Eros v Minister for Immigration

[2019] FCCA 3805

FEDERAL CIRCUIT COURT OF AUSTRALIA

EROS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3805

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Saini v Minister for Immigration and Border Protection [2016] FCA 858

Ramasahayam v Minister for Immigration & Anor [2014] FCCA 442
Kumar v The Minister for Immigration& Anor [2013] FCCA 1860
Masood & Ors v Minister for Immigration & Anor [2017] FCCA 1988

First Applicant: MONIKA THOTHNE EROS

Second Applicant: JOZSEF TOTH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 105 of 2019

Judgment of: Judge Vasta

Hearing date: 18 November 2019

Date of Last Submission: 18 November 2019

Delivered at: Brisbane

Delivered on: 18 November 2019

REPRESENTATION

Counsel for the Applicant: Mr L. Boccabella

Solicitors for the Applicant: NB Lawyers

Counsel for the First Respondent: Ms B. O’Brien

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The Application filed on 5 February 2019 as amended on 30 May 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental of the application fixed in the sum of $7467.00.

NOTATION:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 105 of 2019

MONIKA TOTHNE EROS

First Applicant

JOZSEF TOTH

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 9 January 2019, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, Monika Tothne Eros, a student visa.  Her husband, Jozsef Toth, was a secondary Applicant, and his claims rose or fall on the application of the first-named Applicant.  On 5 February 2019, the Applicant filed an originating application in this Court, asking this Court to review that decision of the AAT. 

2. In short compass, the Applicant came to Australia after receiving a tourist visa.  In her application for a tourist visa, she wrote this:

   I would like to go on a holiday for two months with my family, Rebeka, Mate and my husband, Jozsef.  My son has just graduated from high school and we would like to celebrate with this holiday.  In Sydney, we would like to see the Opera House, with the Harbour Bridge, visit the Taronga Zoo and have a rest at Bondi Beach.  We are planning to rent a car and spend some time in the Gold Coast too.  We would like to explore several cities in Australia, visit also the Australia Zoo, hold a koala, see kangaroos.

3. The Applicant and her husband arrived here in Australia on 2 November 2016.  Two weeks after arriving, the Applicant applied for a student visa.  She claimed that she wished to study certainly an English language course.  She said that, as at 9 November 2016, her son and daughter were due to begin their own studies in Australia, and according to the application, she said:

   I would like to be next to them in the first few months, to ensure a smoother adjustment to this new environment and culture.

4. She asserted that the English language study would assist her in her own business back in Hungary. 

5. The Tribunal looked at this aspect.  They noted that the Applicant was currently enrolled in a vocational level certificate IV in marketing and communication.  That course commenced on 23 July 2018 and was due to finish on 30 June 2019.  The Applicant said she would find it difficult to find a similar course in Hungary where the instruction was in English.  She said that such a course would be expensive in terms of tuition.  The Tribunal, whilst accepting that she may benefit from high-quality education in Australia, were unconvinced in relation to the value of the course to the Applicant’s future.

6. The Tribunal noted that, in her application, the Applicant listed her occupation as financial consultant, and her highest level of education is that of a chartered accountant.  The submission to the Tribunal was that improved knowledge of the English language, coupled with greater business marketing and communication skills, will enhance the family business and lead to greater opportunities throughout Europe. 

7. The Tribunal noted, at paragraph 18, that it was convenient to observe that the Applicant had completed the English language courses that she proposed at the time of the application to the Department.  The Tribunal considered that the value of the vocational certificate IV qualification to the Applicant’s future would be marginal.

8. The certificate III that she has completed in business should provide the Applicant with the knowledge base that may be deployed to solve disparate business challenges, including in relation to marketing and communication.  The Tribunal said:

   As such, the Tribunal does not consider that the course proposed will really assist the Applicant to obtain employment or to improve her employment prospects in Hungary.

9. The AAT then looked at the pattern of behaviour since first applying to the Department.  The Tribunal noted that this had always involved identifying a further course, further extending her stay in Australia each time.  The Tribunal observed that the Applicant completed an English language course between 14 November 2016 and 19 May 2017.  She then completed a further English course between 25 September 2017 and 15 December 2017, and between 5 February 2018 and 1 July 2018 she completed the certificate III in business. 

