Khan v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 891
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 891
File number(s): MLG 3147 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 13 September 2024 Catchwords: MIGRATION - application for judicial review – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – where grounds raised by applicant completely unparticularised – whether Tribunal erred by not affording the applicant procedural fairness – found the applicant was afforded a meaningful opportunity to appear, give evidence and present his case - whether the Tribunal breached s 359A obligations with respect to adverse information - found the Tribunal gave clear particulars of that information to the applicant in its s 359AA Statement - where certain ground raised by applicant seek impermissible merits review - whether Tribunal erred by not considering medical evidence - found no jurisdictional error on behalf of the Tribunal. Legislation: Migration Act 1958 (Cth) ss 65, 359(2), 359A(3), 359A(4), 359AA, 368D(2), 474, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2
Migration Regulations 1994 (Cth) sch 2, cll 500.211-500.218
Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 2 September 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Oppel of Australian Government Solicitor Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3147 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIJAZ ALI KHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Application filed on 22 October 2018 be dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
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 J YOUNG:
Before the Court is an Application filed on 22 October 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 18 September 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a citizen of India.
The applicant arrived in Australia sometime in March 2014 on a Higher Education Sector (Class TU) (Subclass 573) visa.
On 13 March 2017 the applicant applied for the Visa.
On 4 April 2017 and 11 May 2017, a delegate of the Minister invited the applicant to provide further information with respect to his Visa application. In response to this request, the applicant’s representative provided an undated Genuine Temporary Entrant statement (GTE Statement) from the applicant.
On 30 May 2017, the Delegate refused to grant the Visa on the basis that the applicant did not satisfy cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 500.212 of Schedule 2 of the Regulations requires the Delegate to be satisfied the applicant was a genuine temporary entrant.
On 19 June 2017, the applicant applied to the Tribunal for review of the Delegate’s decision and appointed a registered migration agent to act as his representative. In the application for review, the Applicant nominated the registered migration agent’s email address <[email protected]> (representative’s email address) for correspondence.
On 6 August 2018, the Tribunal invited the applicant to provide information about his proposed course of study and his entry and stay in Australia as a student pursuant to s 359(2) of the Act (Tribunal Invitation). The Tribunal also provided the applicant with a ‘Request for Student Visa Information’ form (Request Form) to be completed by the applicant, and a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69). The applicant provided a response to the Request Form on 20 August 2018 (Request Form Response) but did not otherwise provide any further documents in response to the Tribunal Invitation.
On 24 August 2018, the Tribunal emailed the applicant’s migration agent enclosing an invitation for the applicant to attend a hearing on 18 September 2018 at 9.30am with an information sheet attached (Hearing Invitation). The Tribunal requested the applicant provide the following documents within seven days of receipt of the invitation: a response to the Hearing Invitation; a copy of his current Confirmation of Enrolment (COE); documents evidencing his past studies in Australia; and a written statement addressing the issue of whether he was a genuine temporary entrant. The Hearing Invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. At 7.41pm on 17 September 2018, the night before the Tribunal hearing, the applicant provided a Response to the Hearing Invitation and provided evidence of the following:
·a COE for a Certificate III in Light Vehicle Mechanical Technology, with a course start date of 24 September 2018 and an end date of 22 September 2019;
·a COE for a Certificate IV in Automotive Mechanical Diagnosis, with a course start date of 7 October 2019 and an end date of 22 March 2020;
·a COE for a Diploma of Automotive Technology with a course start date of 13 April 2020 and an end date of 6 September 2020; and
·a discharge summary sheet from Royal Melbourne Hospital dated 28 August 2017.
On 18 September 2018, the applicant appeared at a hearing before the Tribunal with the assistance of an interpreter in the Urdu and English languages. The applicant’s representative did not attend the hearing.
At the hearing on 18 September 2018, the Tribunal delivered an oral decision affirming the decision of the Delegate to refuse to grant the applicant the Visa.
TRIBUNAL DECISION
On 28 November 2018, the Tribunal emailed the applicant’s representative and provided the applicant with a written statement of its decision and reasons (Tribunal Decision).
At paragraph [6] of the Tribunal Decision, the Tribunal identified that Part 500 of Schedule 2 of the Regulations set out the criteria for the Visa and that the primary criteria are set out at cl 500.211 to cl 500.218. At paragraph [7] of its decision, the Tribunal identified that the applicant was required by cl 500.211 to be enrolled in a course of study at the time of the Tribunal’s decision.
At paragraphs [9] – [11] of the Tribunal Decision, the Tribunal referred to its Hearing Invitation dated 24 August 2018 whereby the Tribunal requested the applicant to provide evidence of enrolment in an approved course at least seven days before the scheduled hearing. The Tribunal identified that the two COE’s provided by the applicant were created the day before the Tribunal hearing. At paragraph [12], the Tribunal was “inclined to the view” that the COE’s were created for the purpose of showing proof of enrolment and were not a sign that the applicant was a genuine temporary entrant.
