Kaur v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 535

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 535

File number: MLG 1220 of 2018

Judgment of: JUDGE KENDALL

Date of judgment: 13 June 2024

Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal breached “various sections” of the legislation by failing to properly review the decision before it or by failing to act in a way that was fair and just – whether the Tribunal failed to provide proper reasons for its decision – whether the Tribunal failed to objectively consider the totality of the evidence or erred in evaluating the evidence before it – whether the Tribunal failed to consider all of the factors set out in the relevant Ministerial Direction – whether the Tribunal erred by failing to consider that the applicant would be unable to return to Australia if she visited India – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss 338, 348, 353, 357A, 359A, 359AA, 360, 360A, 368, 420, 476 & 499 and Division 5 of Part 5

Migration Regulations 1994 (Cth), cll 500.212 & 573.223 in Schedule 2

Cases cited:
Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27

Bala v Minister for Immigration & Border Protection [2019] FCA 600

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

Minister for Immigration & Citizenship v Li [2013] HCA 18

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10

NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559

Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

Saini v Minister for Immigration and Border Protection [2015] FCCA 2379

Saini v Minister for Immigration and Border Protection [2016] FCA 858

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 941

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Division: Division 2 General Federal Law

Number of paragraphs: 172

Date of last submission: 6 June 2024

Date of hearing: 23 January 2024

Place: Perth

Applicant: Applicant appeared in person

Counsel for the First Respondent: Mr A Cunynghame

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Sparke Helmore
ORDERS

MLG 1220 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MANPREET KAUR

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

13 JUNE 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 KENDALL:
BACKGROUND

The applicant is a citizen of India (Court Book (“CB”) 1-2). She arrived in Australia in December 2013 as the holder of a student visa with the intention of studying a Master of Health Promotion degree (CB 38). That initial student visa was granted (offshore) on 28 November 2013 and was valid until 15 March 2016 (CB 67).
The applicant did not commence the Masters degree. Instead, she studied a Certificate III in Commercial Cookery (CB 38).
On 8 March 2016, the applicant applied for the Student (Class TU) (Subclass 573) visa the subject of this application (the “visa”) (CB 1-9). In that visa application, the applicant appointed a registered migration agent to assist her (the “first representative”) (CB 3). The applicant also provided educational records and Overseas Student Confirmation-of-Enrolment (“COE”) forms confirming her enrolment in a Certificate IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business (Management) (CB 10-30).
On 14 April 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicant to provide more information in relation to her visa application (CB 33-42). In particular, the Department asked for information relating to the following items (CB 36):
(a)evidence of the applicant’s English language ability;
(b)the genuine temporary entrant criterion;
(c)financial capacity;
(d)Overseas Student Health Cover; and
(e)Immigration Health Examinations.
On 12 May 2016, the applicant’s first representative provided additional documents to the Department (CB 43-60).
On 4 November 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 65-70). The delegate found that the applicant did not satisfy the requirements set out in cl 573.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). In particular, the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (CB 69).
On 21 November 2016, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 71-72). In that application, the applicant appointed a new registered migration agent (the “second representative”) to assist her with the Tribunal review (CB 72).
On 2 May 2017, a further registered migration agent (the “third representative”) notified the Tribunal that they would be representing the applicant going forward and provided the Tribunal with a completed “Appointment of Representative” form (CB 77-78).
On 19 February 2018, the Tribunal invited the applicant (through her third representative) to appear at a hearing before it on 19 March 2018 (CB 82-91). That hearing invitation letter also asked the applicant to provide the following additional information (CB 85):
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
On 9 March 2018, the applicant’s third representative provided the Tribunal with a completed “Response to hearing invitation” form (CB 92-96).
Later that same day (also on 9 March 2018), the applicant’s third representative provided the Tribunal with the following documents (CB 97-108):
(a)a Certificate III in Commercial Cookery from Australian Careers Education Pty Ltd (“ACEPL”);
(b)a Certificate IV in Commercial Cookery from ACEPL;
(c)a Diploma of Hospitality from ACEPL;
(d)a COE for a Bachelor of Business (Management) at Cambridge International College (“Cambridge”); and
(e)letters, statements of account and academic results from Cambridge regarding the applicant’s study towards the award of a Bachelor of Business (Management).
On 18 March 2018, the applicant’s third representative provided the Tribunal with a genuine temporary entrant letter from the applicant (CB 111-112).
On 19 March 2018, the applicant appeared at a hearing before the Tribunal to give evidence and present arguments (CB 114-116). She was assisted at that hearing by her third representative (CB 114).
At that hearing, the applicant completed a “Student Visa – GTE Questionnaire” form (the “Tribunal’s questionnaire”) (CB 117-122). The applicant also provided further supporting documents to the Tribunal (CB 123-125).
On 12 April 2018, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 132-138).
On 7 May 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision.
THE TRIBUNAL’S DECISION
This application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is seven pages long and spans 39 paragraphs.
The Tribunal began by identifying the visa decision under review, noting that the applicant had applied for that visa on 8 March 2016 and highlighting that, at the time of application, the visa class contained a number of subclasses. The Tribunal identified that, based on the applicant’s proposed course of study, the subclass relevant in this matter was Subclass 573. The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa on 4 November 2016 because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 573.223 in Schedule 2 of the Regulations) (at [1]-[3] & [7]).
The Tribunal confirmed that the applicant had appeared at a hearing before it on 19 March 2018 to give evidence and present arguments and that she was assisted in relation to her review by a registered migration agent (at [4]-[5]).
The Tribunal identified that the issue in this matter was whether the applicant was a genuine temporary entrant (as required by cl 573.223 in Schedule 2 of the Regulations). The Tribunal also set out the relevant legislative provisions in that regard (at [8]).
The Tribunal explained that it was required to have regard to “Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications” (the “Direction”) made under s 499 of the Act. The Tribunal noted that the factors set out in the Direction should not be used as a checklist but, instead, as a guide when weighing an applicant’s circumstances as a whole. The Tribunal also confirmed that it had discussed the considerations set out in the Direction with the applicant (at [9]-[11]).
The Tribunal outlined the applicant’s immigration, study and employment history, noting that she had come to Australia in December 2013 to commence a Master of Health Promotion in Queensland but did not commence that study and relocated to Melbourne in early 2014 where she enrolled in an English course. The Tribunal detailed the applicant’s evidence that she had completed a General Nursing and Midwifery course and a Bachelor of Science in Nursing in India and worked as a theatre nurse for approximately three years (at [12]-[13]).
The Tribunal went on to assess the applicant’s circumstances in her home country, noting that the applicant had told the Tribunal that she had only returned to India once (in 2014) since coming to Australia, that her brothers had supported her financially whilst she was in Australia and that she had managed her relations with her brothers (and their families) by making regular contact by telephone and through various social media applications. The Tribunal did not consider that the applicant’s personal connections in India would serve as a distinct incentive for the applicant to return (at [15]-[17]).
The Tribunal also considered the applicant’s circumstances, immigration and study history in Australia, noting that:
(a)the Tribunal had put information to the applicant (pursuant to s 359AA of the Act) from the applicant’s Provider Registration and International Students Management System (“PRISMS”) records. In particular, the Tribunal noted that the PRISMS records indicated that the applicant had either not started, cancelled or not completed all of the courses she had enrolled in since January 2017 (at [18]);
(b)the applicant confirmed that she understood the information and did not seek an adjournment (electing to respond during the hearing) (at [19]);
(c)the applicant told the Tribunal that the PRISMS record “was not fully accurate and provided a written submission [prepared] by her agent”. The Tribunal accepted the submission which stated that the applicant did not complete her first course of study (being a Certificate III in Commercial Cookery) until January 2016 (at [20]);
