Gandhi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 270
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gandhi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 270
File number: MLG 2792 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 14 April 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal correctly construed and applied cl 573.223 in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the applicant was denied procedural fairness – whether the Tribunal’s decision is illogical, irrational or unreasonable – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 360 and 476
Migration Regulations 1994 (Cth), cl 573.223 in Schedule 2
Cases cited: ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 8 April 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr E Taylor Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2792 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PANKAJ GANDHI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 1 & 9). He arrived in Australia in August 2013 as the holder of a student visa. That visa was valid until 15 March 2015 (CB 69).
On 10 March 2015, the applicant applied for a Student (Temporary) (Class TU) (Higher Education Sector) (Subclass 573) visa (the “visa”) (CB 1-8). He did so with the assistance of a registered migration agent (the “representative”) (CB 4).
At the time of his visa application, the applicant provided two Overseas Student Confirmation-of-Enrolment documents (“CoE”). The first CoE related to study for an Advanced Diploma of Management (Human Resources), with study dates from 1 December 2014 to 30 November 2015 (CB 19-20). The second CoE related to study for a Bachelor of Business (Management) Degree, with course dates from 21 March 2016 to 23 December 2018 (CB 21).
On 12 March 2015, the then Department of Immigration and Border Protection (the “Department”) wrote to the applicant’s representative (via email) seeking further information and documentation in support of the visa application (CB 26-38).
On 9 April 2015, the applicant’s representative provided additional material to the Department via email (CB 39-62).
On 3 May 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the requirements outlined in cl 573.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 67-72). Specifically, the delegate was not satisfied that the applicant intended to “genuinely stay in Australia temporarily” (CB 71).
On 12 May 2016, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 73-75). In that review application, the applicant again appointed the same registered migration agent as his representative for the purposes of that review (CB 74-75).
On 28 September 2017, the Tribunal invited the applicant to attend a hearing before it on 24 October 2017 (CB 88-91). The invitation letter also asked the applicant to submit any documents he wished to rely on at the hearing (CB 89-90).
On 19 October 2017, the applicant, through his representative, provided documents to the Tribunal (CB 104-118). The documents included a statement addressing the “genuine temporary entrant criterion” (CB 104-109).
On 24 October 2017, the applicant attended a hearing before the Tribunal (CB 120-122). He was assisted by his representative at that hearing (CB 120).
On 28 November 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 129-134).
On 20 December 2017, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. That application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly the case when (as is the case here) the applicant appeared before the Court without legal representation.
The Tribunal’s decision in this matter is five pages long and spans 35 paragraphs.
The Tribunal began by outlining the type of visa under review and the different subclasses that are contained in the Student (Temporary) (Class TU) visa (at [1]-[2]).
The Tribunal noted that the delegate had refused to grant the applicant the visa because he did not to satisfy cl 573.223(1)(a) in Schedule 2 of the Regulations (at [3]).
The Tribunal then outlined the relevant statutory provisions, as follows:
8.The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b) …
The Tribunal then noted that, in considering whether the applicant satisfied the criterion in cl 573.223 in Schedule 2 of the Regulations, it must have regard to Ministerial Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications (“Direction No. 53”) (at [9]). The Tribunal explained that Direction No. 53 should not be used as a “checklist” but, instead, as a “guide”, when making findings on whether the applicant satisfied cl 573.223(1)(a) in Schedule 2 of the Regulations (at [10]).
The Tribunal then provided details of the applicant’s migration history, noting that:
12.The applicant is from Amritsar in India. He arrived in Australia on 2 August 2013 and has resided in Australia since that date pursuant to a Student Class TU – 573 visa issued offshore before he arrived and, following its expiry, various bridging visas.
13.In the four years since his arrival he has returned to his home country only once, for an approximately 4 week visit in July 2016 occasioned by the illness and subsequent death of his mother.
The Tribunal then set out its assessment of the applicant’s circumstances in India and Australia, noting as follows:
14.The applicant is an only child. His immediate family which, since the death of his mother in July 2016, comprises his father and grandfather reside in India. He has 3 uncles and other extended family living in India. He is single. The applicant expressed a desire to return to India to be with his father but otherwise he gave no indication of any strong ties to his home country. He did not indicate that he had any close relationship with his extended family. Before arriving in Australia the applicant had not worked in his home country beyond assisting his father in his business (a seed merchant and tour bus operator) on an informal basis during breaks in his studies.
