Islam v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 189
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Islam v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 189
File number(s): MLG 385 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 28 February 2025 Catchwords: MIGRATION - Student (Temporary) (Class TU) (Subclass 500) visa – enrolment in courses of repetitious nature – whether genuine temporary entrant - no jurisdictional error - application dismissed. Legislation: Migration Act 1958 (Cth) ss 359, 499, 474(2), 65, 65 (1)(b)
Migration Regulations 1994 (Cth) Sch 2 cls 500.212-500.218, 500.212(a)
Cases cited: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 418 ALR 152; [2024] HCA 12
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of last submission/s: 4 February 2025 Date of hearing: 4 February 2025 Place: Melbourne Solicitor for the Applicant The applicant appeared self-represented Solicitor for the Respondents Mr J McDonald, Clayton Utz ORDERS
MLG 385 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: M MUID ISLAM
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for judicial review filed 14 February 2019 be dismissed.
2.The applicant pay the first respondents costs and disbursements of and incidental to the proceeding fixed in the amount of $7,467.00.
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 CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 24 January 2019 in which the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (visa).
References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 4 February 2025, marked exhibit “R1”.
BACKGROUND
The applicant is a citizen of Bangladesh. He first arrived in Australia on 12 January 2009 as the holder of a Student (Temporary) (Class TU) (Subclass 500) visa (CB 16)
On 23 June 2017, the applicant applied for the visa (CB 1-53). At the time of the application for the visa, the applicant was the holder of a Temporary Graduate (Class VC) (Subclass 485) visa (CB 16). At the time of the application for the visa, the applicant proposed to enrol in a Master of Business Administration Course at Holmes Institute (CB 78).
On 1 August 2017, a delegate of the Minister refused to grant the visa (CB 80-1). The delegate found that the applicant did not satisfy cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia (CB 84-8).
On 11 August 2017, the applicant filed an application for review with the Tribunal (CB 90-1).
TRIBUNAL DECISION
On 26 October 2018, the Tribunal wrote to the applicant and his representative and invited the applicant to complete a “Request for Student Visa Information” form (s 359 Response) by 9 November 2018 (CB 111-3).
On 5 November 2018, the applicant completed the s 359 Response and attached numerous academic records thereto (CB 133-79).
On 16 November 2018, the Tribunal sent an invitation to the applicant and his representative inviting the applicant to appear at a hearing to give evidence and present arguments and attached a “Response to hearing invitation” form for completion by the applicant (CB 183-6).
On 4 December 2018, the applicant completed the Response to hearing invitation (CB 207-9).
On 7 December 2018, the applicant’s representative sent a letter to the Tribunal which, among other things, contained information about the applicant’s academic background and qualifications, financial position, his family’s assets and the applicant’s claims that he is a genuine temporary entrant and has not breached the conditions of his previous visas. The letter sought to address the criteria in cl 500.212 of Sch 2 of the Regulations (CB 202-6).
On 10 December 2018, the applicant attended a hearing before the Tribunal and was assisted by his then representative and an interpreter fluent in the Bengali and English languages (CB 211-3).
On 24 January 2019, the Tribunal delivered reasons dated 23 January 2019 in which the member affirmed the decision of the delegate to refuse to grant the applicant the visa (Decision) (CB 221-31).
In the Decision, the Tribunal set out the background of the review application and correctly considered the primary criteria for a Subclass 500 (Student) visa prescribed by cl 500.211 to cl 500.218 of Sch 2 of the Regulations (CB 227 [7]-[8]).
The Tribunal had regard to the policy guidelines in Direction No. 69 made under s 499 of the Migration Act 1958 (Cth) (Act) and correctly identified that the Direction is not to be used as a checklist but rather is intended to guide decision makers when considering the applicant’s circumstances as a whole (CB 228 [9]-[10]).
The Tribunal then set out the applicant’s immigration history, employment history and the applicant’s previously held visas and visa applications across Australia, Canada and the United Kingdom (CB 228 [11]-[13]). The Tribunal considered the evidence of the applicant given at the hearing, in particular, the time that the applicant has spent in Australia and the time that the applicant has spent returning to his home country of Bangladesh.
