Kaur v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 818
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 818
File number: ADG 83 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 6 September 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – judicial review – refusal of Student (Temporary) (Class TU) (Subclass 500) visa –whether the Tribunal denied procedural fairness to the applicant – inappropriate to infer proceedings brought for ulterior purpose – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 359(2), 359A(4)(a), 359A(4)(b), 359A(4)(ba), 360, 360A, 476
Migration Regulations1994 (Cth) sch 2 cll 500.212, 500.212(a)
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146
Craig v State of South Australia (1995) 184 CLR 163
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Erosv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573
Kopalapillai v Minister for Immigration and Multicultural Affairs[1998] FCA 1126
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection[2015] FCA 1392
Patel v Minister for Immigration and Border Protection [2017] FCCA 2343
SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Yang v Minister for Immigration [2020] FCCA 1080
Zhang v Minister for Immigration [2014] FCCA 2752
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 19 August 2024 Place: Perth Applicant: Self-represented with the assistance of a Punjabi interpreter Solicitor for the First Respondent: Sparke Helmore Counsel for the First Respondent: Leith Helsdon Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 83 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BALJINDER KAUR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application be 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 GERRARD:
BACKGROUND
The applicant is a citizen of India. She first arrived in Australia on 22 May 2008 as the holder of a student visa (Court Book (CB) 68). Subsequently, the applicant has remained in Australia following the grant of a series of visas in January 2011, November 2011, August 2013, August 2014 and December 2016 (CB 70).
Since arriving in Australia, the applicant has completed ten courses and attained the following qualifications (CB 71-72):
Certificate IV in Hospitality, completed in March 2009;
Certificate III in Hospitality (Commercial cookery), completed in September 2009;
Diploma of Hospitality, completed in June 2010;
Diploma of Management, completed in October 2012;
Certificate III in Business, completed in May 2013;
Diploma of Business, completed in June 2014;
Advanced Diploma of Management, completed in October 2015;
Advanced Diploma of Business, completed in August 2016;
Diploma of Hospitality Management, completed in February 2018; and
Advanced Diploma of Leadership and Management, completed in December 2018.
On 21 December 2018, the applicant applied for a Student (Class TU) (Subclass 500) visa (the visa) (CB 1-21). This would be her seventh student visa. In that visa application, the applicant indicated that she intended to study a Diploma and an Advanced Diploma of Marketing and Communication which she expected to complete on 19 June 2020 (CB 48).
On 28 February 2019, a delegate of the first respondent (the Minister) refused to grant the applicant the visa (CB 42). The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of the Migration Regulations 1994 (the Regulations) (CB 46-50). That criterion provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) 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…
On 12 March 2019, the applicant applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision (CB 51-52).
On 15 January 2021, the Tribunal wrote to the applicant inviting her to provide further information under s 359(2) of the Migration Act 1958 (Cth) (the Act) by 29 January 2021 (CB 57-65).
In January 2021, the applicant provided a completed “Request for Student Visa Information” form (CB 66-77). In that form, the applicant indicated that she now intended to undertake a Certificate III and a Certificate IV in Commercial Cookery, for which she would be required to remain onshore until July 2021 (CB 71). The form also indicated that the applicant had not completed either of the courses that had formed the original bases for the visa application, or that she had undertaken any further study after the delegate’s decision.
On 19 February 2021, the applicant was invited to attend a hearing scheduled for 9 March 2021 (CB 98-102), which she attended with her representative (CB 137-139).
On 17 March 2021, the Tribunal affirmed the decision not to grant the applicant the visa (CB 143-159).
On 8 April 2021, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 17 pages long and spans 43 paragraphs (CB 143-159). The final six pages include a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’.
The Tribunal began by identifying the visa decision under review, noting that the applicant had applied for that visa on 21 December 2018. The Tribunal observed that, at the time of application, the visa class contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian), but that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa. The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212 in Schedule 2 of the Regulations) (at [1]-[3]).
The Tribunal confirmed that the applicant had appeared at a hearing before it on 9 March 2021 to give evidence and present arguments and that she was assisted in relation to her review by a registered migration agent (at [5]). The Tribunal also observed the hearing had been conducted by telephone in accordance with the COVID-19 Special Measures Practice Direction – Migration and Refugee Division, noting that the applicant had raised no difficulty with appearing by telephone and that the Tribunal considered there had been no disadvantage to the applicant in presenting her case (at [4]).
The Tribunal noted that the applicant held a current Certificate of Enrolment and had confirmed at the hearing that she was currently enrolled in a Certificate III in Commercial Cookery at Durban International College (at [10]).
