Fathima v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

FATHIMA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 796

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa – whether the Administrative Appeals Tribunal decision was irrational or illogical – whether the Administrative Appeals Tribunal failed to consider relevant material – whether the applicants were denied a real and meaningful opportunity to present evidence and arguments – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 359AA, 360

Migration Regulations 1994 (Cth), sch 2 cl 572.223, 572.322

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593

Minister for Home Affairs v Omar [2019] FCAFC 188

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6

First Applicant:

MASRATH FATHIMA

Second Applicant:

ZAKEER HUSSAIN

Third Applicant:

FARZEEN HUSSAIN

Fourth Applicant:

JUWARIYAH HUSSAIN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2710 of 2018

Judgment of:

Judge Mercuri

Hearing date:

6 October 2020

Date of Last Submission:

6 October 2020

Delivered at:

Melbourne

Delivered on:

22 April 2021

REPRESENTATION

Counsel for the applicants:

Mr Kenneally

Solicitors for the applicants:

Lawson Bayly

Counsel for the respondents:

Mr Murano

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The applicants’ application filed on 19 September 2018 and as amended on 21 July 2020 and 13 August 2020 be dismissed.
The applicants pay the first respondent’s costs in a sum to be fixed, if not agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2710 of 2018

MASRATH FATHIMA

First Applicant

ZAKEER HUSSAIN

Second Applicant

FARZEEN HUSSAIN

Third Applicant

JUWARIYAH HUSSAIN

Fourth Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”) to affirm a decision of a delegate of the respondent (“the Delegate”) to refuse the applicants an application for a Student (Temporary) (Class TU) visa (“the visa”).
By way of background, the first applicant is an Indian national who first arrived in Australia in February 2009 as the holder of a student visa.[1] That initial visa was due to expire on 16 October 2011. Since the expiry of that visa, the first applicant has been granted two further visas.[2]
[1] Court book pages 13 and 169.
[2] Court book page 169.
Relevantly for the current proceedings, the first applicant applied for a further student visa on 9 March 2016.[3] The second applicant is the first applicant’s husband and the third and fourth applicants are children of the first and second applicant. The second, third and fourth applicants’ visa applications are dependent on the first applicant’s application being granted.
[3] Court book pages 13 to 23.
By letter dated 26 April 2016, the first applicant was requested to provide additional information.[4] In particular, that letter identified that a decision maker must be satisfied that the ‘applicant for a student visa is a genuine student who intends to stay in Australia temporarily’.[5]
[4] Court book pages 33 to 40.
[5] Court book page 37.
The letter went on to state:
You have been in Australia as the holder of successive subclass 572 Student visas since 02 February 2009. … The length of time you have spent in Australia without return to your home country combined with the presence of your immediate family here may indicate that you have limited remaining ties to your home country.
Since arriving in Australia you have completed and/or enrolled in a series of Vocational Education and Training (VET) sector courses, several of which have been similar if not the same in content…
The courses undertaken by holders of Student visas should show a clear academic progression and pathway to a defined professional field. I note that you have enrolled in courses that do not immediately appear to be related to a defined outcome in a professional field in your home country.
…
The above factors combined may cause concerns that you have enrolled in a series of VET courses over a prolonged period not for the purpose of academic development leading to professional opportunities in your home country, but rather to remain in Australia for an extended period for the purposes of employment and examining other migration pathways. …[6]
[6] Court book page 37.
Against this background, the letter then requested, among other things, certain information about the first applicant’s educational pathway. The applicant’s migration agent responded to this request on or about 23 May 2016.[7]
[7] Court book pages 41 to 135.
On 10 October 2016, the Delegate refused the applicant’s application for a student visa. The delegate’s reasons for decision are set out at pages 167 to 172 of the court book. The applicants applied to the Tribunal for a review of the Delegate’s decision via their migration agent on 25 October 2016.[8]
[8] Court book pages 173 to 188.
The applicants were invited to attend a hearing by letter dated 9 May 2018.[9] Initially, the hearing was scheduled to occur on 6 June 2018, however, in response to a request by the applicants, the hearing was rescheduled to occur on 2 July 2018.[10]
[9] Court book page 199.
[10] Court book page 224.
In the letter notifying the applicants of the rescheduled hearing date, the first applicant was requested to provide all documents upon which she intended to rely to establish that she met the criteria for the student visa. Relevantly, the invitation to the hearing noted:
… The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.[11]
[11] Court book page 225.
The first applicant, who at this stage was representing herself, provided a written submission dated 29 May 2018.[12] In that written submission, the first applicant relevantly stated:
[12] Court book pages 232 to 237.