(d)the Tribunal accepted the applicant’s evidence that she had completed Certificates III and IV in Commercial Cookery and a Diploma of Hospitality during her time in Australia (at [21]);
(e)the Tribunal noted that the applicant had provided evidence of a job offer as the manager of a restaurant in India (current as at 19 March 2018) which she could accept upon completion of her studies in Australia (at [22]);
(f)the Tribunal had regard to the applicant’s living arrangements and employment (noting that she was working as a security guard earning $25 per hour and paying approximately $400 per month in rent) (at [23]);
(g)the Tribunal acknowledged the genuine temporary entrant statement (the “GTE statement”) provided by the applicant to the Department (referencing her future job offer and reasons for relocating from Queensland to Victoria) (at [24]);
(h)the Tribunal accepted that the information contained in the applicant’s GTE statement was consistent with her job offer and oral evidence (at [25]); and
(i)the applicant told the Tribunal that she had “no issues of concern back in India” (at [26]).
The Tribunal considered the applicant’s future plans and noted that she planned to return to India to live with her partner and work at a restaurant owned by family friends. The Tribunal noted that the applicant had also claimed that there was a “prospect of her becoming a part owner of the restaurant in the future” but was “unable to elaborate further” on her future plans in India (at [27]-[28]).
The Tribunal went on to consider the value of the proposed study to the applicant’s future plan, noting that:
(a)the Bachelor of Business (Management) added “little incremental value to her future plans as a chef in India” and the Tribunal gave little weight to those plans (at [29]);
(b)the Tribunal “had little confidence that the current course of study [would] be completed” and was of the view that the applicant was seeking the visa to continue her residence in Australia (at [30]);
(c)the applicant answered “yes” when asked if she had already completed sufficient study to be a chef in India (at [31]);
(d)the Tribunal found the applicant’s oral evidence regarding the possibility of becoming a part owner at the restaurant in India to be “vague and unconvincing” and her “wish to franchise” the restaurant to be speculative. Further, when the applicant was questioned by the Tribunal about her plans in India, she was “not able to give a clear and detailed response” (at [32]); and
(e)the Tribunal determined that the applicant’s only clearly articulated plan put forward by the applicant was that she planned to “become a chef at the Aman Restaurant” and that the applicant had already completed courses which provided her with “sufficient skills, knowledge and qualifications” to embark upon that plan. The Tribunal considered that the applicant’s proposed further study (being the Bachelor of Business (Management) course) would prolong an “already significant stay in Australia” (at [33]-[35]).
The Tribunal made no findings against the applicant based on the remaining factors set out in the Direction because there was no relevant evidence before it that would allow it to do so (at [36]).
Having considered the applicant’s circumstances, the Tribunal was not satisfied that the applicant intended to stay in Australia temporarily and, as such, did not satisfy cl 573.223(1)(a) in Schedule 2 of the Regulations (at [37]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [39]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 7 May 2018 contains nine grounds of review, as follows (without alteration):
1.The Tribunal failed to properly consider the evidence provided by the applicant at the hearing and erred in finding that the applicant was not a ‘genuine applicant for entry and stay in Australia temporarily as a student’ under clause 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (now clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth)) and failing to satisfy itself having regard to Direction No. 53 (now Direction No. 69). The Tribunal’s findings are unreasonable, erroneous and do not reflect the applicant’s genuine intention to stay in Australia temporarily.
Particulars
a.The Tribunal has noted that the applicant does have personal ties in their home country of India at paragraphs 15, 17 and 35. Despite this, the Tribunal reached the conclusion that the applicant’s personal connections overseas are not a distinct incentive for the applicant to genuinely intend to stay in Australia only temporarily. It is unreasonable to assert that contact limited to telephone and social media applications amounts to manageable personal relationships and that this excludes any significant incentive for the applicant to return to their home country. The Tribunal failed to adequately consider the extent of the applicant's personal ties to her home country, including family and employment ties.
b.The Tribunal failed to consider that the job offer submitted to the Department (DIBP Folio 35) and current at the time of the Tribunal’s decision (as evidenced at paragraph 22) presented a significant employment incentive for the applicant to genuinely intend to stay in Australia only temporarily. The Tribunal failed to consider the extent of the applicant’s personal ties to home country under Item 9(b), Part 2 of Direction No. 53.
c.The Tribunal’s concerns at paragraph 23 are inconsistent with the evidence adduced by the applicant. The economic circumstances detailed by the applicant when interpreted in conjunction with the evidence provided at paragraph 22 are contrary to ‘an actual plan ... to not depart Australia ... and not to remain in Australia temporarily.’ The Tribunal provided no reasons for reaching conclusions consistent with Item 11(b) and (c) of Direction No. 53 in circumstances where evidence to satisfy those parts was absent. Evidence provided by the applicant at paragraph 23 is contrary to Item 11(b) of Direction No. 53.
d.At paragraph 29, the Tribunal gives weight to the consideration of the applicant’s future plans by assessing the value of the applicant’s current course of study against said future plans. This is contradicted by the next statement that ‘the Tribunal gives little weight to the applicant's future plans.’ Furthermore, the Tribunal failed to properly consider the scope of the applicant's future plans despite evidence provided at paragraph 22 of a ‘possibility of becoming a part time owner in the business’. On this basis the Tribunal erroneously concluded that the applicant’s current course of study being a Bachelor of Business (Management) added ‘little incremental value’ despite its relevance to a future business context that was evidently contingent upon an initial future role as chef. The Tribunal failed to consider the value of the course to ‘improve employment prospects’ in line with the applicant’s future plans and did not adequately allow for ‘reasonable changes to career pathways’ under Item 12(a) of Direction No. 53. The Tribunal similarly failed to consider the ‘relevance of the course to the student’s ... proposed future employment in their home country’ under Item 12(b) of Direction No. 53.
e.The Tribunal does not provide a proper basis for the conclusions reached at paragraph 30. The assertions therein operate on presumptions not readily evidenced by the applicant’s submissions.
f.The Tribunal reached conclusions at paragraph 32 and 33 without adequate consideration that the subject matter upon which the questions were based concerned processes and knowledge that the applicant was likely seeking to learn in her current course of Bachelor of Business (Management). Therefore, the Tribunal ought not to have discredited the applicant’s future plans in India based upon this material.
g.As evidenced by paragraph 22 and the responses drawn from the applicant at paragraph 32, the Tribunal erroneously asserted at paragraph 34 that the applicant already possessed ‘sufficient skills ... for her to ... embark upon the stated future plans’ given that the Tribunal previously misconstrued the scope of the applicant's future plans.
In each of the above sub-paragraphs of ground 1, the Tribunal erred in assessing the Applicant’s genuine intention to stay in Australia temporarily in accordance with clause 537.233 and Direction No. 53. The Tribunal had no reasonable basis to arrive at the findings contrary to the evidence adduced by the applicant therefore its determination is affected by jurisdictional error.
2.The Tribunal erred in concluding that the applicant did not intend to study in Australia and that the only purpose of her student visa application was to secure a visa to stay in Australia. The Tribunal failed to consider the applicant’s subjective intention to return to India after completion of her studies.
3.The Tribunal has breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
4.The Tribunal has breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.
5.The Tribunal has erred jurisdictionally by its failure to objectively consider the totality of the evidence before it.
Particulars
(a)By discounting the evidence before it;
(b)By failing to consider the evidence in totality and cumulatively;
(c)By concluding, without proper basis, that the applicant was not a genuine temporary applicant.
6.There is no apparent settled intention, at the time of the decision, of the applicant to seek a further visa. Saini & Anor v Minister for Immigration & Anor [2015] FCCA 23 79.
7.The Tribunal erred in evaluating the evidence before it reasonably which materially affected its purported determination. The Tribunal, therefore, committed jurisdictional error.
8.The Tribunal used the factors specified in the Direction as a checklist and not considered the applicant’s circumstances as a whole in reaching its finding about whether the applicant satisfied the genuine temporary entrant criterion.
9.The Tribunal failed to assess, on balance, the applicant against all factors specified in the Direction and in considering the relevant information provided by the applicant.

