribunal failed to consider that he had been enrolled in and working towards completing a Bachelor of Hospitality Management since early 2017 and that he had previously successfully completed a Certificate III in Commercial Cookery. In his affidavit, the applicant suggested that this showed his academic progress.
In his oral submissions to the Court, the applicant submitted that he did initially come to Australia to study finance in 2011, which was a very difficult subject and he changed his career multiple times, before studying Commercial Cookery. He then enrolled in a Bachelor of Hospitality Management and needed a visa to stay, so he applied for an extension to his visa which was declined. The visa was refused because the applicant kept changing courses and did not have a clear career path and the applicant agreed that that was the case at the time. He then went to the Migration Review Tribunal and the Federal Circuit Court. The main reason he is applying is that he wanted to finish his course without delay. He would also like to do a tourism degree.
The Minister submitted that the Tribunal expressly considered the applicant’s evidence that he was enrolled in a Bachelor of Hospitality Management, and that he had completed a Certificate III in Commercial Cookery, at [20] and [21] of its reasons.
I accept the Minister’s submissions in relation to this ground. Much of the applicant’s oral submissions related to background matters which do not assert jurisdictional error in the Tribunal decision. The heart of the applicant’s complaint by this ground is that the Tribunal did not consider the course that he had successfully undertaken and the course he was working towards.
I accept the Minister’s submission that the Tribunal considered these two courses at [20] and [21] of its reasons, where it said:
20.The applicant submitted to the Tribunal a Confirmation of Enrolment for a Bachelor of Hospitality Management … through Melbourne Polytechnic that commenced on 13 February 2017 and is due to be completed by 15 December 2019. The applicant informed the Tribunal that the course is about how to deal with customers, deal with people and understand them, the culture within a business and the management structure within the hospitality industry. The Tribunal notes of the applicant is not able to provide any further details about the Bachelor of Hospitality Management course that he is currently in the process of completing. The Tribunal finds that given the substantive time the applicant has been in Australia, his lack of overall academic progress and lack of knowledge about his course of study the student visa is being used to maintain ongoing residence in Australia.
21.The applicant stated at hearing and in the “Request for Student Visa Information under s.359(2) of the Migration Act 1958” dated and signed 31 May 2018 … that the only course of study he has completed since arriving in Australia in January 2011 is a Certificate III in Commercial Cookery through Victorian Institute of Technology between July 2015 and July 2016. The Tribunal is concerned given the eight years the applicant has been in Australia that he has only completed a certificate level course. The Tribunal finds that this is not the behaviour of a genuine student and that the student visa program is being used to circumvent the intentions of the migration program and the student visa is being used to maintain ongoing residence in Australia.
It is apparent from these paragraphs that the Tribunal expressly considered the applicant’s completion of a Certificate III in Commercial Cookery and enrolment, at the time of the Tribunal decision, in a Bachelor of Hospitality Management. The Tribunal had regard to these courses in assessing the applicant’s overall circumstances. It was open to the Tribunal to find that the completion of a single certificate course in eight years of residence in Australia was reflective of the applicant not being a genuine student. There is nothing illogical or irrational in the Tribunal’s findings at [20] and [21] of its reasons.
Ground 2 is not established.
Ground 3
By ground 3, the applicant asserts that the Tribunal speculated that he had a strong financial incentive to stay in Australia because he was working as a part-time waiter and owned his own car, in circumstances where this is a common experience for many students. In his affidavit, the applicant suggested that it was irrational for the Tribunal to consider these reasons as a strong incentive to stay in Australia. The applicant deposed that he was earning a very small wage which was just to assist him with his living and study expenses while he was studying.
In his oral submissions, the applicant submitted that he was asked if he was financially stable to pay for the course and fees. He relied on his father and had a part-time job too. He did not want to rely too heavily on his parents.
The Minister submitted that the Tribunal’s reasoning was not irrational. The Minister submitted it was open to the Tribunal to note that the applicant was making a reasonable wage through his work and was paying a comparatively small amount in board and to take these economic circumstances into account.
It is apparent that this ground is directed to [22] of the Tribunal’s reasons, where the Tribunal said:
The applicant informed the Tribunal that he currently works 20 hours per week as a waiter at RACV Cape Shank and is paid AUD $35 per hour. The applicant currently lives in [place redacted] and contributes AUD $145 per week towards the rent and owns his own car. The Tribunal finds that the economic circumstances within Australia of the applicant would present a strong incentive for the applicant not to return to his home country.