At paragraphs [14]-[15] of the Decision, the Tribunal made the following findings (CB 228-9 [14]-[15]):
[14] The applicant told the Tribunal that he has only departed Australia on two occasions when he returned to Bangladesh to visit his family. The first time the applicant departed Australia was on 25 February 2014 until 17 March 2014 and the most recent time was on 19 January 2016 until 20 February 2016. Given the applicant has been in Australia for 10 years the Tribunal is concerned that the applicant has only spent a period of just 53 days outside of Australia. When taking into account the time the applicant has spent in the United Kingdom the applicant has only returned to his home country for approximately 100 days since January 2017.
[15] For a person that has spent little time back in his home country over the past 12 years The Tribunal is concerned about the applicant’s genuine intention given that he completed a Master of Professional Accounting in July 2015 and, except for completing a professional year for the purpose of gaining the qualification, has never worked in the field.
The Tribunal then considered the applicant’s circumstances in his home country. The Tribunal acknowledged the applicant’s evidence that he has no reason for not undertaking his studies back in his home country. However, the applicant claimed that “an Australian degree is better for when he returns to his home country”. The Tribunal found that the applicant did not provide a reasonable explanation for not undertaking the study, namely the Advanced Diploma of Leadership and management, in his home country (CB 229 [16]).
The Tribunal also considered the extent of the applicant’s personal ties to his home country, they included his parents and three brothers who live in Bangladesh. The applicant also has a brother living in Japan, a sister living in the United States and a brother living in Australia who is a citizen. The Tribunal acknowledged the applicant’s evidence that he manages his relationships with his family in Bangladesh by making contact daily via telephone, that he speaks with both his brother in Japan and sister in the United States two to three times a week. The Tribunal did not consider the applicant’s personal connections overseas as a significant incentive for the applicant to return to Bangladesh and cease residence in Australia (CB 229 [17]-[18]).
The Tribunal also considered the applicant’s circumstances and ties in Australia, particularly his brother who is an Australian citizen and the friendships he has developed with people at the mosque he attends in Hobart, and friends he has made in Melbourne. The Tribunal concluded that the applicant has significant ties within Australia which would present as a strong incentive to remain in Australia (CB 229 [20]).
The Tribunal considered that during his time in Australia, the applicant completed a range of Certificate, Diploma, Advanced Diploma and master level courses and made the following findings (CB 229 [21]):
[21] …The Tribunal is puzzled as to why the applicant has completed courses that are repetitive in nature. The applicant completed a Diploma of Business during his time in the United Kingdom however enrolled and completed a Certificate IV and Diploma in Business in Australia between February 2011 and February 2012. The applicant also completed an Advanced Diploma of Management between April 2012 and 2013 however has recently completed a Diploma of Leadership and Management and is in the final stages of completing an Advanced Diploma of Leadership and Management which are very similar courses. Taking this into consideration and given that the applicant completed a Master of Professional Accounting in July 2015 and a professional year in accounting the Tribunal considers the applicant has acquired the required qualifications to work in the business and accounting field. For these reasons the Tribunal is not satisfied that the applicant is a genuine temporary entrant, that the student visa program is being used to circumvent the intentions of the migration program and to maintain ongoing residence.
The Tribunal had regard to the letter submitted by the applicant’s representative dated 7 December 2018. At paragraph [22] of the Decision, the Tribunal made the following findings (CB 230 [22]):
[22] …The applicant chose not to return to his home country and as a result decided that a move to Tasmania for a change of environment would be less stressful and would lower the cost of living in Australia. The Tribunal places little weigh on this submission given that the applicant could have made a decision in July 2015 at the completion of his Master of Professional Accounting course and returned to his home country of Bangladesh where he would have had the opportunity of finding the right job with his significant qualifications and the stress of the cost of living in Australia would have been eliminated.
The Tribunal considered the applicant’s evidence that he resides in Hobart and shares accommodation with four others and pays $130.00 per week for rent and that he is not employed. It had regard to evidence that the applicant was supported financially by his family and that ongoing financial support “was not an issue”. The Tribunal considered the applicant’s evidence that he worked part-time as a cleaner between August 2009 and May 2011, as a kitchenhand between October 2011 and April 2012, and a cleaner between September 2012 and October 2017. At paragraph [23] of the Decision, the Tribunal found (CB 230 [23]):
[23]…[T]he applicant has not worked in the area of his qualifications except during his professional year since arriving in Australia in January 2009. Given that the applicant stated he is currently supported financially the Tribunal considers that the economic circumstances within Australia of the applicant would present as a strong incentive for the applicant not to return to his home country.