In relation to the applicant’s “situation in Australia”, the Tribunal explained:
15.The applicant currently resides in Point Cook where he rents a room from an Indian family that he first contacted on-line. He has lived with them for over a year and before that he rented a room from another family. He has a cousin who is an Australian citizen who also lives in Point Cook. The applicant visits his cousin at home weekly and sees him as an advisor/mentor, for example he took his advice to move from Sydney to Melbourne in July 2014. The applicant worked as a casual store manager for 7 Eleven for approximately 2 years and is currently engaged by a transport company (Saravinder Enterprises) as a casual manager to gain some practical experience in management. He has received an indication from the company that it will provide him with future work on a part-time basis to fit in with his studies. He said in evidence that he has no real friends in Australia and does not engage in social or sporting activities other than socialising with his cousin.
The Tribunal noted that the applicant was granted a Student visa in July 2013 to study for a Master of Accounting Degree at Victoria University (at [17]). The applicant completed a “General Intensive English course” on 13 September 2013 and a 12-week ELICOS course on 21 January 2014. As detailed by the Tribunal, the applicant gave evidence before the Tribunal that he had failed each of the 4 subjects he studied in his first semester and he ceased his Master of Accounting course in July 2014 (at [18]).
The Tribunal further noted that the applicant had completed an Advanced Diploma of Management (Human Resources) in August 2016 and that, thereafter, he had enrolled in an Advanced Diploma of Leadership and Management (on 14 November 2016) (at [20]). The applicant also gave the Tribunal a CoE for a Bachelor of Business (Management) with course dates from 19 March 2018 to 20 December 2020 (at [21]).
The Tribunal continued:
22.In a submission in support of his visa application provided to the Department of Immigration in April 2015 the applicant explained that he intended to pursue a career in management upon his return to India and that a qualification in Business Management would build on his earlier Bachelor of Commerce degree and enhance his career prospects. He explained that he had withdrawn from the Master of Accounting course because he realised, presumably having failed all four subjects for which he had enrolled, that “..it wasn’t the right area for me’.
23.The applicant was questioned about his decision to complete two similar Advanced Diploma courses before undertaking a bachelor’s degree and the concern expressed by the delegate in the initial decision that the lack of credits from the Advanced Diploma of Management course would have the effect of extending the time taken for the degree course. The applicant indicated that he had received 3 credits out of 10 subjects in his second Advanced Diploma course and justified studying two similar courses on the basis that he wanted to establish a solid base of study before undertaking the bachelor degree. The Tribunal is not satisfied that it was reasonably necessary for the applicant to undertake two similar Advanced Diploma courses in order to prepare for a bachelor degree course, especially having regard to the applicant’s past studies and in particular his Bachelor of Commerce degree.
The Tribunal then assessed the evidence regarding the applicant’s “stated intentions upon return to India” and noted as follows:
25.The applicant gave further evidence regarding his study plan and future employment upon his return to India in a submission provided to the Tribunal by his migration agent which he confirmed orally at the hearing. He said that he wanted to seek a management position with a multinational company in India initially and later he had aspirations to set up in business in the hospitality industry running a restaurant or restaurant cum hotel (sic). When questioned about these statements the applicant admitted that he had done no research into the career options in India with multinational companies. In fact he was unable to name any multinational companies that he had in mind. He also accepted that he had no experience in hospitality or in conducting a restaurant or hotel business beyond the general management skills he had acquired through his studies and that he expected to acquire in the future.
The Tribunal continued:
26.It was put to the applicant that there were several matters indicating that he was using the student visa program to maintain on-going residence in Australia and that he did not genuinely intend to stay in Australia temporarily. He would be 33 years old by the time he completed the course of study he proposed to which point he would have only studied at undergraduate level and had no work experience indicating a lack of genuine desire to get on with his career. Although his study in Australia broadened the scope of his knowledge, his proposed course of study did not really advance his qualifications. The end point of his proposed course of study was a bachelor’s degree which was at the same level of qualification as he had already achieved before coming to Australia. He had not demonstrated that his ties to his homeland were particularly strong notwithstanding his stated desire to return to be with his father and grandfather. He had no clear plan for his future employment and understanding of how his proposed course of study related to the realistic options that may be available to him when he returned to India.