At paragraphs [13] – [14] the Tribunal summarised the documents provided by the applicant, including:
·the discharge summary sheet from Royal Melbourne Hospital;
·a transcript of graduation from an English course at Griffith University dated June 2014 after 10 or 15 weeks of study;
·a transcript from a Master of Professional Accounting that showed a nil pass rate in seven subjects in 2016 and 2017; and
·the Request Form Response, in which the applicant advised he had a current COE and was enrolled in a Certificate level course in Automotive and Mechanical Diagnosis from March 2017 until May 2019 and a Diploma of Automotive Technology from June 2019 until January 2020.
At paragraphs [15] – [16], the Tribunal noted that at the hearing it gave the applicant and read out a ‘s 359AA Statement’ which contained adverse information from the Provider Registration and International Students Management System (PRISMS) database dated 14 September 2018 regarding the applicant’s enrolment history. At paragraph [17], the Tribunal summarised the s 359AA Statement as outlining that:
(1)the applicant’s last enrolment in an approved course was cancelled by the education provider on 20 February 2018 for reasons of non-commencement of studies;
(2)all of his enrolments in approved courses since 21 April 2017 were cancelled by the education provider for non-commencement of studies, non-payment of fees or student notifies cessation of studies; and
(3)the applicant last “finished” an approved course on 31 December 2016 (with the Tribunal further identifying that “finish” does not mean completed or graduated, rather it means scheduled time for the course to conclude has expired).
At paragraph [18], the Tribunal further noted that in the applicant’s Request Form Response, he had advised that he had not completed an approved course of study since September 2015.
At paragraph [21], the Tribunal recorded that the applicant advised that the information identified in paragraphs [16] – [17] was correct.
At paragraph [23], the Tribunal noted that in the GTE Statement, the applicant had advised that one of the reasons for his poor academic results was stress arising from a family dispute. At paragraphs [25] – [27], the Tribunal summarised the applicant’s evidence regarding course enrolments and their subsequent cancellations by the education providers. At paragraph [28] the Tribunal sought the applicant provide an explanation for his poor study outcome and the applicant explained that the subject material was too difficult and that he injured his thumb which caused inconvenience and stress.
In considering whether the applicant satisfied the GTE criterion, the Tribunal had regard to Direction 69. The terms of Direction 69 required the Tribunal to have regard to factors including the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the applicant’s course to his future, and his immigration history.
In its decision, the Tribunal considered the following factors in its reasons for finding the applicant did not satisfy the genuine temporary entrant criterion:
(1)In relation to cl 9 of Direction 69, at paragraphs [34] – [35], the Tribunal summarised the applicant’s evidence about his contact with his family in India and accepted that he does have personal ties to India in the form of immediate family. However, those ties have become distant and are maintained using technology and do not serve as a significant incentive to return to his home country. Further, at paragraphs [36] – [37], the Tribunal was of the view that the economic circumstances in Australia were not a significant incentive for him to return to India, referring to the applicant’s evidence that his income was sufficient to cover his outgoings and to generate savings.
(2)In relation to cl 11 of Direction 69, at paragraph [39] the Tribunal acknowledged the applicant’s ties to Australia were difficult to understand. At paragraph [41], the Tribunal summarised the applicant’s evidence that he mostly remained at home, did not go out, did not study, was not involved in a relationship with any other persons other than his housemates and had minimal requirements on his time. At paragraph [43] the Tribunal was of the view that the applicant’s ties to Australia present a strong incentive for him to remain in Australia.
(3)In relation to cl 12 of Direction 69, at paragraph [46] the Tribunal found that the applicant had not pursued studies in any coherent fashion for the four years he had been in Australia. When pressed as to why he wished to study again in the same fields that he had recently had cancellations of enrolments, the applicants advised that he wished to return home with a Diploma or Certificate to provide to his father. At paragraph [47] – [48] the Tribunal noted that the applicant provided no business case for any future enterprise and that the VET courses he was choosing to enrol in were significantly below his undergraduate degree. Accordingly, the Tribunal was of the view that the courses in the vocational sector that the applicant proposed to enrol in would have little relevance in obtaining or improving his employment prospects in India.
At paragraph [51] of the Tribunal Decision, the Tribunal noted that the applicant wished to remain in Australia until the middle of 2020, which would take his extended stay to something around six and a half or seven years. The Tribunal found that, to date, excluding passing an English course of 10 to 15 weeks’ in 2014, the applicant had not completed, graduated or passed any course either in the higher education or vocational sector.