The Tribunal identified that the issue in this matter was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student (as required by cl 500.212(a) in Schedule 2 of the Regulations). The Tribunal also set out the relevant legislative provisions in that regard (at [11]).
The Tribunal stated that, in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Ministerial Direction No. 69. The Tribunal noted, however, that the factors set out in Ministerial Direction No. 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant’s circumstances as a whole (at [12]-[13]).
Against this background, the Tribunal made the following findings.
The Tribunal found that the applicant had first arrived in Australia from India on 22 May 2008 on a student visa and had remained in Australia since that time save for returning to India on three occasions for a total of approximately 10 weeks (at [15]-[16]).
The Tribunal found that the applicant had obtained a Diploma of General Nursing and Midwifery in India. It then set out the various courses she had enrolled in, observing that if she completed the course she was currently enrolled in on time she would have resided in Australia for more than 13 years (at [17]-[19]).
The Tribunal accepted that the applicant’s reason for studying in Australia rather than India was reasonable. However, the Tribunal placed neutral weight on this factor due to the lack of evidence regarding the value the proposed courses would provide to her future (at [21]).
The Tribunal also accepted that the applicant had reasonably strong personal ties in India, but they did not operate as a strong incentive for her to return to India (at [21], [33]). The Tribunal was also not aware of any particular circumstances in India that would act as an inducement for the applicant to apply for a student visa in Australia (at [21]).
Further, the Tribunal found that the applicant had an economic incentive to remain in Australia and had strong ties to Australia (at [21]-[22]). The Tribunal did not accept that the applicant had strong economic or financial ties to India which would be an incentive for her to return (at [32]).
The Tribunal further found that whilst the applicant has been compliant with her visa conditions, she appeared to be attempting to maintain ongoing residence in Australia through temporary student visas (at [25]-[27]). The Tribunal found that the length of time she had spent in Australia, together with the fact that her study history did not represent a structured set of courses leading to qualifications for a particular career, were consistent with an intention to remain in Australia indefinitely (at [28]-[30]). In this respect, the Tribunal found that the applicant’s proposed courses would not enhance the applicant’s employment prospects because they were a repeat of earlier studies she had completed (at [28]). The Tribunal did not accept the applicant’s claim that the proposed study would be valuable because she needed to update her cookery skills (at [37]).
The Tribunal was ultimately not satisfied that the applicant intended genuinely to stay in Australia temporarily and she therefore did not meet cl 500.212(a) of the Regulations (at [40]-[41]).
The Tribunal affirmed the delegate’s decision (at [43]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 8 April 2021 contains a single ground of review as follows (without alteration):
1.My primary ground of this application is that Tribunal did not provide me procedural fairness. Member made his decision based on some errors. Member believed that my intended courses were same as previously completed. Whereas previously completed similar courses were studied in 2008-2010. I wished to update my courses to modern and current courses. Academics courses keep on changing as per the requirements of time. I wanted to gain most up to the date qualifications before returning to my home country. I have always been a geuine temporary entrant. I have completed most of the enrolled studies. Please refer to my detailed affidavit and supporting documents. Member also concluded I did not have enough reasons to go back. Whereas my mother is there in India and my father is not alive. In future, I am the only one to take care of my mother because my brothers won’t. I have strong ties to India. I was enrolled in current courses just to update myself and start my career journey in a professional manner.
The applicant filed an affidavit with that judicial review application on 8 April 2021. The affidavit annexed a copy of the information sheet provided to the Tribunal, a copy of her passport, and a copy of the Tribunal’s decision and notification. In her affidavit, the applicant also stated:
That I am applying for the judicial review because I strongly believe I was not given procedural fairness in my Tribunal review. Hon’ Tribunal member concluded that I was not a genuine student. One of the main reasons that I was not a genuine student is mentioned in para 36 of its decision. Tribunal Member mentions that I am enrolled in courses which I have already completed. Member has also mentioned various other reasons such as my incentive to remain in Australia, number of visits back home during my Australia stay, value of my intended courses etc. I provided my detailed reasoning to member that why I intended to complete my ongoing courses. These are not exactly same courses as I studied before. I explained member that my previous similar courses were completed in 2009 and 2010. There have been numerous changes in the study material and the practical aspects of the courses. To achieve my future goals, I need to be updated. That is the reason I was enrolled in current courses. Also that my ties to India are much stronger than ties to Australia. I do not have my father and I am the only who in future will take care of my mother. I did not visit India many times during my Australia stay because my mother visited me here in Australia. I have also been to India three times during my Austrlaian stay. I need to given a fair opportunity to finish my studies. I am providing following documents to support my claims.