As my long-term plan is to build and run my own hotel in India it was absolutely crucial for me to learn about marketing departments so I can address my weak areas where I lacked these knowledges (sic) hence I enrolled myself in Diploma of Marketing and Advanced Diploma of Marketing at South Pacific Institute…
I started my courses on 15 January 2016 at this college which was supposed to be finished on 11 February 2018. I had paid full fees of $14,000 to the College and around October 2017, without any contact or any prior notification or notice the college abruptly got shut down. I was completely left in vein and agony. I was falsely advised by the management staff that the college is to reopen and I can resume my study in the same college and I had a hope that college will reopen as I had paid my full fees $14,000. However, every time I was told a lie and finally I figured out in despair that all my money is lost and gone in vein. Since I am an international student and having no choice left except listening but considerable period of six months had elapsed and getting no sign to reopen that I had no alternative left and it was necessary for me to complete my advanced diploma of marketing according to my career roadmap hence I enrolled in other college to complete my advanced diploma and then continue with my much planned bachelor degree afterwards. (sic)
…
Until now I have completed all my courses successfully as per my strategic career plan as I know these will lead to a good credit standing for my academic courses for which I can achieve an advance credit standing for my much planned bachelors and masters degree in hospitality management. With my advanced credit standing my academic plan can be completed within 3 to 4 years if I don’t face any further obstacles or roadblocks. (sic)[13]
[13] Court book page 235.
Annexed to the first applicant’s written submission was a printout from a website headed ‘asqa.gov.au’ which contained the following information:
Cancellation of registration as a provider of vocational education and training (VET) services:
…
Sher-E-Punjab Pty Ltd (RTO number 21967, trading as South Pacific Institute). Decision to take effect from 12 October 2017 …[14]
[14] Court book page 268.
The Provider Registration and International Student Management System (“PRISMS”) reports in relation to the first applicant are provided at pages 193 to 196 of the court book. These reports show that the first applicant had commenced 20 courses in the period from 2009 to 2018, 12 of which had been cancelled and 8 of which had been completed. The PRISMS report also states that the last course completed by the first applicant was finished in November 2015.[15]
[15] Court book page 193.
The PRISMS records show that the primary applicant enrolled in:
a)a Diploma of Marketing, which was to commence on 15 February 2016 and was to be completed on 29 January 2017; and
b)an Advanced Diploma of Marketing, which was to commence on 13 February 2017 and was to be completed on 11 February 2018.[16]
[16] Court book page 193.
The records indicate that both of these courses were cancelled.
A hearing was conducted before the Tribunal on 2 July 2018. The applicants attended the hearing. A transcript of that hearing is annexed to the affidavit of Lawson John Bayly.[17]
[17] Affidavit of Lawson John Bayly affirmed and filed on 21 July 2020 at annexure LJB-1.
The first applicant stated in her affidavit that she was provided with a copy of the PRISMS record obtained under a freedom of information request which recorded the reason for the cancellation of her confirmation of enrolment (“COE”) in both the Diploma of Marketing and the Advanced Diploma of Marketing as being for the non-payment of fees.[18]
[18] Affidavit of Masrath Fathima affirmed on 11 August 2020 and filed on 13 August 2020 at paragraph 2.
The first applicant further stated that:
a)she continued to attend her courses at South Pacific Institute until that provider’s registration was cancelled in approximately October 2017; and
b)she continued to pay course fees during her attendance at South Pacific Institute.[19]
[19] Affidavit of Masrath Fathima affirmed on 11 August 2020 and filed on 13 August 2020 at paragraph 5.
In relation to payment of course fees, the PRISMS records annexed to the first applicant’s affidavit record that the first applicant had paid an initial prepaid tuition fee for the Diploma of Marketing of $1,000 from 15 February 2016 to 10 April 2016, and that the total tuition fee for the course was $7,000.[20] In relation to the Advanced Diploma of Marketing, the PRISMS records show that the first applicant had made no payments in respect to this course.[21]
[20] Affidavit of Masrath Fathima affirmed on 11 August 2020 and filed on 13 August 2020 at annexure MF-1.
[21] Affidavit of Masrath Fathima affirmed on 11 August 2020 and filed on 13 August 2020 at annexure MF-1.
The first applicant’s evidence was that she paid some of the course fees by transfer from her husband’s bank account but paid the majority of the fees in cash.[22] The first applicant annexed a copy of her husband’s bank accounts which she said evidenced that the following transfers were made to South Pacific Institute:
a)$1,000 on 13 January 2016;
b)$500 on 10 May 2016; and
c)$1,000 on 24 July 2016.[23]
[22] Affidavit of Masrath Fathima affirmed on 11 August 2020 and filed on 13 August 2020 at paragraph 7.
[23] Affidavit of Masrath Fathima affirmed on 11 August 2020 and filed on 13 August 2020 at annexure MF-2.
The first applicant did not produce any evidence which would support her assertion that she had paid the full $14,000 in respect of both the Diploma and the Advanced Diploma of Marketing. In particular, there was no documentary evidence which supported the payment to South Pacific Institute of any amounts in cash.

