Garg v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1060
Federal Circuit and Family Court of Australia
(DIVISION 2)
Garg v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1060
File number(s): MLG 4231 of 2019 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 21 December 2022 Catchwords: MIGRATION LAW – application for judicial review – decision of Administrative Appeals Tribunal – student (Temporary) (Subclass 500) visa – where the Tribunal did not accept that the applicant was a genuine temporary entrant – where the applicant takes issue with various findings made by the Tribunal, including in relation to his family and social ties to his home country and proposed course of study – finding that Tribunal’s findings were reasonably open on evidence before it – no jurisdictional error established – application dismissed with costs. Legislation: Migration Regulations 1994 (Cth), cl 500.212 Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
Division: Division 2 General Federal Law Number of paragraphs: 94 Date of last submission/s: 24 August 2022 Date of hearing: 24 August 2022 Place: Melbourne Counsel for the Applicant: Ms R Lahoud (direct brief) Counsel for the Respondents: Ms K McInnes Solicitor for the Respondents: Clayton Utz ORDERS
MLG 4231 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUKHWINDER GARG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.The applicant’s amended application filed on 25 August 2022 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
3.Pursuant to rule 7.01 of the Federal Circuit and Family court of Australia (Division 2) (General Federal Law) Rules (Cth), the name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 25 October 2019. By its decision, the Tribunal affirmed a decision of a delegate for the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to refuse the applicant a Student (Temporary) (Subclass 500) visa (‘student visa’).
Background
The applicant is a citizen of India.[1] On 18 November 2016, he arrived in Australia as a dependent of his then wife’s Student (Temporary) (Subclass 500) visa.[2]
[1] Court book at page 2.
[2] Court book at page 55.
Application for student visa on 21 May 2018
On 21 May 2018, the applicant applied for his own student visa with the assistance of a migration agent.[3] Attached to his application is a Genuine Temporary Entrant (‘GTE’) statement addressing the GTE criteria,[4] as well as supporting documentation.
[3] Court book at pages 1 to 43.
[4] Court book at pages 21 to 24.
In his GTE statement, the applicant indicated that he intended to pursue study at the New England College of Technology (‘NECT’) in the marketing field. He further indicated that in India, he had completed a Master of Business Administration and had been running his own business of battery manufacturing for a few years.
In relation to his reasons for choosing to undertake this course of study, the applicant said that since his arrival in Australia as a dependent on his wife’s visa, he found the Australian education system to be very good and that this led him to develop an interest in studying in Australia himself. He said that he was applying for a student visa because his current visa only allowed him to study in Australia for a maximum of 3 months.
In relation to why he intended to study a Certificate IV, Diploma and Advanced Diploma of Marketing and Communication when these studies was lower than his qualifications from India, the applicant said that he had been told that he had to commence his studies at the Certificate IV level as this was a pre-requisite for the diplomas he proposed to study. He believed that completing these marketing courses in Australia would provide him with ‘knowledge and experience which is very close to practical job experience’ due to the skills and opportunities for professional development that he would gain exposure to.
Ultimately, he said that undertaking these courses would prepare him for his career upon return to India. He indicated that whilst he had obtained a Master of Business Administration, he had not kept up with the ‘new trends and business techniques used in the job market’ as he had not continued his studies or been working professionally for some time. He therefore stated that ‘these courses will assist [him] to develop the necessary skills to return back to the job market with the up to date skills and knowledge to be competitive in the market’.
The applicant also outlined his reasons for choosing to undertake these studies in Australia rather than in India, being that:
(a)employers and universities all over the world recognise Australian qualifications;
(b)there is a high standard of living in Australia compared to his home country;
(c)Australia has high quality scientific research programs available for international students;
(d)Australia has a safe, friendly and multicultural environment; and
(e)he is fascinated by Australia’s diverse and beautiful landscapes.
The applicant confirmed that he had ‘sufficient economic means to look after his financial needs’ and ‘financial backup support from his family’. He re-iterated that he had significant incentive to return home at the end of his stay in Australia due to his family and social ties there and that he intended to return to India upon completion of his studies.
Refusal of student visa application on 20 June 2018
On 20 June 2018, the applicant was advised by letter that his student visa had been refused by a delegate of the Minister on the basis that he was found to have not met the criteria for a student visa, specifically, clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).[5] Relevantly, clause 500.212 of the Regulations provides that a student visa application cannot be granted unless the ‘genuine temporary entrant’ criterion have been satisfied, as follows:
[5] Court book at pages 48 to 51.
