Islam v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 566
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Islam v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 566
File number(s): SYG 1071 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 30 June 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass 590 (Student Guardian) visa – whether the Tribunal erred in not considering issues required, pursuant to the Migration Act 1958 (Cth) – whether the Tribunal erred in making findings not based on evidence – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 359, 499
Migration Regulations 1994 (Cth)
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 43
Selvaduri v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 13 June 2023 Date of hearing: 13 June 2023 Place: Sydney Solicitor for the Applicant: Mr Hodges, Hodges Legal Solicitor for the Respondents: Ms Lloyd, HWL Ebsworth Lawyers ORDERS
SYG 1071 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD MONOWARUL ISLAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
30 June 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the sum of $5,600.00.
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 HUMPHREYS
INTRODUCTION
The applicant is a citizen of Bangladesh. On 16 May 2017, the applicant applied for a Student (Temporary) (Class TU) visa (“Student visa”) under s 65 of the Migration Act 1958 (Cth) (“the Act”).
On 26 July 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Student visa.
On 18 February 2019, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review of the delegate’s decision.
The Tribunal affirmed the delegate’s decision not to grant the applicant his Student visa on 26 March 2019.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below, the application is dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
Paragraphs 1 to 6 of the Tribunal’s decision record provide the background to the applicant’s review application.
At paragraph 7, the Tribunal states that the issue before it concerned whether the applicant, at the time of the decision, met the enrolment requirements for the grant of a Student visa.
From paragraph 9 and onwards, the Tribunal considered whether the applicant genuinely intended to stay in Australia temporarily. In so doing, the Tribunal noted it must have regard to Ministerial Direction No. 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications”, made under s 499 of the Act. This Direction requires the Tribunal to have regard to a number of factors in relation to:
•the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
•the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•Any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
Paragraph 10 of the Tribunal decision notes that the factors specified are to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding as to whether or not the applicant satisfies the genuine temporary entrant criterion. They are not to be used as a checklist.
At paragraph 11, the Tribunal notes that in addition to the application form, the applicant provided the Tribunal with a number of other documents relating to his studies. The documents were listed as follows:
•A transcript and certificate of completion from Warwick Institute of Australia for the Diploma of Project Management, both dated 18 April 2017;
•a transcript of units of competency achieved and qualification awarded and a certificate of completion for the Diploma of Business from Warwick Institute of Australia, both dated 9 May 2016;
•letters of completion from the Warwick Institute of Australia for the Advanced Diploma of Information Technology Business Analysis dated 5 December 2014 and the Diploma of Information Technology (Software Development) dated 21 September 2013;
•a transcript and a certificate from Lloyds International College for the Certificate Ill in Business, both dated 13 May 2010;
•a certificate of completion of the Advanced Diploma of Information technology Business Analysis from Windsor Institute of Commerce dated 29 November 2014, as well as an academic transcript for this course dated 5 December 2014;
•an interim student transcript from Windsor Institute of Commerce for the Diploma of Information Technology (Multimedia) dated 8 December 2011;
•a statement of attainment from Windsor Institute of Commerce for the Diploma of Information Technology (Software Development) on 23 September 2013, and an academic transcript for the same course dated 23 September 2013;
•a statement of attainment issued by Windsor Institute of Commerce for the Diploma of Information Technology (Multimedia) dated 16 January 2012;
•a final academic transcript and certificate for the Advanced Diploma of Accounting from Clarendon Business College, both dated 28 October 2009; and
•a statement of results and a certificate from the Sydney Metro College for the Advanced Diploma of Business, both dated 8 September 2017.