The applicant also filed an affidavit with her application which annexed a copy of the Tribunal’s decision.
On 12 June 2019, procedural orders were made by Registrar Allaway of the then Federal Circuit Court of Australia giving the applicant an opportunity to file an amended application, any affidavits, a supplementary court book and written submissions. No additional materials were filed by or on behalf of the applicant.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 7 May 2018, a Court Book numbering 138 pages (marked as Exhibit 2) and written submissions filed on behalf of the Minister on 9 January 2024.
Adjournment request
The Court notes that on 22 January 2024, the day prior to the scheduled hearing, the applicant contacted the Court and requested an adjournment of the hearing. Relevantly, the applicant stated (without alteration):
I respectfully submit this motion for continuation of the court proceedings scheduled for 23/01/2023, due to unforeseen medical issues that significantly impacted my well‐being. I am suffering from fever/headache and period pain, which not only compromises my ability to be present in hearing but also significantly impairs my cognitive functions and overall well‐being, essential for actively participating in and following the proceedings of my case. This unforeseen medical crisis has created a situation where I am unable to adequately prepare for my court appearance, confer with my legal counsel, or engage in the proceedings in a meaningful way. It is imperative to note that this request is not made with any intention to delay the judicial process but is solely due to the urgent and serious nature of my medical condition. In light of these circumstances, I kindly request the court to grant a delay until the next available date, to allow me recovery to a state where I can effectively participate in my defense. I am more than willing to provide any additional information or documentation required to support my request. I understand the importance of proceeding in a timely manner and assure the court that this request is made solely due to extraordinary and unavoidable circumstances. I am committed to resuming the proceedings as soon as my health condition permits. Thank you for considering this request. I apologize for any inconvenience this may cause to the court and the opposing counsel and am prepared to provide any additional information or documentation as required.
Also, due to financial difficulties, I am unable to make a setting down payment. Kindly allow me some time or installment option.
Later that day (also on 22 January 2024), Mr Cunynghame, for the Minister, responded to the applicant’s request advising the Court that the Minister opposed the adjournment request. That email correspondence read as follows:
The request for an adjournment is opposed by the Minister.
The applicant has provided no evidence such as a medical certificate in support of her claimed illness, nor which speaks to how those illnesses would impact on her ability to appear before the Court. There is also nothing before the Court to suggest that the applicant has legal counsel.
The issues before the Court are also confined. The Minister has filed detailed written submissions explaining why the application should be dismissed. The applicant has not nor given any indication as to what arguments she will make in support of her application.
In this regard, over the 5-6 years this litigation has been on foot the applicant has taken no steps to meaningfully advance her application beyond the filing of originating application filed on 7 May 2018. Against that backdrop we are concerned that the request for an adjournment on the eve of the hearing is simply an attempt to extend her stay in Australia.
The Court notified the parties (on 22 January 2024) that the matter would be listed for a hearing of the interlocutory application for an adjournment, followed by a final hearing (if deemed appropriate) at the original listed time of 2.00pm (AEDT) / 11.00am (AWST) the following day (on 23 January 2024). Relevantly, the Court’s correspondence stated:
His Honour Judge Kendall notes that the applicant has not filed an application in a proceeding requesting an adjournment, which is the usual process to be followed when seeking an adjournment. However, noting that the applicant is self‐represented, His Honour is willing to consider the request below in its current form. His Honour does note, however, that no medical evidence has been provided in support of the adjournment request.
His Honour asks that the applicant provide evidence to the Court in support of the adjournment request prior to the scheduled listing time tomorrow. Any such evidence should explain to the Court why the applicant is unable to participate in a Court hearing via video link, or, indeed, why the applicant is unable to participate in a court hearing more generally.
In the circumstances, His Honour Judge Kendall considers it appropriate for the matter to be listed for a hearing of the interlocutory application for an adjournment followed by a final hearing (if deemed appropriate) tomorrow, 23 January 2024 at 2.00pm (AEDT) / 11.00am (AWST) via video link. The matter will proceed via Microsoft Teams and the parties can participate using the link provided in the email correspondence attached.
The purpose of the directions hearing is to allow His Honour to have a conversation with the parties about the request for an adjournment and to discuss any evidence provided by the applicant with the parties. Should His Honour determine that the matter cannot proceed to a final hearing, the hearing will be vacated and the matter relisted for a final hearing at a later date. If His Honour considers that the matter can proceed to a final hearing, the matter will be heard immediately following the directions hearing.
For the avoidance of confusion, Chambers confirms that the parties should be prepared to proceed to a final hearing (in relation to the substantive review application) tomorrow if His Honour considers it appropriate to do so.
Later that afternoon, the applicant provided a medical certificate dated 22 January 2024. That medical certificate provided as follows:
Mrs Manpreet Kaur has reported a medical condition and will be unable to attend their work or scheduled commitments.
from 22/01/2024
to 24/01/2024 inclusive.
The applicant appeared before this Court (via video link) on 23 January 2024 without legal representation. Mr Cunynghame appeared on behalf of the Minister (also via video link).
The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.
At the commencement of that hearing, the Court confirmed that it had before it correspondence (outlined above) regarding the applicant’s request for an adjournment (marked as Exhibit 1). The applicant was asked if she still sought an adjournment. The applicant advised that she did and told the Court that she had had a fever for two days and “had her period” and thus needed an adjournment.
The applicant’s adjournment “request” was denied for the reasons that follow.
The Court notes that, when determining whether or not an adjournment ought to be granted, the Court will take into account the following factors:
(a)the evidence in support of the adjournment request and the explanation for that request;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted, such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources;
(see: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
The applicant’s reason for requesting that the matter be adjourned was that she was ill and, due to her “unforeseen medical crisis”, had been “unable to adequately prepare” for the hearing before this Court. The applicant also provided a medical certificate (as outlined above) in that regard.
As explained by this Cour in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 941, in relation to the contents and nature of the medical certificate provided, the Court references the comments made by the Federal Court in NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559 (“NAKX”) (relating to medical certificates which included more detail than the certificate provided in the present matter) as follows:
5.The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
6.The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
7.I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
8.If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
9.I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.
10.In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.
The reasoning in NAKX was recently applied in Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576 (“Quach”) where a medical certificate (again, containing more information than the medical certificate provided to this Court) was provided in support of an adjournment request. In Quach, the Federal Court determined as follows:
9.As to the first medical certificate, it does not provide a diagnosis of the condition suffered by Dr Quach or explain the nature of that condition. The certificate does not contain an opinion about whether or not Dr Quach is or was prevented or hindered in his preparation for, attendance at or participation in, a hearing. Necessarily, it contains no reasons for any such opinion sufficient to enable the Court to form its own view about the reliability of the opinion – see further: BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35]; Kaur v Minister for Immigration and Border Protection [2016] FCA 565 at [12]-[14]; Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2]; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[11]; MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 at [2].
The Court considers that, in the circumstances, and following the Federal Court authorities referenced above, the medical certificate provided by the applicant in the matter the subject of this judgment was insufficient to warrant granting the applicant an adjournment in this case.
In particular, the Court notes that the medical certificate provided by the applicant in this matter appears to be a “pro forma certificate” like those described in the Federal Court authorities detailed above. Importantly, the certificate did not “address the critical question of whether, and if so why, the [applicant’s] medical condition would prevent the [applicant] from … participating effectively in a court hearing” by video link: NAKX at [6] & [8].
To the extent that the applicant now claims that she was not able to adequately prepare for the hearing, the Court also notes that the applicant in this matter filed her application in this Court in May 2018. The parties were also notified of the listing in this matter on 2 July 2023. The Court therefore considers that the applicant had sufficient time to prepare for the hearing in this matter.
Whilst the Court was sympathetic to the applicant’s circumstances, the Court was satisfied that, with the assistance of the Court, the applicant would be able to proceed with the hearing.
In the circumstances, the Court determined that granting the adjournment would not be in the interests of the administration of justice and considered it appropriate to proceed with the substantive hearing.
Substantive hearing
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)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 & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against that background, the applicant told the Court that her visa was simply refused “with a statement” that she “was not a genuine temporary entrant”. She told the Court that she “came here to study a “Masters of Health Promotion” and that she had already told immigration that her university was “racist against Indian and Nepalese students”. She explained that, for that reason, she had failed her “entry” course twice and, as a result, her COE was cancelled. She also explained that she was then unable to enrol in any other university in a Masters program but was instead given the option of enrolling at Tafe in a Diploma of Business in Brisbane.
The applicant further explained that one of her friends then suggested that she move to Melbourne to study a Diploma of Hospitality because she was “also interested in cooking”.
The applicant stressed that she was continuously studying and never had any gaps in her studies.
Mr Cunynghame, for the Minister, agreed that the applicant’s oral submissions were generally consistent with the applicant’s statements provided to the Department and to the Tribunal (see, for example, the applicant’s GTE statement of purpose provided to the Department at CB 57 and the GTE statement emailed to the Tribunal at CB 112).
Additional concern raised by the applicant
The applicant raised another concern with the Court in relation to the Tribunal’s decision, noting that the Tribunal had made adverse findings regarding her failure to return to her home country. However, the applicant explained that when her visa was refused, she was granted a “Bridging visa A” when she sought review of the delegate’s decision at the Tribunal and that visa did not allow her to return home (essentially because it contained a “no travel” condition).
In response, Mr Cunynghame told the Court that the applicant’s submission in this regard was incorrect and that an individual is not prevented from returning to their home country because of any condition on their visa “as to no travel”. Mr Cunynghame acknowledged that an applicant would indeed be in breach of that condition but explained that they would not be “prohibited” from traveling and would not be stopped from doing so (provided they had their passport and a valid ticket to do so).
When asked by the Court if an applicant would then be able to return to Australia, Mr Cunynghame said that they would “perhaps not” be able to do so.
The Court also asked if the fact that the applicant had not returned to her home country was a matter which was taken into consideration by the Tribunal in arriving at its decision. Mr Cunynghame said it was and referenced paragraphs [8]-[9] and [16]-[17] in the Tribunal’s decision.
Mr Cunynghame also told the Court that there was no evidence before the Tribunal of the applicant’s visa status. He submitted further that there was “certainly no claim before the Tribunal that the applicant’s visa conditions were somehow a barrier to her returning to India or that that was a relevant consideration for the Tribunal to have regard to when weighing the GTE criteria”. Further, he stressed, the applicant’s “lack of return to India” was not necessarily a matter that weighed against the applicant with respect to the Tribunal’s assessment of the GTE criteria.
Noting that this was not an issue raised in the applicant’s grounds of review, the Court granted the parties additional time to file further written submissions and any additional evidence addressing this issue.
Further written submissions were filed on behalf of the Minister on 1 February 2024, together with an affidavit of Mr Cunynghame (affirmed on 31 January 2024 and filed on 1 February 2024). The applicant filed reply submissions on 20 February 2024.
Having reviewed the parties’ submissions, the Court determined that it was necessary for a copy of the transcript of the Tribunal hearing to be provided to the Court for review and made orders requiring the Minister to file and serve the transcript.
Upon receipt of the transcript (filed by way of Supplementary Court Book (“SCB”) and marked as Exhibit 3), the Court asked the Minister’s representatives if the Minister wished to file further written submissions regarding the transcript. The Minister’s representatives advised that the Minister did want to file further submissions. The Court then made orders allowing the parties time to file further submissions.

