Kalyan v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 617
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kalyan v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 617
File number: MLG 2305 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 14 July 2023 Catchwords: PRACTICE AND PROCEDURE – application for reinstatement of judicial review application following dismissal for non-appearance – where judicial review application has no reasonable prospects of success
MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant student visa – where grounds largely address merits and/or express disagreement with Tribunal decision
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
Fattah v Minister for Home Affairs (2019) 268 FCR 33; [2019] FCAFC 31
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Kalyan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 395
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
SZRJY v Minister for Immigration and Citizenship (No 2) [2012] FMCA 756
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 3 July 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms C Oppel Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2305 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUKESH KALYAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
7 July 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed by the applicant on 3 April 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
On 8 March 2023 I dismissed the applicant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) affirming an earlier decision made by a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa (student visa). The application was dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) in circumstances where the applicant failed to appear, either for himself or via his lawyer, at a listing in relation to his judicial review application.
By an application in a proceeding filed on 3 April 2023, the applicant seeks that his judicial review application be reinstated (reinstatement application). It is that application that now falls to be determined by the Court.
For the reasons that follow, I have decided that it is not in the interests of justice to reinstate the judicial review application.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
Visa application and delegate’s decision
The applicant is a citizen of India who arrived in Australia in June 2016 on a tourist visa. He made an application for a student visa on 9 January 2017.
On 3 May 2017 a delegate of the Minister made a decision not to grant the applicant a student visa on the basis that the applicant did not meet the genuine temporary entrant criterion in cl 500.212 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Review by the Tribunal and Tribunal decision
The applicant applied to the Tribunal for merits review of the delegate’s decision and on 31 July 2018 the Tribunal affirmed the delegate’s decision.
The Tribunal considered whether the applicant satisfied the genuine temporary entrant criterion in cl 500.212(a) in Schedule 2 to the Regulations, taking into account the factors outlined in Ministerial Direction No 69. In considering the factors in Ministerial Direction No 69, the Tribunal, amongst other things:
(a)considered the applicant’s study history, including that he:
(i)completed a 12 week course in English for Academic Purposes from March 2017;
(ii)enrolled in a Bachelor of Professional Accounting (which the applicant said he started but found it too hard) and a Diploma in Leadership and Management (which the applicant said he did not start) which were both cancelled by the provider after the applicant ceased his studies;
(iii)did not engage in any course of study between August 2017 and May 2018; and
(iv)provided to the Tribunal certificates of enrolment (COE) dated 5 June 2018 for a package of Hospitality related courses;
(b)found that the applicant had a much higher income and standard of living in Australia than he had in India, and considered that his economic circumstances presented as a significant incentive for the applicant not to return to India;
(c)acknowledged that the applicant has family living in India, including his parents, wife and child, but noted that the applicant had only visited India once since arriving in Australia in January 2017 and did not express any desire to return to India in the short or medium term or to return to India to be with his wife and child;
(d)formed the view that the applicant had established a well-ordered life since arriving in Australia, involving family, friends and community participation, and his ties with Australia presented as a strong incentive to remain in Australia;
(e)expressed the view that the applicant was using the student visa program to circumvent the intentions of the migration program and that the student visa was being used primarily to maintain ongoing residence in Australia; and
(f)noted that the applicant did not advise that the completion of his Commercial Cookery course would assist him to obtain employment or improve his employment prospects in India.
Taking into account these factors, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. The Tribunal therefore found that the applicant did not meet cl 500.212(a) in Schedule 2 to the Regulations and affirmed the delegate’s decision not to grant the applicant a student visa.
PROCEDURAL STEPS IN RELATION TO JUDICIAL REVIEW APPLICATION AND REINSTATEMENT APPLICATION
The application for judicial review was filed on 6 August 2018. The applicant was self-represented at the time he filed his application, but had a lawyer on the record from 5 February 2020 until his judicial review application was dismissed on 8 March 2023. The application was not amended, nor were any documents filed on behalf of the applicant other than a notice of address for service, during the time he was represented. More information about the procedural history of the judicial review application is set out in my reasons for judgment in Kalyan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 395 at [4]-[6].
The reinstatement application filed on 3 April 2023 was originally listed for hearing on 7 June 2023. The applicant sought an adjournment of that listing and on 2 May 2023 I refused to grant the adjournment request. I made orders for the filing of documents ahead of the hearing of the reinstatement application, including for the applicant to file an affidavit annexing any draft amended judicial review application with proper particulars of the grounds of application, any additional evidence upon which he seeks to rely and written submissions.