The Tribunal explained that the applicant had commented on the above findings at the hearing, as follows:
27.The applicant responded to these matters by assuring the Tribunal that he was genuine in his intention to return to India at the completion of his course. He claimed that qualifications obtained in Australia would give him significantly enhanced opportunities for a management job in India and enable him ultimately to set up his business. He also stressed his desire to return home to look after his father following the death of his mother.
The Tribunal continued:
28.The Tribunal acknowledges that the applicant has applied himself diligently to the study of the courses in which he has been enrolled. It accepts the applicant’s explanation for his decisions in relation to the discontinuation of his Master of Accounting course and the delay in resuming his studies afterwards. However, the applicant has not demonstrated the relevance of his course of study to any genuine past or proposed future employment opportunities in his home country. His evidence was that he had not had any employment experience before coming to Australia save that he had worked informally in his father’s business during study breaks. Accordingly, the Tribunal is not satisfied that his current proposed course of study has any relevance to past employment. As to the applicant’s proposed future employment, the Tribunal does not accept that the applicant has any genuine intention to establish a business in the hospitality industry and that his claim that he was interested in seeking a management position with a multinational company was no more than a superficial and generalised statement without any real substance.
29.While the Tribunal accepts, in a general sense, that qualifications obtained in Australia can enhance the career prospects of students from the applicant’s home country, the Tribunal is not satisfied in this case that the applicant’s current proposed course of study will significantly affect his ability to obtain employment or improve his employment prospects in his home country. The applicant has already obtained a Bachelor of Commerce degree from his home country and an Advanced Diploma of Management (Human Resources) as well as having completed English language courses in Australia. He has the opportunity to complete or substantially complete a further Advanced Diploma of Leadership and Management. This would give him a combination of a degree level qualification as well as English language proficiency and Advanced Diploma level qualifications from an Australian institution. The applicant did not provide any persuasive argument that his prospects would be significantly improved by adding a second degree in a similar area of study, albeit one from an Australian institution.
30.While he has expressed an intention to return home to be with his father and grandfather the applicant has not evidenced any pressing desire to do so as suggested by the fact that he has only travelled home once in over 4 years (and then when necessitated by his mother’s illness and death). While he has extended family in India he gave no indication that he has a close relationship with any of his relatives. He has no employment history nor was there any evidence of any close personal relationships in his home country. On the basis of this evidence the Tribunal is not satisfied that the extent of his personal ties to his home country would serve as a significant incentive for him to return to his home country.
31.On the other hand the applicant has a close family connection with his cousin in Australia and employment opportunities with Saravinder Enterprises which would be good reasons for the applicant to seek to remain in Australia, although the Tribunal is not satisfied that those factors alone would provide a strong incentive for him to remain in Australia.
On the basis of the above, the Tribunal determined that it was “not satisfied that the applicant intends genuinely to stay in Australia temporarily” (at [33]). As such, the applicant did not meet “an essential requirement of cl 573.223” in Schedule 2 of the Regulations (at [34]).
The Tribunal affirmed the decision not to grant the applicant the visa (at [35]).
PROCEEDINGS IN THIS COURT
In his application for judicial review filed in this Court on 20 December 2017, the applicant provides four “grounds of review” as follows (without alteration):
1.Want to continue my further studies commencing in March 2018.
2.Unsatisfactory outcome for the visa.
3.Juridiatial Error.
4.Diploma finishing in Jan 2018 so want to finish that so I can pursue my further studies.
The applicant filed a supporting affidavit on 20 December 2017 which he affirmed on 15 December 2017. That affidavit contains a copy of the Tribunal’s decision and reasons.
On 19 September 2018, the applicant was given an opportunity to file any amended application, affidavit evidence and written submissions. No further materials were provided.
The materials before this Court thus include the application for judicial and supporting affidavit filed by the applicant on 20 December 2017, a Court Book numbering 134 pages (marked as Exhibit 1) and written submissions filed by the Minister on 24 March 2022.
The applicant appeared before this Court without legal representation. With the consent of counsel for the Minister, and with the Court’s approval, the applicant (who indicated that he not well) was assisted by his brother.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to outline any concerns that he had with the Tribunal’s decision. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 (“Bala”) at [7].
To assist the applicant, and noting the applicant’s concerns that he was not legally represented, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap, but that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that the Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background information, the applicant and his brother explained that they felt that they were disadvantaged before the Tribunal (and this Court) because they were “not lawyers” and felt they were unable to advance a strong case. This issue is addressed below.
