Grewal v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 911
Federal Circuit and Family Court of Australia
(DIVISION 2)
Grewal v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 911
File number: SYG 1306 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 4 November 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal’s approach to assessing the relevant visa criteria was unduly “harsh” – whether the Tribunal’s decision was rushed or hurried – whether the applicants were given sufficient time to provide “required information” to the Tribunal – whether the Tribunal made its decision based on an incorrect assumption – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 368 and 476
Migration Regulations 1994 (Cth), cll 500.212 and 500.311 in Schedule 2
Cases cited: Abebe v The Commonwealth [1999] HCA 14
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
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
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 1 November 2022 Place: Perth Applicants: 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
SYG 1306 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPAL KAUR GREWAL
First Applicant
GURPREET SINGH TATLA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
4 NOVEMBER 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 first and second applicants in this proceeding are both citizens of India. They are wife and husband respectively (Court Book (“CB”) 2-4). The first applicant arrived in Australia as the holders of a student visa in May 2008 (CB 73). Her husband arrived in Australia in March 2010 (having married the first applicant in 2009) (CB 119 & 152). The applicants also have a son who was born in Australia in 2010. The applicants took their son to India early in 2011. He has lived there with his grandparents since that time (CB 152). The applicants’ son is not a party to this proceeding.
On 15 November 2016, the first applicant applied for a Student (Class TU) (Subclass 500) visa (the “visa”) (CB 1-20). The second applicant was included in that visa application as a member of the first applicant’s family unit (CB 3-4). In that visa application, the first applicant indicated that she would be completing higher education studies in the form of a Bachelor of Business (CB 10). Annexed to the visa application were various supporting documents (CB 21-47).
On 13 December 2016, the then Department of Immigration and Border Protection (the “Department”) asked the first applicant to provide more information addressing the genuine temporary entrant criteria (as set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”)) (CB 51-58).
On 5 January 2017, the applicants’ representative provided the Tribunal with a statement addressing the genuine temporary entrant criteria (signed by the first applicant) and copies of the first applicant’s educational records (CB 59-64).
On 17 February 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 71-77). The delegate determined that the first applicant did not satisfy the genuine temporary entry criteria prescribed in cl 500.212 of Schedule 2 of the Regulations (CB 76). The delegate also found that the second applicant did not meet cl 500.311 in Schedule 2 of the Regulations because he was not a member of the family unit of a person who held a student visa (CB 77).
On 3 March 2017, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for a review of the delegate’s decision (CB 78-80).
On 9 March 2018, the Tribunal invited the applicants (through their representative) to attend a hearing before it, scheduled to take place on 12 April 2018 (CB 89-103). That correspondence asked the first applicant to provide additional information, as follows (CB 93):
In addition, please provide the following information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as is required for the grant of a student visa.
2.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.
3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
We request that you provide the written statement and other evidence to us at least 7 days before the hearing date.
On 6 April 2018, the applicants’ representative sent additional documents to the Tribunal, comprising a completed hearing response, submissions (including a genuine temporary entrant statement from the first applicant) and the first applicant’s educational records (CB 121-138).
On 11 April 2018, the applicants’ representative sent the Tribunal a signed letter from the first applicant’s employer (CB 139-141).
On 12 April 2018, the first applicant appeared before the Tribunal at the scheduled hearing (CB 142-144). She was assisted at the hearing by the applicants’ representative (CB 142).
On 13 April 2018, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 148-153).
On 9 May 2018, the applicants 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 applicants must show that the Tribunal has fallen into jurisdictional error.
The Tribunal’s Decision
The Tribunal’s decision is six pages in length and spans 31 paragraphs.
The Tribunal first identified the type of visa that the applicants were seeking and summarised the delegate’s decision (noting that the delegate was not satisfied that the first applicant met the requirements of cl 500.212 in Schedule 2 of the Regulations because the delegate was not satisfied that the first applicant was a genuine applicant for entry and stay as a student) (at [1]-[3]).
The Tribunal confirmed that it had received the review application from the applicants on 3 March 2017 and that the application included a copy of the delegate’s decision dated 17 February 2017. The Tribunal further confirmed that it had invited the applicants to attend a hearing before it on 12 April 2018 and that the invitation letter set out the types of evidence that the applicants might consider providing (specifically addressing the genuine temporary entrant criteria) (at [4]-[5]).