The applicant filed an affidavit on 15 May 2023, which, amongst other things, set out further proposed grounds in relation to his judicial review application.
The Minister filed written submissions on 30 May 2023 in accordance with the orders made. However, the Minister’s submissions did not address anything referred to in the applicant’s affidavit filed on 15 May 2023 and, when the matter came before me on 7 June 2023, the applicant confirmed that the affidavit had not been served on the Minister’s lawyer.
The Minister’s lawyer indicated at the hearing that they had recently become aware of the affidavit and were prepared to address the proposed new grounds in their oral submissions. However, I formed the view that it would be more procedurally fair for the applicant to have notice of the Minister’s position in relation to the proposed new grounds ahead of the hearing. I therefore adjourned the hearing to 3 July 2023 and made orders for the Minister to file further written submissions, which he did.
At the hearing on 3 July 2023, I asked the applicant whether he wished to have an opportunity to provide evidence orally, and he declined. I also asked the Minister’s lawyer whether she wished to cross-examine the applicant and she declined.
At the hearing the parties made submissions in relation to both the reinstatement application and, in case the application was reinstated, the judicial review application. However, given that I have decided not to reinstate the application, I only consider the submissions advanced by the parties on the judicial review grounds in the context of the reinstatement application.
REINSTATEMENT APPLICATION
Power to reinstate and relevant principles
The Court has the power to set aside the order dismissing the judicial review application, thereby reinstating that application, pursuant to r 17.05(2) of the GFL Rules, which relevantly provides:
The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;…
The power to set aside the orders made on 8 March 2023 is a discretionary power. In deciding whether or not to exercise that discretion in favour of the applicant, the overriding principle is whether it would be in the interests of justice to set aside orders made in the applicant’s absence: SZRJY v Minister for Immigration and Citizenship (No 2) [2012] FMCA 756 at [15]. In considering whether to exercise the discretion, the Court will ordinarily have regard to matters such as:
(a)whether there is a reasonable excuse for the applicant’s absence;
(b)the existence and nature of any prejudice that might flow to the Minister from the reinstatement of the judicial review application, and how any such prejudice may be alleviated; and
(c)whether, if reinstated, the judicial review application has reasonable prospects of success: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7].
These matters are not, however, mandatory relevant considerations: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [52]-[53].
The Court is not precluded from considering other matters that may be relevant. One further matter raised by the Minister in the present case is the delay in the applicant filing the reinstatement application.
Does the applicant have a reasonable excuse for not attending the listing on 8 March 2023?
In his affidavit filed on 3 April 2023, the applicant deposed that he did not attend the hearing on 8 March 2023 due to ‘unavoidable personal circumstances’. No explanation or detail about those circumstances was provided, and the applicant did not refer to this reason at the hearing. In the absence of any explanation, I do not accept that the applicant did not attend the hearing on 8 March 2023 due to ‘unavoidable personal circumstances’.
In his affidavit filed on 15 May 2023, the applicant deposed:
As respondent said, i missed hearing hearing, but i never had any attention to miss the hearing date, I did not get any email or any letter, any notification from court and from respondent side, and my previous lawyer also did not informed me about my hearing date. (since after 2020 Feb to 2023) it can be a just miscommunication.
I accept that the Court did not advise the applicant personally that his application had been listed for a directions hearing. At the time that the Court notified the parties of the listing for directions on 8 March 2023, and at the time of that directions hearing, the applicant was represented by a lawyer from Huk Legal. The applicant was properly notified of the listing for directions by email sent to his lawyer at the email address set out in the applicant’s notice of address for service filed on 27 February 2020, being the most recent document filed by or on behalf of the applicant at that time.[1] It was neither necessary nor appropriate for the Court to email the applicant personally about the directions hearing given that he had a lawyer on the record.
[1] The listing notice is in evidence before the Court at Annexure CO-1 to the Affidavit of Catherine Nesbitt Oppel filed on 30 May 2023.
I also accept the applicant’s uncontradicted evidence that his lawyer did not inform him that his application had been listed for a directions hearing on 8 March 2023, or at least not until after his application had been dismissed.