CONSIDERATION
Grounds of Review
It is noted that the applicant’s grounds of review are, at best, “skeletal” and not sufficiently particularised to be meaningful.
While there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]; upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court’s preferred approach (adopting the reasoning in Bala) is, as above, to be mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court should remain astute to the possibility of legal error in the Tribunal’s decision and should raise any concerns in that regard with the Minister: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. Likewise, it is expected that the Minister, as a model litigant, will raise any issues of concern that might not be raised by an unrepresented applicant.
Grounds 1, 2 and 4
For ease of reference, grounds 1, 2 and 4 provide (without alteration):
1. Want to continue my further studies commencing in March 2018.
2. Unsatisfactory outcome for the visa.
4.Diploma finishing in Jan 2018 so want to finish that so I can pursue my further studies
Grounds 1, 2 and 4 do not reference or address the issue of jurisdictional error. What is provided is simply an expression of the applicant’s aspirations or mere disagreement with the Tribunal’s conclusions, seeking an impermissible merits review.
Grounds 1, 2 and 4 are, accordingly, dismissed.
Ground Three
By ground three, the applicant simply references jurisdictional error.
In relation to ground 3, the Minister submits as follows:
28.Ground three states “juridiatial error (sic)” which appears to be an allegation that the Tribunal fell into jurisdictional error in making its decision to affirm the decision not to grant the applicant’s Student visa. Such a complaint cannot succeed in the absence of any particulars to make it meaningful. In any event, no error is apparent in the Tribunal’s decision or approach. The Tribunal had regard to the evidence and material submitted by the applicant and assessed his circumstances by reference to Direction No. 53. The Tribunal provided cogent reasons for findings reasonably open to it, and the Court cannot review the merits of the Tribunal’s decision.
The Court agrees.
In applying cl 573.223 in Schedule 2 of the Regulations to the applicant’s case, the Tribunal noted:
8.The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) …
9.In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Tribunal then proceeded to consider the evidence before it. It did so extensively, referencing:
(a)the applicant’s migration and visa history (at [12] and [17]) and travel history since arriving in Australia (at [13]);
(b)the applicant’s relationship with his family in India (at [14]) and in Australia (at [15] and [31]); and
(c)his study history to date (at [17]-[22]).
In relation to the latter, the Tribunal explained:
23.The applicant was questioned about his decision to complete two similar Advanced Diploma courses before undertaking a bachelor’s degree and the concern expressed by the delegate in the initial decision that the lack of credits from the Advanced Diploma of Management course would have the effect of extending the time taken for the degree course. The applicant indicated that he had received 3 credits out of 10 subjects in his second Advanced Diploma course and justified studying two similar courses on the basis that he wanted to establish a solid base of study before undertaking the bachelor degree. The Tribunal is not satisfied that it was reasonably necessary for the applicant to undertake two similar Advanced Diploma courses in order to prepare for a bachelor degree course, especially having regard to the applicant’s past studies and in particular his Bachelor of Commerce degree.
24.The applicant stated that he had received an indication from an administration officer at Cambridge International College that they would consider giving some credits but that would have to wait until he had completed the Advanced Diploma. The applicant said he had no documentary evidence regarding course credits for the bachelor’s degree. The Tribunal is not satisfied on this evidence that the time to be taken by the applicant to complete the Bachelor of Business (Management) degree course will be shortened significantly by reason of his current studies at Advanced Diploma level.
The Tribunal then assessed the evidence related to the applicant’s future study and employment plans (at [25] and [31]).
Having assessed all of that evidence, the Tribunal explained:
26.It was put to the applicant that there were several matters indicating that he was using the student visa program to maintain on-going residence in Australia and that he did not genuinely intend to stay in Australia temporarily. He would be 33 years old by the time he completed the course of study he proposed to which point he would have only studied at undergraduate level and had no work experience indicating a lack of genuine desire to get on with his career. Although his study in Australia broadened the scope of his knowledge, his proposed course of study did not really advance his qualifications. The end point of his proposed course of study was a bachelor’s degree which was at the same level of qualification as he had already achieved before coming to Australia. He had not demonstrated that his ties to his homeland were particularly strong notwithstanding his stated desire to return to be with his father and grandfather. He had no clear plan for his future employment and understanding of how his proposed course of study related to the realistic options that may be available to him when he returned to India.