Tribunal decision

In its decision record, the Tribunal set out the background to the application for review.[24] Relevantly, the Tribunal noted the Delegate had refused to grant the first applicant’s visa application because:
… the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant genuinely intend (sic) a temporary stay in Australia.[25]
[24] Court book page 323 at paragraphs 1 to 8.
[25] Court book page 323 at paragraph 3.
The Tribunal noted the issue in the present case was whether the first applicant satisfied the genuine temporary entrant criteria for a student visa.[26] The Tribunal referred to and noted that the factors in Direction No. 53:
should not be used as a checklist but rather, are intended to guide decision-makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.[27]
[26] Court book pages 323 and 324 at paragraphs 11 and 12.
[27] Court book page 324 at paragraph 13.
The Tribunal then considered the first applicant’s circumstances, including the first applicant’s immigration history, her circumstances in her home country, her circumstances in Australia and the value of the courses enrolled in by the first applicant to her future.[28]
[28] Court book pages 324 to 328 at paragraphs 14 to 36.
Relevantly, the Tribunal member put the PRISMS report to the first applicant which identified the significant number of courses in which she had enrolled but not completed.[29] Importantly, the Tribunal also noted that the PRISMS report suggested that the first applicant had not completed or graduated in a course of study since November 2015. The Tribunal put to the first applicant that the information contained in the PRISMS report indicated:
… a lack of academic progress that in the absence of any other explanation is not consistent with you intending to live in Australia temporarily.[30]
[29] Court book page 325 at paragraph 21.
[30] Court book page 325 at paragraph 21.
The Tribunal’s decision record noted that in response to these matters, the first applicant sought an adjournment of two months to respond to the matters raised.[31] It is clear from both the decision record and the transcript of the hearing conducted by the Tribunal that the Tribunal refused the first applicant’s request for an adjournment of this duration. Instead, the Tribunal allowed a short break of some 10 minutes for the first applicant to consider and respond to the matters raised.
[31] Court book page 326 at paragraph 22.
The Tribunal relevantly said:
The applicant responded to the Tribunal that the last course of study she had completed and graduated in was the Advanced Diploma of Management on 22 November 2015. The applicant claimed that the education provider for the Diploma of Marketing and Advanced Diploma of Marketing closed down in January 2018 and that the applicant had been seeking a refund on the fees she had paid. The Tribunal does not accept the applicant’s claims regarding the Diploma and Advanced Diploma of Marketing as the PRISMS report was obtained on 18 December 2017. At the time of the PRISMS report the COE’s had already been cancelled. Considering the applicant’s oral evidence that she has not completed a course of study since 22 November 2015 the Tribunal finds the student visa program is being used to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.[32]
[32] Court book page 326 at paragraph 23.
The first applicant advised the Tribunal that she had enrolled in an Advanced Diploma of Marketing and Communication through International College of Melbourne which commenced on 25 June 2018, which was approximately a week prior to the Tribunal hearing. The Tribunal considered this enrolment and the first applicant’s evidence in relation to it and concluded:
The Tribunal finds that the applicant has only enrolled in a course of study to meet the requirements for a student visa and that the applicant is using the student visa to maintain ongoing residence in Australia.[33]
[33] Court book page 326 at paragraph 26.
The Tribunal gave consideration to the first applicant’s evidence about her desire to complete a Bachelor’s degree and a Master’s degree before returning to India and the sacrifices made by her husband to support her educational goals.[34]
[34] Transcript pages 326 and 327 at paragraph 27.
However, the Tribunal considered, but rejected, the first applicant’s claim that her husband primarily cared for the children so that she could remain focused on her studies. Relevantly, the Tribunal said:
The Tribunal does not accept this explanation considering the applicant has not completed a course of study since November 2015 and that her enrolments in the Diploma and Advanced Diploma of Marketing were cancelled according to the PRISMS report dated 18 December 2017.[35]
[35] Court book page 327 at paragraph 29.
The Tribunal then considered the benefit to the first applicant of the courses in which she was enrolled.[36] Relevantly, the Tribunal said that it had:
… no confidence that the study now proposed will be completed and therefore has no confidence that the applicant will depart Australia. The Tribunal finds that the applicant intends to apply for further student visas to maintain continued residence in Australia where the applicant plans to study for the first time at the higher education sector level.[37]
[36] Court book pages 327 and 328 at paragraphs 30 to 36.
[37] Court book page 327 at paragraph 31.
Consequently, the Tribunal concluded that the first applicant did not intend to genuinely stay in Australia temporarily and therefore did not meet clause 572.223(1)(a) of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).[38] The Tribunal then considered the position of the second, third and fourth applicants, and concluded in relation to each of them that, as the first applicant was found not to meet clause 572.223, the dependent applicants did not satisfy the requirements of clause 572.322(b).[39]
[38] Court book page 328 at paragraphs 35 and 36.
[39] Court book page 328 at paragraphs 37 to 39.
For each of these reasons, the Tribunal affirmed the decision of the Delegate not to grant the applicants the visa.[40]
[40] Court book page 328 at paragraph 40.

Grounds of review

In their further amended application, the applicants raise four grounds of review.[41]
[41] Applicant’s further amended application filed on 13 August 2020.
It was common ground that the primary issue before the Tribunal was whether or not the first applicant was a ‘genuine applicant for entry and stay as a student’ and whether ‘…the applicant intends genuinely to stay in Australia temporarily...’[42]
[42] Migration Regulations 1994 (Cth), sch 2 cl 572.223(1)(a).
Grounds one, two and three relate to the Tribunal’s rejection of the applicant’s explanation of the reasons for the cancellation of her enrolment in the Diploma and Advanced Diploma of Marketing at South Pacific Institute. Ground one asserts that the Tribunal’s findings were unreasonable irrational and/or illogical.[43] Grounds two and three take issue with the Tribunal’s findings on the basis that it failed to consider or failed to give proper genuine and realistic consideration to the first applicant’s submissions regarding the closure of South Pacific Institute.[44]
[43] Applicant’s further amended application filed on 13 August 2020 pages 4 and 5.
[44] Applicant’s further amended application filed on 13 August 2020 pages 6 and 7.