Further written submissions were filed on behalf of the Minister on 21 May 2024. The applicant also filed reply submissions on 6 June 2024.
Those additional submissions and materials also form part of the Court record and will be considered below.
CONSIDERATION
Grounds of review
Grounds 1, 2 and 6
The applicant arguably raises various concerns about and disagrees with various findings made by the Tribunal in assessing her evidence against the relevant factors set out in the Direction. In effect, the applicant seeks an impermissible merits review of the Tribunal’s decision: Wu Shan Liang at 272.
For completeness, however, the Court will address all of the applicant’s concerns below and will read those concerns as broadly as possible as per the reasoning in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Ground 1
For ease of reference, ground 1 provides as follows:
1.The Tribunal failed to properly consider the evidence provided by the applicant at the hearing and erred in finding that the applicant was not a ‘genuine applicant for entry and stay in Australia temporarily as a student’ under clause 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (now clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth)) and failing to satisfy itself having regard to Direction No. 53 (now Direction No. 69). The Tribunal’s findings are unreasonable, erroneous and do not reflect the applicant’s genuine intention to stay in Australia temporarily.
Particulars
a.The Tribunal has noted that the applicant does have personal ties in their home country of India at paragraphs 15, 17 and 35. Despite this, the Tribunal reached the conclusion that the applicant’s personal connections overseas are not a distinct incentive for the applicant to genuinely intend to stay in Australia only temporarily. It is unreasonable to assert that contact limited to telephone and social media applications amounts to manageable personal relationships and that this excludes any significant incentive for the applicant to return to their home country. The Tribunal failed to adequately consider the extent of the applicant's personal ties to her home country, including family and employment ties.
b.The Tribunal failed to consider that the job offer submitted to the Department (DIBP Folio 35) and current at the time of the Tribunal’s decision (as evidenced at paragraph 22) presented a significant employment incentive for the applicant to genuinely intend to stay in Australia only temporarily. The Tribunal failed to consider the extent of the applicant’s personal ties to home country under Item 9(b), Part 2 of Direction No. 53.
c.The Tribunal’s concerns at paragraph 23 are inconsistent with the evidence adduced by the applicant. The economic circumstances detailed by the applicant when interpreted in conjunction with the evidence provided at paragraph 22 are contrary to ‘an actual plan ... to not depart Australia ... and not to remain in Australia temporarily.’ The Tribunal provided no reasons for reaching conclusions consistent with Item 11(b) and (c) of Direction No. 53 in circumstances where evidence to satisfy those parts was absent. Evidence provided by the applicant at paragraph 23 is contrary to Item 11(b) of Direction No. 53.
d.At paragraph 29, the Tribunal gives weight to the consideration of the applicant’s future plans by assessing the value of the applicant’s current course of study against said future plans. This is contradicted by the next statement that ‘the Tribunal gives little weight to the applicant's future plans.’ Furthermore, the Tribunal failed to properly consider the scope of the applicant's future plans despite evidence provided at paragraph 22 of a ‘possibility of becoming a part time owner in the business’. On this basis the Tribunal erroneously concluded that the applicant’s current course of study being a Bachelor of Business (Management) added ‘little incremental value’ despite its relevance to a future business context that was evidently contingent upon an initial future role as chef. The Tribunal failed to consider the value of the course to ‘improve employment prospects’ in line with the applicant’s future plans and did not adequately allow for ‘reasonable changes to career pathways’ under Item 12(a) of Direction No. 53. The Tribunal similarly failed to consider the ‘relevance of the course to the student’s ... proposed future employment in their home country’ under Item 12(b) of Direction No. 53.
e.The Tribunal does not provide a proper basis for the conclusions reached at paragraph 30. The assertions therein operate on presumptions not readily evidenced by the applicant’s submissions.
f.The Tribunal reached conclusions at paragraph 32 and 33 without adequate consideration that the subject matter upon which the questions were based concerned processes and knowledge that the applicant was likely seeking to learn in her current course of Bachelor of Business (Management). Therefore, the Tribunal ought not to have discredited the applicant’s future plans in India based upon this material.
g.As evidenced by paragraph 22 and the responses drawn from the applicant at paragraph 32, the Tribunal erroneously asserted at paragraph 34 that the applicant already possessed ‘sufficient skills ... for her to ... embark upon the stated future plans’ given that the Tribunal previously misconstrued the scope of the applicant's future plans.
In each of the above sub-paragraphs of ground 1, the Tribunal erred in assessing the Applicant’s genuine intention to stay in Australia temporarily in accordance with clause 537.233 and Direction No. 53. The Tribunal had no reasonable basis to arrive at the findings contrary to the evidence adduced by the applicant therefore its determination is affected by jurisdictional error.
Ground 1(a)
The applicant takes issue with “findings made by the Tribunal”.
To the extent that the applicant raises concerns about the findings made by the Tribunal about her personal ties to India, the Court notes that the applicant gave evidence to the Tribunal that she had been able to “manager personal relations with her brothers and their families” through regular contact “by telephone and through various social media applications”.
Based on that evidence, the Tribunal did not consider that the applicant’s connections overseas provided “a distinct incentive for the applicant” to return (at [17]).
No error arises in the Tribunal’s reasoning in this regard.
Ground 1(b)
The applicant also claims that the Tribunal failed to consider the applicant’s job offer to work as a chef at a restaurant in India.
This argument fails on a factual level.
The Tribunal expressly considered that job offer as follows:
22.The applicant submitted to the Department (DIBP Folio 35) a job offer dated 4 May 2016 from Aman Restaurant which quoted “we hire you as a manager after finish your study in Australia” and the applicant stated that the job offer is still current as at 19 March 2018. The applicant stated to the Tribunal that the Aman Restaurant is owned and operated by family friends and that it serves traditional Indian food restaurant. The applicant stated that her position at the restaurant will be as a chef in contrast to the position as a manager, and that in the future has the possibility of becoming a part owner in the business.
…
27.The applicant confirmed to the Tribunal that her future plans are to return to India at the completion of her current course and to live with her partner and start working at the Aman Restaurant as a chef (DIBP Folio 35) which is owned by family friends. The applicant claimed at the hearing that there is a prospect of her becoming a part owner of the restaurant in the future with the prospect of being able to franchise the business.
As can be seen from the passages above, that information was clearly referenced by the Tribunal. Having considered that evidence, the Tribunal went on to make findings as follows:
32.The Tribunal finds the applicants oral evidence at the hearing that she might one day become a part owner in the Aman Restaurant to be vague and unconvincing. Similarly, the Tribunal finds the applicant’s wish to franchise the Aman Restaurant to be speculative. The applicant was unable to elaborate further on how she would become a part owner and franchise the Aman Restaurant business. The Tribunal notes that the applicant when questioned further about her future plans back in India was not able to give a clear and detailed response.
Based on the extracts above, the Court is satisfied that the Tribunal considered the applicant’s job offer.
No error arises in this regard.
Ground 1(c)
Insofar as the applicant raises concerns about the Tribunal’s “lack of findings” that she was using the student visa program to circumvent the intentions of the migration program, the Court notes that the Tribunal did in fact do so.
The Tribunal outlined the applicant’s employment and income in Australia (at [34]) and was entitled to have regard to those economic circumstances relative to the circumstances in the applicant’s home country (as explained in cl 9(c) of the Direction).
Further, the Tribunal noted that the applicant already had the relevant qualifications for the job offer she had received to work as a chef in India (without having to undertake any further studies).
Having regard to that information, the Tribunal ultimately determined (at [30] in its reasons), that the applicant was simply using the student visa program to maintain an ongoing residence in Australia.
The Court is satisfied that those findings were open to the Tribunal on the evidence before it and no error arises in this regard.
Ground 1(d)