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In assessing whether the applicant is a ‘genuine temporary entrant’, the delegate must have regard to the factors outlined in the Ministerial Directions No 69, as made under section 499 of the Migration Act 1958 (Cth) (‘the Act’). Having regard to these factors and the applicant’s circumstances as a whole, the delegate was not satisfied that the applicant met the genuine temporary entrant criterion. The delegate’s decision record, in which she sets out this reasoning, is at pages 52 to 57 of the court book.
As such, the delegate determined to refuse the applicant’s application for a student visa.
Application to Tribunal on 2 July 2018
On 2 July 2018, the applicant applied for review of the delegate’s decision at the Tribunal with the assistance of a migration agent.[6]
[6] Court book at pages 58 to 62.
On 22 February 2019, whilst his matter was still pending review at the Tribunal, the applicant wrote to the Minister’s office, requesting that the Minister intervene to grant his application for a student visa.[7] The applicant then sent a follow-up email on 25 March 2019.[8]
[7] Court book at pages 85 to 112.
[8] Court book at page 84.
On 15 April 2019, the applicant was sent a letter from the Tribunal on behalf of the Minister in response to his requests for Ministerial intervention.[9] The letter indicated that his requests to the Minister had been provided to the Tribunal so that they could form part of the material that the Tribunal member could take into consideration upon review.
[9] Court book at page 113.
On 1 August 2019, the applicant was invited to provide information in support of his application for a student visa. Specifically, he was requested to provide information via a completed ‘Request for Student Visa Information form’, with sufficient evidence in support of the fact that he was:
(a)enrolled in a registered course of study; and
(b)a genuine applicant for entry and stay as a student.
and that he provide this information by 15 August 2019.[10] This letter also specified that in determining whether the applicant was a genuine temporary entrant, the Tribunal must have regard to the factors as outlined in Ministerial Direction No 69 and attached a copy of that direction for the applicant’s reference.
[10] Court book at pages 116 to 122.
On 15 August 2019, the applicant, via his migration agent, provided 10 emails to the Tribunal in response to its request for further information.[11] Attached to these emails were various documents, including:
(a)the applicant’s identity documents;
(b)the applicant’s Certificate of Enrolments from 2018 to 2021;
(c)proof of the applicant’s overseas ties;
(d)proof of the applicant’s overseas work experience and proof of income; and
(e)correspondence from New England College, where the applicant proposed to study.
[11] Court book at pages 123 to 289.
Attached to these emails was also a submission dated 15 September 2019 addressing the genuine temporary entrant criterion.[12]
[12] Court book at pages 126 to 130.
On 6 September 2019, the applicant was invited by letter to a hearing before the Tribunal scheduled for 3 October 2019 to give evidence and present arguments in relation to his application. The letter also invited the applicant to provide all the documents upon which he intended to rely in support of his application at least 7 days prior to the hearing date.
On 1 October 2019, the applicant, via his migration agent, provided additional supporting documents. These documents included a Course Progression Statement issued by Skills Institute Australia in relation to a Diploma of Project Management which the applicant commenced on 22 April 2019 and an Overseas Student Confirmation-of-Enrolment confirming that the applicant had enrolled in an Advanced Diploma of Program Management to commence on 4 May 2020. The applicant also provided a copy of an order indicating that the applicant had ongoing proceedings in the Federal Circuit Court in relation to his application for divorce.
On 3 October 2019, the applicant attended a hearing at the Tribunal, represented by his migration agent and assisted by a Hindi interpreter.[13] The applicant’s brother also presented at the Tribunal to give evidence. The hearing was ultimately adjourned part-heard as the interpreter had left the hearing, and the applicant required the interpreter to continue.[14] The hearing then resumed on 23 October 2019.[15]
[13] Court book at pages 323 to 325.
[14] Court book at pages 328 to 330.
[15] Court book at pages 336 to 339.
On 25 October 2019, the applicant was notified by letter that the Tribunal had determined to affirm the decision under review.[16]
[16] Court book at page 346.
On 11 December 2019, the applicant’s migration agent contacted the Tribunal via email to request a copy of all audio recordings of the hearings, indicating that the applicant required these recordings for his application for judicial review at the Federal Circuit Court.[17]
[17] Court book at page 367.
Tribunal decision
The Tribunal’s decision record of 25 October 2019 is at pages 350 to 359 of the court book.