It was submitted for the applicants that the difference between the parties in relation to grounds one, two and three is that, whilst both parties accept that the issue in the review or a central issue in the review was the first applicant’s failure to complete any studies since November 2015, the first respondent maintained that the non-completion issue was, in and of itself, the central issue. However, the applicants said that the real issue was the reason for non-completion.
For the reasons which follow, I find ultimately that this is a distinction without a difference.
By ground four, the applicants take issue with the manner in which the Tribunal dealt with the PRISMS records and assert that the Tribunal fell into jurisdictional error by denying the applicants a real and meaningful opportunity to present evidence and arguments relating to those records. Initially, this was put onto bases: namely, the refusal to adjourn the proceedings and the Tribunal’s failure to give the first applicant an opportunity to respond to its reasoning regarding its assessment of the cancellation of the first applicant’s COE. At the hearing, only the latter basis for ground four was pressed.

Grounds one, two and three

It was asserted by the applicants that the Tribunal’s finding at paragraph [23] of its decision record[45] is irrational or illogical:
a)firstly, on the basis that the Tribunal misunderstood the first applicant’s evidence in relation to when South Pacific Institute closed;[46] and
b)secondly, on the basis that the Tribunal failed to resolve an inconsistency between the two dates it had recorded in its reasons for the closure of South Pacific Institute.[47]
[45] Court book page 326.
[46] Applicant’s outline of submissions filed on 21 July 2020 at paragraph 24(a).
[47] Applicant’s outline of submissions filed on 21 July 2020 at paragraph 24(b).
It was submitted for the applicants that at no stage did the first applicant assert that South Pacific Institute closed in January 2018. Rather, the first applicant’s evidence was that she continued to attend South Pacific Institute until January 2018.[48] It was further submitted that this characterisation of the first applicant’s evidence is inconsistent with her written submissions and the ASQA printout annexed to those submissions which stated that it was closed in October 2017.[49]
[48] Applicant’s outline of submissions filed on 21 July 2020 at paragraphs 17 to 22.
[49] Court book page 268.
The first respondent submitted that there was probative and logical evidence upon which it was open for the Tribunal to come to the conclusion that the primary applicant’s enrolment was cancelled prior to December 2017, and was not caused by or related to the closure of South Pacific Institute. It was further submitted for the first respondent that this of course is a matter in respect of which reasonable minds might differ, however, that of itself does not lead to the conclusion that the views formed by the Tribunal were illogical or irrational and give rise to a finding of a jurisdictional error.[50]
[50] Transcript page 16 at lines 4 to 9.
A fair reading of paragraph [23] of the Tribunal’s decision record makes it clear that the issue being dealt with by the Tribunal in that paragraph was the timing of the cancellation of the first applicant’s COE. The point being made by the Tribunal in paragraph [23] was that, on the basis of the PRISMS reports obtained in December 2017, the first applicant’s COE had already been cancelled as at that date.[51]
[51] Transcript page 11 at lines 10 to 15.
The first applicant’s evidence given in the course of the hearing was that she continued to attend South Pacific Institute until January 2018. In addition, the first applicant provided the Tuition Protection Service documents[52] which also state that South Pacific Institute ‘has stopped teaching its international students as of Monday 29 January 2018’.[53] Therefore, there was evidence upon which the Tribunal could have concluded that South Pacific Institute ceased teaching students in January 2018. As such, any finding to that effect in paragraph [23] of the decision record cannot be said to be illogical or irrational in the sense required to ground a finding of jurisdictional error.
[52] Court book pages 315 to 316.
[53] Court book page 316.
When viewed in its totality, and when fairly read in the sense contemplated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, there is no illogicality or irrationality in the conclusion reached by the Tribunal in paragraph [23].
This, together with the first applicant’s concession that she had completed her last course in November 2015, provided a proper and rational basis for the Tribunal to conclude the first applicant was using the student visa program as a means to circumvent the intentions of the migration program to maintain ongoing residence in Australia.
For the sake of completeness, and if I am wrong on the question of whether the Tribunal’s conclusion in paragraph [23] was illogical or irrational, I note that the court also needs to consider whether any such error is material in the sense contemplated in Hossain v Minister for Immigration and Border Protection [2018] HCA 34.
It was submitted for the applicants that, had the Tribunal accepted that South Pacific Institute had been deregistered in October 2017, it may have:
a)accepted the first applicant’s explanation that her non-completion of the courses at South Pacific Institute was due to that deregistration; or
b)sought further PRISMS records which would have revealed the issue of purported non-payment of fees, and given the first applicant the opportunity to put forward evidence that she had in fact paid those fees; again providing the first applicant with an opportunity to convince the Tribunal that she was genuinely undertaking a course of study during 2016 and 2017.[54]
[54] Applicants’ outline of submissions filed on 13 August 2020 at paragraph
In response, the first respondent submitted that even if the Tribunal’s reasoning was found to be irrational or illogical (which was not conceded), the materiality test had not been met.
