Kalari v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1085
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kalari v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1085
File number(s): BRG 123 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 25 October 2024 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Administrative Appeals Tribunal – judicial review – jurisdictional error – failure to take into account relevant considerations – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 65
Migration Regulations 1994 (Cth) cl 500.212 in Schedule 2
Cases cited: BKS15 v Minister for Immigration [2019] FCCA 359
Kaur v Minister for Immigrations and Multicultural Affairs [2024] FedCFamC2G 818
Mohamud v Minister for Immigration [2019] FCCA 1538
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
Patel v Minister for Immigration and Border Protection [2017] FCCA 2343
Yang v Minister for Immigration [2020] FCCA 1080
Zhang v Minister for Immigration & Anor [2014] FCCA 2752
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 20 September 2024 Date of hearing: 20 September 2024 Place: Brisbane Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Tran - Sparke Helmore Lawyers
Table of Corrections 9/12/2024 - Paragraph 28 Citation changed from: “Mohamud v Minister for Immigration [2019] FCCA 1538 at [29]-[32] per Gageler J” to “Mohamud v Minister for Immigration [2019] FCCA 1538 at [29]-[32] per Lucev J” ORDERS
BRG 123 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GOPINATH KALARI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $6500.00.
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 judicial review of a decision of the 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 applicant a Student (Temporary) (Class TU) visa.
BACKGROUND
Application for a Student (Temporary) (Class TU) visa
The applicant is a citizen of India. He arrived in Australia on 13 July 2018 on a Student (Temporary) (Class TU) visa for the purpose of studying a Master of Business Administration (International) course (Court Book (“CB”) 66). The applicant did not complete that course and ceased studying in April 2019 (CB 67). In August 2019, the applicant enrolled in a Certificate III in Carpentry which he did not complete (CB 67). In September 2020, he enrolled in a Diploma of Building and Construction (Building) which he did not commence (CB 67). The applicant’s enrolment in these courses was cancelled in February 2020 (CB 134-138).
On 27 August 2020, the applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa (“the visa”) (CB 1-32) based on his enrolment in a Certificate III in Light Vehicle Mechanical Technology with a commencement date of 1 December 2020 and completion date of 29 May 2022 (CB 31), and a Certificate IV in Automotive Mechanical Diagnosis with a commencement date of 4 July 2022 and a completion date of 1 January 2023 (CB 32).
On 15 December 2021, the delegate refused to grant the applicant the visa (CB 39-43). The delegate was not satisfied that the applicant met the genuine temporary entry criterion in
cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). That criterion provides:The applicant is a genuine applicant for entry and stay as a student because:
a. the applicant intends genuinely to stay in Australia temporarily, having regard to:
i.the applicant’s circumstances; and
ii.the applicant’s immigration history; and
iii.if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
iv.any other relevant matter; and
Application to the Administrative Appeals Tribunal
On 22 December 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 44-51). The applicant appointed a registered Migration Agent as his representative and authorised recipient (CB 52-54).
On 22 December 2021, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments for consideration he should do so as soon as possible (CB 56-58).
On 24 October 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) (“the Act”) inviting the applicant to provide information to satisfy the Tribunal that the applicant met the visa requirements of being enrolled in a course of study and was a genuine applicant for entry and stay as a Student (CB 59-62). The Tribunal provided the applicant a link to the online Request for Student Visa Information. A copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“Direction No. 69”) was also attached.
On 7 November 2022, the applicant provided to the Tribunal the completed Request for Student Visa Information, a written submission together with a substantial number of documents
(CB 63-102). The applicant notified the Tribunal that he was now undertaking a Certificate III in Commercial Cookery (which commenced in July 2022 and was due for completion in July 2023), a Certificate IV in Commercial Cookery (due to commence in July 2023 and due for completion in February 2024), and a Diploma of Hospitality Management (due to commence in February 2024 and due for completion in August 2024).On 21 December 2022, the Tribunal sent a letter inviting the applicant to attend a hearing by telephone on 17 January 2023 (CB 104-108). The invitation requested the applicant to provide all documents he intended to rely upon to support his case and referred the applicant to the reasons for the decision made by the delegate.
On 10 January 2023, the applicant completed the “Response to hearing invitation” form and provided further documents to the Tribunal (CB 109-132) including:
(a) A written statement as to the genuine temporary entrant criterion (CB 113-117);
(b) Certificate of Enrolment in respect of courses the applicant had previously been enrolled in (CB 118-125);
(c) A PTE Academic language testing results Certificate (CB 126);
(d) Various tax documents (CB 127-132).