After setting out the background to the application for review, at paragraph [7], the Tribunal identified the primary issue in this case as being whether the applicant was a genuine temporary applicant for entry and stay as a student.[18] The Tribunal then set out the relevant legislative criteria to which it must have regard in determining the applicant’s status as a genuine temporary entrant, including those factors in Ministerial Direction No 69.[19]
[18] Tribunal decision record dated 25 October 2019 at paragraph [7].
[19] Tribunal decision record dated 25 October 2019 at paragraphs [8] to [10].
Applicant’s circumstances in India
The Tribunal then went on to summarise the evidence in relation to the applicant’s circumstances in India, including the applicant’s prior qualifications obtained in 2010 and that he owned and operated a small business manufacturing batteries in India.[20] The Tribunal also noted the submission made by the applicant’s representative in relation to the applicant’s social ties to India through the residence of his parents and young daughter,[21] which was supported by evidence given by his brother.[22]
[20] Tribunal decision record dated 25 October 2019 at paragraph [14].
[21] Tribunal decision record dated 25 October 2019 at paragraph [17].
[22] Tribunal decision record dated 25 October 2019 at paragraph [16].
In light of these circumstances, at paragraph [20], the Tribunal found that:
(a)the applicant had provided reasonable reasons for not undertaking his proposed course of study in his home country;
(b)whilst the applicant had family ties to his home country, when considering the period of time the applicant has been in Australia, the fact that the applicant had not returned to India since arriving in 2016 and the financial support that he received from his family whilst in Australia, this did not signify a significant incentive to return;
(c)on the whole, the applicant’s economic circumstances did not present as a significant incentive not to return home; and
(d)there was no evidence before the Tribunal that the applicant had incentive to remain indefinitely in Australia due to any military service commitments or political or civil unrest and made no findings on his circumstances in his home country relative to others.
Applicant’s circumstances in Australia
The Tribunal noted that at the time of the hearing, he was working as an Uber driver and received additional financial support from his family in India.[23]
[23] Tribunal decision record dated 25 October 2019 at paragraph [17].
At paragraph [22], the Tribunal noted that the applicant had not undertaken any further study following the completion of his Master of Business Administration in India in 2010.
At paragraph [24], the Tribunal considered the applicant’s decision to apply for a student visa in circumstances where he initially came to Australia as a dependent on his wife’s student visa:
24.The applicant told the Tribunal that after the breakdown of his relationship with his wife, the then primary visa applicant, he enrolled in a course of study to obtain the same knowledge his wife was seeking so he could return to India to bring that knowledge to the business. At the hearing the applicant stated in oral evidence that his wife, upon completion of the business would have taken care of customer feedback and the employees of the company, but unlike his wife he did not want to undertake study by research but he decided to study communication and marketing. This concerned the Tribunal as the applicant’s wife was enrolled in the Southern Cross University for a Master of Bio Business Research and the applicant sought to enrol in a Certificate IV, Diploma, and Advanced Diploma of Marketing and Communication. The applicant was unable to articulate how those courses of study would provide him with similar skills or assist in relation to the gap in knowledge caused by the separation with his wife and her no longer returning to the business. The Tribunal does not accept the applicant’s evidence that his proposed courses of study provide him the same knowledge as the course his wife was studying.
The Tribunal also summarised the circumstances which led the applicant to switch his intended course of study from a Certificate IV, Diploma and Advanced Diploma in Marketing and Communication to a Diploma of Project Management and an Advanced Diploma of Program Management. It queried this decision in circumstances where ‘these courses are not related’, although it noted the evidence given by the applicant that the Program Management diplomas ‘were the only courses in which he was able to obtain an offer of enrolment in’.[24]
[24] Tribunal decision record dated 25 October 2019 at paragraph [25].
The applicant’s initial position prior to separation with his wife was that upon completion of his studies, he intended to return to his own business in India with her. However, he indicated to the Tribunal but that he had since re-assessed his position and changed direction to wanting to set up his own business.[25] To this end, the applicant provided the Tribunal with a business plan which showed that he intended to establish his own business with the assistance of his father upon return to India.[26]
[25] Tribunal decision record dated 25 October 2019 at paragraph [25].
[26] Tribunal decision record dated 25 October 2019 at paragraph [19].
The applicant said that he decided to change his intended courses of study in Australia after he assessed the courses in Program Management to be better suited to his intention to set up his own business. The Tribunal gave this ‘little weight’ in circumstances where the applicant initially intended to return to his own business with his wife prior to their separation.[27] At paragraph [28], the Tribunal also questioned why the applicant did not seek to undertake his study in Program Management at the time of his visa application if he was now of the opinion that those courses would be more beneficial to his future intentions.