The Tribunal noted that the first applicant had responded to the hearing invitation, indicating that she would attend the hearing. The Tribunal also acknowledged receipt of supporting documents received from the first applicant. The Tribunal explained that the first applicant had appeared at the Tribunal hearing and that the applicants had been assisted in relation to the Tribunal review by their migration agent (at [6]-[7]).
The Tribunal detailed the criteria required to be met in order for the applicants to be granted the visas, noting that the issue in the present matter was whether the first applicant was a genuine applicant for entry and stay as a student (at [10]).
The Tribunal set out the criteria in cl 500.212 in Schedule 2 of the Regulations and explained that, when considering if the first applicant satisfied those provisions, the Tribunal was required to have regard to Ministerial Direction No. 69 (the “Direction”). The Tribunal explained that the Direction should not be used as a checklist and that it was instead intended as a guide for decision makers when making findings about whether an applicant satisfies the genuine temporary entrant criteria (at [11]-[13]).
The Tribunal set out the first applicant’s migration history, noting that she had arrived from India in May 2008 as the holder of a student visa and that she had applied for 10 temporary visas during her time in Australia (including eight consecutive student visas) (at [14]-[15]).
The Tribunal continued:
16. The applicant has completed seven of 12 confirmations of enrolment obtained:
a. 2009 Certificate III Hospitality
b. 2011 Diploma of Business Administration
c. 2012 Advanced Diploma of Management
d. 2013 Diploma of Information Technology
e. 2015 Advanced Diploma of Network Security
f. 2016 Diploma of Accounting
g. 2016 Commenced Bachelor of Business, current
The Tribunal noted that the first applicant had also applied for two subclass 457 visas in 2013 and 2015 and that associated business sponsorship nominations were refused on four separate occasions. The first applicant then enrolled in a Diploma of Accounting. The Tribunal was of the view that, at the time of her application, the first applicant was “well qualified and experienced” and could become a “successful businesswoman” upon her return to India. Further, with the broad range of courses that she had completed, the first applicant would have many options available in terms of opening a business (at [17]).
The Tribunal then outlined the first applicant’s work history, noting that she had worked for the same company since 2011. The first applicant’s evidence was that the business ground rice and lentils for wholesale and that she intended to open a similar business upon her return to India. The Tribunal queried the utility of a Bachelor of Business to the first applicant’s future plans and noted her response that she wanted to “know everything before opening her business” and to “display her qualifications” at that business (at [18]-[19]).
The Tribunal continued:
20.It is not in dispute that the applicant has performed well in the VET level courses she has undertaken and appears to have been compliant with her visa conditions. From her arrival onshore as a student in 2008 through to 2017, the applicant has been awarded the following certificates and diplomas:
a. 2009 Certificate III Hospitality (Commercial Cookery)
b. 2011 Diploma Business Administration
c. 2012 Advanced Diploma of Management
d. 2013 Diploma of Information Technology
e. 2015 Advanced Diploma of Network Security
f. 2016 Diploma of Accounting
The Tribunal then assessed the first applicant’s progress in the Bachelor of Business, noting that, with recognised prior learning, the first applicant was about half way through the degree. However, as the Tribunal noted, the first applicant had failed half of the subjects she had enrolled in. Based on the length of time that the first applicant had been in Australia, the nature and number of qualifications she had already obtained and her career goals, the Tribunal was concerned that the first applicant was enrolled in the Bachelor of Business to maintain residence and not for her future career prospects (at [21]).
The Tribunal was of the view that, at the time when the first applicant had finished her Diploma of Accounting in 2016, she would have been able to meet her career goal. The Tribunal thus considered that the Bachelor of Business was “surplus to her requirements” for her goal of opening a business. Further, as the Tribunal noted, the first applicant already had the “skills, knowledge and experience” required to start a business (at [22]-[23]).
The Tribunal also considered the first applicant’s oral evidence that she had not moved to a regional area and sought an alternate visa pathway through the regional migration programme. The Tribunal took into account the fact that the applicants’ child lives in India with his paternal grandparents and noted that the first applicant had returned to India in 2009 to marry the second applicant. The applicants then returned to India together in April 2011 (for 34 days), January 2013 (for 33 days) and January 2016 (for 35 days). Because the applicants had only returned to India on three occasions in nearly 10 years, the Tribunal was not satisfied that the applicants’ ties to India were stronger than those they had to Australia (notwithstanding their son and family in India) (at [24]-[26]).