On 16 January 2023, the Tribunal provided the applicant with a copy of his Provider Registration and International Student Management System Report (PRISMS) including the current Confirmation of Enrolment and the Movement Record (CB 133-138). The Tribunal requested the applicant to be familiar with these documents prior to the hearing.
On 17 January 2023, the applicant appeared before the Tribunal to give evidence and present arguments (CB 139-142). The applicant was assisted at the hearing by his Migration Agent.
On 31 January 2023, the applicant provided the Tribunal with further documents relating to the questions raised by the Tribunal at the hearing regarding academic progress. The documents included a Statutory Declaration by the applicant, a letter from Gamma Education & Training regarding the applicant’s enrolment in a Certificate III in Commercial Cookery, a Statement of Attainment from Gamma Education & Training as to units of competency completed by the applicant towards a Certificate III in Commercial Cookery and a written submission by the Migration Agent (CB 143-154).
On 21 February 2023, the Tribunal affirmed the delegate's decision not to grant the visa
(CB 158-168). The Tribunal provided written reasons for its decision.THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicant met the requirements of cl 500.212(a) of Schedule 2 of the Regulations which required that the applicant satisfy the genuine temporary entrant requirement ([7]).
The Tribunal stated that in considering whether the applicant satisfies cl 500.212(a) of Schedule 2 of the Regulations, the Tribunal must have regard to the specified factors in Direction No. 69 ([9]). The Tribunal went on to state that the factors should not be used as a checklist but as a guide to decision makers when considering the applicant’s circumstance as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion ([10]; [20]).
The Tribunal stated that it had regard to all the information supplied to the Department with the visa application and all the information supplied to the Tribunal by the applicant ([11]). The Tribunal stated that it also had regard to the PRISM records supplied to the applicant by the Tribunal and the applicant’s response that the information in those records was accurate.
The Tribunal then summarised the applicant’s circumstances based on the information available to the Tribunal, most notably the materials supplied by the applicant, as follows ([14]):
(a) He is a 26-year old citizen of India who first arrived in Australia on 12 July 2018 as the holder of a Subclass 500 Student visa ([14](a));
(b) He has links to his home country and has daily contact with his parents ([14](b));
(c) He does not own any assets in India himself ([14](c));
(d) He does not expect financial difficulties on his return to India ([14](d));
(e) He has no concerns in respect of military service commitments or political or civil unrest in the area where his family lives ([14](e));
(f) He has no immediate family in Australia but has college friends with whom he gets together with occasionally ([14](f));
(g) From February 2019 to December 2019, he worked as a Cook at a restaurant and since April 2020, has worked for United Petroleum as a Console Operator ([14](g));
(h) He devotes 3 days a week to study, 3 days a week to work and one day a week to relaxation ([14](h));
(i) He has sufficient financial resources to meet his costs of living and studying in Australia ([14](h));
(j) He completed his Senior Secondary Certificate Examination in March 2011 and his Intermediate Examination in March 2013, and was awarded a Bachelor of Science degree from Kakatiya University in March/April 2016 and that he had worked as an Administrative Executive for Servizon IT Services Pvt Ltd between July 2015 and May 2018 ([14](i));
(k) When he came to Australia, he felt duty bound to follow his parents’ guidance and undertook a Master of Business Administration (International) Studies. He did not enjoy the study and did not do well in the course. He ceased those studies in April 2019 ([14](j));
(l) He stated he was more inclined to be a technical person and for that reason enrolled in a Certificate III in Carpentry to be followed by a Diploma of Building and Construction. These studies did not suit him, and his enrolment was cancelled in February 2020 ([14](k));
(m) He then enrolled in a Certificate III and Certificate IV in Vehicle Mechanic studies, but those courses did not suit him and his enrolment in them was cancelled ([14](l));
(n) He has since found his desired career in catering studies and since July 2020 has been enrolled in a Certificate III in Commercial Cookery to be followed by a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. The applicant expected to complete his studies on 18 August 2024 ([14](m));
(o) There was confusion at the hearing over the number of competencies the applicant had completed but the applicant was granted leave to provide the Tribunal corroboration of his completed units of competency, which he did ([14](n));
(p) There was a gap in the applicant’s studies for approximately 12 months between the courses in vehicle mechanics and catering services. At the time, however, the applicant was a holder of a Bridging Class A visa which did not include study obligations ([14](o));
(q) He stated that he has no intention to remain in Australia as he has been dependent on his parents and wishes to go back to be with them ([14](p));
(r) He considers himself well placed to secure good employment once he returns to his home country ([14](p));
(s) He has departed from Australia once between 14 August 2019 and 17 September 2019 ([14](q));
(t) He gave sufficient evidence of his knowledge of living in Australia, his education provider and his intended course of study ([14](r));
(u) He was previously granted one Student visa and one Bridging Class A visa ([14](s));
(v) He had been compliant with his visa conditions ([14](t)).