At paragraph 12, the Tribunal notes that it has read and has had regard to the documents. It is also noted that in addition to the documents, the Department file also contained an Affidavit of the Applicant’s brother dated 15 June 2017, a letter from the First Security Islamic Bank Ltd dated 15 June 2017, a birth certificate of the applicant’s brother, a certificate from Windsor Institute of Commerce for the Diploma of Information Technology (Software Development) dated 23 September 2013, certificates from the Board of Intermediate and Secondary Education Dhaka dated 26 August 1999, 9 February 2005, 10 February 2005, 8 July 1997 and 27 June 2005, a certificate from Tejgaon College Dhaka dated 15 May 2005, a statement of purpose from the applicant, a letter from NIB dated 16 May 2017, and the applicant’s application for a Student visa.
At paragraphs 13 and onwards, the Tribunal notes that the applicant provided written submissions dated 15 January 2019, in which the applicant asserts that despite his studies in various fields, all of the fields relate to accounting and that he wishes to study accounting because he would like a career in Business or Accounting. The applicant told the Tribunal that prior to coming to Australia, he had obtained a Bachelor of Accounting, however, he struggles to obtain work as his results were not great and the job market in Bangladesh is hard. The Applicant indicated that he decided to pursue further studies in Australia to obtain better qualifications and improve his future employment prospects.
At paragraph 16, the Tribunal adopted the procedure in s 359A of the Act and put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (“PRISMS”) database. The Tribunal explained to the applicant what the database was and its relevance to the review before the Tribunal. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether there were any comments in relation to his PRISMS enrolment records, and was advised that he may be granted time to comment or respond. The applicant confirmed that the PRISMS record was an accurate reflection of his enrolment history.
At paragraph 18, upon being asked by the Tribunal about any employment the applicant has had in Australia, he indicated that he currently works in hospitality. When asked whether he has always worked in hospitality while in Australia the applicant responded that he has worked in different places and mentioned working in customer service. Although, he has only worked for twenty hours per week. In written submissions, the applicant stated that he is a well-off student and that he has financial support to study and work. However, at the hearing, the applicant stated that his motivation for coming to Australia in 2007 was because the job market in Bangladesh was hard. The Tribunal found when balancing the evidence that the circumstances of the applicant present as an incentive for the applicant not to return to his home country.
At paragraph 19, the Tribunal questioned the applicant about any circumstances in Bangladesh that may induce him to apply for a Student visa as a means of remaining in Australia indefinitely, in accordance with the Ministerial Direction. The applicant told the Tribunal that there were no reasons relating to political or civil unrest or concerning Military Service that would prevent him from returning to Bangladesh. The Tribunal accepted this.
At paragraphs 20 and 21, the Tribunal asked the applicant about his circumstances in his home country, relative to others in that country, and whether he has any family or relationships in Australia. The applicant indicated that he does not own a house or other assets in Bangladesh, or in Australia. The applicant stated that he has friends in Australia, and that he is sharing a home with other people. The applicant stated that he has a cousin in Sydney and at least one cousin in Melbourne. The applicant also indicated that he does not have a partner or any other relationship.
At paragraph 23 of the Tribunal decision, the applicant was asked about the value of his course of study to his future. The applicant’s responses were consistent with his written submissions and other statements made at the hearing.
At paragraph 25 of the decision record, the Tribunal noted that it does not make any adverse findings in relation to the applicant’s compliance with visa conditions, or his prior immigration history to other countries.
At paragraph 27, the Tribunal carefully considered the applicant’s oral testimony regarding his career aspirations, and the information provided by the applicant. The Tribunal was of the view that the applicant's evidence was tailored to explain the range of Certificate, Diploma and Advanced Diploma courses which he has enrolled in since 2007, as well as to explain his current enrolment in a Bachelor of Accounting degree. The Tribunal concluded that if the applicant's career aspirations were to improve on his qualification obtained in Bangladesh and to obtain a world-class education, steps towards undertaking a Bachelor Degree in Australia could have been taken at a much earlier stage, rather than enrolment in a range of Certificate and Diploma courses over a ten-year period.