The applicant appeared before the Court (on 19 August 2024) without legal representation but with the assistance of a Punjabi interpreter. The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 8 April 2021 (the affidavit being taken as read and in evidence at the hearing on 19 August 2024), a Court Book numbering 159 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 24 May 2024.
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [61]. Accordingly, at the hearing of this matter on 19 August 2024, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang)) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged by the applicant, common categories of alleged jurisdictional error included:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 176-180 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 176-180);
(c)where the decision-maker relies on irrelevant material (Craig at 176-180);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131] (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [44]).
However, it was also explained to the applicant that this was not an exhaustive list and she should attempt to articulate why she said the Tribunal had fallen into error.
Against this background, the applicant told the Court that she didn’t know why the Tribunal didn’t consider her case because she provided them with all of the documents relevant to “her interest in further study – or whatever I want to do in Australia”. The applicant also told the Court that she wanted to upgrade her qualifications because there were a few different units than the first time she had undertaken this course. She also told the Court that those additional units had assisted her in obtaining a job in child care as an assistant chef.
CONSIDERATION
As outlined above, there is a single ground of review advanced in these proceedings. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s ground as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection[2015] FCA 1392). It appears to the Court that through this ground the applicant is asserting that:
(a)The Tribunal did not provide her with procedural fairness;
(b)The Tribunal decision was based on errors, namely, that the Tribunal mistakenly believed the applicant was studying the same courses she had previously, whereas the applicant asserts those courses were completed in 2008-2010 and she wished to update those courses and gain the most up-to-date qualifications prior to returning to India;
(c)The Tribunal erred in finding that the applicant did not have enough reasons to return to India, whereas the applicant asserts that her mother is there and in the future she will be the only one who can take care of her mother because her brothers will not.
The Minister submitted that the applicant is “plainly seeking impermissible merits review” relying upon Wu Shan Liang. The Court does not agree. It is, of course, entirely understandable that a self-represented applicant has expressed their disagreement with the Tribunal decision in relatively simple terms. A self-represented applicant may very well believe there is something wrong with a decision even if they are not able to properly articulate what that error might be. There are many matters, and this is one, where a self-represented applicant may advance a ground that could be construed as an allegation of jurisdictional error or an invitation to merits review or even a hybrid of both. Where a denial of procedural fairness is asserted, it is consistent with the authorities and the administration of justice to review the Tribunal decision for obvious jurisdictional error.
In this respect, the Court is grateful for the helpful submissions of the Minister which addressed ground one consistently with the approach set out above.
In respect of the applicant’s complaint that she was denied procedural fairness, the Minister submitted firstly that the Tribunal complied with its statutorily mandated procedural fairness obligations under Division 5 of Part 5 of the Act because:
(a)The applicant was invited to attend a hearing before it in accordance with ss 360 and 360A of the Act, which the applicant attended with the assistance of her representative;
(b)The applicant was squarely on notice from the delegate’s decision, the Tribunal’s s 359(2) invitation and the Tribunal’s questioning at the hearing that cl 500.212(a) of the Regulations was the determinative issue on review, citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [37]; and
(c)The Tribunal’s obligations under s 359A of the Act were not engaged because the information it relied upon in its decision fell within the exceptions in s 359A(4)(a)-(ba) of the Act.
The Court accepts the Minister’s submissions in respect of the applicant’s general complaint that she was denied procedural fairness.
Further, the Tribunal’s decision reveals it understood the relevant task before it. It considered all of the claims made by the applicant and all of the evidence given by the applicant in support of those claims. Where it had concerns, those concerns were put to the applicant and the applicant’s responses were considered. All of the matters considered by the Tribunal were clearly relevant and there is no evidence that it failed to consider relevant material. The Tribunal’s findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146; Kopalapillai v Minister for Immigration and Multicultural Affairs[1998] FCA 1126; (1998) 86 FCR 547 and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS).
The Court is satisfied that, even adopting the broad approach referred to in [35]-[36], no denial of procedural fairness arises.
In respect of the applicant’s claim that the Tribunal erred by finding that the courses were the same as the courses the applicant had previously completed, the Minister submitted that this is not what the Tribunal did. Rather, the Minister submitted that the Tribunal found the courses were “effectively the same courses” as courses she had previously undertaken in 2008 and 2009 (at [22]). The Minister submitted that it was open to the Tribunal to make this finding, as the applicant had accepted that this was the case (at [22], footnote 2). Furthermore, the Minister submitted that the Tribunal considered, and rejected, the applicant’s claim that there was value in her retaking the proposed courses because that would have the effect of “updating” her cookery skills (at [22], [37]).