Finally, the Tribunal considered the value of the course to the applicant’s future. The applicant submitted to the Tribunal a Confirmation of Enrolment for an Advanced Diploma of Leadership and Management which commenced on 15 December 2018 and was due to be completed by 14 December 2019. The Tribunal had regard to the applicant’s evidence that the course would give him better skills in leadership and management and that after finishing the course, he plans to return to his home country where he will “start an agricultural business and will be able to apply his skills more effectively after the completion of this course”. At paragraph [24] of the Decision, the Tribunal said (CB 230-1 [24]):
[24] …The applicant stated that he already has land back in his home country and that currently rice and vegetables are grown on the property. The Tribunal notes that no evidence of this land or the applicant’s future business plans were submitted to the Tribunal or the Department. The Tribunal is also puzzled that the applicant plans to return to his home country and work in the agricultural industry given that he has not spent any substantial time in his home country since January 2008 and that the qualifications he has acquired both in Australia and the United Kingdom are in the accounting and business fields. The Tribunal does not accept that the applicant’s current level of study in the VET sector is consistent with his current level of education considering the applicant has completed a Master of Professional Accounting in Australia and a Bachelor of Business Administration in Bangladesh.
The Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore, does not meet the cl 500.212(a) of the Regulations (CB 231 [26]). As a consequence, the Tribunal was not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212 and does not meet the criteria for the grant of a Subclass 500 Student visa (CB 231 [27]-[28]).
PROCEEDINGS IN THIS COURT
On 14 February 2019, the applicant filed an application for judicial review in this Court. The application contained the following grounds of review (verbatim) (CB 244-8):
1.The Tribunal made an error of law in incorrectly applying s 65 of the Migration Act 1958.
2.The Tribunal made an error of law in incorrectly applying cl 500.212 of Schedule 2 of the Migration Regulations 1994.
3.The Tribunal made an error of law in relying on Ministerial Direction No. 69 excessively.
4.The Tribunal failed to accord relevant weight to the fact that the Applicant has completed a Master of Professional Accounting and sought to further his studies in commerce.
5.The Tribunal was unreasonable in determining that the length of stay in Australia and UK showed that the Applicant sought the student visa only to overstay in Australia and defeat the migration program and not for genuine study purpose.
6.The Applicant acted unreasonably and irrationally in determining that the Applicant’s courses were repetitive when these courses are design as per Australian Qualification Framework stages.
7.The Tribunal failed to determine lawfully that the refusal to grant the visa was unlawful.
The application for judicial review was supported by an affidavit of the applicant affirmed 14 February 2019 which set out the following (verbatim) (CB 250-1):
1.That I am the Applicant in these Migration Proceedings before this Honourable Court.
2.That on 23th of January 2019, the Administrative Appeals Tribunal (AAT) in case no 1717705 gave a decision to affirm the decision under review.
3.Annexed and marked as “A” is a copy of the AAT Decision.
4.The Tribunal wrongfully decided I was using the student visa to overstay in Australia. I enjoy studying in Australia as the education standard is very high.
5.I had also studied in the UK on a student visa and properly and lawfully returned and left the UK. I did not overstay in the UK. I will not overstay in Australia.
6.I am seeking to further my qualifications in commerce and business and have also completed a Masters in Professional Accounting.
7.I will have good job employability prospects if I can also complete by advanced studies in leadership and management studies.
8.I am a genuine student with genuine and true intentions of completing my studies in Australia.
9.If my visa is refused I will have to return home without completing my studies. This will be very embarrassing for myself and my family. It will harm my ability to secure a good job.
10.My study is not repetitious as the Tribunal suggests. The course are built from certificate, to diploma to advanced diploma in the leadership and management studies under the Australian Qualification Framework.
11.The Tribunal is simply biased against me and unfairly and unreasonably determined my case.
12.I request a new fair hearing before the Tribunal and for a student isa to be granted to me.
Annexed to the affidavit accompanying the application was the Tribunal’s decision record.
On 21 February 2019, the solicitors for the Minister filed a “Response to Application” which submitted that the Decision dated 23 January 2019 is not affected by jurisdictional error and is therefore a private clause decision within the meaning of s 474(2) of the Act. The Minister sought that the application for judicial review be dismissed with costs (CB 260-1).