At paragraph 28, The Tribunal considered that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising reasonable changes which may occur to an individual's career direction. The Tribunal came to the view however, that the applicant had demonstrated an intention to remain in Australia through enrolment in a range of Certificate and Diploma courses over a period of over ten years without advancing his educational qualifications to a level above that obtained in his home country. The delegate found that the applicant appeared to be circumventing the intentions of the migration program to prolong his stay in Australia, rather than having a genuine interest in studying to benefit his career. When the Tribunal questioned the applicant about the motivation for his studies, the applicant was unable to articulate the benefits of each additional Certificate and Diploma course or of his current course, other than noting that with each course you obtain more knowledge and that he wishes to obtain a world class qualification in Australia. The range of Certificate and Diploma level courses completed over a ten-year period and the applicant’s current enrolment in a degree course in the same field as his existing degree qualification led the Tribunal to find that the applicant was using the Student visa programme to circumvent the intentions of the migration programme.
The Tribunal noted at paragraph 29 of the decision that this pattern of study, and the applicant’s admission that he has remained in Australia without any return travel to Bangladesh since 2007, suggested that the incentives to remain in Australia outweigh the incentives for the applicant to return to his home country.
Paragraphs 30 and onwards note that the Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily, and accordingly, he did not meet cl 500.212 (a) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). As such, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay, as a student as required by cl 500.212 of Schedule 2 of the Regulations.
At paragraph 33 of the decision record, the Tribunal affirmed the delegates decision, not to grant the applicant a Student visa.
GROUNDS OF JUDICIAL REVIEW
The Applicant relied on grounds of judicial review as outlined in an Amended Initiating Application, filed with the Court on 30 May 2023. Leave was granted to rely upon these new grounds. They are as follows:
1. The AAT erred in not considering issues required pursuant to Migration Regulations and Ministerial Direction No 69
PARTICULARS
a)The AAT was required by Part 500 of Schedule 2 to the Migration Regulations to consider if the applicant intended to comply with any condition subject to which the visa is granted.
b)The AAT was required by both Part 500 of Schedule 2 to the Migration Regulations and Ministerial Direction No 69 to consider the applicant’s record of compliance with any condition of a visa previously held by the applicant.
c)According to the Delegate’s decision [CB page 76] the applicant held previous Student visas [TU visas on 12 September 2007 and 8 October 2007].
d)According to the Delegate’s decision the applicant held a Student visa issued on 4 May 2015
e)The AAT failed to consider either the applicant’s intentions in relation to the student visa application which is the subject of this application nor the record of compliance with the visas previously issued.
2. The AAT erred in making finding not based on evidence.
PARTICULARS
a)The AAT found [in various sections of its report, but for example at paragraph 23 that the applicant would not have his employment prospects enhanced, alternatively that limited value would be offered to the applicant’s future, by completion of his current Bachelor Degree.
b)There was no evidence before the AAT upon which the above findings could be made.
3. The AAT failed to consider a relevant consideration
PARTICULARS
a)The AAT found that the applicant was enrolled in a Bachelor of Accounting course and had completed one year of the course [paragraph 23].
b)The applicant gave evidence that was not challenged that he had undertaken an exam in the previous week [paragraph 15].
c)The applicant was in receipt of a temporary visa at the time he commenced the Bachelor Degree Course;
d)The applicant complied with his visa requirements in the period he was studying in the Bachelor Degree Course.
e)In the above circumstances, the AAT was required to take into account, as relevant, the following matters:
·That the applicant had completed a significant portion of the bachelor Degree course while in receipt of a grant of a temporary student visa;
·That the applicant had paid fees ($26,000) for the course,
·That the applicant had complied with the visa requirements while studying the course;
·That the failure to grant the visa pursuant to the current application would destroy the value of the applicant’s study on the course, and
·That the failure to grant the visa pursuant to the current application would be to undermine the integrity of the temporary visa system (in that the decision to not grant a visa to allow the study to continue would be perceived as fickle and discretionary).