The Tribunal then put a number of concerns to the applicant in respect to which the applicant gave the following responses ([16]-[21]):
(a) As to the Tribunal’s concern that the applicant had not finished a course in the little over 4 and a half years he had been in Australia, the applicant acknowledged that was the case but explained that he initially studied business under the thrall of his parents, but the course did not suit him, and that carpentry and mechanical studies also did not suit him. The applicant stated he had now found a career choice that he enjoys and will present him good opportunities in India, that he needs to gain the qualifications and will then return home to his parents ([16]-[17]);
(b) As to the Tribunal’s concerns as to the reason the applicant was studying in Australia rather than in his home country, the applicant stated that people with international certificates earn substantially more and that this is why he needs to study in Australia ([18]).
The Tribunal stated that having had regard to the applicant's evidence and submissions, including oral and written submissions, and particularly the applicant's responses to the possible concerns raised by the Tribunal and giving consideration to all the factors in Direction No. 69, it made the following findings:
(a) The applicant had provided reasonable reasons to study in Australia rather than in India which reasons the Tribunal accepted ([22](a));
(b) Considering the incentive for the applicant to return to India, there is the applicant’s stated intention to return to India to be with his parents, in respect of which the Tribunal acknowledged that travel was curtailed by the COVID-19 pandemic from 2020 to approximately mid-2022 ([22](b));
(c) However, at approximately the halfway mark in the applicant’s current course the applicant has only completed 6 out of 25 competencies and in the 4 and a half years in Australia the applicant was yet to complete a course ([22](c)). In this regard, the statement by the applicant and the submission by his representatives provided after the hearing acknowledged the applicant’s lack of academic progress but noted that the applicant had now found his way and ought to be allowed to complete his studies ([22](d));
(d) The applicant’s explanation did not satisfactorily explain the applicant’s lack of academic progress. The Tribunal therefore concluded the applicant is seeking to maintain residence in Australia and for that reason does not have a significant incentive to return to his home country ([22](e));
(e) The applicant’s economic circumstances in India would not present a significant incentive for him not to return ([22](f));
(f) There was no evidence of any requirement for military service commitments affecting the applicant, which would provide a significant incentive for the applicant not to return to his home country ([22](g));
(g) There was no evidence of political or civil unrest in the area of India where the applicant’s family is located, and which would present a significant incentive for him not to return ([22](h));
(h) The applicant comes from a middle-class agricultural land-owning family but otherwise did not make any findings in that regard which were other than entirely neutral ([22](i));
(i) The applicant’s ties in Australia and conduct indicated that the applicant is using the Student visa to circumvent the intentions of the migration program and maintain ongoing residence in Australia ([22](j)-(k));
(j) The Tribunal was satisfied that the applicant’s knowledge of living in Australia, his intended course of study, and education provider had met the minimum requirements with respect to that factor ([22](l));
(k) The Tribunal was satisfied that the applicant’s current studies would assist him to obtain employment prospects in his home country and would be relevant to future employment in his home country or a third country ([22](m)-(n));
(l) The Tribunal was not prepared to make an adverse finding as to remuneration but viewed the whole fact in a neutral fashion ([22](o));
(m) If the applicant were to stay in Australia until completion of his Diploma course being in August 2024, the applicant would have remained in Australia for 6 years and 40 days, acknowledging in that regard the travel restriction imposed by the COVID-19 pandemic ([22](p));
(n) There was no evidence to suggest any other visas the applicant applied for in any other country (including Australia) had been cancelled or refused ([22](q));
(o) There was no evidence to suggest the applicant has failed to comply with his visa conditions ([22](r));
(p) It was unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of other countries ([22](s));
(q) After considering that after 4 and a half years the applicant is yet to complete a course and that halfway into his current course the applicant has only achieved 6 out of the required 25 competencies, the Tribunal found on the balance that the conduct of the applicant was that of a person utilising his student visa primarily for the maintenance of ongoing residence in Australia ([22](t)).