The Tribunal ultimately found as follows:
27.The Tribunal has considered the documentary and oral evidence provided at the time of application and to the Tribunal prior to and at the hearing and, relying on all relevant facts and matters, is not satisfied that the applicant is a genuine applicant for entry and stay as a student. Careful consideration was given particularly to the applicant’s own written statement of purpose she provided and some of the matters in this were discussed with her at the hearing. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Based on the evidence before it, the Tribunal was not satisfied that the first applicant was a genuine applicant for entry and stay as a student (as set out in cl 500.212 in Schedule 2 of the Regulations). The Tribunal affirmed the delegate’s decision refusing to grant the first applicant’s visa. The Tribunal also considered that, as the second applicant was a member of the first applicant’s family unit, it was also required to affirm the delegate’s decision refusing to grant the second applicant’s visa (at [28]-[31]).
Application to this Court
The application for judicial review filed by the applicants on 9 May 2018 contains four “grounds of review”, as follows (without alteration):
1.The Tribunal erred in making final decision. The AATT adopted very harsh approach to judge the application criteria
2.The Tribunal made decision in hurry based on incomplete and unrelated information
3.The Tribunal did not provide sufficient opportunity to provide the required information
4.The decision is made on assumption that a degree is not required to set up a new business oversees despite the fact that applicant already finished more than 50% of it
On 31 May 2018, procedural orders were made by Registrar Morgan of this Court giving the applicants an opportunity to file an amended application, any affidavit evidence and written submissions. On 16 March 2022, Registrar van der Westhuizen of this Court also made procedural orders giving the applicants a further opportunity to file any written submissions. Unfortunately, no additional materials were provided by or on behalf of the applicants.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicants on 9 May 2018, a Court Book numbering 156 pages (marked as Exhibit 1) and written submissions filed by the Minister on 18 October 2022.
The applicants appeared before this Court on 1 November 2022 without legal representation. The Court confirmed with the applicants that they had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave them the opportunity to explain orally what they thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained to them that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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 ignores relevant 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: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant stated that she had completed all of her diplomas and other courses within the required timeframes and needed to extend her visa to complete the Bachelor of Business degree. She noted, however, that that visa had been refused. She also explained that she had since completed a Certificate III in Aged Care.
Unfortunately, the first applicant’s oral submissions do not raise any issue of jurisdictional error of the sort that this Court can address.
Consideration
Ground 1
Ground 1 states:
1.The Tribunal erred in making final decision. The AATT adopted very harsh approach to judge the application criteria
The applicants here suggest that the Tribunal’s approach, when assessing the relevant visa criteria, was “very harsh”. Arguably, the applicants are suggesting that the Tribunal erred in its approach to its application of the relevant legislation.
The Court disagrees for the reasons that follow.
As set out by the Tribunal in its written reasons (at [10]-[13]), the issue in this matter was whether the first applicant was a “genuine applicant for entry and stay as a student”. This requirement is set out in cl 500.212 in Schedule 2 of the Regulations.
In considering if the first applicant met those requirements, the Tribunal was required to have regard to the matters set out in the relevant Direction. As correctly noted by the Tribunal (at 13]), the factors specified in the Direction should not be used as a checklist and are instead meant as a guide for decision makers and an applicant’s circumstances as a whole ought to be considered.
In Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (“Kumar”), the Full Court of the Federal Court stated:
96.Direction 53 requires that, in reaching the state of satisfaction in cl 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 the 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.
This reasoning applies equally here with respect to the relevant Direction in effect at the time of the Tribunal’s decision in this matter (being Direction No. 69) and the provisions set out in cl 500.212 in Schedule 2 of the Regulations.
Here, the Tribunal had regard to the factors set out in the Direction as was required.