While that explains why the applicant did not personally appear at the directions hearing, it does not explain why a lawyer from Huk Legal did not appear on behalf of the applicant. It is apparent that the applicant contacted his former lawyer after his application was dismissed, because his former lawyer witnessed his affidavit made on 3 April 2023. Despite this apparent contact, no explanation has been offered by the applicant or his former lawyer as to the reasons why the lawyer did not appear at the directions hearing.
In the absence of any explanation as to why the lawyer engaged by the applicant did not appear at the directions hearing on his behalf, I do not accept that the applicant has an adequate explanation for his failure to appear at the directions hearing on 8 March 2023.
However, the applicant was not expressly asked at the hearing about his lawyer’s failure to attend the directions hearing and I place no weight on the failure to explain the lawyer’s non-attendance in the exercise of my discretion.
I note the oral submission advanced by Counsel for the Minister that it was up to the applicant to hold his lawyer to account. This submission is not without merit, but I have no evidence before me as to what steps the applicant took to attempt to hold his lawyer to account, or his capacity to do so. Nor do I have any evidence before me as to the reasons for the apparent lack of action taken by the applicant’s lawyer during the three years he represented the applicant in this matter, and I note that the directions hearing on 8 March 2023 was listed because of repeated non-compliance with Court orders on the part of the applicant. I am unable to discern on the material before me whether the lack of action by the lawyer was attributable to the applicant (for example, because he did not pay legal fees that were due), or whether the applicant has been poorly served by his lawyer.
It is unnecessary to resolve this issue because I have formed the view that the judicial review application has no reasonable prospects of success, and lack of prospects alone mean that it is not in the interests of justice to reinstate the judicial review application.
Does the Minister face any prejudice if the application is reinstated?
The Minister accepted that there would be no prejudice to the Minister that could not be addressed by an order for costs if the matter is reinstated. I accept that there is no prejudice to the Minister if the application is reinstated.
However, the Minister submitted that the remaining factors weigh against the matter being reinstated. I agree that absence of prejudice alone does not mean that it is in the interests of justice to reinstate the application and it is necessary to have regard to other considerations in deciding whether or not to exercise the discretion.
If reinstated, would the judicial review application have reasonable prospects of success?
In his judicial review application filed on 6 August 2018, the applicant set out the following eight grounds (reproduced without alteration):
1.I want to review the decision because it is a jurisdictional error made by AAT and department of home affairs.
2.I don’t have any blood relation who lives in Australia but Department of Immigration and Border Protection mentioned or gave me the reason that why you don’t mention your sister lives in Australia and she is a Australian citizen, it’s a unfair to me..
3.I had completed my English for academic purpose with 98% of attendance but But Department of Immigration and Border Protection gave the reason that I am not seems to be a genuine student, it was unfair to me.
4.I have current Coe from Acumen College and i am already completed one quarter of course in hospitality in certificate III but AAT gave me the reason - that i am not seams to be genuine student
5.I came in Australia for a visitor visa then I applied for a student visa I did not break any law. my intention was just to complete my study then I want to go back to India because I have a son and my Wife in India if came here just for stay in Australia why should I sent back my family in India.
6.My first COE was cancelled after 6 month I attend all classes in … College after my visa Refusal I was bit depressed and hard to under stand the accounting for me so I engaged in private study and latter on I start my certificate III in commercial cookery which I am doing now. So my intention was always to complete my study.
7.I paid all first semester fees in first college and then I already pay more that $1000 to my current college. I really want to complete my certificate in commercial cookery.
8.It was totally unfair to my that AAT and Australia holmes affairs cancel my student visa because they give me the reason that this course is available in India why you choose Australia thousand of students come here for study so what I did
On 15 May 2023 the applicant filed an affidavit containing the following proposed new grounds (reproduced without alteration):
Grounds: (a)
1.The reason has been mentioned by ministery (AAT) in paragraph (18) is not satisfactory because i already provided the supportive affidavit given by my father that he was a police officer and own some agriculture land proof on his name was able to afford my study and living expense in Australia.
2.)In the paragraph 19-20 was an error because I completed my certificate in commercial cookery on 05/06/2019 and i got another certificate IV in commercial cookery on Feb 2020
3)In the paragraph (21) was an error reason given by AAT, I meant to said that without to having an good qualification – hard to got a good position or designation, thats why I decided to do further study.