The Tribunal stated that it had balanced the evidence very carefully and while it was sympathetic to the circumstance of the applicant, it found that the factors and circumstances led to the conclusion that the applicant was using the student visa to maintain ongoing residence in Australia ([23]).
The Tribunal concluded the applicant did not meet cl 500.212(a) of Schedule 2 of the Regulations as it was not satisfied that the applicant intends to genuinely stay in Australia temporarily ([24]).
Accordingly, the Tribunal affirmed the delegate’s decision ([28]).
APPLICATION TO THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by an application filed on 21 March 2023.
The applicant also filed an Affidavit affirmed on 21 March 2023. The Affidavit sets out some background matters, attaches a copy of the Tribunal’s decision, a copy of the written submissions made to the Tribunal by the applicant’s Migration Agent after the hearing, and the applicant’s Statutory Declaration declared on 30 January 2023 which was submitted to the Tribunal after the hearing. Those documents were in the Court Book (CB 144-149).
Pursuant to an order permitting him to do so, the applicant filed an Amended Application on 25 July 2024.
The grounds of review set out in the Amended Application are (without alteration):
Ground One
"The Tribunal failed in understanding that the applicant tried to attain the master's degree and his intentions were pure, but it was extremely difficult for him to cope up." The Tribunal failed in understanding that the applicant intended to complete his master's degree, but the difficult level was genuinely quite high due to which it was becoming tough for him to manage the study load along with other responsibilities. Eventually, he had to give up and downgrade his studies in order to be physically and mentally healthy.
Ground Two
"The Tribunal failed in understanding that the applicant was completing the units of Certificate III and IV in Commercial Cookery that the institute had as per their course profile, and it wasn't his mistake if wrong information was provided on their website." The applicant enrolled in Certificate III and IV in Commercial Cookery at Gamma Education & Training. He was completing the units that the institute had proposed for the students to complete those and attain the certificate of completion. The applicant was provided the information as per what he had studied but it was contradictory to the website information. It seems that it was the institute' s fault that they had been providing wrong information on their website. In this case, the Tribunal failed in considering that the applicant was misleading the Tribunal.
Ground Three
"The Tribunal failed in understanding why the applicant was unable to study leading to a study gap between July 2021 and June 2022. "During that time, the applicant and his family were extremely suffering physically and financially due to Covid-19 Pandemic. His father's business was suffering from losses, and he also did not have a job for quite some time due to which, he did not have fees for the course leading to a study gap of 12 months. He was holding a Bridging Visa A which gave the applicant work rights but due to lack of funds, he couldn't enrol in any course at that time and struggled immensely.
Ground Four
"The Tribunal failed in understanding that the applicant has a business mind, and he wants to set up his business in different field due to which I tried to study different courses but eventually, his planned failed." The Tribunal should have tried to understand that not all people want to excel in one field, numerous people have other plans in life and want to explore and set up businesses in different field. Although it is against the normal way of living a life, but it shouldn't be considered as if he was just maintaining residency in Australia or misleading the authorities.
Ground Five
As a student with limited knowledge and understanding of the legal process, I respectfully seek judicial review on the grounds that any mistakes I may have made in my application were unintentional and exacerbated by the unprecedented challenges posed by the COVID-19 pandemic. The tribunal's refusal to consider the impact of these extraordinary circumstances on my situation is both unfair and unjust, particularly given the significant disruptions and uncertainties that affected many students during this period. I believe this warrants a reassessment of my case to ensure a fair and just outcome.
Ground Six
As a student committed to completing my education, I respectfully seek judicial review on the grounds that I fell victim to incorrect advice from both my college and education agent in selecting my course of study. Additionally, my parents' financial situation during the COVID-19 crisis significantly affected my academic progress in Australia. The tribunal did not consider these crucial factors in its decision. Therefore, I request the Honorable Judge to remit the Tribunal's decision back for a fresh review, ensuring that these critical aspects are duly considered to achieve a fair outcome.
Ground Seven
I stand here before the Honorable Registrar to respectfully request the acceptance of my amended application and grounds for appeal. I seek a thorough review of my case by the Honorable Judge, with the hope of receiving just and fair consideration. I am committed to completing my education and believe that the circumstances affecting my academic progress, including erroneous advice and financial hardships during the COVID-19 crisis, warrant a fresh review. I trust in the righteous justice of the court to ensure a fair outcome.