Specifically, the Tribunal:
(a)had regard to the applicants’ circumstances in India, noting in particular that the applicants’ child and family remain in India. However, the Tribunal ultimately determined that the applicants’ ties to India were not stronger than their ties to Australia (at [25]);
(b)considered the applicants’ circumstances in Australia, including the cost of the first applicant’s course fees for the Bachelor of Business degree and the cost of living in Sydney (at [21]). The Tribunal concluded, however, that the applicant was enrolled in the Bachelor degree to maintain residence in Australia (at [22]);
(c)assessed the first applicant’s enrolment history and the success of her studies. The Tribunal also had regard to the value of the Bachelor of Business degree (over and above the courses already completed) to the fist applicant’s proposed future goal of opening a business in India (at [21]-[23]);
(d)considered the first applicant’s visa history, noting that she had made 10 applications for temporary visas, eight of which were consecutive student visas. The Tribunal also noted that the first applicant had (unsuccessfully) applied for temporary skilled (subclass 457 visas), however, the associated business sponsorship nominations were refused on four separate occasions (at [15]-[17]); and
(e)had regard to the applicants’ travel back to their home country of India, noting that since the applicants were married, the applicants had only returned to India on three occasions in nearly 10 years (at [24]-[25]).
The Tribunal did not expressly consider some of the factors set out in the Direction (for example, the economic circumstances of the applicants, any military service requirements or political or civil unrest in India). However, as correctly submitted by the Minister (at [20] in written submissions filed in this Court on 18 October 2022), the Tribunal was not obliged to “formulaically address” or “laboriously set out” each and every matter in the Direction: Kumar at [106]. The Tribunal also had no obligation, under s 368 of the Act, to refer to any immaterial matter in the reasons for its decision: Kumar at [87], [97] and [108].
Ultimately, after thorough consideration of the applicants’ circumstances, immigration and study history and other matters that the Tribunal considered relevant and after weighing those factors, the Tribunal was not satisfied that the first applicant intended to genuinely stay in Australia temporarily (at [28]).
The Court is satisfied that the Direction was properly applied and considered and that the Tribunal’s approach was not unduly “harsh” within the context of this legislative regime. The Tribunal made findings which were legally reasonable and open to it on the information provided to the Tribunal by the applicants and their representative.
No error arises in relation to ground 1.
Ground 2
Ground 2 provides:
2.The Tribunal made decision in hurry based on incomplete and unrelated information
To the extent that the applicants allege that the Tribunal’s decision was made in a hurry, the Court notes that there was a period of more than 13 months between the applicants seeking review of the delegate’s decision by the Tribunal and the Tribunal making its decision.
While the Tribunal’s written reasons were provided the day after the Tribunal hearing, this does not amount to an error in and of itself.
There is no evidence before this Court to suggest that the Tribunal did not determine the applicants’ matter fairly and without prejudice. The fact that a decision was made by the Tribunal “quickly” does not mean that it was rushed, hurried and made without care or without due diligence.
Insofar as the applicants contend that the Tribunal’s decision was based on incomplete or unrelated information, the Court disagrees.
The Tribunal considered the applicants’ circumstances and, based on the evidence before it, assessed that evidence against the Direction as it was required to do. The Tribunal also had regard to the oral evidence given by the first applicant at the Tribunal’s hearing. The Tribunal’s ultimate findings were based on that evidence and the material before it.
No error arises in this regard.
Ground 3
Ground 3 states:
3.The Tribunal did not provide sufficient opportunity to provide the required information
By ground 3, the applicants appear to contend that they were not provided sufficient time to provide “required information” to the Tribunal.
It is unclear which information the applicants are referring to.
The Court notes, however, that the determinative issue before the Department was whether the first applicant satisfied the genuine temporary entrant criteria. Ultimately, a delegate of the Minister refused to grant the applicants the visa on 17 February 2017 because the delegate was not satisfied that the first applicant met the genuine temporary entry criteria prescribed in cl 500.212 of Schedule 2 of the Regulations (CB 71-77).
The dispositive issue before the Tribunal was the same as that which was before the delegate. The applicants here were thus on notice of the determinative issue before the Tribunal from at least 17 February 2017 (being the date of the delegate’s refusal of the visas). As outlined above, there was a period of more than 13 months (between the applicants seeking review of the delegate’s decision by the Tribunal and the Tribunal making its decision decision) within which the applicants could have provided additional information to the Tribunal in support of their application.