THE APPLICANT’S SUBMISSIONS
In addition to written submissions, the applicant relied upon an Affidavit filed on 30 May 2023. That affidavit states that the applicant had completed four semesters of a Bachelor of Accounting course and paid a total of $26,000.00 towards a total tuition cost of $42,000.00. Following the refusal of his visa, the institution he was studying at terminated his enrolment. The Court is satisfied this is not new material, but rather it explains material that was already before the Tribunal.
It was submitted that there was no evidence as to the type or conditions of the visas the applicant held prior the expiry of the applicant’s Student visa on 4 May 2015, or the type of visa the applicant held prior to the application for the visa the subject of these proceedings. It was submitted that the applicant enrolled in a Bachelor of Accounting course to commence on 23 October 2017 at the Polytechnic Institute of Australia with the course to last three years. Fees were $42,000.00 for the full course.
As at the date of the Tribunal decision, being 26 March 2019, the applicant had completed half of the course and had paid tuition fees of $26,000.00.
The applicant claims it is not possible to enrol in a course as an overseas student without a valid visa. The applicant claims that his enrolment in his Bachelor of Accounting course was terminated after he advised the institute he no longer had a valid visa as a result. He was thus unable to complete the course.
It was submitted that cl 500.212 of Schedule 2 to the Regulations requires decision-makers to consider the applicant’s circumstances, including immigration history, intentions to comply with conditions of the visa if granted, compliance with any previous visas and any other relevant matter.
It was submitted that whilst the Tribunal decision pays extensive attention to the applicant’s study history, it does not adequately or properly consider the applicant’s immigration history. It was submitted the fact that the applicant had paid a considerable amount of fees and had completed half of his Bachelor of Accounting course was, and together with matters, relevant within the terms of cl 500.212(1)(c) of Schedule 2 of the Regulations.
It was submitted that, notwithstanding the applicant’s courses of study might be seen to be that of the perpetual student, all other earlier courses were sanctioned by the respondent. The enrolment in the final course was allowed by the respondent and the institution. The applicant did not make any role of false representations
In terms of Ministerial Direction No 69, it was acknowledged that it is not a checklist, but the applicant noted the following:
a. The applicant has more support and ties in Bangladesh;
b. There is no evidence or suggestion that the applicant intends to remain permanently in Australia;
c. The applicant has virtually no ties in Australia; and the applicant may have undertaken short inexpensive courses of the course relevant to the decision under review does not meet that description.
It was submitted that the Tribunal fell into error in that it did not as required:
a. Fully engage with the provisions of the migration regulations clause 500.212 which required the tribunal to consider the applicants immigration history and in particular to have regard to his prior visas and compliance with them;
b. The Tribunal simply failed to engage with Ministerial Direction number 69 for the same reasons;
c. The Tribunal did not engage with cl 500.212(b) in that it did not enquire about and there was no evidence as to the applicant’s intention regarding compliance with any conditions of the Visa in question this review. The applicant had complied with all previous conditions.
d. The Tribunal did not comply with section 430 of the Migration Act in that it failed to give reasons for the finding to the effect that the current Bachelor degree in which the applicant was enrolled would add no or limited advantage to the applicant’s employment prospects;
e. The Tribunal’s finding at paragraph 26.4 was impermissible conjecture and there was no basal evidence to support it;
f. The Tribunal failed to take account of "any other relevant matter. It was submitted that the facts there was no prior non-compliance by the applicant with any Visa conditions and was the holder of a Visa permitting him to study in which he was enrolled in a course of study in 2017 and had paid $26,000 in fees and completed four semesters was a relevant matter.
THE FIRST RESPONDENT’S SUBMISSIONS
It was firstly submitted that the Tribunal was aware that the applicant was at the time currently enrolled in his Bachelor of Business course, as the applicant provided this material to the Tribunal, together with a statement addressing the genuine temporary entry criterion: Court Book pages 97-126).