The applicant also raises concerns about the Tribunal’s findings (outlined above) that the proposed course of study (being a business course) would have provided little value to the applicant’s future plans of being a chef in India.
The Tribunal was entitled to consider the value of the course under cl 12 of the Direction.
The Court also notes that while the applicant mentioned that there was a possibility that “she might one day become a part owner” in the restaurant, the job offer before the Tribunal was to work as a chef in that restaurant.
Further, the Tribunal found the applicant’s evidence in relation to “one day” becoming a part owner in the restaurant to be “vague and unconvincing” (at [32]).
As a result, the Tribunal determined that the “only clearly articulated plan put forward by the applicant” was to become a chef upon her return to India (at [33]).
The Court is satisfied that it was open to the Tribunal to find that the business course would provide little value to the applicant’s stated future employment as a chef, particularly as she already held more relevant qualifications in Commercial Cookery and Hospitality and where the Tribunal found the applicant’s evidence in relation to becoming a part owner in the business in the future to be unconvincing.
No error arises in this regard.
Ground 1(e)
To the extent that the applicant claims that there was no basis for the Tribunal to doubt that the applicant would complete further studies, the Court disagrees for the reasons that follow.
The Court notes that the Tribunal outlined evidence from the applicant that she had arrived in Australia in December 2013. However, she did not complete her first course of study until January 2016 (at [20]). The Tribunal also outlined PRISMS records relating to the applicant which indicated that she had enrolled in a number of courses, many of which were cancelled for non-commencement (at [18]).
On that basis, the Tribunal’s reasons were open to it.
Ground 1(f)
As outlined above, the applicant gave evidence to the Tribunal that her future plans were to return to India to live with her partner and start working at the Aman Restaurant as a chef. The applicant also claimed that there was “a prospect of her becoming a part owner of the restaurant in the future with the prospect of being able to franchise the business”. The Tribunal noted that the applicant “was unable to elaborate further” about her future plans and found the applicant’s evidence in relation to the possibility of becoming a part owner of the restaurant to be “vague and unconvincing”.
The Tribunal also noted that the applicant could not elaborate “on how she would become a part owner and franchise the Aman Restaurant business” and, when questioned further about her plans, was “not able to give a clear and detailed response”.
Based on the limited evidence provided by the applicant, the Court is satisfied that it was open to the Tribunal to find the applicant’s oral evidence to be “vague and unconvincing”.
No error arises in this regard.
Ground 1(g)
The applicant also suggests that the Tribunal “misconstrued the scope of the applicant’s future plans”.
The Court disagrees for the reasons that follow.
As outlined above, the Tribunal found the applicant’s evidence about her future plans to be “vague and unconvincing”. The Tribunal did not disregard or misconstrue the scope of the applicant’s plans. Because of the lack of detail in the evidence before it and the applicant’s inability to elaborate on any of her responses in that regard, the Tribunal simply determined that the “only clearly articulated plan” provided by the applicant related to her working as a chef upon her return to India. That is, the Tribunal determined that the applicant’s future plans regarding becoming a part owner in the Aman Restaurant or franchising that business lacked detail and the Tribunal gave “little weight to the applicant’s future plans” (at [29]).
That finding was open to the Tribunal on the limited material before it.
No error arises in this regard.
Ground 2
For ease of reference, ground 2 provides as follows:
2.The Tribunal erred in concluding that the applicant did not intend to study in Australia and that the only purpose of her student visa application was to secure a visa to stay in Australia. The Tribunal failed to consider the applicant’s subjective intention to return to India after completion of her studies.
To the extent that the applicant suggests that the Tribunal failed to consider the applicant’s claimed intention to return to India upon completion of her studies, this fails on a factual level.
The Tribunal expressly noted the applicant’s evidence regarding her intention to return to India on multiple occasions throughout its written reasons, as follows (emphasis added):
23.The applicant said to the Tribunal that she currently works 20 hours part-time on weekends as a security guard and earns $25 an hour, that she currently lives in East St Albans and pays $400 approximately per month for rent. The applicant inform the Tribunal that her partner lives back in India and is not interested in visiting Australia and on her return to India she and her partner will take part in an arranged marriage. The Tribunal is concerned that the applicant’s actual plan at the completion of her current course of study is to not depart Australia and to seek a further student visa and not to remain in Australia temporarily.
…
27.The applicant confirmed to the Tribunal that her future plans are to return to India at the completion of her current course and to live with her partner and start working at the Aman Restaurant as a chef (DIBP Folio 35) which is owned by family friends. The applicant claimed at the hearing that there is a prospect of her becoming a part owner of the restaurant in the future with the prospect of being able to franchise the business.
…
33.The Tribunal therefore finds that the only clearly articulated plan put forward by the applicant on her return to India is to become a chef at the Aman Restaurant.
It is clear from the extracts above that the Tribunal considered the applicant’s evidence given to the Department and to the Tribunal regarding her “plan” to return to India and to work as a chef at the “Aman Restaurant”.
No error arises in this regard.
Ground 6
For ease of reference, ground 6 provides:
6.There is no apparent settled intention, at the time of the decision, of the applicant to seek a further visa. Saini & Anor v Minister for Immigration & Anor [2015] FCCA 2379.
In ground six, the applicant raises concerns about the lack of “settled intention” to seek a further visa at the time of the decision, citing Saini v Minister for Immigration and Border Protection [2015] FCCA 2379 (“Saini”).
As correctly noted by the Minister (in written submissions filed in this Court on 9 January 2024), the Saini decision was appealed and Logan J provided the following comments in Saini v Minister for Immigration and Border Protection [2016] FCA 858:
29.It follows that, to this extent, I do not accept the Minister’s submission. That does not mean that the statement in the “Preamble” is necessarily inconsistent with cl 572.223(1)(a), for that statement speaks of a “potential for this intention to change over time”. If there is evidence that, at the time of decision, an applicant harbours an intention to seek employment or undertake further study here that may well mean, in conjunction with other factors referred to in cl 572.223(1)(a), that a decision-maker is not satisfied that the visa-applicant “intends genuinely to stay in Australia temporarily”.
30.Equally, that an applicant for a Student visa may, at the time of decision, hope, for example, to undertake post-graduate study if successful in respect of the study for which the particular visa is sought, but nonetheless still leave once any further study is completed, it may be open to conclude that the visa-applicant does still have, at that time, an intention, “genuinely to stay in Australia temporarily”. The Regulations do provide for other classes of visa which may be sought on-shore so as to permit the holder of a Student visa to seek a visa which would permit a longer stay for further study or for employment. That means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”. What is required is an evaluation by the decision-maker of intention as at the time of decision.
The Tribunal here did not make any findings about the applicant’s “settled intentions”. Rather, based on what it deemed to be the limited value of the applicant’s course of study (being a Bachelor of Business Management) would add to the applicant’s claimed future plans of becoming a chef in India (in addition to the already completed courses in Commercial Cookery and Hospitality), the Tribunal “had little confidence” that the applicant would complete the business course and considered that the applicant was looking for a further student visa grant to continue her residence in Australia.
The Tribunal’s findings in this regard were open to it on the evidence before it and no error arises in this regard.
Ground 3
For ease of reference, ground 3 provides as follows:
3.The Tribunal has breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
In ground three, the applicant suggests that the Tribunal breached ss 338, 348, 353 and 357A of the Act by failing to properly review the decision before it and by failing to act in a way that was fair and just.
Section 338 of the Act contains a definition of what constitutes a “Part 5-reviewable decision” for the purpose of the Act. The delegate’s decision in this matter is a “Part 5-reviewable decision” pursuant to s 338(2) of the Act.

There is no evidence before the Court to suggest that the Tribunal breached s 338 of the Act in any way and no jurisdictional error arises in this regard.
Where an application for review of a “Part 5-reviewable decision” is properly made to the Tribunal, the Tribunal must review the decision: s 348 of the Act. Here, the applicant sought review of the delegate’s decision by the Tribunal on 21 November 2016 (CB 71-72) and the Tribunal undertook a review of that decision as it was so required (pursuant to s 348 of the Act). The Tribunal finalised its review by making its decision in this matter on 12 April 2018 (CB 132-138).
No jurisdictional error arises in relation to s 348 of the Act.
At the time of the Tribunal’s decision, s 353 of the Act relevantly provided as follows:
353 Tribunal’s way of operating
The Tribunal, in reviewing a Part 5‑reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
The High Court considered the scope of relevantly similar provisions contained in s 420 of the Act in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 (footnotes omitted):
49.…The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.
The Court also notes the comments made by French CJ in Li as follows:
16.Section 353(2) does not import substantive common law requirements of procedural fairness. Nothing said in SZGUR supports such a conclusion. To the extent that the Full Court of the Federal Court treated the direction in s 353 as giving rise to grounds for judicial review, it was in error. A fortiori, no substantive operation applicable to individual review proceedings is to be attributed to s 397(2)(a) of the Act. On the other hand, nothing in s 353 is adverse to the application of the requirements of procedural fairness in the exercise of the MRT's functions. A limiting definition of their application in certain respects is to be found in s 357A. It is necessary now to consider the operation of that provision in relation to procedural fairness and whether in this case procedural fairness was denied.
Essentially, as stressed in the authorities above, s 353 of the Act does not import substantive common law requirements of procedural fairness and cannot, on its own, give rise to grounds for judicial review.
There is no evidence before the Court to suggest that the Tribunal did not act in accordance with the requirements set out in s 353 of the Act and no jurisdictional error arises in this regard.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort.
The Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this matter and notes as follows:
(a)the Tribunal invited the applicant to attend a hearing before it and the applicant did so (CB 114-115). The applicant gave evidence a the hearing in support of her application (both by way of oral submissions and by completing the Tribunal’s questionnaire (CB 117-122). The applicant also provided additional supporting documents to the Tribunal at the hearing (CB 123-125). Accordingly, the Tribunal complied with s 360 and s 360A of the Act;
(b)the Tribunal was not required to comply with its obligation under s 359A of the Act, instead inviting the applicant to comment on information at the Tribunal hearing pursuant to s 359AA of the Act: s 359A(3) of the Act;
(c)the Tribunal’s reasons (at [18]-[19]) indicate that the Tribunal put information contained in the applicant’s PRISMS records to her at the hearing, the applicant confirmed she understood the information and did not seek an adjournment, instead “elect[ing] to respond in the hearing”;
(d)the dispositive issue before the Tribunal (being whether the first applicant was a genuine temporary entrant as required by cl 573.223(1)(a) in Schedule 2 of the Regulations) was the same as the issue before the delegate – which ultimately led to the refusal of the applicant’s visa. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(e)the Tribunal questioned the applicant, listened to her responses and actively sought further information from her about her circumstances. There is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness and complied with s 357A of the Act.
No error arises in this regard.
Ground 4
For ease of reference, ground 4 provides as follows:
4.The Tribunal has breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.
The applicant claims that the Tribunal breached s 368 of the Act by failing to provide proper reasons for its decision.
Section 368 of the Act relevantly provides:
368 Tribunal’s decision and written statement
Written statement of decision
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a)       sets out the decision of the Tribunal on the review; and
(b)       sets out the reasons for the decision; and
(c)       sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f)       records the day and time the statement is made.
Note:Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
In this matter, the Court is satisfied that the Tribunal’s written reasons:
(a)set out the decision of the Tribunal (CB 132 & 138 at [39]): s 368(1)(a) of the Act;
(b)set out the reasons for the decision (CB 132-138, in particular, at [37]-[39]): s 368(1)(b) of the Act;
(c)set out its findings on material questions of fact (CB 134-137): s 368(1)(c) of the Act;
(d)
referred to the evidence or material on which the findings of fact were based

(CB 134-137): s 368(1)(d) of the Act; and
(e)recorded the day and time the statement was made (CB 132): s 368(1)(e) of the Act.
The Court is satisfied that the Tribunal complied with its obligations under s 368(1) of the Act in relation to its statement of decision and reasons.
No jurisdictional error arises in relation to ground four.
Grounds 5 and 7
For ease of reference, grounds 5 and 7 provide:
5.The Tribunal has erred jurisdictionally by its failure to objectively consider the totality of the evidence before it.
Particulars
(a) By discounting the evidence before it;
(b) By failing to consider the evidence in totality and cumulatively;
(c)By concluding, without proper basis, that the applicant was not a genuine temporary applicant.
…
7.The Tribunal erred in evaluating the evidence before it reasonably which materially affected its purported determination. The Tribunal, therefore, committed jurisdictional error.
The applicant also suggests that the Tribunal failed to “objectively consider the totality of the evidence” and “erred in evaluating the evidence” before it.
No details have been provided outlining the evidence that was “not considered”.
It is well established that, in conducting a review, the weight that the Tribunal affords information before it is a matter for the Tribunal and forms part if its fact-finding function: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11]. Further, the Tribunal is entitled to accept, reject or give weight to evidence tendered as it thinks is appropriate in the circumstances of the matter before it: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
No error arises in relation to grounds 5 and 7.
Grounds 8 and 9
For ease of reference, grounds 8 and 9 provide as follows:
8.The Tribunal used the factors specified in the Direction as a checklist and not considered the applicant’s circumstances as a whole in reaching its finding about whether the applicant satisfied the genuine temporary entrant criterion.
9.The Tribunal failed to assess, on balance, the applicant against all factors specified in the Direction and in considering the relevant information provided by the applicant.
The applicant raises concerns about the Tribunal’s consideration of the factors set out in the Direction. In particular, the applicant claims that the Tribunal did not consider all of the factors set out in that Direction.
It is now well settled that the Direction is not intended to be used as a “checklist”. Further, there is no obligation on the Tribunal to “formulaically address” or “laboriously set out” each and every factor in that Direction. In this regard, the Court references the comments made by the Full Court of the Federal Court in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, as follows:
96.Direction 53 requires that, in reaching the state of satisfaction in cl 572.223(1)(a), the decision maker “have regard to” the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial.
…
106.The Tribunal, in its reasons, did not laboriously set out each of the factors and deal with them seriatim – cf: Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 at [20]. Indeed, it did not refer to any specific factor by reference to its paragraph number. Rather, it assessed the appellant’s circumstances as a whole, consistently with what paragraph 1 of Direction 53 required. It is to be inferred from the statement of reasons that it did so after having considered which factors were material to the appellant’s particular circumstances, and which were not.
In this matter, the Tribunal had regard to all of the relevant matters in the Direction for which there was evidence before it (at [15]-[35]).
Having done so, the Tribunal then expressly stated that there was not “significant relevant evidence” before it regarding the remaining factors. Specifically, the Tribunal stated:
36.There is no significant relevant evidence regarding the following factors indicated by Direction 53 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, the applicant’s circumstances in the home country relative to others in that country.
Further, to the extent that there is any suggestion that the Tribunal overlooked any evidence, the Court notes that the Tribunal was not required to refer to every aspect of the evidence that was before it. As outlined above, the Tribunal’s obligation was to give reasons (pursuant to s 368(1) of the Act) and to set out its findings in relation to questions of fact that it considered were material in this case.
The Court is satisfied that the Tribunal did so here.
No jurisdictional error arises in relation to grounds eight and nine.
Additional issue raised at hearing
The applicant raised a further concern with the Court in relation to the Tribunal’s decision, noting that the Tribunal “made findings regarding [her] failure to return to [her] home country”.
The applicant stressed that when her visa was refused by the Department, she was granted a “Bridging visa A” when she sought review of the delegate’s decision at the Tribunal and that visa did not allow her to return home (essentially because it contained a “no travel” condition).
The Court understands the applicant to raise concerns about the following passages from the Tribunal’s decision:
Circumstances in home country
…
16.The applicant told the Tribunal that she has only returned to India once in 2014 since coming to Australia.
17.The applicant told the Tribunal that she has been able to manage personal relations with her brothers and their families while living in Australia by making contact on a regular basis by telephone and through various social media applications. In these circumstances the Tribunal does not consider the applicant’s personal connections overseas as a distinct incentive for the applicant to cease residence in Australia.
Essentially, the applicant appears to claim that the Tribunal failed to consider that she was unable to return to India and be allowed to come back to Australia as the holder of a Bridging visa A and that, as a result, it was unreasonable for the Tribunal to make an adverse finding (being that the applicant’s personal connections overseas were not a distinct incentive for her to leave Australia) based on the fact that she had only returned to India once since arriving in Australia because the applicant was unable to leave and return to Australia as the holder of a Bridging visa A.
As noted above, the Court determined that it would be assisted by a transcript of the Tribunal decision and further written submissions from the parties in determining this issue.
In further written submissions (filed on behalf of the Minister on 1 February 2024), the Minister submits that:
(a)the applicant’s inability to return to India was irrelevant;
(b)the issue before the Tribunal was whether the applicant met the genuine temporary entrant criterion set out in cl 573.223 in Schedule 2 of the Regulations and, in making that assessment, the Tribunal was required to have regard to the Direction (including the applicant’s circumstances in her home country and her immigration history, including travel to Australia or other countries);
(c)no representations were made and no submissions and no evidence was provided by the applicant to the Tribunal in this regard. Further, there was no information before the Tribunal about the applicant’s immigration history;
(d)as the holder of a Bridging visa A, if the applicant departed Australia as the holder of that visa, she would not have been able to return;
(e)whilst it may be the case that the applicant did not want to depart Australia because of her inability to return, no such claim was put to the Tribunal; and
(f)the applicant recently obtained a Bridging visa B which enabled her to travel to India and return to Australia and, on that basis, if the applicant had any prior intention to travel to India, she could have simply applied for a visa permitting her to do so.
In response, the applicant submitted that:
(a)during the period she held a Bridging visa A, she was unaware of the provisions allowing for travel and was not fully informed about the permissions associated with her visa (and that lack of awareness led to an unintentional oversight regarding the ability to travel); and
(b)she recognises the importance of understanding the terms of her visa and regrets any inconvenience or misunderstanding that may have arisen due to that oversight.
The Court notes that the Tribunal member had the following conversation with the applicant at the Tribunal hearing regarding her return to India (see pp 14-15 of the Tribunal transcript filed in the SCB):
How many times have you returned to India since coming to Australia?---Just one.
And when was that?---In 2014.
That’s a long time since going back?---It is, it is.
Do you have any issues of concern back in India?---No.
Like military or - - -?---No, no. Not any.
It is evident from the conversation above that the applicant did not raise any concerns with the Tribunal about her visa status or her inability to return to India due to that visa status or any claimed “conditions” attached to that visa.
The Court notes that, in written submissions (filed by the applicant on 6 June 2024 in this Court), she states as follows (without alteration):
1.During the Tribunal hearing, the applicant chose not to mention the reason for not returning back to India as it was assumed that the Tribunal had full awareness of the permissions and limitations associated with Bridging visa A status. I sincerely regret any inconvenience or misunderstanding that may have arisen due to this oversight.
2.Applicant remains a genuine student and has successfully completed her studies. Applicant assure you of my ongoing commitment to adhering to all applicable immigration regulations in the future.
As is evidenced from the applicant’s submissions (set out above), the applicant concedes that she “chose” not to mention to the Tribunal the reason that she had not returned to India, instead “assuming” that the Tribunal had awareness of the “permissions and limitations associated with [the] Bridging visa A” held by the applicant at the time.
There is no evidence in the Court Book or otherwise before the Court to suggest that the Tribunal had details of the applicant’s visa status before it or any conditions or limitations associated with any such visa.
The Court also notes that the duty imposed on the Tribunal is to conduct a review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. Although the Tribunal has some powers under the Act to obtain information, it does not have a general duty to make its own enquiries in order to make an applicant’s case or investigate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 (“SGLB”) at [43].
Further, it is well established that the Tribunal is under no obligation to investigate or conduct an inquiry to determine whether an applicant’s case might be “better put” or supported by additional evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]; SGLB at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
It was therefore incumbent on the applicant to raise any concerns she had or provide any evidence to the Tribunal that she wished to. The applicant in this matter did not do so.
The Tribunal cannot be found to have failed to consider evidence that was not before it. As outlined above, the applicant here chose not to provide reasons to the Tribunal in relation to why she had not returned to India.
The Tribunal cannot have erred by failing to consider the applicant’s reasons for not returning to India if those reasons were not given to it.

No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 7 May 2018 and the applicant’s oral and written submissions to this Court have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.

I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 13 June 2024

File number:	MLG 1220 of 2018
Judgment of:	JUDGE KENDALL
Date of judgment:	13 June 2024
Catchwords:	MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal breached “various sections” of the legislation by failing to properly review the decision before it or by failing to act in a way that was fair and just – whether the Tribunal failed to provide proper reasons for its decision – whether the Tribunal failed to objectively consider the totality of the evidence or erred in evaluating the evidence before it – whether the Tribunal failed to consider all of the factors set out in the relevant Ministerial Direction – whether the Tribunal erred by failing to consider that the applicant would be unable to return to Australia if she visited India – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 338, 348, 353, 357A, 359A, 359AA, 360, 360A, 368, 420, 476 & 499 and Division 5 of Part 5 Migration Regulations 1994 (Cth), cll 500.212 & 573.223 in Schedule 2
Cases cited:	Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27 Bala v Minister for Immigration & Border Protection [2019] FCA 600 BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 Craig v State of South Australia (1995) 184 CLR 163 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 Minister for Immigration & Citizenship v Li [2013] HCA 18 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 NAKX v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1559 Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 Saini v Minister for Immigration and Border Protection [2015] FCCA 2379 Saini v Minister for Immigration and Border Protection [2016] FCA 858 Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 941 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division:	Division 2 General Federal Law
Number of paragraphs:	172
Date of last submission:	6 June 2024
Date of hearing:	23 January 2024
Place:	Perth
Applicant:	Applicant appeared in person
Counsel for the First Respondent:	Mr A Cunynghame
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore

MLG 1220 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MANPREET KAUR Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	13 JUNE 2024