At paragraph [52] the Tribunal found the applicant had enrolled in a series of short, inexpensive courses and had been onshore for some time without successfully completing a qualification. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and affirmed the decision not to grant the Visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 22 October 2018. The Application contained the following grounds for judicial review (without amendment):
1.The Tribunal's decision of 18 Sep 2018 that was confirmed on 18 Sep 2018 was affected by jurisdictional error in that Aijaz Ali Khan was not afforded procedural fairness in the making of the decision by reason of the Tribunal's failure to allow him a fair, meaningful or reasonable opportunity to respond to information held by the Tribunal that was adverse to him that was considered by the Tribunal to be credible, relevant and significant to his application for review and would (and did) form the reason, or part of the reason, for affirming the decision under review.
2.The Tribunal's decision of 18 Sep 2018 that was confirmed on 18 Sep 2018 dismissing my application for review of the Department of Immigration and Border Protection’s refusal Aijaz Ali Khan Class TU Subclass 500 Visa that was filed on 13 March 2017 without giving him the opportunity to present matters was affected by jurisdictional error in that he provided the Tribunal with a confirmation of enrolment. His reason for not attending the previous college due to the accident and surgery.
3.The Tribunal's decision of 18 Sep 2018 that was confirmed oral decision on 18 Sep 2018 was affected by jurisdictional error in that Aijaz Ali Khan was not afforded procedural fairness in the making of the decision by reason of the Tribunal's failure to give consideration to his medical condition.
4.The Tribunal's decision of 18 Sep 2018 that was confirmed oral decision on 18 Sep 2018 was affected by jurisdictional error in that the Tribunal acted unreasonable in the exercise of its statutory powers by failing to provide a fair, meaningful opportunity for Aijaz Ali Khan to comment or respond to the relevant matters raised to present his evidence that he is genuinely intends to stay temporarily for the purpose of his education.
5.The Tribunal’s decision of 18 Sep 2018 that was confirmed oral decision on 18 Sep 2018 was affected by jurisdictional error in that the Tribunal failed to consider all of the evidence in the case
6.The Tribunal's decision of 18 Sep 2018 was affected by jurisdictional error in that Tribunal failed to provide proper reasons for its decision and the findings of any material questions of fact on which the decision was based.
7.The Tribunals decision of 18 Sep 2018 was affected by jurisdictional error in that the Tribunal did not conduct the merits review in the manner required by law.
An affidavit annexing a copy of the cover page of the Tribunal Decision and a copy of the Delegate’s decision was filed on 22 October 2018. No other material was filed by the applicant in support of the Application.
The Minister filed a Response on 22 November 2018 seeking orders that the Application be dismissed and orders as to costs on the ground that the Tribunal Decision is not affected by jurisdictional error. The Minister relied on written submissions and a list of authorities filed on 13 August 2024.
The Hearing
The hearing took place on 2 September 2024.
The applicant appeared in person at the hearing.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
The Regulations and Direction 69
Clause 500.212 of Schedule 2 of the Regulations provides as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii)if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In accordance with s 499 of the Act, Direction 69 sets out the factors that the decision maker should have regard to when assessing cl 500.212(a) of Schedule 2 of the Regulations for student visa applications.
The preamble to Direction 69 provides as follows:
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a. the applicant’s circumstances; and
b. the applicant’s immigration history; and
c.if the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Direction 69 states that an application for a Student visa should be refused if, after weighing up “the applicant’s circumstances, immigration history and any other relevant matter” the decision maker is not satisfied the applicant genuinely intends a temporary stay in Australia.
CONSIDERATION
Ground 1
By Ground 1 the applicant contends he was denied procedural fairness as the Tribunal failed to allow him a fair, meaningful or reasonable opportunity to respond to adverse information.
This ground is entirely unparticularised. Further, at the hearing, the applicant was unable to identify what adverse information he was denied an opportunity to respond to. This alone is a sufficient basis upon which to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (WZAVW); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24] (BDE16).
The Tribunal’s obligations to put adverse information to an applicant are codified in s 359A of the Act, which requires the Tribunal to give the applicant clear particulars of any “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. That information may be given orally: s 359A(3) and s 359AA(1). Exceptions to the information required to be given are listed in s 359A(4).