In addition, the Minister submitted, contrary to the applicant’s assertion otherwise, that the Tribunal accepted that the applicant had completed most of the courses she had enrolled in. However, the Minister submitted the Tribunal had found this behaviour was more consistent with a person who was attempting to maintain ongoing residence in Australia, rather than that of a genuine student (at [26]).
Again, the Court accepts the Minister’s submissions in this regard. To the extent that the applicant is asserting that the Tribunal either did not have regard to, or did not understand, her claims in respect of her reasons for enrolling in the course that is not made out. It is clear from the Tribunal’s decision that it appreciated the applicant’s claims in this respect but did not agree that there was any value to these courses. Similarly, the Tribunal did consider the applicant’s evidence that she had completed most of the courses. However, the Tribunal found that her enrolment history and the types of courses she engaged in were not consistent with the pathway of a genuine student and more consistent with a person who was making repeat applications to extend her stay in this country. That was a finding which was open on the evidence and one which the Tribunal was entitled to make.
The Minister also submitted that the Tribunal did not conclude that the applicant “did not have enough reasons to go back”. Rather, the Minister submitted that the Tribunal found the applicant’s personal ties in India did not operate as a strong incentive for her to return (at [33]). The Minister submitted that this finding “was entirely rational, if not inevitable” having regard to the applicant’s continued residence for nearly 13 years in Australia as at the date of the Tribunal’s decision.
The Court accepts that the conclusions reached by the Tribunal in this respect were logical and rational and based on relevant material, including the applicant’s evidence. However, to say that the applicant’s lengthy period of residence led to an inevitable finding overstates the matter. In any event, the length of the applicant’s residence was but one factor the Tribunal had regard to in reaching this finding. The Tribunal considered a number of factors in reaching its conclusion in this respect, including her infrequent return visits to India during her residence in this country, the economic incentives of remaining in Australia, her ties to and financial support within Australia, her familiarity with Australia, and the vagueness of her stated intentions in returning to India. All of these were relevant to the Tribunal’s consideration, and the conclusions reached were rational and logical.
Counsel for the Minister was asked whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. In response to this, Ms Helsdon indicated that the decision of the Tribunal was not affected by an error of the sort identified in Erosv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros). Ms Helsdon carefully outlined Eros in terms the Court was satisfied the applicant could understand, and submitted that an error of that sort did not arise in this matter because the Tribunal made a strong and conclusive finding, based on the evidence before it, that the applicant was not a genuine temporary entrant.
The Court thanks Ms Helsdon for raising and addressing this in accordance with the Minister’s model litigant obligations. The Court agrees that the error identified in Eros does not arise in this matter. Unlike the Tribunal in Eros, the Tribunal did not make a finding that the applicant intended to remain in Australia for a defined period. The Tribunal made a finding that it was not satisfied that the applicant genuinely intended to stay in Australia temporarily as a student. It made that finding on the basis of cogent and relevant material.
No jurisdictional error arises.
Discretionary refusal of relief – ulterior purpose
The Minister also submitted, as an alternative, that the Court should refuse to grant relief in the exercise of its discretion on the basis that “it can be inferred that these proceedings have been brought for an ulterior purpose, namely, to extend the applicant’s residence in Australia for reasons which are unrelated to the educational purpose for which she sought the visa”. The Minister cites Zhang v Minister for Immigration [2014] FCCA 2752 at [47] (Zhang); Patel v Minister for Immigration and Border Protection [2017] FCCA 2343 at [10]-[13] (Patel); and Yang v Minister for Immigration [2020] FCCA 1080 at [27] (Yang) in support of this submission.
The Court declines to make any such inference for the following reasons.
Firstly, putting to one side the dubious rationale of refusing to exercise the Court’s discretion on the basis of an “inference”, the submission sails perilously close to an invitation to engage in impermissible merits review. Essentially, the Court is being asked to find that the applicant does not intend to genuinely stay in Australia temporarily as a student. Whether the applicant is or is not a genuine temporary entrant was a matter for the Tribunal. This Court is concerned solely with whether the Tribunal’s determination that the applicant was not a genuine temporary entrant is affected by jurisdictional error. On that basis alone, the Court finds that it was inappropriate to ask for such an inference to be drawn.
Secondly, any such inference should not be drawn lightly. As has been observed, the applicant represented herself and required the assistance of an interpreter. In those circumstances, it would be inappropriate and unfair for the Court to make what is essentially an adverse credit finding in respect of a serious allegation without providing the applicant with a meaningful opportunity to answer such an allegation.