10. The Applicant had said to the Tribunal she hadn’t returned to Hungary since arriving in Australia.  Her son had left and gone back to study medicine in Romania, but the daughter had recently completed a Master of Business Administration and she wants to stay in Australia for at least two years because, having graduated, she was eligible to remain in Australia for two years to work. 

11. The Applicant said that the balance of her family and her friends remain in Hungary.  The Tribunal said that they didn’t consider that those personal connections overseas to be a distinct incentive for the Applicant to cease residence in Australia, and considered that the presence of the immediate family in Australia is significant.

12. The Tribunal said:

    The Tribunal considers the presence of the Applicant’s daughter in Australia is a strong incentive for the Applicant to remain in Australia, particularly when coupled with the other incentives which exist to remain in Australia.

13. The Tribunal had regard to the Applicant’s evidence as to real estate holdings in Hungary and the fact they had a small business, but did not see that those matters were any real incentive to cease residence in Australia.  The AAT considered that the husband, who was earning money in Australia and had an ABN, could earn more money in Australia compared to Hungary, and the Tribunal considered this presents a significant incentive for the Applicant not to return to Hungary.  The Tribunal noted there was no other reason why the Applicant could not go back to Hungary. 

14. The AAT had given to the Applicant information that could lead it to affirm the decision pursuant to s.359A, that being the movement of the Applicant since she arrived in Australia.  The response given was that the Applicant had complied with visa conditions whilst in Australia, that she didn’t have a pathway to permanent residency because of her age and her husband’s age and an inability to meet the requirements of for business stream visas, that the reason that she hadn’t returned to Hungary is because, as a diligent student, she preferred to spend money on course fees rather than travel.

15. The Tribunal said at paragraph 30:

    The Tribunal considers that an Applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia.  In our view, the Applicant has an intention to remain in Australia, at least while her daughter is here, but she did not articulate a lawful means of doing so outside of the student visa program.  It follows the Tribunal is concerned that the Applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia.

16. Paragraph 31:

    On the basis of the above, the Tribunal is not satisfied the Applicant intends genuinely to stay in Australia temporarily.  Accordingly, the Applicant does not meet clause 500.212a.  Given the above findings, the Tribunal finds the criteria for the grant of the sub-class 500 visa are not met, and the decision was therefore affirmed.

17. By the amended application which was filed on 30 May 2019, there were three grounds, ground one being the value of the course.  That ground read:

    1. The second respondent failed to take relevant considerations, and unreasonably decided the course would not assist the applicant’s employment or improve her employment prospects in Hungary as the second respondent was unconvinced in relation to the value of the course to the applicant’s future…

18. That ground was not argued further before me, and was not the subject of any submissions in the written submissions that were filed.  Ground 2 was headed Daughter’s Presence in Australia.  It read:

    2. The second respondent misconstrued cl.500.212, took irrelevant considerations and failed to give real consideration of claims and evidence….

19. That ground was argued.  Ground 3, Personal Ties to Hungary.  Ground 3 read:

    3. The second respondent failed to take into the evidence before it and its decision was unreasonable, based on no evidence or facts.

20. This ground was also argued.  As well as that, the written submissions had another sub-ground, one would think, in that the AAT’s use of the group introduction was unreasonable, illogical and an unlawful exercise of its power.  To such an extent that there was any leave needed to argue that ground, I gave leave. 

21. In looking at these particular grounds, one has to come to grips with what the Applicant is actually arguing.  The Applicant is, in effect, saying that one must look at the clause and look at what it actually says.  That is, that the Applicant is a genuine Applicant for entry and stay as a student because the Applicant intends genuinely to stay in Australia temporarily.

22. The use of the word “temporarily”, the Applicant has argued, really is pivotal here because the Applicant has no avenue to stay here in a permanent way.  Therefore, according to the Applicant, the only intention that can be derived is that she intends to genuinely stay in Australia temporarily.  This is because it is quite possible for an Applicant to have an intention to stay in Australia temporarily, but at the conclusion of the visa that limits that stay, they can apply for another visa, or even another visa.  The fact that the Applicants still wish to remain in Australia may be for the reasons that are genuine, that is, that they want to keep studying so that they can make a better fist of life when they return to their own country.

23. The Applicant refers to a decision of Logan J in Saini v Minister for Immigration and Border Protection [2016] FCA 858. The principles espoused there by Logan J are not new. One must consider the whole of the reasons for there being the student visa program, that is, that both Australia and the other country benefit from this program; that is, a person comes to Australia, takes advantage of the higher education in Australia, and then returns back to their country to put into effect what it is they have learnt in Australia. The other country benefits greatly because it gives persons in that country greater skills and greater ability to do what they need to do which, in turn, enhances that country. Australia is enriched because firstly, it ensures that the educational standards in Australia must be kept up to a certain level so as to attract persons, and from an economic point of view, to have people who come into the country and are spending their money on education is very good for the economy. So if the scheme is practised properly, to use the vernacular, everyone is a winner.

24. However, whilst what Logan J says is obviously correct, the corollary is also correct, that a person may also be utilising the visa system to stay in Australia for far longer than they are entitled to stay.  And to use the words of the Honourable Ian Callinan QC, are trying to “game” the system. 

25. What the Tribunal here has said is that the Applicant has a number of incentives to stay in Australia, mostly the fact that her daughter is here studying, and also that her husband can earn more money here than in Hungary.  What the Tribunal has ultimately determined is that the Applicant wishes to stay here in Australia with her daughter, to provide support for her daughter whilst the daughter both studies and then upon finishing the studies, stays here for another two years to work.

26. The problem is that there is no legal way for the Applicant to do so, other than using the student visa program.  The AAT found doubts were raised as to the utility of such studies, and too, what is in the future interests of the Applicant. When the AAT looked at the incentives that the Applicant has to stay in Australia, and the utility of the studies that she wishes to undertake, the AAT was not satisfied that she was a genuine Applicant for entry and stay as a student.

27. The question of “temporarily” really is the main thrust of the Applicant’s claim here.  Whilst not particularly put this way, it would seem to me that the effect of the submissions from Mr Boccabella was that, at the most, what the AAT has been able to discern is that the Applicant wishes to stay here whilst her daughter studies. 

28. That, Mr Boccabella points out, is a collateral matter.  It may be that in studying – as the Applicant wishes to do, the side effect, as it were, is that she just happens to be here for the time that the daughter is here studying and just because there is a collateral aspect does not mean that it means that the Applicant is not genuinely wanting to stay temporarily.

29. The submission, I take it, is that the Applicant, even on the findings of the Tribunal, is still only wishing to stay here temporarily, and would leave Australia once the daughter had finished everything that she wanted to do in Australia, and if that was so, the Applicant has still only evinced an intention to stay in Australia temporarily. 

30. It does not seem to me though that the Tribunal has misconstrued what the word “temporarily” is all about.  The word “temporarily” has to be seen in context of the person being the student.  That is, that they will be here to complete a genuine course of study, and then will leave once the course of study is done. 

31. The intention to stay here temporarily is something that needs to be seen in the context of all the circumstances.  There are many occasions where persons keep studying for the sake of studying, so it is that they can stay in Australia longer.  That may not mean because they intend to be here permanently, but it means that they are not genuinely here temporarily; that is, that they have identified a course of study, and then will leave once that course of study has finished. 

32. In that respect, the interpretation that was used by the Tribunal is a correct interpretation, and there has not been a jurisdictional error in that respect.

33. With respect to the group introduction, what can be seen by the transcript, which has been helpfully provided, is that there were quite a number of matters that had been listed for hearing by the Tribunal.  The transcript is annexed to an affidavit of Agnes Kemenes which was filed on 13 November 2019.  At page 2 of that transcript, at line 18, the AAT Member said:

    MEMBER: Okay.  Now, we’ve got a number of matters listed today.

    He then talks about one particular matter that they have dismissed because the person has not shown.  He then says:

    Now, what I propose to do today is a –

    and the word is indistinct – “introduction”:

    That’s a group introduction.

    The Member then gives a number of, as it were, introductory remarks, saying:

    You are participating in the hearing today because a delegate of the Minister in what was then known as the Department of Immigration now known as the Department of Home Affairs refused your application for student visas.  This Tribunal is independent of the department.  It is a separate body.  I will have a fresh look at your application.

    And he says that there will be two Members who will be looking at the applications today.  The Member says:

    Now, just as a matter of law, I should tell you that whilst we both will be looking at your application and we will both give our reasons and our decision, it is a decision of Member Millbank whose decision will prevail because she is listed as the presiding Member.  Now, that’s, of course, only in the event we disagree and that is of course, for a later time.

    So in reviewing the decision that the delegate has made we must apply the same migration law and we have no discretion to go outside the law.  We will consider anything you raise in your evidence today along with the matters raised by the department, and, of course, any issues that arise on the papers before us. 

    At the moment, of course, I am doing the group introduction.  I have however prepared for each of your cases individually, and we will hear each matter individually.  Now, if the Tribunal finds the department has made an incorrect decision it will remit the decision back to the department for further consideration.  If the Tribunal finds that the department has made the correct decision, it will affirm the decision under review. 

    Now, before I go any further I want to outline the basic requirements you have to satisfy for the grant of a student visa.  One of the basic requirements is that you must either by studying, you must be enrolled, you must be studying and enrolled.  The primary purpose of a student visa is for an applicant to study a registered course and to progress academically.  A successful applicant must be both a genuine student and a genuine temporary entrant. 

    Now, unless anyone has any questions at this point what I’m proposing to do is to proceed with the matters individually.

34. Someone did have a question, and the Member dealt with it.  It had nothing to do with this matter.  Someone else had a question, and then at page 6, line 30, the Member said:

    Okay, all right. What I propose to do now is end the recording for the group introduction and then we will proceed with the matter of Monika Eros first. Just because I’m going to end the recording and just ask that no one makes any remarks while the recording isn’t going.  I’ll tell you when we’ve got a new recording, and then we’ll start the hearing of Ms Eros.

35. And it would seem then on page 7 that the actual hearing involving Ms Eros then commenced. 

36. What has been submitted to me is that this was unlawful; that there was no power for the Tribunal to undergo a group introduction; and that there was a risk of contamination, in that all of the matters may roll into one, and that the momentum of being one of a number of matters was simply unfair for the Applicant; and that she was not given any advance notice that this would happen, nor was she given the power to pull out of such a proceeding.

1. The Applicant seemed to be adding to the submissions as we went.  Firstly, the submission was that this was an abuse of power, but then in reply, the submission was that this procedure was something that would strip away public confidence in the way in which these matters are dealt with. 

2. Whilst I admitted during the course of the hearing that I had not seen such a process occur before, I was not sure that it had not actually occurred before, and had occurred with the imprimatur of either the President or anyone else.

3. It was pointed out that there was nothing in the Regulations that allowed for such a process, but equally, there was nothing in the Regulations that disallowed such a process.  Conveniently, the Minister referred me to a decision of Ramasahayam v Minister for Immigration & Anor [2014] FCCA 442. In that decision, his Honour, Judge F. Turner said this at paragraph 24:

   24. The next issue raised in the Cover Letter is a complaint about the Tribunal conducting what is referred to as a “joint hearing” or a “group hearing”. The applicant complains, in the Cover Letter, about the Tribunal conducting a group hearing. The Court accepts the submission by the first respondent that:

   “Significantly, the applicant has not identified any specific issue arising from the “group hearing” that impacted on his ability to give evidence and present argument, or his opportunity to have his case considered. The use of a joint hearing procedure was considered by Judge Whelan in Kumar v Minister for Immigration and Border Protection [2013] FCCA 1860 at [18] to [36]. Her Honour did not discern any error arising from the use of a” joint hearing process”: at [34]. In the absence of particulars as to how the joint hearing process impacted on compliance with s 360 of the Act (if at all), the first respondent is unable to respond in greater detail.”

4. Judge F. Turner said that the Court was unable to find an error of law; that the Applicant was entitled to have his application heard and decided, and those things occurred.  If one looked at Whelan J’s decision in Kumar v The Minister for Immigration & Anor [2013] FCCA 1860, Her Honour there noted at paragraph 18:

   18. The Tribunal was therefore correct to conclude that the Applicant had not provided any evidence that he met the English language criteria. The Applicant complains he was denied procedural fairness and natural justice because there were a number of other applicants in the hearing room at the time his case was heard. The First Respondent submits that the Tribunal is required by s.353 of the Migration Act 1958 (Cth) (“the Act”) to conduct itself in a way that is fair, just, economical, informal and quick. The Tribunal is not bound by technicalities, legal forms or rules of evidence

   19. In response to recommendations of the Report on the Increased Workload of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) (“the Lavarch Report”) the Tribunal trialled the system of multiple-applicant hearings, where the applicants had a single issue in common; in this case, where the delegate was not satisfied of their English language competency skills. The Applicant was advised of the way the hearing would be conducted and what the issue for determination by the Tribunal was.