The first respondent submitted that there was no realistic possibility of the Tribunal reaching a different outcome, if not for the error. It was common ground that the applicant last completed a course in November 2015. However, the Tribunal did not accept the first applicant’s evidence that she had studied at South Pacific Institute until January 2018. Rather, it relied upon the PRISMS report to conclude that the applicant’s COE’s had been cancelled prior to December 2017.[55]
[55] Transcript page 11 at lines 10 to 17.
It was the case that the reason for the cancellation was not known at the time of the Tribunal hearing. However, the Tribunal also concluded, having considered the first applicant’s oral evidence, that the first applicant had used the student visa program to circumvent the migration program and to prolong her stay in Australia.
The first respondent submitted that the critical issue that the Tribunal was addressing was whether the first applicant was using the student visa program to circumvent the migration program and, in coming to its position on this issue, the Tribunal had given regard to the first applicant’s evidence that she had not completed a course of study in Australia since November 2015.[56]
[56] Transcript page 11 at lines 17 to 19.
In response, counsel for the applicants said in oral submissions that a distinction needs to be made between a person who has done all within her power to enrol in and undertake study and who is thwarted, in effect, by the fact that South Pacific Institute was suddenly and unexpectedly shut down, compared to a person who simply did not enrol in or undertake further study as required.[57]
[57] Transcript page 22 at lines 1 to
It was submitted that the first applicant fell into the former category, and, had the Tribunal properly considered the evidence before it, it may have accepted that this was the case. Moreover, if it did accept that this was the case, there was a reasonable prospect that the outcome may have been different.
The difficulty with this argument is that it sails very close to being an argument in favour of impermissible merits review.
Ultimately, the issue before the Tribunal was whether the first applicant genuinely intended to remain in Australia temporarily. The Tribunal’s conclusion that the first applicant did not intend to do so, and indeed that the first applicant was using the student visa process as a means of circumventing the migration system with an intent to extend her stay in Australia, was based on a number of factors. Relevantly, it was based on the Tribunal’s conclusions that:
a)irrespective of when South Pacific Institute closed down, the Tribunal concluded that the first applicant’s COE was cancelled prior to December 2017;[58]
b)the first applicant had enrolled in but discontinued or not completed 12 of the 20 courses that she had enrolled in since 2009 and concluded that this was ‘not the behaviour of a genuine student and a genuine temporary entrant’;[59]
c)the fact that the first applicant’s husband and children are in Australia and dependent on her visa were further factors which ‘would present as a strong incentive for the applicant and her family to remain in Australia where the eldest children (sic) had settled into his local primary school’;[60]
d)the Tribunal did not accept first applicant’s enrolment in an Advanced Diploma of marketing and communications through International College of Melbourne which commenced on 25 June 2018 was genuine;[61]
e)the Tribunal did not accept the first applicant’s statements that her husband had sacrificed his personal life to allow her to complete her studies, commenting that had this been the case, she would have completed her Bachelor and Master degrees in the almost 10 years that she had been in Australia;[62]
f)the courses which the first applicant had completed in Australia over a period of 10 years were fee-paying Certificate, Diploma and Advanced Diploma VET level courses which did not show any academic progression into the higher education sector;[63] and
g)the Tribunal concluded that the first applicant had already gained the relevant qualifications necessary to allow her to undertake her future goals, namely to open a hotel back in India.[64]
[58] Court book page 326 at paragraph 23.
[59] Court book page 326 at paragraph 24.
[60] Court book page 326 at paragraph 25.
[61] Court book page 326 at paragraph 26.
[62] Court book pages 326 and 327 at paragraph 27.
[63] Court book page 327 at paragraph 28.
[64] Court book page 327 at paragraph 30.
Ultimately, for each of these reasons, together with the Tribunal’s assessment that the first applicant was unlikely to complete the study now proposed by her and would continue to enrol in further studies aimed at facilitating her ongoing residence in Australia, the Tribunal concluded that the first applicant was using the student visa program to maintain ongoing residence in Australia.[65]
[65] Court book pages 327 to 328 at paragraphs 31, 32 and 34.
The Tribunal’s ultimate conclusion was:
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl. 572.223(1)(a).[66]
[66] Court book page 328 at paragraph 35.
As is evident from a fair reading of the Tribunal’s decision as a whole, and the variety of factors which led the Tribunal to its conclusion,[67] even if the Tribunal had accepted that the first applicant had continued to attend South Pacific Institute until January 2018, this would not have materially affected the conclusion the Tribunal ultimately reached.
[67] Court book page 328 at paragraph 35.
I also note that the first applicant did not provide any evidence that she in fact attended the courses in which she said she was enrolled in 2016 and 2017. This was notwithstanding that she had been put on notice in the Delegate’s decision that the issue was whether she met the genuine temporary entrant criteria and the lack of academic progression during a significant period of time spent undertaking further study in Australia.
For each of these reasons, I find that even if the Tribunal’s reasons could be said to suffer from some illogicality or irrationality, that error is not material. The applicants did not demonstrate that there was a realistic possibility of a different outcome in the ultimate decision reached by the Tribunal member that the first applicant was in fact not a genuine temporary entrant.