I accept the Minister’s submission that it was open to the Tribunal to find the applicant’s economic circumstances presented as an incentive for him not to return to his home country. It is implicit in the Tribunal’s reasons that the Tribunal considered the applicant to be earning a comfortable wage with relatively low expenses and that this, combined with the ownership of an asset, being his car, was relevant to its overall assessment of whether he genuinely intended to stay in Australia temporarily.
Ground 3 is not established.
Ground 4
By ground 4, the applicant asserts that the Tribunal incorrectly assessed the criteria against Oman when in fact his home country is India. In explaining this ground in his affidavit, the applicant said:
The Tribunal Member incorrectly concluded that ‘given the outstanding education opportunities available to the applicant in the accounting and hospitality field the Tribunal does not accept that the applicant has presented a reasonable reason for not undertaking his studies back in his home country’. Here the Tribunal member was referring to Oman. My home country is India. Nevertheless, while Oman does have excellent educational opportunities study in Australia allows me to grow as a person and obtain ‘worldly’ experience.
I believe that the Tribunal Member incorrectly applied the law and directions in relation to the definition of ‘home country’.
The Minister submitted that the Tribunal correctly recognised that the applicant was from India, and that the references to Oman at [14]-[18] arose in a context where the Tribunal was assessing whether the applicant’s personal circumstances were an incentive for him to cease residence in Australia. The Minister submitted that the point being made by the Tribunal was that the applicant’s father, mother and sister lived in Oman and that the applicant was currently managing his relationship with them via social media and therefore those relationships were not an incentive for him to return to India.
In his oral submissions, Counsel for the Minister referred the Court and the applicant to several places in the Tribunal’s reasons which showed that the Tribunal understood the applicant was from India. Counsel for the Minister further submitted that the Tribunal’s reasoning at [17] should be read with [16], which is clearly talking about India as the applicant’s home country. The Tribunal’s reasoning at [18] includes the Tribunal noting the applicant’s evidence that he retains a relationship with his family in Oman and the finding at the end of [18] was rational.
The Tribunal first recognised that the applicant was from India at paragraph [12] of its reasons, where it acknowledged the applicant’s evidence to that effect. The Tribunal referred at [14] of its reasons to the applicant’s evidence that he had departed Australia since arriving only once in 2013 when he ‘returned’ to India and that the only other country he had travelled to was Oman.
The Tribunal’s reasons contain a subheading, ‘The applicant’s circumstances in their home country’ under which appear four paragraphs. At [15], the Tribunal acknowledged the applicant’s evidence that he had completed his schooling in Oman in 2010. At [16] and [17], the Tribunal said:
16.The applicant told the Tribunal that he had not completed his studies back in India because it is very difficult to gain a position as the competition is great and that his parents had sent him to Australia so that he would receive the same level of education he had been provided in Oman. Given the outstanding educational opportunities available in to the applicant in the accounting and hospitality field the Tribunal does not accept that the applicant has presented a reasonable reason for not undertaking his studies back in his home country.
17.The applicant stated to the Tribunal that he has no issues of concern back in his home country.
The Tribunal then referred at [18] to the applicant’s evidence that his parents and sister are based in Oman and that he manages personal relations with them while living in Australia by making contact on a weekly basis via a social media application. In these circumstances, the Tribunal did not consider the applicant’s personal connections overseas presented as a distinct incentive for the applicant to cease residence in Australia.
Read in context, I accept the Minister’s submission that the ‘home country’ that the Tribunal was referring to in [16] and [17] of its reasons was India. The Tribunal therefore has not made the error asserted by the applicant.
In any event, in circumstances where the evidence before the Tribunal showed that the applicant’s immediate family members were in Oman, it was appropriate for the Tribunal to consider the applicant’s family circumstances in Oman and the applicant’s relationship with them in the manner in which it did. This is consistent with the requirement in Ministerial Direction No 69 that the direction is not to be used as a checklist but rather as a guide to assist decision-makers in assessing an applicant’s overall circumstances.
Ground 4 does not establish jurisdictional error.
Ground 5
By ground 5, the applicant asserts that the Tribunal did not act in accordance with immigration laws of Australia as its discretion should have been exercised in this matter because he has always complied with the immigration laws of Australia. In explaining this ground in his affidavit, the applicant said:
The Tribunal Member failed to place appropriate weight on my travel elsewhere for example Oman where I have complied with the migration laws of that country and the relevant visa conditions. This shows that I do not pose a threat to overstaying my visa. Further the Turbinal Member stated that little weight was placed on my travel movements as my mother and sister are based in Oman. I believe that this is irrelevant –many people have family members across the world and it should not be used to negate my demonstrated compliance with other migration laws and visa conditions.