4)In the paragraph 23 to 26 reason given by AAT not satisfactory because i was engaged with my distance education in Bachelor of Art during that time period. which I completed in Year 2019, but in Australia i discontinued my Professional Accounting because i was facing the difficulties in understanding accounting reasons i start re study after more than 12 years study gap I have passion towards cooking and Australia hospitality education standard best in the world so i decided at least to have a certificate in commercial cookery.
5)In the paragraph (27) was an error. Yes all the property under on my father name, but my father gave the supportive affidavit which i already attached in my visa application.
6)In the paragraph 28 reason given by the AAT is not satisfactory as I mentioned hospitality qualification standard so high in Australia, thousands of student to come to Australia for study.
7)The reason in paragraph no. 30 was unfair, I never had any wrong intention to chose the easy study just for stay in Australia.
(b)
1.)I started study in Accumen College 19/06/2018 and successfully completed my certificate (III) in commercial cookery on 05/06/2019, ministry (AAT) denied my application on 31 July 2018, but I completed my certificate till 19/06/2019 that shows my intention towards study and made me a genuine student.
2.)Then I get another certificate (IV) in commercial cookery on Feb 2020 from Swiss Institute of Australia that also shows my intention to be a genuine student.
3.)And in starting when I faced difficulties in understand Professional Accounting I discontinued that, But I engaged study in Bachelor of Art as a distance education from India and I got my graduation degree in 2019.
•All three certificate are submitted now along with affidavit
4)As respondent said, i missed hearing hearing, but i never had any attention to miss the hearing date, I did not get any email or any letter, any notification from court and from respondent side, and my previous lawyer also did not informed me about my hearing date. (since after 2020 Feb to 2023) it on be a just miscommunication.
(c)
1)As a final note, I have request to the Respected Honourable Judge please consider all matter, I submitted all my certificates which I have done in Australia and from India that shows did not have any wrong intention to use the study visa just for stay in Australia.
2.)There was almost two year Covid19 period I could do any thing because of the covid restrictions.
3.)I have my wife and 11 year old son both live in India, how can i left them behind just for myself to stay in Australia for forever. I took all decisions for provide better future to my family to complete education for my better career.
4)If ministry reinstated this application, I would just like to complete my advance diploma in hospitality.
Please request to the Ministry consider this matter I will follow the court order.
For the purposes of considering whether the judicial review application, if reinstated, has reasonable prospects of success, I consider the merits of both the grounds in the original judicial review application and the proposed new grounds.
Before addressing each of the individual grounds, I make some general observations about difficulties that permeate several of the applicant’s grounds.
Delegate’s decision cannot be reviewed by this Court
Some of the grounds in the original judicial review application, and in particular, grounds 2 and 3, allege error in the delegate’s decision, rather than the Tribunal decision. As I explained to the applicant at the hearing, the Court does not have jurisdiction to review the delegate’s decision. This is because the delegate’s decision is a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act 1958 (Cth) (Migration Act) and the Court’s jurisdiction under s 476 does not extend to primary decisions: see s 476(2)(a) of the Migration Act.
Court cannot engage in merits review
As I explained to the applicant at the hearing, the role of the Court is not to consider whether he meets the criteria for a student visa and the Court cannot grant him a visa. The Court has no power to review the factual merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Rather, in a judicial review application, the Court can only grant relief if the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (Emphasis added.)
Several of the applicant’s ground express disagreement with the Tribunal decision, or complain that the decision was unfair, apparently because the Tribunal did not find in the applicant’s favour. Disagreement with the Tribunal decision, even emphatic disagreement, does not, of itself, establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Jurisdictional error is to be assessed based on the circumstances that existed at the time of the Tribunal decision
Some of the applicant’s grounds are based on developments that have occurred after the Tribunal decision, which cannot establish jurisdictional error. Whether the Tribunal decision is affected by jurisdictional error is to be assessed based on the circumstances that existed at the time of the Tribunal decision and not by reference to circumstances that did not exist at the time of the decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28].
Ground 1 of judicial review application: jurisdictional error
Ground 1 of the judicial review application expresses a general assertion of jurisdictional error. I understand the ground to simply be an introductory statement alleging error on one or more of the other bases set out in the application, rather than an independent ground. The applicant has been afforded multiple opportunities to explain what error he believes the Tribunal made, and I have had regard to the various assertions of jurisdictional error set out in his application, his affidavit of 15 May 2023 and in his oral submissions to the Court. For reasons explained in relation to those grounds, the applicant has not established that he has reasonable prospects of establishing jurisdictional error in the Tribunal decision.