For completeness, I reject the applicants’ assertion that there was an inherent inconsistency between the conclusions reached in paragraphs [23] and [27] of the Tribunal’s decision record.[68] Upon a fair reading of paragraph [23], it is clear that the Tribunal set out the first applicant’s claims in the second sentence, namely that South Pacific Institute closed down in January 2018. The Tribunal itself made no finding as to when South Pacific Institute closed down in paragraph [23].
[68] Court book pages 326 and 327.
The issue before the Tribunal was that, based on the PRISMS records, the first applicant’s enrolment ceased prior to December 2017. Similarly, in paragraph [27], the Tribunal summarised the first applicant’s submissions dated 29 May 2018 in which she stated the education provider closed in October 2017. The Tribunal made no finding as to the timing of the closure of South Pacific Institute in either paragraph [23] or paragraph [27].
Moreover, although the ASQA material stated that deregistration occurred in October 2017, it said nothing about when students ceased attending South Pacific Institute.[69] Further, the Tuition Protection Service (“TPS”) material expressly stated that South Pacific Institute ceased teaching international students as of 29 January 2018.[70] Therefore, there was no inconsistency for the Tribunal to resolve.
[69] Court book page 268.
[70] Court book pages 315 and 316.
Moreover, as stated above, the issue before the Tribunal was whether the first applicant had a genuine intent to be a temporary resident of Australia while she undertook study. For a series of reasons outlined earlier, the Tribunal concluded that she did not. The reasons for the closure of South Pacific Institute were ultimately not relevant to this determination.
For each of these reasons I am not satisfied that ground one is made out.
As to grounds two and three, these grounds both essentially allege that the Tribunal failed to consider relevant material.
Ground two asserts that in concluding that South Pacific Institute closed in January 2018, the Tribunal failed to consider the ASQA printout submitted by the applicants which evidenced that it was deregistered with effect from October 2017.
The first respondent conceded that where a Tribunal misunderstands evidence or overlooks evidence in a way that causes it to misunderstand the case being advanced by an applicant it will fall into jurisdictional error.[71] However, the failure to refer to a matter in its reasons ought not to be taken as evidence that the Tribunal did not consider that matter.
[71] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111] to 114].
As noted in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (“Kumar”):
The existence of a statutory obligation to furnish reasons which include a statement of the findings on material questions of fact entitles the inference to be drawn that a matter not mentioned in the statement was not considered by the Tribunal to be material …[72]
[72] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [89].
The court went on to say:
[91]The applicant bears the onus of establishing from a failure to refer to a matter in the written statement, that the inference should be drawn that the matter was overlooked …
[92]The appropriate inference depends on all of the circumstances. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47], the Full Court observed:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is assumed in findings of greater generality or because there is a factual premise upon which a contention arrests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
…
[94]… The written statement must set out the “reasons for the decision” and the “findings on any material question of fact” and it must refer “to the evidence or any other material on which the findings of fact were based”. The appropriate inference to draw from a failure to mention a submission or contention turns on the particular facts. It is permissible (even in the absence of a statutory obligation to provide reasons) to draw inferences from what the decision-makers said by way of explanation of his or her decision …
[95]The reasons of an administrative decision-maker are meant to inform and are not meant to be scrutinised by overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed …[73]
[73] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16.
Whilst it is apparent that the Tribunal did not refer to the ASQA printout, this was not necessary, as the Tribunal was ultimately not determining the question of when South Pacific Institute had closed. In any event, there may be a factual distinction to be made between the formal deregistration of South Pacific Institute and its closure. In this context, the first applicant provided the Tribunal a document headed Tuition Protection Service which contained the following information:
Sher-E- Punjab Pty Ltd trading as South Pacific Institute
The Tuition Protection Service (TPS) has been advised that Sher-E-Punjab Pty Ltd trading as South Pacific Institute (SPI) has stopped teaching its international students as of Monday 29 January 2018.[74]
[74] Court book pages 316 and 316.
Ultimately, this is not a matter in respect of which there is evidence before the court or, relevantly, one which the court needs to resolve.
As conceded by the applicant, the Tribunal is not required to refer to every piece of evidence before it.[75]
[75] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593 at [47].
In this case, the question of when South Pacific Institute closed and or ceased teaching was not an issue dispositive of the question before the Tribunal. When viewed in the totality of the evidence before it, the issue was whether the first applicant had undertaken and/or, importantly, completed any study after November 2015. The first applicant did not provide any evidence that supported her assertion that she continued to study throughout 2016 and 2017, notwithstanding having been requested to do so in correspondence prior to her hearing before the Tribunal. In each of these circumstances, it is therefore not surprising that the Tribunal did not specifically refer to the ASQA printout in its reasons. Its failure to do so does not lead the court to draw an inference that the Tribunal failed to consider all of the evidence before it.