   20. At the commencement of the proceeding, all applicants were invited to the hearing room and the Tribunal member gave a generic opening explaining the process and the issues before the Tribunal. Each applicant then had a specific hearing of their own. The First Respondent submitted that the process adopted complied with the requirements of s.360 of the Act.

5. Her Honour concluded at paragraph 34:

   34. In my view, that process complied with the requirements of ss.353, 360 and 365 of the Act. I am not satisfied the process denied the Applicant a meaningful opportunity to be heard. The process may have limited application, but in the context of this case, it was not inappropriate. I am of that view for these reasons:

   This is not a case where the Tribunal had a discretion to exercise or where it was required to make findings of facts on the basis of an assessment of the credibility of the Applicant’s evidence;

   The issue in this case was a factual one…

6. The Minister also referred me to Masood & Ors v Minister for Immigration & Anor [2017] FCCA 1988. In that case, Judge Riley said this, noting the ground, at paragraph 12:

   12. The first ground in the application is,

   On our hearing at AAT, our case was bundled with other AAT appeals.  Although those cases were somewhat IELTS related but our case was different from all the cases.  We felt that our case was not heard properly by AAT and we were not given enough time to explain our case.

   13. The first Applicant said today to the Court, in effect, that he would have explained to the Tribunal the fraud issue discussed above.  However, it does not seem to me that it would have made any difference if the first Applicant had explained those matters to the Tribunal, because they did not amount to a fraud on the Tribunal, and would not have led to a different outcome.

   14. The first Applicant did not suggest any other basis upon which his case was different from all the other cases.  It seems to me that the Tribunal can adequately provide procedural fairness to Applicants where hearings are grouped.  Clearly, it saves the Tribunal a great deal of time by providing only one set of introductory remarks rather than having to repeat them numerous times.  It seems to me that there was not a denial of procedural fairness in the Tribunal proceeding in that way.

7. In this case, the Applicant, as I said, has pointed to the risk of contamination, but it does not seem to me that there has been any evidence of any contamination.  The Applicant has not shown what injustice has actually occurred.  The Applicant simply says that it is unlawful for the Tribunal to do things this way, and that is sufficient for there to be an injustice.  Having regard to the three cases I’ve referred to, I cannot see that there is any authority to say that what has occurred was unlawful.  There is no particularity as to what the injustice is.  It is said to be a risk of contamination. 

8. The introductory remarks that I have read into the record are apposite to the matters in the Applicant’s case.  It just is that those remarks did not need to be repeated to any other Applicant afterwards.  The Applicant’s case was heard individually, and hers was the first one that the Tribunal heard.  It does not seem to me that there has been any jurisdictional error that has been established in relation to this matter. 

9. I turn to the claim that the decision itself was unreasonable and it was illogical and irrational, in other words, the submission is that upon the evidence that was properly before the Tribunal, the decision that was reached could not have actually been reached.

10. The Applicant has pointed to these matters.  First off, the Applicant has said that – and this is Mr Boccabella’s words:

    The best way to learn a language is to do a course in that language.

11. Mr Boccabella has said that this is a fact, and because he himself – Mr Boccabella, has done a course on cooking that was conducted in Italian, and that whilst he did not have any great skills as a cook afterwards, his Italian language skills were considerably improved.  He says that this really can show the genuineness of the Applicant in wanting to do these courses in English; that it would help her English skill. 

12. He also points out at paragraph 24 of the decision – and I will read the whole of paragraph 24.  Paragraph 24:

    It is common knowledge that there is an economic disparity between Australia and Hungary.  In these circumstances, the Tribunal questioned the Applicant about her economic circumstances.  She told the Tribunal she is supported by the second-named Applicant who works in self-employed carpentry‑type jobs.  The Applicant provided a copy of the second‑named Applicant’s taxation documentation.  On the Applicant’s evidence, the Tribunal considers that the second‑named Applicant could earn more in Australia compared to Hungary.  The Tribunal considers this presents a significant incentive for the Applicant not to return to Hungary.