Ground 2 of judicial review application: error based on applicant not mentioning having a sister in Australia
As mentioned above, ground 2 asserts error in the delegate’s decision, which the Court cannot review.
Even if the ground alleged error in the Tribunal decision rather than the delegate’s decision, there are no reasonable prospects of the applicant being able to establish jurisdictional error in the Tribunal decision by this ground.
This is because the Tribunal did not draw any adverse inference against the applicant on the basis that he failed to mention in his application that he has a sister living in Australia. Indeed, the Tribunal did not mention at all in its reasons whether the applicant indicated in his application that he has a sister in Australia.
Ground 3 of judicial review application: unfairness in finding that the applicant was not a genuine student
As with ground 2, ground 3 alleges error in the delegate’s decision, which the Court cannot review.
Even if the ground were treated as alleging error in the Tribunal decision, rather than the delegate’s decision, there would be no reasonable prospects of the applicant establishing jurisdictional error by this ground. The assertion of ‘unfairness’ appears simply to be an expression of disagreement with the decision. In any event, the assertion of ‘unfairness’ overlooks the basis of the Tribunal’s finding that the applicant did not genuinely intend to stay in Australia temporarily, which was an assessment of the applicant’s circumstances as a whole and not just that he had completed a 12 week English for Academic Purposes course.
Ground 4 of judicial review application: finding that applicant is not a genuine student where he is enrolled in Certificate III in Hospitality
By ground 4, the applicant appears to allege that it was illogical or irrational for the Tribunal to find that he was not a genuine student in circumstances where he had commenced a Certificate III in Hospitality at the time of the Tribunal decision.
A decision will be illogical or irrational if only one decision was open on the evidence and the Tribunal did not make that decision, or if there was no logical connection between the evidence before the Tribunal and the decision it reached: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135]; Fattah v Minister for Home Affairs (2019) 268 FCR 33; [2019] FCAFC 31 at [45].
In addressing this ground, it is important to bear in mind that the Tribunal was not considering the enrolment criterion, but rather was considering the genuine temporary entrant criterion. In deciding whether the applicant met this criterion, the Tribunal was required to take into account the considerations in Ministerial Direction No 69, and not simply whether or not the applicant was enrolled in a course at the time of the Tribunal decision. It is clear from reviewing the Tribunal decision that the Tribunal took into account the factors referred to in Ministerial Direction No 69 in concluding that the applicant did not meet the genuine temporary entrant criterion in cl 500.212. This finding was open to the Tribunal on the evidence before it and there is no reasonable prospect that the applicant could establish that the finding was illogical or irrational.
Ground 5 of judicial review application: applicant’s intention to study in Australia and then return to family in India
There is no reasonable prospect that the applicant will be able to establish jurisdictional error in the Tribunal decision based on ground 5. First and foremost, this is because the ground does not assert any error in the Tribunal decision. Rather, the applicant is providing detail about his personal circumstances. The ground appears to address the merits of the Tribunal decision which is beyond the jurisdiction of the Court to review.
The Tribunal took into account the matters raised by the applicant in this ground to the extent that they were before the Tribunal. The Tribunal considered the applicant’s visa history in Australia, including that he entered Australia on a visitor visa before applying for a student visa, and did not suggest that he had acted unlawfully by doing so. The Tribunal had regard to the applicant’s family in India and referred to his statement to the Department where he expressed an intention to return to India after completing his studies, but also noted that the applicant had not expressed any desire to return to India in the short or medium term or any desire to return to be with his wife and child. There is nothing in the Tribunal decision that suggests that its consideration of any of the matters referred to in ground 5 might give rise to jurisdictional error.
Ground 6 of judicial review application: reasons first COE was cancelled
Like ground 5, ground 6 does not assert any jurisdictional error in the Tribunal decision and therefore there is no reasonable prospect of the ground establishing jurisdictional error. The matters raised by the applicant by this ground again go to the merits and again were considered by the Tribunal, including his previous study history and his claim that he had engaged in private study when he was not enrolled in a course of study.
Ground 7 of judicial review application: applicant’s payment of course fees and desire to complete studies
Ground 7 also does not assert any jurisdictional error in the Tribunal decision and rather addresses the merits. The information regarding payment of course fees was noted by the Tribunal at [20] of its reasons. There is no reasonable prospect of the applicant establishing jurisdictional error by this ground.