Ground one complains that the Tribunal failed to have regard to Ministerial Direction No 69 insofar as required the Tribunal to consider the applicant’s immigration history and compliance with previous visa conditions and failed to engage with cl 500.212(b) of Schedule 2 to the Regulations. It was submitted the Tribunal did have regard to these matters at [22], [28] and [25], where the following was said:
The Tribunal does not make any adverse findings in relation to the applicant’s compliance with visa conditions or his prior immigration history to other countries. The Tribunal has no information before it as to previous visa applications to other countries. In relation to visas to enter or remain in Australia, the Tribunal notes the applicant’s visa history, which was outlined in the delegate’s decision, in which the applicant has confirmed as accurate. The Tribunal notes in particular that the applicant has remained in Australia on Student visas since 2007 and in that time has enrolled in a range of short and relatively inexpensive courses, although he has successfully completed qualifications in each.
To the extent that the applicant submits the fact that he had previously been granted visas indicated that the Department had been satisfied he was a genuine applicant for entry and stay as a student, it is not relevant. The task of the Tribunal is to form its own stated satisfaction in relation to the criteria for the visa at the time of its decision.
In relation to the submission of failing to engage with cl 500.212(b) of Schedule 2 to the Regulations, the Tribunal was not required to do so in circumstances where it had expressly found the applicant did not meet cl 500.2012(a): Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 (“Dait”) at [35]-[37].
In ground 2, the applicant contends the Tribunal made findings not based on evidence, including that his employment prospects would not be enhanced by the Bachelor of Accounting that he was studying. At paragraphs [23]-[24], the Tribunal considered the past qualifications the applicant had obtained in Bangladesh and in Australia and concluded that:
The proposed further studies, offer limited incremental value when considered alongside the 11 years of short certificate and diploma courses and experience the applicant has already obtained in Australia, and the bachelor level qualification he obtained in Bangladesh prior to commencing his studies in Australia’
It was submitted there was nothing unreasonable or illogical in the Tribunal so finding. These findings were based on evidence that have been provided by the applicant about his past studies and experience.
Ground 3 is an assertion the Tribunal failed to consider a relevant consideration. The particulars state that the Tribunal was required to, but failed to take account that the applicant had completed a substantial portion of his Bachelor’s degree, had complied with his visa requirements while studying the course, and that the failure to grant the visa will destroy the value of the applicant study and undermine the integrity of the temporary visa system.
The matters the Tribunal was required to have regard to when considering whether the applicant was a genuine temporary entrant are set out in cl 500.212 of Schedule 2 to the Regulations and Ministerial Direction No 69. This does not include a consideration of the integrity of the temporary visa system. In relation to compliance with visa conditions, the Tribunal made no adverse findings in relation to his compliance with visa conditions or his prior immigration history. This indicates the factor was taken into account but did not outweigh the Tribunal’s other concerns.
In relation to the fact that the applicant had already partially completed the Bachelor course, in circumstances where the Tribunal was concerned that the applicant proposed to use the Student visa program primarily in order to maintain ongoing residency in Australia and was not satisfied that he was a genuine temporary entrant, it was not required to consider any detriment to the applicant if he was not able to complete the course.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvaduri v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348.
It is for the applicant to provide evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214 at [76].
The decision of the Tribunal was entirely orthodox. It properly instructed itself as to the requirements of cl 500.212 of Schedule 2 to the Regulations and Ministerial Direction No 69. It found that it was not satisfied that the applicant genuinely intends to stay in Australia temporarily. That is, he did not meet the requirements of cl 500.212(a) of Schedule 2 of the Regulations. Having so found, the Tribunal was not required to go on and consider whether the applicant met the requirements of cl 500.212(b) or (c): Dait at [35].
Ground 1 is a general complaint that the Tribunal failed to consider the applicant’s record of compliance with the conditions of any pervious visa held by him in relation to the Student visa application.