[27] Tribunal decision record dated 25 October 2019 at paragraph [25].
In light of these circumstances, the Tribunal found at paragraph [30] that:
(a)the applicant had developed strong friendships and social connections in Australia given the period of time that he has been in Australia, the residence of his brother in Australia and the absence of any return travel to India;
(b)the applicant’s pattern of enrolment, timing of his visa application after the breakdown of his relationship with his ex-wife and change in fields of study and intentions on return to India is evidence of his attempts to use the student visa application to circumvent Australia’s migration program and maintain ongoing residence in Australia;
(c)whilst it accepted that applicants may change their career and study pathway, in this instance, it did not consider the applicant’s change in intentions from dependent student to primary student visa applicant and change from marketing and communications studies to project and programme management to be reasonable; and
(d)the applicant had a good knowledge of living in Australia and intended to continue his course of study.
Value of proposed course of study to applicant’s future
At paragraphs [31] to [34], the Tribunal considered the value of the proposed courses to the applicant’s stated intentions to establish his own business upon return to India. The applicant gave evidence to the Tribunal that his proposal for his new business was to provide off grid and on grid solar energy solutions.[28] However, the Tribunal noted that ‘the business plan does not refer to the applicant’s proposed qualifications or how those qualifications will assist in relation to solar power projects’.[29]
[28] Tribunal decision record dated 25 October 2019 at paragraph [32].
[29] Tribunal decision record dated 25 October 2019 at paragraph [32].
The Tribunal ultimately found at paragraph [35] that:
(a)the applicant’s proposed course of vocational study would be a regression compared to his Bachelor of Science and Master of Business Administration attained in India;
(b)whilst it accepted that the applicant’s proposed course of study is relevant to the applicant’s previous business experience and to his future career goals and aspirations, it would ultimately provide the applicant with limited assistance in seeking employment or improving his employment prospects;
(c)the applicant’s changes to his career and study pathways were not reasonable in circumstances where he could pursue his proposed business venture in India without the vocational sector qualifications he sought in Australia; and
(d)while there was no evidence before the Tribunal in relation to the remuneration the applicant would receive in Australia compared to India, and the Tribunal made no findings in that regard, it accepted that the applicant’s living expenses in India were likely to be less than in Australia.
The Tribunal then set out the applicant’s immigration history, and found at paragraph [40] that:
(a)the applicant had not applied for any other visas to Australia; and
(b)before he arrived in 2016, the applicant had not previously travelled to Australia, and following his arrival in Australia, had not travelled to other countries.
Notably, at paragraph [40(e)], the Tribunal found that:
e.… The Tribunal considers the applicant’s primary reason to change his course of study was that these were the only courses the applicant was able to obtain enrolment in rather than a genuine intention to undertake a course of study to obtain a particular skill or qualification to assist the applicant in obtaining employment or improving his employment prospects. The Tribunal considers the applicant’s enrolment in vocational education sector courses since 2018 is for the primary purpose of maintaining his residence in Australia after the breakdown of his relationship with his wife who was the then primary visa applicant.
The Tribunal therefore found that the applicant did not meet clause 500.212(a) of the Regulations, namely, that he intended genuinely to stay in Australia temporarily. It therefore considered that the criteria for the grant of a student visa had not been met and affirmed the decision under review to refuse the applicant’s application for a student visa accordingly.[30]
[30] Tribunal decision record dated 25 October 2019 at paragraphs [43] to [46].
Proceedings in this court
On 2 December 2019, the applicant filed his application in this court for judicial review of the Tribunal’s decision affirming the delegate’s decision to refuse his student visa. This application was accompanied by an affidavit affirmed by the applicant on 29 November 2019.
On 10 March 2020, orders were made by Registrar Carlton listing the matter for final hearing on a date to be advised. The matter was subsequently fixed for hearing before me on 24 August 2022.
On 27 July 2022, orders were made by consent of the parties for the applicant to file and serve any amended application with proper particulars of the grounds of the application and written submissions by 4 August 2022.
When the matter came on for hearing before me, it became apparent that an amended initiating application and written submissions had been served on the Minister by the applicant on 4 August 2022, but had not been formally filed with the court. The Minister did not oppose leave being granted for the applicant’s amended initiating application and written submissions to be filed, and on that basis, I granted leave for those documents to be filed.