The Minister submitted that there was no basis to find that the Tribunal did not comply with immigration law, and in his oral submissions Counsel for the Minister submitted that the Tribunal made its decision in accordance with the provisions of the Migration Act. The Minister further submitted that the Tribunal considered that the applicant had complied with the migration laws of Australia and Oman, but this factor was not determinative on its own.
I again accept the Minister’s submission in relation to this ground.
The applicant has not identified any provision of the Migration Act or the Regulations that the Tribunal did not comply with. There therefore does not appear to be any basis for the assertion that the Tribunal did not comply with Australia’s immigration law.
The second part of the applicant’s ground appears to be directed to [14] of the Tribunal’s reasons, where the Tribunal said:
The Tribunal has considered clause 13 and 14 of Direction 69 with respect to the applicant’s immigration and travel history. The applicant informed the Tribunal that he has only departed Australia on one occasion in 2013 when he returned to India to visit his father who had been admitted to hospital … and his mother and sister for a period of two months. The applicant told the Tribunal that Australia and Oman are the only countries he has travelled to outside of India and that he has complied with the migration laws of those countries and the relevant visa conditions. The applicant stated at hearing that his father, mother and sister are based in Oman … and that is where he primarily grew up and went to school. The Tribunal give little weight to the applicant’s travel movements.
The Tribunal in this paragraph considered the applicant’s evidence that he had complied with the migration laws of Australia and Oman and made no findings rejecting or doubting that evidence. The applicant’s compliance with migration laws is just one factor that the Tribunal was required to consider in determining whether the applicant genuinely intended to stay in Australia temporarily. It could not, of itself, be determinative. While the Tribunal’s reasons could have been expressed in a better way, read in the context of the Tribunal decision as a whole, I understand the final sentence of [14] to be an indication that the Tribunal did not consider the applicant’s travel history, including his previous travel to Oman, to materially influence its views one way or the other as to whether the applicant intended genuinely to stay in Australia temporarily. This finding was open to the Tribunal. In any event, the weight to be given to this consideration was a question for the Tribunal as part of its fact finding functions.
Ground 5 is not established.
Other matters raised in the applicant’s oral submissions and affidavit
In his affidavit, the applicant said that the Tribunal’s reasoning is illogical, because he does satisfy the genuine temporary entry criterion as he is a genuine and temporary student. The applicant’s assertion of illogicality in the Tribunal’s reasons is nothing more than an assertion of disagreement with the Tribunal decision. The applicant’s disagreement with the Tribunal decision is not, of itself, sufficient to establish jurisdictional error: Eshetu at [40]. The Tribunal carefully considered the evidence before it and, where relevant, considered the matters referred to in Ministerial Direction No 69. The Tribunal made findings that were open to it on the evidence before it. There is nothing illogical in the Tribunal’s reasoning, in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131]-[135].
The applicant acknowledged in his oral submissions that he had not always been career focused and had changed courses, but once he had selected his course, he has done it properly with good academic records. He would now like an opportunity to move forward with his career. He would like to do a degree in tourism. It is difficult for him to study in his home country because he has no knowledge of courses in India, with his previous study being in Oman.
Counsel for the Minister submitted that, to the extent the applicant’s submissions referred to matters of historical interest, they were considered by the Tribunal, in particular at [12] of the Tribunal’s reasons. To the extent that the applicant provided an update on events that occurred after the Tribunal decision, such as that he has been doing well in his courses and his wish to do a tourism course, these matters cannot establish jurisdictional error in the Tribunal decision and the applicant is really seeking merits review.
I accept the submission advanced by Counsel for the Minister in response to the matters raised in the applicant’s oral submissions. The matters that simply reflect the procedural history of this matter in the past courses studied by the applicant do not demonstrate jurisdictional error in the Tribunal decision. To the extent they were relevant, they were addressed by the Tribunal in its reasons.
Any assessment of whether there is jurisdictional error in the Tribunal decision has to be based on the state of affairs that existed at the time of the Tribunal decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77] (Mortimer J). Therefore, the applicant’s present desire and intentions, or any achievements since the Tribunal decision, do not establish that the Tribunal made a jurisdictional error.
CONCLUSION
In circumstances where I have found that the applicant has not established jurisdictional error in the Tribunal decision, the application for judicial review is dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 3 October 2024
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