Ground 8 of judicial review application: unfair to cancel visa because course is available in India
Ground 8 is not capable of establishing jurisdictional error. First, contrary to the assertion in the ground, the Tribunal did not ‘cancel’ the applicant’s student visa. Rather the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa in circumstances where it was not satisfied that the applicant met the genuine temporary entrant criterion. Further, one of the factors that the Tribunal was required to consider under Ministerial Direction No 69 was whether the applicant had reasonable reasons for not undertaking the study in his home country if a similar course is available there (see paragraph 9(a) of Ministerial Direction No 69). It was not ‘unfair’ for the Tribunal to consider this factor.
Proposed ground (a) in affidavit of 15 May 2023
Proposed ground (a) asserts various errors in [18]-[21], [23]-[28] and [30] of the Tribunal reasons. Those paragraphs read:
18.Documents provided by the applicant to the Department showed his annual salary in India from 2002 until 2016 was in the range of $A1,770 per annum in 2006 up to $8,270 per annum in 2016. The applicant advised his monthly salary was around $800 per month in India. The applicant advised his income and standard of living in Australia was much higher than in his home country.
19.The applicant advised the Tribunal he had completed a 12 week course in English for Academic Purposes in March 2017.
20.The applicant provided COE’s for enrolment in a package of Hospitality related courses. All COE’s were dated 5 June 2018. Only one COE provided evidence of a pre-paid tuition fee of $300 out of a total cost of $15,500. During the hearing the applicant provided a further receipt of payment of fees for $450 and $675 for enrolment in a course at Acumen education. The applicant advised he had not paid any further fees. The courses were low cost and short duration.
21.The delegate recorded the applicant’s visa history as follows:
•He arrived in Australia on 13 June 2016 on a FA Tourist visa granted offshore on 29 March 2016. On his incoming passenger card he stated he the purpose of the visit was as ‘visiting friends or relatives’;
•He subsequently applied for English for Academic Purposes and a Bachelor of Professional Accounting;
•The applicant provided contradictory information to the Department. He stated he could obtain promotion in his job after he provided a letter of resignation from his job to his company;
•On 9 January 2017 he applied for a student visa;
•On 3 May 2017 this application for a student visa was rejected by the delegate;
…
23.The applicant advised the Tribunal that in the period March 2017 until May 2018 he had not engaged in study and did not work in Australia. He advised the Tribunal he continued his residence in Australia during this entire period. The applicant advised he could not provide any evidence of work or study in this period. The applicant advised he remained at home and engaged in private study.
24.The Tribunal now has regard to Ministerial Direction number 69 (MD69).
25.The Tribunal has regard to Cl. 9 and 10 of MD69 the applicant’s potential circumstances is his home country.
26.The Tribunal asked the applicant why he had not pursued study in his home country. The applicant advised he had been working for many years in India in progressively more senior positions. He advised he came to Australia because he sought to gain a Certificate of Graduation in something to prove to his family he was a person of success. He advised the course content and study requirements were hard and very different to his experience in his home country. The applicant did not provide any evidence of research concerning the education system in Australia or examination of the study requirements and course obligations. The applicant advised entry into educational institutions in India was difficult. In examination the applicant advised he had nearly completed all requirements for conferment of a Bachelor degree in India.
27.The applicant advised his parents were still alive and he had seen his wife and son on one occasion since coming to Australia. The applicant advised his parents were wealthy, owned agricultural land and had investments in a number of schemes or enterprises (unregistered) that provided an income stream. The applicant advised he was well off in India and did not own any property or assets in his own right. He advised he did not have any military service commitments and was not aware of any political or civil disturbance in India.
28.The applicant did not explain or give any reasons why he could not study Commercial Cookery or Hospitality Management courses in India. He did not advance any reasons for not undertaking study in his home country. When the Tribunal asked why he wanted to study Commercial Cookery in Australia after having been in this country for two years he responded by saying he liked cooking. The Tribunal acknowledges the applicant’s immediate family reside in India. Ordinarily this would present as a significant incentive to return to the home country. The applicant did not express any desire to return to India in the short or medium term. He did not express any desire to return to India to be with his wife and child. In this case the applicant has been continuously resident in Australia since January 2017, visited India on one occasion only and not engaged in either study or work for extensive periods. The Tribunal is unable to discern a sound reason for not undertaking study in Commercial Cookery in India. The Tribunal is unable to conclude the applicant’s personal ties to India serve as a significant incentive to return to his home country. The applicant provided details of his wages history in India as outlined in paragraph 18 above. The applicant advised of significant family wealth in India. The applicant advised his standard of living and income in Australia was superior to that on offer in India. The Tribunal concludes the applicant’s economic circumstances present as a significant incentive for the applicant not to return to India.