The applicant also proposed to file an affidavit affirmed on 4 August 2022, which the Minister objected to on the grounds of relevance, and failing that, that the evidence was misleading and confusing. I was persuaded by the submissions made by the Minister’s representative. I therefore did not accept that the applicant’s affidavit was relevant to his amended grounds for judicial review and accordingly did not grant leave for him to rely upon that affidavit.
Grounds of review
By his amended initiating application, the applicant raises three grounds of review. I will consider each of these grounds in turn.
Ground 1
By his first ground, the applicant submits that the Tribunal’s findings in relation to his family and social ties in Australia compared to India were illogical and irrational in circumstances where his daughter remained living in India.
In support of this ground, the applicant points to the fact that his daughter has remained living in India with his parents whilst he has been in Australia. He says that the fact that he has remained in Australia alone, notwithstanding the difficult emotional impact this has put upon him, is evidence that he intended to return.[31] Indeed, it was submitted that the fact that, in the applicant’s evidence, his daughter was sent to live in India in 2017 is further evidence that he ultimately wishes to return to live in India himself.[32]
[31] Amended Initiating Application filed on 25 August 2022.
[32] Applicant’s Outline of Submissions filed on 25 August 2022 at page 2.
The applicant does not take issue with the fact that one of the factors to which the Tribunal had to have regard in determining the matter before it was the extent of the applicant’s ties to his home country, such as family, and whether those ties would act as a significant incentive to return to his home country.
Further, while the applicant accepts in his written submissions that the Tribunal makes reference to his daughter living in India, it is submitted that the mere mention of that fact does not evidence that the Tribunal considered that factor in determining whether the applicant had sufficient ties to India as part of the determination of whether he met the GTE requirement.[33]
[33] Applicant’s Outline of Submissions filed on 25 August 2022 at pages 2 to 3.
As noted by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at paragraphs [130] to [131]:
130.… ‘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 juridical 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. … 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. …
In its reasons, the Tribunal noted that the applicant’s (then) three year old daughter lived in India and was cared for at that time by the applicant’s parents. At paragraph [16] of the decision record, the Tribunal noted the applicant’s view that his proposed study would provide for his and his daughter’s future. Following this, at paragraph [17], the Tribunal recorded the submissions made on behalf of the applicant that his ties to India as a result of his daughter living there (among other things) was important.
The Tribunal went on to consider the applicant’s circumstances in his home country, and as part of that, considered the fact that he does have ties to India, including through the residence of his young daughter, but went on to say:
b.… In considering the period of time the applicant has been in Australia, the absence of return travel to India and the financial support received from the applicant’s family while he has been in Australia, these circumstances are not a significant incentive to return.[34]
[34] Tribunal decision record dated 25 October 2019 at paragraph [20(b)].
This conclusion was reasonably open on the evidence before the Tribunal. There is nothing in the submissions put by the applicant that would lead the court to conclude that the findings made were so illogical or irrational that no decision maker could have come to the same conclusions. Rather, by ground 1, the applicant is seeking an impermissible review on the merits. The applicant takes issue with the weight given by the Tribunal to his evidence and proposition that the mere fact that he had a young child in India was evidence that he had strong ties to that country.
Furthermore, the submission made by counsel for the applicant at the hearing before me that, in fact, ‘no consideration’ was given to the fact that the applicant had a child in India must be rejected by reference to the decision record.[35] The Tribunal did more than simply recite the applicant’s submissions. At paragraph [20] of its reasons, the Tribunal considers, in the sense of an active intellectual engagement, the applicant’s circumstances in his home country, including the fact that he had a young daughter there, and concluded that on balance, this did not represent a significant incentive to return.
[35] Court transcript at page 10.
Nor, as submitted for the applicant, is any illogicality or irrationality evident from paragraph [30] of the Tribunal’s reasons. In this part of its reasons, the Tribunal was considering the ties that the applicant has in the Australian community. It is submitted for the applicant that these matters are irrelevant to the applicant’s submissions and evidence regarding the fact that his daughter resided in India.
At best, this submission is no more than a disagreement with the conclusion reached by the Tribunal, which balanced a number of competing factors. No error is disclosed by the Tribunal’s reasons at paragraph [30] of its reasons or elsewhere.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant submits that the Tribunal failed to take into account relevant considerations in reaching the conclusion that his proposed courses of study in Project Management were a ‘regression’ compared to his qualifications attained in India.