The applicant filed a further Affidavit affirmed on 24 July 2024. That Affidavit annexed the applicant’s written submissions in support of his application for judicial review and several documents including an undated medical certificate regarding an operation the applicant’s mother underwent on 26 June 2023. The first respondent objected to the admission of that medical certificate on the basis that the Tribunal did not and could not have had a copy of the certificate when its decision was made (First Respondent’s Submissions (“FRS”) [25]). It is not clear how the certificate is relevant to any of the grounds of review. The court agrees with the first respondent’s submission that the certificate is irrelevant and inadmissible (MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J; Mohamud v Minister for Immigration [2019] FCCA 1538 at [29]-[32] per Lucev J; BKS15 v Minister for Immigration [2019] FCCA 359 at [18] per Lucev J).
The applicant appeared before the Court in person without legal representation. He was assisted by an Interpreter in the Telugu and English languages.
The material before the Court included the Amended Application, the applicant’s two Affidavits, the Response, the applicant’s written submission (annexed to the applicant’s second Affidavit), the first respondent’s written submissions and a Court Book which was made an exhibit in the proceedings.
The applicant did not have with him in Court a copy of his Amended Application, his Affidavits or any of the documents with which he had been served. Accordingly, the Court provided the applicant with a copy of the materials. The Court also provided the applicant with a pen and paper.
CONSIDERATION
For the applicant to be successful, he must satisfy the Court that the Tribunal’s decision is affected by jurisdictional error.
As the applicant was unrepresented, the Court explained that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly, the Court cannot make a decision on the merits of the applicant’s visa application. It was explained that the Court’s task is instead to determine whether the Tribunal made a legal or procedural error. In the event of such an error, it was explained that the Court would set aside the decision of the Tribunal and send the matter back to the Tribunal for a decision to be made according to law.
The applicant told the Court that he relied only on the grounds in his Amended Application.
Grounds One, Two, Three and Four: failure to understand various matters
In grounds one, two, three and four, the applicant pleads that the Tribunal failed to understand various matters as follows:
(a) That the applicant had tried to attain a Master’s degree but that although his intentions were ‘pure’ he was unable to cope with the study and so had to downgrade his studies;
(b) That the applicant was completing the units of Certificate III and IV in Commercial Cookery and had provided to the Tribunal information as to the units he had completed but that this information was contradictory to the information on the institute’s website which information was incorrect. This was not the applicant’s mistake, and he did not mislead the Tribunal;
(c) The reason for the gap in the applicant’s study between July 2021 and June 2022 was because of physical and financial pressures suffered by his family during the COVID-19 pandemic as a consequence of which and because the applicant had no work rights on his Bridging Class A visa, the applicant did not have money to pay for tuition fees;
(d) The applicant has a business mind, and he wanted to explore and set up businesses in a different field.
It is clear from the Tribunal’s reasons for decision that it took into consideration the above matters. The Tribunal considered:
(a) The reasons the applicant gave as to why he had changed courses and what led him to enrol in a Certificate III and IV in Commercial Cookery ([14](j)-(m)) and balanced those reasons in making its findings ([22](c)-(e));
(b) The number of units the applicant had completed towards a Certificate III and IV in Commercial Cookery including the information provided after the hearing by the applicant from the registered training organisation as to units completed ([14](n)) and balanced the applicant’s academic progress in making its findings ([22](d)-(e)). Further, the Tribunal did not make any finding to the effect that the applicant had misled the Tribunal in regard to his submissions as to the number of units of competency that he had completed;
(c) The gap in the applicant’s studies and the reasons for that gap ([14](o)) and noted that during the gap the applicant was the holder of a Bridging Class A visa which did not include study obligation conditions;
(d) The applicant’s business mind and his desire to explore and set up businesses in different fields in considering the reasons the applicant gave for changing courses several times ([14](j)-(m); [16]) and his stated career intentions upon completion of the Certificate III and IV in Commercial Cookery upon his return to India ([14](p); [16]; [17]) and then balanced those matters in making its findings ([22](c)-(d)).
The Court agrees with the first respondent’s submission (FRS [26]) that the applicant’s complaint in respect of these matters does not identify any jurisdictional error on the part of the Tribunal. Rather, the applicant disagrees with the Tribunal’s conclusions and seeks for the Court to engage in a fresh consideration of the matters that he put to the Tribunal. This would engage the Court in impermissible merits review.
No jurisdictional error is made out on these grounds.