On 3 March 2021, a Registrar of this Court made orders which gave the applicant the opportunity to file any amended application for judicial review and written submissions 28 days before the final hearing. The applicant did not, however, avail himself to that opportunity (CB 263).
The hearing of the application for judicial review took place before this Court at Melbourne on 4 February 2025. The applicant appeared, self-represented, and was assisted by an interpreter fluent in the Bengali and English languages. Mr McDonald, solicitor, appeared for the Minister.
The Court confirmed that the applicant had received the Court Book and the Minister’s outline of submissions filed 15 January 2025. The Court Book was tendered and marked exhibit “R1”.
Noting that the applicant was unrepresented, the Court gave the applicant the opportunity to elaborate on and further articulate his grounds of review and to inform the Court of the basis on which the Tribunal made any jurisdictional error.
To assist the applicant, the Court informed him that this Court must only turn its attention to the issue of jurisdictional error by the Tribunal in its Decision, and that the Court cannot conduct a merits review of the Tribunal’s decision not to grant the visa. Rather, the function of the Court is restricted to determining if the Tribunal made a material jurisdictional error in arriving at the Decision.
APPLICANT’S SUBMISSIONS
The applicant submitted that when he applied to commence the Master of Business Administration, that it was his intention to complete his studies in Australia and then return to Bangladesh and that he did not understand what he had done “wrong”. The Court explained that the delegate of the Minister and the Tribunal determined that the applicant did not intend genuinely to stay in Australia temporarily. In response, the applicant said, “I got admitted to course to finish my studies”.
The Court directed the applicant to his application for judicial review and referred him to the seven grounds for review therein (CB 246). The Court inquired why the Tribunal made an error of law in respect of s 65 of the Act, as alleged in the applicant’s first ground of review. In response, the applicant said, “I don’t understand what it is”. When queried again to elaborate on the first ground of review, the applicant said, “I don’t understand what paragraph one is…I don’t understand why I have written this”.
The Court directed the applicant to the second ground of review and asked the applicant claimed the Tribunal incorrectly applied cl 500.212 of the Regulations. The applicant submitted that “as I have written this long time back, I cannot remember and I don’t understand what I’ve written”.
The Court inquired whether the applicant understood any of the seven grounds contained in his application for judicial review. The applied replied, “I do not understand how should I respond to this, I have written it a long time back”.
The Court referred the applicant to the Tribunal’s Decision to affirm the delegate’s decision to refuse the visa, noting that this is what the applicant now sought to set aside. The Court noted that the Decision was sent to the applicant on 24 January 2019 (CB 227). The Court asked the applicant why the Court should remit the matter to the Tribunal, to which the applicant replied, “my intention was to complete the MBA course”. The Court inquired what the applicant would do upon completing his studies, and the applicant stated that he would “finish the course and then I will go back to Bangladesh”. When queried what type of work the applicant would do upon returning to Bangladesh, the applicant said, “find a job…accounting job, business and administration”.
The Court asked the applicant if there was anything in particular about the Decision that the applicant found to be factually incorrect. The applicant submitted that he “was admitted into the course to be completed, that is all I have to say, I don’t have anything else”.
The Court prompted the applicant to provide any further submissions about the errors claimed to be made by the Tribunal. In response, the applicant told the Court, “the only thing I have to say is that my intention was to complete the education so that there is more prospect for job, that is the only reason”.
MINISTER’S SUBMISSIONS
The solicitor for the Minister, Mr McDonald took the Court through the seven grounds of review contained in the applicant’s application for judicial review.
Ground one asserts that the Tribunal made an error of law in incorrectly applying s 65 of the Act. Mr McDonald submitted that s 65 of the Act requires that the Minister is to grant a visa if satisfied that the criteria for it prescribed in the Act or Regulations have been satisfied. If the criteria are not met, the Tribunal must refuse to grant the visa. As the Tribunal found that the applicant was not a genuine entrant, it had to refuse the visa in accordance with the Act. Ground one cannot therefore succeed.
In respect of grounds two and three, the applicant claimed that the Tribunal made an error in applying the Regulations and that the Tribunal relied excessively on Ministerial Direction No. 69. The solicitor for the Minister submitted that the Tribunal set out its statutory task with respect to the Regulations at paragraphs [7]-[8] of the Decision and set out at paragraphs [9]-[10] of the Decision that the Ministerial Direction was not to be used as a checklist (CB 227-8). Mr McDonald submitted that the Tribunal then considered, in detail, the applicant’s submissions and was not satisfied that the applicant was a genuine entrant. For this reason, grounds two and three cannot succeed.