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30.The applicant advised he lives with family in Clayton South. He advised his family in Australia support him with respect to all of his needs. The applicant advised he was an active member of the Indian community and attended temple (Mandir) on a regular basis. He advised he played sport and socialised regularly and extensively with his two brothers-in-law and other friends in Melbourne. The Tribunal tends to the view the applicant has established a well-ordered life since arrival in Australia. This life involves family, friends and community participation. The applicant advised he had not studied for lengthy periods and not engaged in work whilst in Australia. The Tribunal is inclined to the view the applicant’s ties with Australia present as a strong incentive to remain in Australia. Those ties extend to family, family support and community engagement. The Tribunal is inclined to the view the student visa program is being used to circumvent the intentions of the migration program and the student visa is being used primarily to maintain ongoing residence.
The applicant suggests that [18] is ‘not satisfactory’ because he provided a supportive affidavit from his father to show that he is able to afford the applicant’s living expenses and study expenses in Australia.
The applicant’s assertion of error misunderstands the Tribunal reasons at [18]. The Tribunal in that paragraph was comparing the applicant’s earning capacity in Australia and in India, which is relevant to the consideration of the applicant’s circumstances in India as required by Ministerial Direction No 69. Paragraph 9(c) of Ministerial Direction No 69 requires consideration of the applicant’s economic circumstances in India and permitted consideration of those circumstances relative to his circumstances in Australia.
The statement provided by the applicant’s father is relevant to the separate financial capacity criterion, which was not addressed by the Tribunal and did not need to be in circumstances where the Tribunal found that the applicant did not meet the genuine temporary entrant criterion and therefore was unable to satisfy all of the relevant requirements for the grant of a student visa.
The applicant asserts that the information in [19] and [20] was an error because the applicant completed his Certificate III in Commercial Cookery on 5 June 2019 and his Certificate IV in Commercial Cookery in February 2020.
These matters are not capable of establishing jurisdictional error in the Tribunal decision, as they relate to events that occurred after the Tribunal made its decision and, as discussed above, jurisdictional error is to be assessed based on the circumstances that existed at the time of the Tribunal decision. The Tribunal cannot be expected to take into account the completion of courses by the applicant in June 2019 and February 2020 because the applicant had not completed these courses at the time of the Tribunal decision in July 2018.
The third particular suggests there was an error at [21] of the Tribunal’s reasons because the applicant meant to say that without having a good qualification, it is hard to get a good position or designation and that was why he decided to do further study. I infer that the applicant is referring to the inconsistency in his evidence noted at the third dot point in [21] of the Tribunal’s reasons. Any unfulfilled intention of the applicant to say something different to the Tribunal is not capable of establishing jurisdictional error. The Tribunal was required to base its decision on the evidence before it, which includes what the applicant did say, and not what the applicant might have intended to, but did not say.
The fourth particular asserts that [23] to [26] of the Tribunal reasons were unsatisfactory because the applicant engaged in a Bachelor of Arts by distant education which he completed in 2019, but discontinued his Professional Accounting course in Australia because he was having difficulties in understanding. He decided to get at least get a certificate in Commercial Cookery. There is no realistic chance that the applicant could establish jurisdictional error by these assertions. The applicant is simply disputing the facts found by the Tribunal without asserting jurisdictional error in relation to those facts. The Tribunal had regard to the applicant’s lack of study in Australia over an extended period and acknowledged his evidence that he found the accounting course too difficult. It noted the evidence he gave about whether or not he had studied in India and why he had not pursued studies in India. The applicant’s disagreement with the Tribunal’s findings is insufficient to establish jurisdictional error and any evidence about courses he completed in 2019 is evidence of facts after the Tribunal decision and cannot go to jurisdictional error in that decision.