For these reasons, ground two is not made out.
It was submitted for the applicants, in the alternative, that even if the Tribunal did consider the ASQA printout, the Tribunal nonetheless failed to give proper, genuine, and realistic consideration to that material and the first applicant’s written submissions.[76] Relevantly, it was submitted that the Tribunal did not explain in its reasons how it reconciled the inconsistency between the cancellation date in the first applicant’s submissions of October 2017 and the supporting evidence with its conclusions at paragraph [23] that South Pacific Institute closed in January 2018.[77] To the extent that any consideration occurred of these matters, it was submitted that the Tribunal’s failure to deal with this inconsistency was evidence that it did not give adequate consideration to this matter.
[76] Applicants’ further amended application filed on 13 August 2020 page 6 at paragraph 3.
[77] Applicants’ outline of submissions filed on 21 July 2020.
In support of this ground, the applicants relied upon the decision of the Full Court of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188 (“Omar”). I note that it was submitted for the first respondent that caution ought to be exercised in applying the principles in Omar in light of the fact that that was a decision in respect of whether a visa cancelled under section 501CA of the Migration Act 1958 (Cth) (“the Act”) ought to be revoked.
Relevantly, in Omar, the Full Court stated:
For the reasons given above, even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations ...[78]
[78] Minister for Home Affairs v Omar [2019] FCAFC 188 at [36(d)].
It was submitted for the first respondent that these principles do not equally apply to the present matter which arises under a very different set of provisions in the Act. Rather, the first respondent points to the findings made in Kumar which dealt with the same provisions currently under consideration. Relevantly, in Kumar, the court said:
[96]Direction 53 requires that, in reaching the state of satisfaction in clause 572.223(1)(a), the decision-maker “have regard to” the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to a particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial.
[97]That he is not to deny that a failure to make a finding might constitute or evidence jurisdictional error in particular circumstances. The visa applicant would need to establish that: (a) it was necessary to make the finding in order to have exercised the jurisdiction or exercised it in the manner contemplated by the statutory scheme; and (b) the failure to make the finding was material in the sense of depriving the applicant of the possibility of a successful outcome …[79]
[79] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16.
With respect, the applicants’ submissions in respect to ground three misunderstand the Tribunal’s reasoning as set out above. Ultimately, the issue before the Tribunal was whether, by reference to all of the evidence before it, the first applicant was a genuine temporary entrant. For the reasons explained above, the Tribunal concluded that the first applicant was not. This was based not only on the fact the first applicant conceded she had not completed a course of study since the end of 2015, but also on the types of courses the first applicant had undertaken and the lack of academic progression indicated by the applicant’s study history. The Tribunal’s conclusions in this regard were reasonably open to it on the totality of the evidence before it.
The date on which South Pacific Institute became deregistered and ultimately ceased operating and delivering courses to students was of limited relevance to this determination.
It is also important to note that in this case, the first applicant had been in Australia for ten years and the issue of whether she was a genuine temporary entrant was not solely based on her lack of completion of the Diploma and Advanced Diploma of marketing at South Pacific Institute in 2017 and 2018. These are all matters to which the Tribunal had regard and dealt with in its decision record.
Finally for completeness, I note that for similar reasons to those outlined in relation to ground two, even if I am wrong about whether or not a jurisdictional error has been made out in relation to ground three, any error is not material.
For these reasons, ground three is not made out.