Ground four asserts that the Tribunal failed to accord weight to the fact that the applicant has completed a Masters of Professional Accounting and sought to further his studies in commerce. Mr McDonald submitted that the Tribunal had specific regard to the applicant’s studies at paragraph [21] of the Decision. It was further submitted that it was a matter for the Tribunal to evaluate the evidence before it and apply the weight it sees appropriate (CB 229). This ground also invited the Court to undertake an impermissible merits review. On this basis, ground four cannot succeed.
In relation to ground five, the applicant submits that the Tribunal was unreasonable in determining that the applicant’s length of stay in Australia and the United Kingdom evidenced that he was not a genuine temporary entrant. Mr McDonald submitted that the Tribunal’s reasons showed an active, intellectual engagement with the evidence before it in considering the applicant’s history of study in Australia at paragraphs [20]-[23] as well as considering the value of the course to the applicant’s future (CB 229). This finding was open to the Tribunal to make, and the Tribunal’s reasoning was clear, ground five cannot therefore succeed.
Ground six asserts that the Tribunal acted unreasonably or irrational in determining the applicant’s courses were repetitive in nature. The Tribunal had regard to the applicant’s studies a paragraph [21] of the Decision and its reasons discloses a clear and cogent basis for making this finding (CB 229). Mr McDonald submitted that it could not be said that the Decision was unreasonable or arbitrary in nature, as such, this ground cannot succeed.
Finally, ground seven asserts that the Tribunal failed to determine lawfully the refusal to grant the student visa. The solicitor for the Minister submitted that the Tribunal considered the application for the visa afresh, and there was nothing unlawful about the Decision.
Mr McDonald also drew the Court’s attention to the applicant’s affidavit in support of the application for judicial review affirmed 14 February 2019 in which the applicant asserts that the Tribunal was biased (CB 251 [11]). It was submitted that this assertion was unparticularised and there was nothing on the face of the decision to suggest that the Tribunal’s decision was affected by bias.
REPLY
The Court gave the applicant the opportunity to make any further submissions in response to the Minister. The applicant submitted, “I don’t know what to say but my intention was genuine to complete my study”.
The applicant concluded his submissions by telling the Court, “I don’t have anything else to say because I couldn’t contact a lawyer because it’s quite costly”.
CONSIDERATION
The function of this Court is to review the Decision and determine whether the Tribunal has fallen into error by failing to conduct the statutory task of reviewing the application for the visa in accordance with law.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang), the High Court said at 272:
In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
Therefore, it is not for this Court to review the merits of the Decision or to reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings. The weight to be given to the evidence was in the domain of the Tribunal and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Tran)).
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 418 ALR 152; [2024] HCA 12 (LPDT), the plurality J said at [3]:
[3]…Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The Decision contains a very thorough and detailed analysis of the applicant’s claims and evidence. In Wu Shan Liang at 272, the Court warned against construing the decision under review “minutely and finely with an eye keenly attuned to the perception of error”. The applicant’s grounds of review in the application for judicial review seek to revisit the merits of the Decision, assert new claims but do not identify any material jurisdictional error.
The Tribunal considered the Ministerial Direction No. 69 and the guidelines therein and then applied those guidelines to the applicant’s evidence and enrolment history. There was nothing unreasonable, illogical or irrational about the process of reasoning adopted by the Tribunal. Critical to the Tribunal’s analysis was the applicant’s long history of enrolments in related courses over a period of more than ten years (CB 229-30 [21]–[22]). That included enrolment in a similar post-graduate Masters degree. The finding that the applicant did not intend genuinely to stay in Australia temporarily was clearly open on the evidence especially so after consideration of the applicant’s significant ties with Australia, immigration history and the value of the proposed course of study to the applicant’s future.
The applicant was unable to assist the Court to explain the grounds of review identified in the application for judicial review filed 14 February 2019 (CB 246). That document appears to have been completed by the applicant himself (CB 247). The Court will consider each of the grounds.