Thirdly, the authorities relied upon by the Minister do not support the Minister’s argument.
In Zhang, there was evidence before the Court that the applicant had received advice that she would not be successful in any application before the Tribunal but that lodging an application for review was the best way for her to prolong her stay in Australia (Zhang at [20]). The Court found in respect of this [emphasis added]:
37.In this case, the applicant knew, from the time of her initial discussion with Mr Jiang, in or about October 2013, that the course that Mr Jiang proposed, and which she agreed to adopt, would be unsuccessful, but would prolong her stay in Australia, which was her intention. She therefore knew from the outset that her Student Visa Application was futile. The applicant was aware not only at the stage of initiating the Student Visa Application that it was likely to be unsuccessful, but also after the Delegate’s Decision, and before making the merits review application to the Tribunal.
38.The applicant’s stated reliance on the advice of Mr Jiang merely reinforces this fact. It does not matter that she assumed that Mr Jiang was a migration agent, because even if he was not, the applicant’s assertion that she only intended to ever act lawfully stands in contra-distinction to her actual actions which evince an intention to manipulate the application and review processes under the Migration Act. There was no evidence of manipulation of the applicant by Mr Jiang in this case, but rather a cynical bad faith exercise of the application and review process of which the applicant was aware and in which she was complicit. The outcome was precisely what the applicant was advised it would be by Mr Jiang. The applicant in this case is condemned by her own evidence which reveals her complicity in the course of conduct adopted by Mr Jiang, the sole purpose of which was to prolong the applicant’s stay in Australia in circumstances where she did not have any valid basis for the grant of her Student Visa Application. There is nothing in the evidence which, viewed through the prism of the applicant’s actual actions, would indicate that she would have acted any differently whether her advice came from a registered migration agent or not.
…
47.Having regard to the fact that what is now alleged to be a fraud on the Tribunal by Mr Jiang, the migration agent, was a course of conduct in which the applicant concurred and was complicit, the Court would not in any event exercise its discretion so as to grant prerogative relief. In particular, the Court considers that to grant the relief sought in this case would be inconsistent with the principle that does not allow a person to maintain an advantage obtained by a person’s own fraud. There is no scope for judicial review where an applicant for judicial review has colluded in the alleged fraud said to have been visited upon the administrative decision-maker or review body. Alternatively, the applicant has deliberately engaged in an exercise of bad faith in pursuing the Student Visa Application and the application for merits review before the Tribunal for an ulterior purpose, that is to prolong her stay in Australia, in circumstances where she knew that the Student Visa Application and the application to the Tribunal for merits review of the Delegate’s Decision had no prospects of success. The applicant’s bad faith militates against the grant of the relief sought. That is so even though the applicant has not made a valid application for review by the Tribunal because the application was signed by Mr Jiang, and not by her. Ultimately, it makes no difference. On the evidence it is clearly open to infer that the applicant would have signed any application forwarded to her by Mr Jiang for signature, and would have done so in pursuit of her ulterior purpose of prolonging her stay in Australia.
It can be seen that Zhang was dependent upon clear findings made in respect of bad faith on the part of the applicant. Those findings were based on evidence before the Court, including the applicant’s own evidence, that the applicant had engaged in a course of conduct solely to prolong her stay in Australia. No such finding arises on the material in respect of this matter.
In Patel, the Court dismissed a ground that the Tribunal had fallen into jurisdictional error by misinforming itself as to the true nature of the applicant’s evidence. The Court made no finding of ulterior purpose on the part of the applicant but rather observed that a mandatory criterion for the visa, in that case a medical visa, could not be met. Importantly, Patel was concerned with a very different visa and the Court was concerned with the futility of the application given the applicant in that matter could not satisfy a mandatory criterion.
In Yang, the Court simply accepted that discretionary relief should be refused because the course which the visa was dependent upon was to have been completed prior to the resolution of those proceedings. There is no analysis in that decision which this Court could rely upon for a similar finding but, once again, it speaks more to futility than to ulterior purpose.
In the Court’s view, the Minister’s reliance on these authorities was misplaced. In any event, for the reasons stated above, the Court would not have made that inference.
Nevertheless, as the Court has accepted that there is no apparent jurisdictional error which arises on the face of the decision, the application has not succeeded and there is consequently no need for this Court to consider withholding relief on this basis.
CONCLUSION
The application for judicial review, supporting affidavit and additional submissions advanced by the applicant at the hearing have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 6 September 2024
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