By the fifth particular, the applicant asserts that [27] of the Tribunal’s decision was an error because although the property was in his father’s name, his father gave a supporting affidavit which was attached to the applicant’s visa application. The affidavit that the applicant’s father provided related to the financial capacity criterion, whereas at [27] the Tribunal was considering the applicant’s circumstances in his home country of India. The alleged error asserted by the applicant could not realistically amount to a jurisdictional error.
The sixth particular describes [28] as ‘not satisfactory’ because the applicant mentioned that the hospitality qualification standard is so high in Australia that thousands of students come to Australia to study. There is no evidence before the Court to show that the applicant said this to the Tribunal. In the absence of evidence, the applicant cannot establish jurisdictional error.
The seventh particular asserts that the finding in [30] was unfair because the applicant did not have any wrong intention and did not choose to undertake ‘easy study’ just to stay in Australia. This is simply expressing disagreement with the Tribunal decision and does not have reasonable prospects of establishing jurisdictional error.
None of the matters raised by proposed ground (a) as set out in the affidavit give rise to any reasonable prospects of the applicant establishing jurisdictional error in the Tribunal decision.
Proposed ground (b) in affidavit of 15 May 2023
The first three particulars of proposed ground (b) simply assert facts outlining the applicant’s study history, and primarily refer to events that post-date the Tribunal decision. The applicant appears to have provided these to show that he is a genuine student. The fact that the applicant has continued to engage in study after the Tribunal decision has no prospect of establishing jurisdictional error in the Tribunal’s finding that he did not meet the genuine temporary entrant criterion. The first three particulars do not assert jurisdictional error in the Tribunal decision, and the applicant appears to be seeking impermissible merits review by raising these matters.
The fourth particular of ground (b) relates to the applicant failing to attend the directions hearing before the Court. It does not assert any error in the Tribunal decision and I have considered it above in relation to the applicant’s explanation for his failure to appear at the directions hearing on 8 March 2023. It cannot establish jurisdictional error in the Tribunal decision.
Proposed ground (c) in affidavit of 15 May 2023
Proposed ground (c) is essentially a submission to the Court requesting that the Court look at the applicant’s case favourably and discussing some of his recent circumstances. It does not assert any error in the Tribunal decision and is not capable of establishing jurisdictional error in the Tribunal decision.
Further matters raised by the applicant at the hearing
The applicant also made a number of submissions at the hearing, including that:
(a)he did not intend to enrol in a lower course just to get a visa and remain in Australia;
(b)if he is successful in his application, he definitely intends to do further study;
(c)during the period from 2017 to 2018, he was depressed because of the accounting course;
(d)12 years is a long time away from study and so it was hard for him to come to Australia, but he wanted to do something better and that’s why millions of people migrate to Australia;
(e)he never had any intention to stay in this country forever;
(f)his lack of knowledge and miscommunications have misguided him;
(g)he used a migration agent when he first applied for a student visa and there were many errors in the application; and
(h)if he is successful in his application, he will study and complete his Diploma in Hospitality, and then will see if that can help him in India or some other country, and he can get experience in this country.
These matters invite the Court to engage in merits review, and they do not assert any jurisdictional error in the Tribunal decision. There is no reasonable prospect of the applicant being able to establish jurisdictional error in the Tribunal decision based on the matters he raised in his oral submissions.
Any delay in filing the reinstatement application
In his written submissions filed on 30 May 2023, the Minister noted that the judicial review application was dismissed on 8 March 2023 and the applicant did not apply for reinstatement until 3 April 2023. The Minister submitted that the applicant has not provided any explanation for his delay in making the reinstatement application.
I place no weight on this consideration in deciding whether or not to exercise the discretion to reinstate the application. The delay is less than four weeks and is not extensive. While it may be inferred that the applicant did not take immediate steps to seek reinstatement of his application, there is also no inordinate delay in seeking reinstatement.
Balancing the relevant factors
Given my views that the judicial review application has no reasonable prospects of success, it is appropriate to dismiss the reinstatement application even though:
(a)there is no prejudice to the Minister;
(b)there is no significant delay in seeking reinstatement;
(c)I have accepted that the applicant has a reasonable explanation for not personally attending the directions hearing; and
(d)I have determined not to place any weight on the applicant’s failure to explain his lawyer’s non-appearance at the directions hearing.
That is because it is not in the interests of justice to reinstate a judicial review application that has no reasonable prospects of success: see, for example, MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18]; CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4].
CONCLUSION
The reinstatement application is therefore dismissed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 14 July 2023
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