Ground one
There was no “error of law” identified by the applicant where the Tribunal failed to properly apply s 65 of the Act. Section 65 of the Act governs the grant of visas if, and only if, an applicant satisfies the health and other criteria prescribed under the Act and Regulations. The task of the delegate and Tribunal is to consider whether the applicant satisfies the criteria (in this case the criteria in cl 500.212 of Sch 2 of the Regulations). That was the statutory task and the Tribunal undertook it. Ground one does not provide any particulars of the “error of law” and on that basis the ground could be dismissed (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J). However, there is no apparent “error of law” in the application of s 65 of the Act in the Decision and this ground does not disclose a material jurisdictional error.
Ground two
For the same reasons articulated in relation to ground one, this ground does not identify or explain how the Tribunal erred in the application or consideration of cl 500.212 of Sch 2 of the Regulations. That clause sets out the statutory criteria by which the Tribunal is required to reach the level of satisfaction required to grant a student visa. If that level of satisfaction is not present, then the application is to be refused pursuant to s 65 (1)(b) of the Act. Guidelines have been given by the Minister pursuant to s 499 of the Act when considering the criteria and the Tribunal considered the applicant’s application by reference to those guidelines and did not reach the level of satisfaction required to grant a visa. There was no apparent error of law in so doing. There was no failure to consider any relevant fact or the consideration of irrelevant facts. The Tribunal did not ask itself the wrong question or consider a wrong issue. The reasoning in the Decision was reasonable rational and logical.
Ground three
Similarly, the nature of the “error of law” in this ground has not been identified and the applicant was unable to explain it during the hearing. There was no excessive reference to the Ministerial Guidelines in the Decision and the Tribunal correctly used them as a guide rather than a checklist. Relevantly, the Tribunal considered the applicants immigration history, enrolment history, circumstances in his home country, circumstances in Australia and the value of the proposed course of study to the applicant’s future. No material error is apparent under this ground.
Ground four
The Tribunal did consider and give weight to the fact that the applicant completed a Master of Professional Accounting degree in 2015 and this was one of the facts that led to the Tribunal to conclude that a further course of study would not add to the applicant’s ability to secure work in the accounting and finance field upon returning to his home country (CB 229-30 [21]). The weight to be given to the evidence before the Tribunal is a matter for the Tribunal and not this Court (see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]-[26] per Kiefel CJ, Keane, Gordon and Steward JJ; Tran at [5] per RD Nicholson J). The Court is not permitted to undertake a review of the merits, and this ground invites the Court to impermissibly do so. This ground does not disclose jurisdictional error.
Ground five
The Decision was not unreasonable. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [91] Gageler J (as his Honour then was) said (citing Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290; [1995] HCA 20):
[91] The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made:
Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.
In a more recent decision that summarised the principles upon which an administrative decision may be irrational, unreasonable or illogical Feutrill J said in AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223 at [72] and [73]:
[72] A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision is one to which the decision-maker came was simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn.’: SZMDS at [135]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30(4)]. However, ‘to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to difference conclusions”’: DAO16 at [30(5)] (and the authorities cited therein). Further, describing reasoning as irrational, unreasonable or illogical must be more than a mere emphatic way of expressing disagreement with it: Eshetu at [40] (Gleeson CJ and McHugh J): Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] (Wigney J, Allsop CJ agreeing). Likewise, it must mean more than that, on the material before the decision-maker, the court would (or would not) have reached the required state of satisfaction: S20/2002 at [9] (Gleeson CJ). In short, to meet the description of illogical, irrational or unreasonable reasoning in the relevant sense it must be a process of reasoning that results in the equivalent of an arbitrary or capricious decision.
[73] Nonetheless, ‘[r]easonableness is not exhausted by rationality’: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [59] (Gageler J). A legally unreasonable decision is one that is beyond power if the statutory power properly construed, having regard to the scope, purpose and objects of that power, has been abused by the decision-maker. The manner in which abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. It is not limited to specific errors or labels such as ‘manifestly unreasonable’ or ‘irrational’ or ‘bizarre’ so that no reasonable person could have arrived at it. In a review that is outcome focussed, it is not necessary to identify any particular error to find a conclusion of unreasonableness. The question is whether the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. That does not involve undertaking merits review, but rather whether asking if the purported exercise of the power was beyond the permitted scope because it was legally unreasonable. That exercise is fact dependent, requires a careful evaluation of the evidence and, where reasons are provided, they will form the focal point for that assessment: SZVFW at [78]-[84] (Nettle and Gordon JJ). As Allsop CJ explained in Stretton (at [12]-[13]):
[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
[13] The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
The Decision was well reasoned and was rationally and reasonably open on the evidence. It was not a decision that was so devoid of plausible justification that no reasonable person could have taken the course taken by the Tribunal. The applicant may disagree with the outcome of the review, but that does not mean that the Decision was not reasonably made. This ground also fails.