13. Mr Boccabella takes issue with the first sentence of that paragraph.  It is read:

    …that it is common knowledge that there is an economic disparity between Australia and Hungary.

14. He claims that there is no such common knowledge.  He says that he has been to Hungary and to Budapest, and that it is a beautiful city, and that there is nothing which showed that there is an economic disparity between Australia and Hungary.  He also points to the fact that after that sentence is a footnote which when one goes to the bottom of the page, reads:

    See also ‘World Development Indicators’, data.worldbank.org/products/wdi,december2018.

15. Mr Boccabella has submitted an affidavit of Rebecca Woodrow who has attempted to find that document, using the web address in the footnote.  She says that she attempted to locate information about the economic disparity between Australia and Hungary in the source provided.  She was unable to find a document on this website that explicitly stated there was an economic disparity between Australia and Hungary.  Mr Boccabella then submits that there is simply no evidence for that particular statement, that it is” common knowledge there is an economic disparity between Australia and Hungary”.

16. However, it seems to me that the real gravamen of the conclusion in paragraph 24 is that the husband of the Applicant could earn more in Australia compared to Hungary.  The AAT has given their reasons for that, in that they’ve looked at the Applicant’s taxation documentation. The transcript discloses that the husband had his own ABN number and he earned $38,000 to $40,000 in the last year. 

17. The submission was that there is nothing that actually reflects that.  None of the submissions given to this Court showed what the situation was.  The argument was that this information was not proper information, nor was it information that was then put to the Applicant and to have her asked if this was what she had to say about him earning more money in Australia.  The submission is that, when one considers that the Tribunal says that this presents a significant incentive for the Applicant not to return to Hungary, that it is obviously a finding that underpins the Tribunal’s reasons.  I am not convinced that it is such a reason.

18. It is obvious that what the Tribunal’s reasoning was.  At paragraph 13 of the Tribunal’s reasons, the Tribunal said:

    13. The Applicant asked the Tribunal to accept that she arrived in Australia for a short holiday with her family, and shortly thereafter decided she would study here.  Whilst the Tribunal accepts that plans can change, the Tribunal does not accept the Applicant’s evidence.  The Tribunal considers that the Applicant used the visitor visa program to circumvent the more rigorous student visa assessment process.

19. The Tribunal has found that the Applicant is not a genuine Applicant, and that the fact that the husband could earn more money in Australia than he has here may be a significant factor in her not wanting to leave Australia, but is not the deciding factor as to whether or not the Tribunal has been satisfied. 

20. Because that finding was not the finding upon which the Tribunal based its decision that they were not satisfied that the Applicant was a genuine Applicant, it does not seem to me, if there were an error, that it would amount to a jurisdictional error. The Tribunal, as I have said, had problems with the Applicant being able to be described as a genuine Applicant for entry as a student. 

21. The Applicant also points to paragraph 26, where the Tribunal spoke of there not being any reasons that the Applicant cannot return to Hungary, that the last sentence in that sentence read:

    The Tribunal accepts this, and considers that she simply chooses not to return.

22. The Applicant submits that the evidence does not justify such a conclusion.  When I look at the whole of this particular ground, that is, the ground that points to illogicality and unreasonableness, the true analysis of the arguments given by the Applicant really do amount to an attempt at an impermissible merits review. 

23. When one looks at all of the circumstances that the Tribunal was faced with, that is, an Applicant who comes to Australia on a tourist visa, that she has within two weeks applied for a student visa, that the courses for which she is studying do not seem to be the sorts of courses that are really going to be of any use to her in Hungary, and that she has quite openly admitted that she wants to be here while her daughter studies, it seems to me that it was very much open to the Tribunal to come to the conclusion that the Applicant was not a  genuine Applicant for entry as a student.

24. That is what needs to be seen as to whether it is illogical, irrational or unreasonable.  The decision that was made may not have been the one that I would have made, but that is not the point.  The question is whether such a conclusion of non-satisfaction was open.  It clearly was open. 

25. For those reasons, that particular ground does not illustrate any jurisdictional error.  As those were the matters that were articulated, I have found that there is no jurisdictional error. 

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  9 January 2020