In this regard, the Court notes that the Tribunal also sought additional information and materials from the applicants in correspondence dated 9 March 2018 (inviting the applicants to attend a hearing) (CB 89-103). Specifically, the Tribunal requested that the applicants provide the following information (CB 92-93):
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. 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. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.
In addition, please provide the following information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as is required for the grant of a student visa.
2.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.
3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
We request that you provide the written statement and other evidence to us at least 7 days before the hearing date.
The applicants’ representative responded to that email and provided materials to the Tribunal on two separate occasions. On 6 April 2018, the applicants’ representative provided the Tribunal with a completed hearing response, submissions (including a genuine temporary entrant statement from the first applicant) and the first applicant’s educational records (CB 121-138). The applicants’ representative also provided a signed letter from the first applicant’s employer to the Tribunal on 11 April 2018.
There is no evidence before this Court to suggest that the applicants’ representative requested additional time within which to provide further information to the Tribunal or that the first applicant requested any additional time at the Tribunal hearing. In circumstances where the Tribunal has not been asked to provide additional time to the applicants to produce more material or been put on notice that further information is or may be forthcoming, there is no obligation for the Tribunal to consider adjourning a matter.
The Tribunal acknowledged that the applicants had provided “some documents” in support of their review application (at [6]) and considered the educational records and information provided by the first applicant in her genuine temporary entrant statement in its written reasons.
Further, as submitted by the Minister, it was the applicants’ responsibility to provide the Tribunal with the evidence it needed to be satisfied that the first applicant met the criteria for the grant of the visa: Abebe v The Commonwealth [1999] HCA 14.
No error arises in relation to ground 3.
Ground 4
Ground 4 provides:
4.The decision is made on assumption that a degree is not required to set up a new business oversees despite the fact that applicant already finished more than 50% of it
The applicants here contend that the Tribunal made its decision based on an incorrect assumption – specifically, that a Bachelor of Business degree is not required to establish a business in India.
The Tribunal’s consideration of the Bachelor of Business course is as follows:
21.The applicant is not achieving so well academically in her Bachelor of Business that she commenced in 2016. Documentary evidence was provided showing her course progress, with results by subject and semester, from semester 3/2016 through to semester 3/2017. She has some recognised prior learning credits which mean she is about halfway through the degree, but of the subjects she has enrolled in, the applicant has failed half of them. One subject, Accounting Principles and Practices, she has now failed twice. The length of the applicant’s time onshore, the number and nature of the qualifications she already has and her stated career goal being that she intends to open her own business in India similar to the one she works for in Sydney, employing between five to 10 people (mainly family members, she said), raise concerns that she is enrolled in the Bachelor or Business to maintain residence, not because it will add value to her future career prospects. The Tribunal cannot reconcile that the very significant outlay of $42,000 in course fees for the bachelor degree and costs of living in Sydney will on balance add value to her future.
22.When the applicant finished her Diploma of Accounting in 2016, it is the Tribunal’s view that she was at a point where her career goal would have been met by her returning to her home country without further study in Australia. The Tribunal, having considered all these matters, has formed a strong view that the applicant is using the student visa programme to maintain residence in Australia.
23.In plain language, the Tribunal considers that the Bachelor of Business, in this applicant’s circumstances, is surplus to her requirements to meet her stated career goal. The applicant claims she needs to finish the Bachelor of Business to then have “…the skills; knowledge and experience to head start my own career in India.” The Tribunal’s view is that she already the skills, knowledge and experience she needs to start her business.
The Tribunal’s findings in this regard were made based on an assessment of the qualifications that the first applicant had already obtained and the value of the proposed course to her future goals. The Tribunal ultimately concluded that the first applicant had already obtained the necessary qualifications that she would require to successfully open a business in India. Further, the Tribunal did not consider that the Bachelor of Business course would add value to the first applicant’s future career prospects.
While this Court might have come to a different conclusion, that is not the test on review. The question for the Court is whether, on the evidence before it, the Tribunal’s conclusions were “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”.
The Court does not consider the Tribunal’s conclusions here were unreasonable or that no other decision maker could have come to those same conclusions.
No error arises in this regard.
Conclusion
The application for judicial review filed by the applicants on 9 May 2018 fails to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 4 November 2022
0
10
0