The applicant points to the fact that his Master of Business had been completed some 10 years prior to the application for his visa at a time when he was running a business manufacturing batteries and that at the time of his visa application, the applicant was seeking to move into a green energy company. It was further submitted that the applicant intended to study project management or project-based studies so that he could ‘obtain…knowledge of how to run projects and how to go ahead and deal with his business interests back in India’.[36]
[36] Court transcript at page 11.
In his particulars, the applicant also alleges that in making its findings, the Tribunal took into account an irrelevant consideration in making this finding, namely, that the applicant’s business plan did not refer to his proposed qualifications in Project Management.[37]
[37] Amended Initiating Application filed on 25 August 2022.
Failure to take into account relevant considerations
It is conceded for the Minister that the Tribunal’s decision could be affected by jurisdictional error if the Tribunal failed to take into account mandatory relevant considerations.[38] However, the Minister submits that the Tribunal did, in fact, have regard to the factors prescribed in clause 500.212 of the Regulations.
[38] Minister’s Outline of Submissions filed on 18 August 2022 at paragraph [40].
In the particulars to ground 2, the applicant sets out a range of factors which he says the Tribunal failed to take into account, including that he is the company director of SPARSH Green Energy Solutions in India.[39] However, as submitted by the Minister,[40] the Tribunal did, in fact, refer to the fact that the applicant was the owner of SPARSH Green Energy Solutions at paragraph [19] of its decision record.
[39] Amended Initiating Application filed on 25 August 2022.
[40] Minister’s Outline of Submissions filed on 18 August 2022 at paragraph [43(a)].
The applicant also submits that the Tribunal failed to have regard to the fact that:
(a)SPARSH is solely operated on government and industry funding;
(b)SPARSH is solely project based and in a competitive solar market and that the projects are new because climate space is new;
(c)the applicant had no history of managing projects;
(d)the applicant only completed one unit of his MBA which related to project management and
(e)the applicant had no other experience or qualifications in project management.
I agree with the submissions for the Minister that the applicant has not established that evidence in relation to any of these matters was before the Tribunal.[41]
[41] Minister’s Outline of Submissions filed on 18 August 2022 at paragraph [43(b)].
In his written submissions, the applicant refers to the documents at pages 167 to 192 of the court book as providing evidence in relation to SPARSH.[42] Whilst there are some references to government subsidies in these documents, there is nothing which suggests that SPARSH operates solely on government and industry funding.
[42] Applicant’s Outline of Submissions filed on 25 August 2022 at page 4.
Nor is there anything in the court book which suggests that the applicant has no history of managing projects generally. It was submitted that the information before the Tribunal identified the courses that the applicant had completed as part of his Master of Business Administration and that it was evident that there was only one unit he had completed which was relevant to Project Management.[43] It was therefore submitted that undertaking a Project Management Diploma was not a ‘regression’ as the applicant had not studied similar courses in his Master of Business Administration.
[43] Court transcript at page 12.
It was further submitted that moving from a business manufacturing batteries to a solar power business is a significant change in focus, as was the fact that the applicant was seeking to participate in government funded projects, again an area of activity that he says he had not previously engaged in. It was submitted that the Tribunal failed to take these factors into account and that having a Master of Business Administration has ‘no bearing on that’.[44]
[44] Court transcript at page 13.
Whilst the documents at page 33 and following of the court book contain a list of units undertaken by the applicant as part of his Master of Business Administration, including one unit with the word ‘project’ in the title,[45] there was no evidence before the Tribunal about the content of these units and whether they covered skills or knowledge relating to Project Management. The applicant has not established that the Tribunal misunderstood the nature of the studies that he was proposing to undertake or the need for that study in coming to the view that the proposed course of study was a ‘regression’ from the qualifications that he had already achieved in India some 10 years earlier.
[45] Court book at page 36.
The applicant has not established that the Tribunal had before it evidence which related to those matters set out at particulars (ii) to (vi). The applicant therefore has not established that the Tribunal’s decision is affected by jurisdictional error in failing to consider these matters.
For completeness, I note that in support of this submission, the applicant relied upon the High Court’s decision in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590. That case related to the issue of materiality of errors. It did not relate to the nature of the error itself. It is not clear how the reasoning in that case assists the applicant, nor was this issue addressed in the applicant’s oral submissions. The basis of the applicant’s contention in relation to ground 2 is that the Tribunal did not consider the relevance of the content of the units undertaken by the applicant in his Master of Business Administration course undertaken in 2010 to the new endeavour that he wished to embark upon.