Ground Five: failure to consider the impact of extraordinary circumstances
In ground five, the applicant pleads that the Tribunal failed to consider the challenges that the COVID-19 pandemic posed for him in being able to complete his studies. The applicant also pleads that the Tribunal refused to consider the impact of the pandemic on his situation.
The Court asked the applicant to explain this ground of review. The applicant said that his complaint is not one of a refusal to consider the impacts of the pandemic but of a failure by the Tribunal to understand his situation in relation to the challenges posed by the pandemic.
It is clear from the Tribunal’s reasons for decision that the Tribunal considered the impact of the pandemic on the applicant’s ability to travel ([22](b) and (p)). However, as the first respondent submitted orally, there was no evidence before the Tribunal that any of the courses the applicant was enrolled in were cancelled because of the pandemic or that he changed courses because of the impact of the pandemic. Instead, the applicant’s evidence to the Tribunal was that he changed courses because he did not enjoy them, or they did not suit him ([14](j)-(m); [17]; [22](c)). The applicant also provided to the Tribunal a Statutory Declaration declared on 23 January 2023 in which (at paragraph 4) he explained that he chose technical courses because of pressure from his parents and cultural expectations (CB 148).
The applicant agreed with that submission.
No jurisdictional error is made out on this ground.
Ground Six: incorrect advice from the college and education agent
In ground six, the applicant pleads that the Tribunal did not consider two crucial factors:
(a) That he fell victim to incorrect advice from both the college and his education agent in selecting a course of study; and
(b) That his parents’ financial situation during COVID-19 affected the progress of his academic studies.
There is no evidence before the Court that the applicant made any submission to the Tribunal that he fell victim to or was given incorrect advice from either the college or his education agent in selecting a course of study.
The evidence the applicant put to the Tribunal in relation to why he changed courses several times was, as already noted, because he did not enjoy the courses, or they did not suit him and that he was under the thrall of his parents. This evidence is summarised in the Tribunal’s reasons for decision ([14]; [17]; [22](c)). The applicant also stated in his statutory declaration declared on 23 January 2023 (CB 148) that he chose technical a course because of external pressure particularly from his parents, and cultural expectations.
The first respondent also took the Court to the applicant’s statement of purpose filed with the application for the visa (CB 25). In that statement, the applicant gave reasons as to why he chose the various courses of study. There is no mention of advice from a college or education provider.
The Court does not accept that the applicant told the Tribunal that he chose courses because of incorrect advice from either the college or his education provider.
As to the second complaint in ground six, there is no evidence before the court that the applicant put any evidence to the Tribunal that his parents’ financial situation during the COVID-19 pandemic affected the progress of his studies. As noted in relation to ground five, the applicant’s reasons for changing courses were because he did not enjoy them or they did not suit him.
Accordingly, no jurisdictional error is established on this ground.
In summary, the Tribunal had regard to all the factors in Direction No. 69 and rationally explained why, on the evidence before it, it was not satisfied that the applicant was a genuine temporary entrant.
Discretionary refusal of relief – ulterior purpose
The first respondent submitted that in the event the Court finds jurisdictional error in the Tribunal’s decision it should refuse relief in the exercise of its discretion because the courses in Certificate III and IV in Commercial Cookery the applicant enrolled in concluded on 18 August 2024. The first respondent submitted that it can thus be inferred that these proceedings have been brought for the ulterior purpose of extending the applicant’s residence in Australia which are unrelated to the educational purposes for which the visa was sought ([31]). The first respondent submissions took the Court to a number of authorities (Zhang v Minister for Immigration & Anor [2014] FCCA 2752 at [47] per Lucev J; Patel v Minister for Immigration and Border Protection [2017] FCCA 2343 at [10]-[13] per Street J; Yang v Minister for Immigration [2020] FCCA 1080 at [27] per Jarrett J).
A similar argument was rejected by this Court in Kaur v Minister for Immigrations and Multicultural Affairs [2024] FedCFamC2G 818 (“Kaur”) at [52]-[59] per Gerrard J. For the same reasons as set out in Kaur, the Court is not prepared to draw the inference requested by the first respondent. Firstly, the drawing of such an inference may require the Court to engage in impermissible merits review by, in effect, making findings as to whether the applicant was a genuine temporary entrant. Secondly, it would be unfair to the applicant, who is unrepresented, to make a finding in respect of which the applicant is not in a position to make meaningful submissions.
CONCLUSION
The amended application for judicial review and oral submissions fail to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 25 October 2024
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