Ground six
This ground does have a level of particularity to it. The applicant says that the Decision was unreasonable and irrational in determining that the course undertaken by the applicant “were repetitive when these courses are design (sic) as per Australian Qualification Framework stages”. Unfortunately, there was no evidence tendered by the applicant to support this assertion. The Framework referred to was not identified nor was the applicant able to submit why the Decision was unreasonable. In paragraph [21] of the Decision, the Tribunal observed that it was “puzzled” why the applicant has completed courses that are repetitive in nature (CB 229-30). It then listed the courses and explained that this led the Tribunal to conclude that the applicant had acquired the required qualifications to work in the business and finance field.
There is nothing unreasonable or irrational about this process of reasoning. The finding was open to the Tribunal and was not one which no reasonable or rational decision-maker could reach in the circumstances. The Framework referred to by the applicant was not before the Tribunal and it was not referred to in the written submission/declaration dated 7 December 2018 submitted to the Tribunal by the applicant’s then representative (CB 202-6). This ground does not disclose jurisdictional error.
Ground seven
Again, this assertion is unparticularised and unclear. The “error of law” or unlawful conclusion or conduct is not identified. The applicant could not assist in his oral submissions to the Court. This appears to be a general “catch all” assertion of error. Without further explanation it is meaningless. None of the types of jurisdictional error identified in LPDT are apparent.
Noting that the applicant appeared before this Court without legal assistance, the Court also scrutinised the Decision for jurisdictional error after considering the materials in the Court Book and the applicant’s oral submissions (see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [15], [77], [100], [112]-[114]). No discernible error could be identified.
Bias
The applicant has also alluded to bias by the Tribunal in paragraph [11] of the affidavit in support of the application for judicial review (CB 251). An allegation of bias must be distinctly made and strictly proven (see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69] per Gleeson CJ and Gummow J (Jia)). It is unclear if the applicant is alleging actual or apprehended bias, although it appears to be an allegation of actual bias. There is nothing apparent in the Decision to establish actual bias. In Jia at paragraphs [71]–[72], Gleeson CJ and Gummow J said:
[71] In resisting the Minister's appeal, counsel for Mr Jia raised, by way of Notice of Contention, an argument that both French J and the Full Court had adopted a test of actual bias which was unduly favourable to the Minister. All that was necessary to constitute bias, it was said, was an inclination or predisposition of mind. Under pressure of argument, this was qualified by the addition of adjectives such as "wrongful" or "improper". The precise content of those adjectives, in the context, is not clear. Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
[72] The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
There is nothing revealed by the Decision that the Tribunal did not approach the statutory task with an open mind or could not be persuaded that the applicant was in fact a genuine student that genuinely intended to stay in Australia temporarily. The simple fact was that the applicant was unable to persuade the Tribunal on the evidence that he satisfied that criterion for the visa.
CONCLUSION
None of the grounds of review are established and no jurisdictional error has been shown or is disclosed. The application for judicial review filed 14 February 2019 is dismissed.
OTHER MATTERS
On 22 November 2024, a Registrar made orders amending the title to the proceeding to accord with the new title of the Minister and to refer to the Administrative Review Tribunal in lieu of the Administrative Appeals Tribunal. No further order is required in that regard.
COSTS
The Minister submitted that in the event that the application for judicial review is dismissed that the applicant be ordered to pay the Minister’s costs fixed in the sum of $7,467.00 which is commensurate with the sum prescribed by item 3 of Sch 2, Part 2, Div 1, to the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) for a proceeding commenced on 14 February 2019. That sum is fair and reasonable in the circumstances, and it is appropriate that costs follow the outcome of the proceeding.
ORDERS
The application for judicial review filed 14 February 2019 be dismissed.
The applicant pay the first respondents costs and disbursements of and incidental to the proceeding fixed in the amount of $7,467.00.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 28 February 2025
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