Ground four

By ground four, the applicants assert that the Tribunal fell into jurisdictional error by denying the applicants a real and meaningful opportunity to present evidence and arguments relating to the critical issues on review pursuant to section 360 of the Act.
There are essentially two aspects to ground four:
a)firstly, that the Tribunal ought to have given the first applicant the opportunity to respond; and
b)secondly, that the applicants ought to have been provided with an adjournment of the hearing when requested.
The second aspect, namely the adjournment point, was not pressed at trial.
At the hearing before me, it was submitted that, to the extent that the Tribunal reasoned that the deregistration of South Pacific Institute would not have affected the first applicant’s enrolment prior to the confirmed closure, the Tribunal denied the applicants procedural fairness pursuant to section 360 of the Act by failing to put its reasoning to the first applicant for comment in circumstances where its reasoning was not obvious having regard to the effect of closure on the PRISMS records of enrolment.
The applicants relied upon the PRISMS user guide which stated:
… [i]f Department of Education and Training suspend or cancel a course or provider, it may result in all the COEs in that course, or that provider, being cancelled.[80]
[80] Affidavit of Lawson John Bayly affirmed on 11 August 2020 and filed on 13 August 2020 at annexure LGB-2.
I understand from this submission that, had this information been available at the time of the hearing, the applicants may have sought to argue that the cancellation of the first applicant’s COE was the result of the cancellation of South Pacific Institute’s registration, and was not due to any failure on the part of the first applicant to pursue her studies in a timely manner. Moreover, had this issue been raised with the applicants at the hearing, this may have led the first applicant to identify the real reason for the cancellation, being the purported non-payment of fees, and allowed the first applicant the opportunity to put some documentary evidence to the Tribunal to support her claim that she had, in fact, paid her fees.
In this regard, I note that the first applicant stated that she paid some of the course fees by bank transfer from her husband’s account and provided bank statements to support this.[81] This amounts to a total payment of $2,500 out of a total liability of $14,000 in fees. The first applicant stated in her affidavit that she paid the balance of the fees in cash.[82] There was no documentary evidence provided by the first applicant to support this proposition.
[81] Affidavit of Masrath Fathima affirmed on 11 August 2020 and filed on 13 August 2020 at paragraphs 7 to 9 and annexure MF-2.
[82] Affidavit of Masrath Fathima affirmed on 11 August 2020 and filed on 13 August 2020 at paragraph 7.
Section 360(1) of the Act relevantly provides:
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.
The key issues arising in relation to the decision under review included whether the first applicant had completed a course of study since November 2015. The first applicant conceded that she had not done so.[83] The first applicant sought to suggest that she engaged in study in 2016 and 2017, and, but for the closure of South Pacific Institute, she would have completed a course of study prior to the Tribunal hearing. It was asserted that it was necessary for the Tribunal to put to the first applicant its reasoning regarding the cancellation of her COE in order to comply with its obligations under section 360.
[83] Transcript page 14 at lines 21 to 25.
As noted by the first respondent, it is clear from the transcript of the Tribunal hearing that the question of whether the applicant had completed a course of study after 22 November 2015 and whether the applicant held a current and valid COE in an approved course was a matter that was expressly put to the first applicant during the hearing.[84]
[84] Respondents’ further outline of submissions filed on 17 August 2020 at paragraph 6.
Moreover, both invitations to a hearing sent by the Tribunal to the applicants contained the following:
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. …
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.…
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.[85]
[85] Court book pages 198 to 201 and 224 to 226.
It is clear from this correspondence that the first applicant was on notice of the need to provide all information relevant to her current enrolment, as well as her historical attendance at courses in Australia. Whilst the closure of South Pacific Institute may well explain the inability of the first applicant to provide a certificate of completion, it does not explain why the first applicant was unable to provide other documents which showed that she had, as asserted, attended South Pacific Institute and undertaken her course of study right up until the closure of South Pacific Institute, which she said occurred in January 2018.
It is well settled that the Tribunal is not required for the purposes of section 360 to give the applicant a ‘running commentary’ of its thought processes and preliminary reasons in respect of factual issues. Accordingly, the Tribunal was not required to give any such ‘running commentary’ in respect of its consideration as to whether the first applicant had completed any courses in Australia since the end of 2015.
I am satisfied on the basis of the totality of the evidence that the Tribunal did put the first applicant on notice of the issues that she needed to address. So much is clear from the invitations to hearing provided to the applicants and the section 359AA statement which the Tribunal read to the applicants at the commencement of the hearing. That statement included that the PRISMS reports showed that the first applicant did not hold a valid COE for enrolment in an approved course. Relevantly, as part of the section 359AA statement, the Tribunal said:
This information is relevant because it shows that you have not started, have cancelled or not completed all courses you have enrolled in since November 2015. It indicates a lack of academic progress that in the absence of other explanation is not consistent with you intending to live in Australia temporarily.[86]
[86] Court book pages 325 and 326 at paragraph 21.
For completeness, I note that the applicants relied in part on the PRISMS user guide to suggest that one reason for the suspension or cancellation of the first applicant’s COE was the cancellation of South Pacific Institute’s registration. The difficulty with this proposition is that even accepting that, as a theoretical possibility, the cancellation of South Pacific Institute’s registration in October 2017 was the reason for the cancellation of the first applicant’s COE, that does not explain the absence of evidence showing that the first applicant in fact attended South Pacific Institute throughout 2016 and 2017 (until the cancellation occurred), including any work undertaken in compliance with her course requirements during this period. The onus was on the first applicant to produce such material. Moreover, she had been invited to do so.
The applicants asserted that the fact the first applicant’s husband’s bank transaction details show that payments were made to South Pacific Institute on 10 May 2016 and 24 July 2016, however, they were not recorded by South Pacific Institute as required by law. The evidence produced by the first applicant shows that three payments were made from her husband’s bank accounts to South Pacific Institute. However, that evidence does not show that each of those payments was made in respect of the first applicant’s course.
Moreover, whilst the first applicant asserted that she paid the balance of the course fees in cash, as stated, there is no documentary evidence to support this. Whilst it may have been open to accept that the evidence was capable of supporting a claim that the PRISMS records were defective insofar as they did not record all of the payments made from the first applicant’s husband’s bank account, I do not accept that the evidence is capable of supporting a claim that the first applicant had in fact made all necessary payments of her tuition fees.
In any event, for the reasons previously discussed, any breach of section 360 as alleged is, in my view, not material. The real issue before the Tribunal was whether the first applicant was a genuine temporary entrant.
The applicants’ focus on whether the cancellation of the first applicant’s COE was due to her non-payment of fees or for some other reason, and indeed whether it occurred prior to the closure of South Pacific Institute, is somewhat of a red herring. The issue before the Tribunal was whether, on the basis of the totality of the evidence before it, the first applicant was a genuine temporary entrant. For the reasons previously canvassed, the Tribunal concluded that she was not and that she was using the student visa process as a means of extending her stay in Australia. This finding was reasonably open on the basis of the totality of the evidence before the Tribunal and no jurisdictional error has been established.
For each of these reasons, I am not satisfied that ground four is made out.

Conclusion

As none of the grounds of review have been made out, I order that:
a)the applicants’ application filed on 19 September 2018 and as amended on 21 July 2020 and 13 August 2020 be dismissed; and
b)the applicants pay the first respondent’s costs in a sum to be fixed, if not agreed.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 22 April 2021

[2021] FCCA 796

22 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing