Joshi v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 488
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Joshi v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 488
File number(s): MLG 3309 of 2019 Judgment of: JUDGE COULTHARD Date of judgment: 10 April 2025 Catchwords: MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – application for an extension of time to bring judicial proceedings under s 477(2) of the Migration Act 1958 (Cth) – whether extension of time is necessary in the interests of the administration of justice – length of delay – prospects of success – application dismissed Legislation: Migration Act 1958 (Cth) ss 357A; 476; 477; 499
Migration Regulations 1994 (Cth) cl 500.111; 500.212; 500.311
Cases cited: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 4 April 2025 Date of hearing: 4 April 2025 Place: Brisbane Solicitor for the Applicants: The first and second applicants appeared self-represented. Solicitor for the First Respondent: Ms MacDonald - Australian Government Solicitor Second Respondent: The second respondent filed a submitting appearance, save as to costs ORDERS
MLG 3309 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TINIA JOSHI
First Applicant
KIRTI SHARMA
Second Applicant
HIRAL SHARMA
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the second respondent be changed to “Administrative Review Tribunal”.
2.The application for extension of time is dismissed.
3.The first and second applicants pay the first respondent’s costs, fixed in the amount of $3,737.00.
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 COULTHARD
INTRODUCTION
Before the Court is an application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (“the Act”) in which to make an application to seek judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicants a Student (Temporary) (Class TU) (subclass 500) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicants are citizens of India. The first applicant (“the applicant”) arrived in Australia on 3 April 2009 on a Student (subclass 573) visa. The applicant was granted two further student visas in April 2012 and July 2012 which ceased in June 2012 and December 2013 respectively. In February 2014, the applicant was granted a skilled subclass 457 visa which ceased in February 2018. On 22 February 2018, the applicant made an application for a Student (Temporary) (Class TU) (subclass 500) visa (“the visa”) (Court Book (“CB”) 15-38). The applicant’s husband and daughter (the second and third applicants) were included in the application as members of the applicant’s family unit.
On 3 April 2018, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant met the genuine temporary entrant requirement criterion in cl 500.212 of Schedule 2 of the Migration Regulation 1994 (Cth) (“the Regulations”). Accordingly, the delegate was also not satisfied that that the second and third applicants met
cl 500.311 of Schedule 2 to the Regulations because they were not members of the family unit of a person who held a subclass 500 visa granted on the basis of satisfying the primary criteria for the grant of visas (CB 88-95).
Application for review to the Administrative Appeals Tribunal
On 14 April 2018, the applicants applied to the Tribunal for a review of the delegate’s decision (CB 96-98).
On 16 April 2018, the Tribunal acknowledged receipt of the application and advised the applicants that should they wish to provide material or written arguments for consideration that they should do so as soon as possible (CB 100-101).
On 17 July 2019, the Tribunal wrote to the applicants advising them that they would need to provide sufficient information to satisfy the Tribunal that the applicant meets the requirements for the visa, that she was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The Tribunal invited the applicants to provide, in writing, all relevant information about the course(s) of study the applicant was undertaking and her entry and stay as a student (CB 103-104). The Tribunal said that specific details about the information requested are set out in the Request for Student Visa Information form (“RSVI form”) and provided the applicants a link to that form. The Tribunal said that the information requested in the RSVI form should be received by 31 July 2019 (CB 104). The Tribunal also told the applicants that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (“Direction No. 69”). A copy of Direction No. 69 was attached (CB 105-109).
The applicants completed the RSVI form (CB 110-120) and attached a copy of a letter of offer from Australian Study Link Institute dated 31 July 2019 to study an Advanced Diploma of Leadership and Management to commence on 15 August 2019 and conclude on 14 August 2020 (CB 121-123), pre-enrolment information (CB 124-126) and a Statement of Attainment from Australian Study Link Institute (CB 127).
On 7 August 2019, the Tribunal invited the applicants to attend a hearing on 22 August 2019 to give evidence and present arguments relating to the issues arising in their case. The Tribunal requested the applicants provide a copy of the applicant’s current Confirmation of Enrolment (“COE”) or other documents to show that she is currently enrolled in a course of study as defined in cl 500.111 of Schedule 2 of the Regulations and documents that show past studies in Australia (CB 129-131).
On 15 August 2019, the applicants provided the Tribunal with a COE from Australian Study Link Institute for a Diploma of Leadership and Management with a course start date of 1 September 2019 and end date of 15 December 2019 and an Advanced Diploma of Leadership and Management with a course start date of 15 January 2020 and end date of 14 January 2021 (CB 137-142).
On 22 August 2019, the first and second applicant attended the hearing (CB 143-145).
On 23 August 2019, the Tribunal made a decision to affirm the delegate’s decision not to grant the applicant a visa and, on that basis, not to grant the secondary applicants a visa (CB 149-155).
On 28 August 2019, the Tribunal sent an email to the applicants attaching a letter to the applicants notifying them that it had made a decision to affirm the delegate’s decision. The letter attached a copy of the Tribunal’s statement of decision and reasons and a fact sheet (CB 148).
TRIBUNAL’S DECISION
The application before the Court is not a hearing of the applicants’ substantive application for judicial review. Nevertheless, given the Court is to make an assessment of the merits of the substantive application, it is useful to set out a summary of the Tribunal’s decision.
The Tribunal identified that the issue on review was whether the applicant is a genuine temporary entrant ([6]).
The Tribunal stated that the criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations ([6]). Relevantly, the Tribunal identified the requirements of
cl 500.212 which are known as the genuine temporary entrant criterion ([7]) and said that in considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No. 69 ([8]). The Tribunal identified the specified factors in Direction No. 69 to which regard must be had and stated that the factors should not be used as a checklist but as a guide to decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion ([8]; [9]).The Tribunal then summarised the applicant’s evidence at the hearing as follows:
(a)The applicant arrived in Australia with her husband, the second applicant ([12]);
(b)The applicant’s visa history ([15]);
(c)The applicant initially intended to study a Certificate III in Food Processing (Pastry and Baking) and which she completed in May 2010. Thereafter, the applicant completed a Diploma of Management in April 2011, an Advanced Diploma of Management in June 2012 and a Certificate IV in Hospitality in October 2013 ([12]);
(d)Between 2013 and 2018 the applicant was the holder of a Subclass 457 visa entitling her to work in Australia. She obtained a job as a cook in a restaurant and did not study during that period ([13]);
(e)The applicant is currently studying a Diploma of Leadership and Management which she has not yet completed. She informed the Tribunal that she had obtained an extension which will allow her to complete this course on 15 December 2019. She is also enrolled in an Advanced Diploma of Leadership and Management which will be completed in about August 2020 ([12]) (The Court notes that the COE for the Advanced Diploma of Leadership and Management (CB 142) provides for a course end date of 14 January 2021. Nothing turns on this. The Tribunal later states at [23] that the proposed study would extend the applicant’s stay to at least January 2021);
(f)The applicant said it was her intention when she completed the Advanced Diploma of Leadership and Management to join her parents in her home country and manage the family catering business. On her return to India, if she is to work in the family business, she expects to earn approximately AU$4,000-AU$5,000 each month ([13]);
(g)The applicant had returned to India on one occasion since arriving in Australia, namely in 2014 for a period of five weeks ([14]);
(h)The applicant's immediate family in her home country comprise her father, mother, two sisters and one brother. The applicant has no assets in her home country but said that her parents' house is valued at approximately AU$60,000-AU$70,000 ([16]);
(i)The applicant said she could undertake the Advanced Diploma of Leadership and Management course in India but that courses from Australian institutions are considered more "valuable" in India. The applicant told the Tribunal that she needed to undertake the Advanced Diploma of Leadership and Management to help her parents in business and that her brother and sisters were not interested ([17]);
(j)The applicant described her parents' catering business;
(k)The Tribunal enquired why she needed to undertake further study in order to operate a small business such as that conducted by her parents. The applicant said that she wanted to "start confidently". She said that there were many tourists in the city in which the hotels were located and that she wanted to "operate it properly". Her parents are currently conducting the business, her mother is 55 years old, and her father is 62 years old. She said her father had been unwell and that he will not be able to operate the business in the future and that he has been asking the applicant to return to India. The Tribunal enquired why, on that basis, the applicant had not returned to India to take over the business. The applicant said that she wanted to complete her studies in Australia and then return to India ([18]).
The Tribunal considered the applicant’s circumstances in her home country and the Tribunal said that whilst it accepted that the applicant may have family ties in India, given the time the applicant has spent in Australia and the intended period of future stay in Australia, it was not satisfied that there was a significant incentive for the applicant to return to India ([22]).
As to the applicant's potential circumstances in Australia, the Tribunal recounted that the applicant first arrived in Australia in 2009 as a holder of a 573-visa valid to April 2011 and that the proposed study would extend the applicant's stay until at least January 2021. The Tribunal found that the length of this proposed additional stay created serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal said it accepted that plans can change, it considered this is not the conduct of a genuine student but rather, suggests the applicant had decided to extend her stay in Australia by utilising the Student Visa Programme ([23]).
The Tribunal said that it did not place significant weight on the value of the course to the applicant's future, including remuneration and career prospects in the applicant's home country. The Tribunal considered that the applicant has studied courses in cookery, management, hospitality, management and leadership for a period of six years (excluding a four year working period) and that she now intends to study leadership and management for a further two years. The Tribunal said that this was not the conduct of a genuine temporary entrant ([24]).
The Tribunal noted that the applicant’s course plan is inconsistent with her plans when she initially entered Australia. The Tribunal said that the Advanced Diploma of Leadership and Management was asserted to have relevance to vague future plans. The Tribunal did not accept that such a course has relevance to a catering business having regard to the applicant's extensive studies in the past ([25]).
The Tribunal said it was not satisfied that the applicant had established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that she already has experience as a cook. The Tribunal was therefore not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to her future beyond the qualifications she already holds ([26]).
The Tribunal said that given the disparity in economic circumstances between India and Australia, it was not satisfied that the applicant has significant incentive to return to India. The Tribunal concluded that the applicant had been unable to demonstrate substantial ties or personal assets in her home country which diminished the applicant's incentive to return to India ([27]).
The Tribunal said it was concerned that the applicant's intention to live in Australia may be motivated by factors other than study. The applicant had not demonstrated any clear and substantial improvements arising from the applicant's proposed study, but would outlay the significant time and monetary commitment this course would require. The Tribunal said it was therefore not satisfied that the applicant had demonstrated the value of the proposed course to her future ([28]).
The Tribunal said that it gave weight to the evidence that since the applicant's arrival in Australia in 2009, the applicant has only spent five weeks outside of Australia which indicates that the applicant did not appear to have strong personal ties to India. Based on this evidence the Tribunal assessed the applicant's incentive to return to India to be minimal ([29]).
On balance, the Tribunal said it was not satisfied that the applicant is a genuine temporary entrant for a further stay as a full-time student ([32]).
The Tribunal said it considered that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the amount of time the applicant had now spent in Australia, the Tribunal said it was concerned the student visa may be used primarily for maintaining ongoing residence ([34]).
After weighing up the factors as a whole, the Tribunal found that the applicant had not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student ([35]) and that accordingly it was not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212 ([36]). The application of the primary applicant having been unsuccessful, it followed that the applications of the secondary applicants also fail ([38]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 1 October 2019. The applicant also filed an affidavit affirmed on 1 October 2019. The affidavit largely repeats the grounds of review in the application and annexes the Tribunal’s letter of 28 August 2019 and the attached statement of decision and reasons and fact sheet.
Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which they sought to rely and requiring the applicants to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it sought to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions and the Court Book. The Court Book was made an exhibit in the proceedings. The first respondent also relied upon an affidavit of Isabelle Terese MacDonald affirmed and filed on 21 March 2025. Annexure ITM-01 to the affidavit is the letter dated 28 August 2019 from the Tribunal to the applicants and the attached a copy of the statement of decision and reasons and fact sheet. The fact sheet had not been included in the Court Book. Those documents were also, as noted above, annexed to the applicant’s affidavit.
Before the hearing commenced, the Court confirmed with the applicants that they had the above documents with them.
The applicants appeared via Microsoft Teams. They were unrepresented. In the application, the applicants indicated that they required the assistance of an interpreter in the Hindi and English languages. An interpreter was arranged and was present at the hearing. At the commencement of the hearing, the applicant told the Court that she did not require the assistance of the interpreter. The Court asked the applicant if she was certain she was comfortable proceeding with the hearing in English. The applicant confirmed that she was. The Court was satisfied that the applicant did not have any difficulty in making her submissions in English, that she could understand the Court and the first respondent’s representative and that the Court could understand the applicant. The hearing proceeded without the assistance of the interpreter.
The Court explained to the applicants that as the application for judicial review was not filed within 35 days of the date of the Tribunal’s decision, the purpose of the hearing was to consider whether the Court should exercise its discretion to extend time for the filing of their application for judicial review. The Court explained that the factors it would consider were the length of the delay and the explanation for the delay; any prejudice to the parties; and, whether the proposed grounds of review had any prospects of success were an extension of time to be granted.
The applicants did not file an amended application or any further affidavit material or written submissions. The applicants were given the opportunity to make oral submissions in support of the application to extend time and in response to the first respondent’s submissions.
CONSIDERATION
Pursuant to s 477(1) of the Act, the application was required to be made within 35 days of the Tribunal’s Decision, that is by, 27 September 2019. Accordingly, the application was filed 4 days out of time.
Pursuant to s 477(2) of the Act, the Court may, by order, extend the time for the making of an application for a remedy to be granted in the exercise of the Court’s jurisdiction under s 476 of the Act. Section 477(2) provides:
2. The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate, if:
a.an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b.the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
The phrase “necessary in the interests of the administration of justice” is ‘deliberately broad’ and it is in each case for the judge hearing the extension of time application to determine which of a range of potentially relevant factors are to be taken into account in evaluating whether the interests of the administration of justice make it necessary for an extension of time to be granted in that particular case (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [39] (“Katoa”) per Gordon, Edelman and Steward JJ).
Nevertheless, factors commonly regarded include (Katoa at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ; [40] per Gordon, Edelman and Steward JJ ):
a. the length of the delay;
b. the explanation for the delay;
c. any prejudice to the respondent or third parties;
d. any prejudice to the administration of justice as a result of the delay;
e. the merits of the underlying application.
The Court has taken the approach of considering those factors in determining whether it is satisfied in the interests of the administration of justice that time should be extended.
Extent and explanation for the delay
The application for judicial review was filed on 1 October 2019. Accordingly, as already noted, the application was filed 4 days outside the 35-day time limit.
In the application, the applicants provide the following as the grounds of their application for extension of time (without alteration):
I request for extension of time because I received an nontify email on 28/8/19 according to email I proceed my all the documents. However, the decision was made on 23/8/19 which I noticed later.
Although the applicants had not filed any further affidavit or written submissions in support of their application for an extension of time, they were given an opportunity to make oral submissions explaining the delay. The applicant explained to the Court that she thought that the time limit ran from the date upon which she was notified of the Tribunal’s decision which was 28 August 2019 and not from the date of the decision which was 23 August 2019. The applicant said that she had relied upon the services of a migration agent. There was no evidence of that before the Court and the applicant confirmed that she had completed the application and filed it herself.
The first respondent concedes that four days is a minor delay (first respondent’s submissions (“FRS”) [24]). The Court agrees.
The first respondent submitted that it is the applicants’ responsibility to ascertain their review rights and any applicable time limits (FRS [26] citing SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 at [47] per Nicholls FM). The Court agrees with that proposition. The Tribunal in fact notified the applicants of their review rights and the time limit. The fact sheet annexed to the Tribunal’s letter of 28 August 2019 explained under the heading “Review of decisions” that if an applicant wishes to apply for review, they must do so within 35 days of the date of the Tribunal’s decision.
Although the first respondent conceded that the time delay was minor, it submitted that the applicants had not provided a reasonable explanation for the delay. The Court does not agree. The Court considers that an unrepresented applicant might not appreciate, when notified of the Tribunal’s decision, that the date of the Tribunal’s decision may not be the same as the date on which the applicant is notified of the decision. The Court also observes that on the application under the heading “Migration decision details” the applicant has crossed out the date 28 August 2019 and replaced it with the date 23 August 2019. That suggests that there was some confusion in the applicants’ minds as to when the decision was made.
Having regard to the limited extent of the delay and the applicants’ explanation for the delay, the Court is of the view that these factors taken together weigh in favour of an extension being granted.
Prejudice, impact on the public and the applicant
The first respondent conceded that there would be limited prejudice should the extension of time be granted but noted that the mere absence of prejudice to the first respondent is insufficient to warrant the grant of an extension (FRS [28] citing SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]).
On balance, the Court is satisfied that this factor weighs in favour of an extension being granted.
Merits of the proposed substantive application
In this matter, whether an extension should be granted turns then upon the merits of the substantive proposed application.
The Court is of the view that it is permissible and appropriate, in considering whether in the interests of the administration of justice time should be extended, for the Court to consider whether the proposed grounds of review have any merit. It is not necessary in the interests of the administration of justice for an extension of time to be granted, even for a short period of time, if the underlying application for judicial review has no merit.
In forming a view as to the merits of the substantive application, the Court is not necessarily limited to anything more than an impressionistic consideration of the grounds of review (Katoa at [19] per Kiefel CJ, Gageler, Keane and Gleeson JJ; at [54] per Gordon, Edelman and Steward JJ). The task of the Court in assessing merits is to evaluate whether a ground of review is “arguable”, “reasonably arguable” “sufficiently arguable” or has “reasonable prospects of success” (Katoa at [15] per Kiefel CJ, Gageler, Keane and Gleeson JJ citing MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at 598 [63] per Mortimer J (as her Honour then was)).
Despite the procedural order permitting them to do so, the applicants did not file an amended application. The grounds of review in the application are (without alteration):
1. A breach of natural justice occurred in connection with the making of the decision by the Department
2. I was denied procedural fairness in connection with the making of the decision
3. The Procedures that were required by law to be observed in connection with the making of the decision were not observed
4. The making of the decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made.
5. The tribunal letter was issued on 28/08/2019 and hence my bridging visa is valid for 35 days until 2/10/2019 but the tribunal decision record says 23rd August 2019 this means the decision is not legally correct before the decision date
6. I completed my grade 10 in 2001 and grade 12 in 2003 from Punjab School Education Board in India and then I completed the computer course and English speaking course from Grover P.T College started from the year 2004 until 2007. Further, as I was also interested in Hair Dressing I decided to undertook Diploma in Beauty Therapy from Shan Beauty Clinic, India in 2008.
7. And I then decided to come to Australia because it is a land of opportunities for students and I arrived in Australia in 2009 and completed my Certificate iii in Retail Banking in the year 2010 and Diploma of Management from Della international college. Moreover, I again pursue my degree on Diploma of management followed by Advance Diploma of Management and successfully completed in the year July 2012.
8. My husband is also here in Australia with me and my parents thought it would be good for my initial support and encouragement as I was fascinated by a professional environment of management.
9. Following my studies my parents wanted me to get a qualification in Hospitality as well, which encouraged me to study in Hospitality field therefore I have successfully completed certificate iv in Hospitality with Brighton Institute of technology from August 2012 until October 2013.
10. After successfully completing Certificate iii I tried for many jobs in the Hospitality industry and yes finally I became successful in getting a job and I started my career in a good establish restaurant called COCCO LOUNG in Geelong and I worked as a cook.
11. I arrived in Australia with my husband, to study a Certificate Ill in Food Processing (Pastry and Baking) and which she completed in May 2010. Thereafter, I completed a Diploma of Management in April 2011, an Advanced Diploma of Management in June 2012 and a Certificate IV in Hospitality in October 2013.
12. I am currently studying a Diploma of Leadership and Management which will complete this course on 15 December 2019 and then will under an Advanced Diploma of Leadership and Management which will be completed in about August 2020.
13. I also was sponsored on a Subclass 457 visa from 2013 to 2018 as I obtained a job as a cook in a restaurant as it was closely related to my earlier studies in hospitality after completed 5 years on a work visa I decided that I needed to complete more management studies if I want to become a manager or hotel manager
14. Opportunities in India are huge as tourism is booming and all 7 star hotels are cooking at overseas qualified applicants and once I complete the diploma and advanced diploma I will be very well placed and even they offer high salaries with perks and benefits
15. Until I get a job I will join my parents in her home country and manage the family
16. catering business and can earn approximately AU$4,000-AU$5,000 each
17. month. In India I have my father, mother, two sisters and one brother. My parents' house is valued at approximately AU$60,000-AU$70,000.
18. The courses are more practical and hands-on, and it allows students us to develop entrepreneurial and innovative approaches to managing people, finances, projects and teams which is directly what I have done in diploma of management.
19. In addition, the costs and its location is also an important factor as my family we decided to do something which is more practical and can be utilised in future and help me get into job market.
20. I could have planned a master's Degree in management as well that would mean we need to spend a larger amount of money again and having a strong foundation from the master degree I wanted to utilise my time and get additional skills of leadership and management.
21. The current course of study allows me to learn and develop entrepreneurial skills and can also assist me in India to expand the family business when I join it later in my life.
22. Returning back to India, friends and relatives have great expectations, it will be hard to go to study in India as the education style is quite different as compare to Australia, more over Australian degree and diploma are more valued in India.
23. Even if I decide to study a master's in management in India it will be difficult to get admission in India as the number of local students are quite high, so it is hard to get into good institute in India. Some students keep waiting years to get a admission at a institute good, hence it was logical for me to study in Australia.
24. Especially when I returned back from Australia after completing my studies a huge expectation will be on my shoulders to get a good job based on Australian qualification in a booming industry like India.
25. For me to pursue studies in another country like Canada, UK or USA was never thought off, as I did not wanted to relocate and start all over again given the fact I already studied in Australia. In addition if I move to any other country at this stage I will be struggling so get into the new environment as I am already habituated in Australian System ,its rule, my colleagues so it made logical sense to pursue and complete the leadership and management qualification from Australia only.
26. The tribunal has denied me fairness and have dismissed my application
27. I seek the court to grant me natural justice and allow me to complete my studies and return back home
28. I am a genuine student and want to get my student visa back so I can study and complete the diploma
The Court explained the nature of jurisdictional error to the applicants and that the Court cannot engage in merits review. The Court explained to the applicants that much of what was set out in the grounds of review was concerned with the applicant’s reasons for studying in Australia and this did not assist the Court in identifying what error the applicants thought the Tribunal had made.
The Court took the applicant to paragraph 3 of the application and asked the applicant to explain what was intended by the statement that the making of the decision was an improper exercise of power. The applicant said that she had wanted the Tribunal to consider her situation that she wanted to complete her studies in Australia because the opportunities to study in Australia are better and it would provide her with a better life.
The applicants’ submission, in effect, asks the Court to conclude that she meets the genuine temporary entrant criterion. This is also evident in paragraph 27 of the grounds of review which asks the Court to allow the applicant to complete her studies and return home. These submissions are a request that the Court engage in impermissible merits review.
The Court then took the applicants to the grounds in paragraphs one, two and three of the application which the Court said it understood as a complaint that the Tribunal had denied the applicants procedural fairness. The Court invited the applicants to explain what aspect of the Tribunal’s processes they said involved a denial of procedural fairness. The applicants were unable to provide any details or particulars of how they said the Tribunal did not observe its obligations of procedural fairness. The applicant said that she had wanted the Tribunal to consider how she had completed her studies and been a good citizen in Australia for a long time and that the decision was not fair because she wanted to be able to study.
Division 5 of Part 5 of the Act (as then in force) sets out an exhaustive statement of the Tribunal’s procedural fairness obligations in relation to the matters it deals with: s 357A. The Court is satisfied that the Tribunal followed those procedures. The Tribunal invited the applicants to attend a hearing to give evidence and present arguments on the issues on review. The applicants were on notice from the Tribunal that the dispositive issue was whether the applicant satisfied the genuine temporary entrant criterion (CB 103-104). The applicants attended the hearing. It is clear from the Tribunal’s reasons that the applicants were given a meaningful opportunity to give evidence and present arguments on the issue on review.
As the applicants were unrepresented, the Court has carefully considered the Tribunal’s reasons for Decision as summarised above. The Court is unable to discern any jurisdictional error. The Court agrees with the first respondent’s submission (FRS [35]) that the Tribunal’s reasons demonstrate that it considered all the material before it, weighed up the various factors in Direction No. 69 and concluded that the applicant was not a genuine temporary entrant. The Tribunal’s findings were reasonably open to it on the material before it. They were not legally unreasonable and did not involve any ‘improper exercise of power’ as stated in paragraph 4 of the application.
For the above reasons, the Court considers that the proposed application has no prospects of success.
CONCLUSION
Accordingly, the Court finds that an extension of time within which to file the application for judicial review is not necessary in the interests of the administration of justice. The application for an extension of time is dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 10 April 2025
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