Again, to this extent, the applicant seeks to challenge the weight given by the Tribunal to particular evidence before it, and in effect, seeks impermissible merits review.
The Tribunal’s conclusion that the applicant had ‘regressed to vocational education after separating from his wife who was the primary student visa applicant when the applicant travelled to Australia’ should also be viewed against the findings made in the preceding paragraphs of the Tribunal’s reasons.[46] In particular, this finding was made in the context of the Tribunal’s findings about the applicant’s travel to Australia, prior educational history, separation from his wife and his decision to try and update his skills.
[46] Tribunal decision record dated 25 October 2019 at paragraph [29].
Consideration of irrelevant considerations
The applicant also refers to the fact that the Tribunal had regard to an ‘irrelevant consideration’, namely that the SPARSH business plan did not ‘refer to the applicant’s proposed qualifications’. To the extent that this is an assertion that in so doing, the Tribunal’s decision is affected by jurisdictional error, this submission must also be rejected.
The fact that the applicant’s business plan did not refer to the applicant’s proposed qualifications was a relevant consideration which went directly to the value of the course to the applicant’s future and the relevance of the course to the applicant’s proposed future employment.[47] Pursuant to clause 12(a) of Ministerial Direction No 69, the Tribunal was required to consider whether the applicant was seeking to undertake a course that was consistent with his current level of education. In this context, it was entirely appropriate for the Tribunal to consider that in this case, the applicant was seeking to undertake a diploma course whereas he had previously obtained a Masters level qualification. In doing so, the Tribunal did not have regard to an irrelevant consideration. Ultimately, this ground simply takes issue with the conclusion reached by the Tribunal on this point.
[47] Ministerial Direction No 69 cl 12(b).
In conclusion, therefore, the Tribunal considered those matters before it which were relevant to it undertaking its statutory task. The applicant has not established that the Tribunal took into account any irrelevant considerations in considering the applicant’s application.
As such, ground 2 is not made out.
Ground 3
There appear to be three separate aspects in relation to the applicant’s third proposed ground:
(a)firstly, that the Tribunal erred in finding that the applicant’s ex-wife’s studies were in the fields of ‘bio’ or ‘bio business’ research in circumstances where there was no evidentiary basis for such a finding;
(b)secondly, that the Tribunal erroneously found that the applicant failed to articulate how his nominated courses of study would or could provide him with a similar skillset to that of his ex-wife, when his evidence at the Tribunal hearing was that he did not intend to gain similar skills to that of his ex-wife when applying for a student visa; and
(c)thirdly, that the Tribunal failed to give weight to the applicant’s evidence in relation to his actual reasons for undertaking the proposed courses of study in Australia.
At the heart of the first aspect of this ground is the applicant’s submission that the Tribunal misunderstood the nature of the qualifications that the applicant’s ex-wife had. The applicant submits that this fundamental misunderstanding resulted in the Tribunal operating under a misapprehension that the applicant’s proposed studies were unrelated to any qualifications that the applicant’s ex-wife held. It is submitted that this resulted in the Tribunal’s decision being legally unreasonable.
It is submitted for the applicant that the error asserted in ground 3 is significant. It was submitted for the applicant:
…the member had in his mind from the word go, no matter how corrections were made by the applicant in his testimony in answering questions and providing information, he had it in his mind that the applicant’s wife was studying bioscience or bio-business or bio-something. So the word ‘bio’ was expressed by this member in every question related to the wife’s studies. And the reason it’s critical is because in paragraph 24 of the tribunal decision … the member … states:
The applicant was unable to articulate how those courses of study would provide him with similar skills or assist in relation to the gap in knowledge caused by the separation with his wife. The tribunal does not accept the applicant’s evidence that his proposed courses of study provide him with the same knowledge as the course his wife was studying.[48]
[48] Court transcript at pages 13 to 14.
The applicant did not seek to tender a transcript of the hearing before the Tribunal member. The applicant’s representative, however, in their written submissions has included purported extracted exchanges which they say were transcribed from the audio of the Tribunal hearing.[49] Whilst these matters are set out in the written submissions, in the absence of a transcript, or indeed, affidavit material attesting to the circumstances in which the extracts were translated, there is no evidence before the court about what occurred during the hearing.
[49] Applicant’s Outline of Submissions filed on 25 August 2022 at pages 5 to 8.