…
28.The Tribunal acknowledges that the applicant has applied himself diligently to the study of the courses in which he has been enrolled. It accepts the applicant’s explanation for his decisions in relation to the discontinuation of his Master of Accounting course and the delay in resuming his studies afterwards. However, the applicant has not demonstrated the relevance of his course of study to any genuine past or proposed future employment opportunities in his home country. His evidence was that he had not had any employment experience before coming to Australia save that he had worked informally in his father’s business during study breaks. Accordingly, the Tribunal is not satisfied that his current proposed course of study has any relevance to past employment. As to the applicant’s proposed future employment, the Tribunal does not accept that the applicant has any genuine intention to establish a business in the hospitality industry and that his claim that he was interested in seeking a management position with a multinational company was no more than a superficial and generalised statement without any real substance.
29.While the Tribunal accepts, in a general sense, that qualifications obtained in Australia can enhance the career prospects of students from the applicant’s home country, the Tribunal is not satisfied in this case that the applicant’s current proposed course of study will significantly affect his ability to obtain employment or improve his employment prospects in his home country. The applicant has already obtained a Bachelor of Commerce degree from his home country and an Advanced Diploma of Management (Human Resources) as well as having completed English language courses in Australia. He has the opportunity to complete or substantially complete a further Advanced Diploma of Leadership and Management. This would give him a combination of a degree level qualification as well as English language proficiency and Advanced Diploma level qualifications from an Australian institution. The applicant did not provide any persuasive argument that his prospects would be significantly improved by adding a second degree in a similar area of study, albeit one from an Australian institution.
30.While he has expressed an intention to return home to be with his father and grandfather the applicant has not evidenced any pressing desire to do so as suggested by the fact that he has only travelled home once in over 4 years (and then when necessitated by his mother’s illness and death). While he has extended family in India he gave no indication that he has a close relationship with any of his relatives. He has no employment history nor was there any evidence of any close personal relationships in his home country. On the basis of this evidence the Tribunal is not satisfied that the extent of his personal ties to his home country would serve as a significant incentive for him to return to his home country.
31.On the other hand the applicant has a close family connection with his cousin in Australia and employment opportunities with Saravinder Enterprises which would be good reasons for the applicant to seek to remain in Australia, although the Tribunal is not satisfied that those factors alone would provide a strong incentive for him to remain in Australia.
No error arises in relation to the Tribunal’s approach in this regard. The Tribunal forensically assessed the evidence before it, complying with the relevant statutory provisions and making specific reference to the factors set out in Direction No. 53.
The Tribunal’s findings in this regard were entirely open to it and cannot, in any way, be seen as illogical, irrational or unreasonable. As explained in by the High Court in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In the circumstances of this case, there was nothing unreasonable, illogical or irrational in the Tribunal not accepting the Applicant’s claims that he would only reside in Australia temporarily. The Tribunal was simply not convinced, on the evidence before it, that the applicant’s course of study and circumstances in both India and Australia evidenced an intention to return to India. It cannot be said that the Tribunal acted capriciously in making its findings in that regard.
In so far as the applicant is concerned that he was not afforded procedural fairness, the Court notes as follows:
(a)the applicant was invited to attend a hearing before the Tribunal, as required by s 360 of the Act (CB 87-100);
(b)the Tribunal gave the applicant the opportunity to submit information he intended to rely on at the hearing to establish he met the genuine entrant criterion set out in cl 573.223 in Schedule 2 of the Regulations (CB 89-90);
(c)the applicant appeared before the Tribunal on 24 October 2017 to give evidence and present arguments (CB 120-122) and the Tribunal’s hearing record indicates that he was assisted by his representative (CB 120); and
(d)the hearing lasted for almost an hour (CB 121).
In so far as the applicant now asserts that he could not participate because he did not have a lawyer to assist him, the Court, the Court sympathises. However, there is no right to legal representation in migration proceedings: ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099. It is an applicant’s responsibility to advance their claims and evidence. Further, there is simply no evidence that this issue was ever raised before the Tribunal.
The Court finds that the applicant was given a “real” and “meaningful” opportunity to present arguments and claims before the Tribunal.
No errors rises in this regard.
CONCLUSION
The applicant has failed to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 14 April 2022
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