Clearly the Tribunal was required to have regard to the applicant’s previous immigration history. As pointed out by the first respondent, it did so at [22] where it said:
The Tribunal also noted from the delegate’s decision the significant period of time the applicant has spent in Australia since his initial arrival in 2007, with no departures to return to Bangladesh from 2007 until the delegate’s decision. The Tribunal also noted the various courses the applicant has enrolled in and completed.
The findings of the Tribunal at [25] have been set out above.
At [28] the Tribunal found:
The range of certificate and diploma level courses completed over a ten-year period and his current enrolment in a degree course in the same field as his existing degree lead the Tribunal the applicant is using the student visa programme to circumvent the intentions of the migration programme.
The Court is satisfied that the Tribunal did take properly into account the applicant’s migration history. It specifically found at [25] there was no adverse material in relation to the applicant’s compliance with visa conditions or his migration history to other countries. The Tribunal specifically asked the applicant to conform his migration history in Australia, which he did. The Court is also satisfied the Tribunal made specific findings as to the applicant’s intentions in relation to the visa applicant the subject of this application. The fact he had been granted pervious study visas, is irrelevant to consideration of the matter under review. Ground 1 has no merit.
Ground 2 is a complaint that the Tribunal erred in making findings not based on evidence, for example that his employment prospects would not be enhanced or that limited value would flow from completion of the Bachelor’s degree in which the applicant was enrolled.
This matter was discussed at [23]-[24] of the decision record, where the Tribunal found the Bachelors course would offer limited incremental value noting he already possessed a Bachelor’s degree in the same field from Bangladesh.
As noted above, the burden on proof is on the applicant to show that they are entitled to the visa sought. In this case the Tribunal’s findings were based on a consideration of the applicant’s study history. The Court does not consider the finding that an additional Bachelor’s degree obtained in Australia in the same field, accounting would only ‘marginally improve his employment prospects and remuneration in Bangladesh’ is not a conclusion that was open to the Tribunal on the material it had before it. There Court is satisfied there is nothing illogical, irrational or legally unreasonable in this finding. Ground 2 has no merit.
.Ground 3 asserts the Tribunal failed to take into account a relevant consideration, that being, the applicant had completed approximately half his degree course in Australia and had paid tuition fees of $21,000. This study and expense would be destroyed by a refusal to grant the visa.
As noted by the respondent, the Tribunal was required to assess the matter on the basis of the considerations contained in cl 500.212 and Ministerial Direction No 69.The Court is satisfied the Tribunal did fully engage with each of the relevant considerations contained within
cl 500.212 and Ministerial Direction No 69. The applicant’s previous immigration history and compliance with visa conditions was considered. It made no finding that the applicant would not comply with any conditions that might attach to a visa if granted. It did not need to do so as that was a matter that fell within the ambit of cl 500.212(b). In this case the Tribunal was not satisfied that the applicant met cl 500.212(a).
The Tribunal did consider the applicant’s enrolment in the Bachelor’s degree course at [23]. It specifically noted its concerns that the Degree course had not been commenced until after 10 years of Certificate, Diploma and Advanced Diploma study. The degree was in the same field as the applicant’s degree in Bangladesh. The conclusion that it would add limited incremental value in Bangladesh is self -evident and available and does not require further reasons.
The requirement to consider any “other relevant matter” in cl 500.212(a)(iv) of Schedule 2 of the Regulations was satisfied in that the applicant’s previous compliance with visa conditions and satisfactory study history was acknowledged by the Tribunal. The issue that the applicant was part way through a degree course was considered by the Tribunal, but was part of the reasons for the finding that the applicant was seeking to use the study programme to maintain residence in Australia. This is a conclusion that was open to the Tribunal on the evidence before it and for the reasons it gave. The Court does not accept that the conclusion arrived at by the Tribunal undermines the integrity of the temporary visa system. Ground 3 has no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Deputy Associate:
Dated: 30 June 2023
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