However, even if one were to have regard to the excerpts of the hearing in the applicant’s written submissions, those extracts do not disclose any jurisdictional error by the Tribunal. It is apparent from the excerpts in the written submissions that the concern that the Tribunal member had was not just the name of the course that the applicant’s wife was enrolled in, but the fact that the applicant himself had changed courses – initially, he was seeking to enrol in a marketing and communications course and then he changed to project management courses when they were the only courses in which he could enrol. The Tribunal member expressed concern, reflected in the Tribunal’s reasons, that the applicant’s wife had not been studying project management in any event. Whether the wife was studying business research or bio-business research, what is evident, even taking the applicant’s case at its highest, is that she was not studying project management.
Moreover, there was evidence before the Tribunal that the applicant’s wife was enrolled in a ‘business-bio course’.[50] This was a document produced by the applicant’s representatives and refers to the applicant wife returning to Australia to University of Southern Queensland to complete her studies in the course of Master of Bio Business Research. There was, therefore, some evidence upon which the Tribunal could find that that was, in fact, the course that the applicant’s wife was enrolled in.
[50] See court book at page 160.
But in any event, it is apparent from a fair reading of the Tribunal reasons that this error, if indeed it is an error, was not critical to the outcome of the decision. It is clear from paragraph [24] that, irrespective of the name of the course, the Tribunal was aware of the type of skills that the wife would have developed had she completed the course in which she was enrolled.
In addition, at paragraph [25] of its decision record, the Tribunal goes on to discuss the changes from marketing and communication courses to the project management course that the applicant ultimately enrolled in. The Tribunal says:
25.… These courses are not related to the applicant’s originally intended courses. The applicant told the Tribunal his study in project and programme management would help him be successful to grow income and reduce costs. The applicant also told the Tribunal that his study will overcome a gap in his business where he encountered problems with people in the business. The applicant acknowledged he enrolled in his more recent courses as they were the only courses in which he was able to obtain an offer of enrolment in. …
The Tribunal went on to say:
26. … The applicant did not travel to Australia for the purposes of study and following the breakdown of his relationship applied for a student visa as a primary applicant for the purposes of studying marketing and communications. The applicant changed his field of study to project and program management after initially enrolling in courses in marketing and communication to cover a gap in his knowledge following separation from his wife.
27.The applicant has previous experience of operating his own business and he told the Tribunal he sought to undertake his then proposed courses of study to obtain the same skills his wife was seeking to obtain and apply in his business. It is difficult to reconcile the applicant’s evidence in this regard with his change in enrolment to project and program management which appears to be undertaken as this was the only course the applicant was able to obtain enrolment in. …
28.If the applicant is now of the opinion the proposed courses of study are more beneficial to his future intentions he may have sought to undertake those courses of study at the time of the visa application rather than some 12 months later.
It is clear from this extract that the issue which was exercising the Tribunal’s mind was the tension between the fact that the applicant said that he was trying to obtain skills that his ex-wife would have gained in her course but then changed from a marketing and communication course, which he had initially enrolled in after his marriage breakdown, to project management courses when they were the only course he could obtain enrolment in.
In this case, the Tribunal considered the applicant’s evidence and formed a view about that evidence. The conclusions reached by the Tribunal were reasonably open to it. The reasoning in the Tribunal’s decision is logical and clear.
A fair reading of the Tribunal’s reasons do not disclose any misunderstanding of the applicant’s evidence. The issue before the Tribunal was whether it accepted the reasons given by the applicant for choosing a particular course of study. For the reasons given and discussed above, the Tribunal ultimately did not accept those reasons.
This ground too seeks impermissible merits review.
Finally, and for completeness, to the extent that ground 3 can be understood as taking issue with the quality of interpreting during the Tribunal hearing, as previously stated, the applicant has not filed a transcript of the proceedings before the Tribunal. On the evidence before the court, the applicant has not established that the quality of the interpreting was such that he was denied a proper hearing.
Conclusion
As no jurisdictional error has been established, the applicant’s application ought be dismissed with costs.
The Minister in its written submissions seeks costs to be fixed in the sum of $7,467. As no submissions were made with respect to costs at the hearing before me, I do not propose making such an order. It is appropriate to order that the applicant pay the first respondent’s costs in a sum to be fixed, if not otherwise agreed.
The Minister also seeks an order for the change of name to reflect the current administrative arrangements. It is appropriate to make such an order.
For each of these reasons, I make the orders set out at the commencement of these reasons.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mercuri. Deputy Associate:
Dated: 21 December 2022
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