If it be alleged by this ground that the Tribunal breached its s 359A obligations with respect to the information from the applicant’s PRISMS records, the Minister submits that this information was not required to be put to the applicant as the applicant did not claim that his study history was anything other than as revealed in the PRISMS record. It is not necessary that I determine that issue, as it is clear from the Tribunal’s decision that even if it was required that it put this information to the applicant, it did so. The Tribunal gave clear particulars of that information to the applicant in its s 359AA Statement. The facts in the s 359AA Statement and the manner in which it was put conforms to the requirements of s 359AA(1)(b)(i)-(iv). Further, at paragraph [28] of its decision the Tribunal records that it asked the applicant for an explanation of his poor study outcome and details the applicant’s response to this, being as follows:
…You, the applicant advised the subject material was too difficult, you could not give on hundred per cent. You chose to enrol in VET level courses. You injured your thumb and that caused you inconvenience and stress but you gave it your best intentions. You tried hard and you sought to remain involved in study in Australia to gain a Certificate to take home to India.
Further, the hearing attendance record indicates that the hearing started at 9.40am and concluded at 10.49am. Accordingly, the hearing ran for approximately 70 minutes and there is no evidence to suggest that the applicant was not afforded a meaningful opportunity to appear, give evidence and present his case.
Ground 1 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 2
By Ground 2 the applicant submits that the Tribunal failed to give the applicant the opportunity to present matters and was affected by jurisdictional error in that he provided the Tribunal with a COE and also his reason for not attending the previous college due to the accident and surgery.
At the hearing the applicant submitted that the Tribunal did not consider that he had injured his thumb and that prevented him from studying, nor did it consider that his grandfather had died.
In relation to the applicant’s COEs, in the Hearing Invitation sent to the applicant on 24 August 2018 the applicant was requested to provide evidence of enrolment seven days before the scheduled hearing date. As set out above at paragraph [9], the evening before the hearing the applicant provided three COE’s to the Tribunal as follows:
·Certificate III in Light Vehicle Manufacturing Technology for the period 24 September 2018 until 22 September 2019;
·Certificate IV in Automotive Mechanical Diagnosis for the period 7 October 2019 until 23 March 2020; and
·Diploma of Automotive Technology 13 April 2020 until 6 September 2020.
Accordingly, contrary to the applicant’s assertions, not only did the applicant have an opportunity to provide his COEs to the Tribunal, he did so. At paragraphs [10]-[12] of its decision the Tribunal addresses the COEs provided by the applicant as follows:
The first was for enrolment in a Certificate III in Light Vehicle Manufacturing Technology for the period 24 September 2018 until 22 September 2019, a pre-tuition of $750 was paid until 30 September 2018. This certificate of enrolment was created on 17 September 2018.
The second certificate of enrolment related to a Diploma of Automotive Technology in the period 13 April 2020 until 6 September 2020. No fees of any kind were paid. Again, the certificate of enrolment was created on 17 September 2018.
The tribunal is inclined to the view that the certificate of enrolments were created for the purpose of showing proof of enrolment in an approved course and are not a sign that the applicant is a genuine temporary entrant.
It is apparent from the above that the Tribunal did not address the applicant’s Certificate IV in Automotive Mechanical Diagnosis. The Minister submits firstly, that it is not necessary for the Tribunal to refer to every piece of evidence before it and secondly, that if the Tribunal overlooked the Certificate IV, it was not important, in the sense referred to in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (SZRKT). I accept those submissions. In SZRKT Robertson J said at [111]-[112]:
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.
No part of the Tribunal’s decision was premised on the applicant not being enrolled in an approved course of study. Rather, at issue before the Tribunal was whether the applicant was a genuine temporary entrant. No jurisdictional error arises as a consequence of the Tribunal failing to refer to the Certificate IV in its reasons or indeed overlooking the Certificate IV if that is what occurred.
As to the applicant’s thumb injury, that matter is referred to by the Tribunal at paragraph [13] of its decision and, as set out above, at paragraph [28] of its decision the Tribunal sets out the applicant’s reasons for his poor academic progress which included his thumb injury. Accordingly, the Tribunal did consider these matters. The weight to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] (Lee).
At paragraph [23] – [24] of its decision, the Tribunal said:
You provided a GTE statement to the department that may be found at pages 28 to 31 of the departmental file. That statement outlined the following. You are highly motivated. Australia has a fine education system. Your reasons for studying in Australia. Your reasons for studying at Acumen Education. Your reasons for choosing VET level automotive courses. Your experiences in the Australian education system. Stress related to family disputes arising out of the passing of your grandfather. You advised stress was one of the reasons for your poor academic results.
In evidence you advised you had not received any psychiatric, psychological, medical or professional counselling relating to stress in your time in Australia. And after consultation with your father you decided to enrol in automotive courses in the VET sector in Australia.
Accordingly, contrary to the applicant’s submissions the Tribunal also had regard to the applicant’s evidence that his grandfather had died and attributed to that evidence such weight as it considered appropriate: Lee at [27].
Ground 2 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 3
By Ground 3 it is contended that the Tribunal denied the applicant procedural fairness by failing to give consideration to his medical condition. At the hearing the applicant confirmed that this was a reference to his thumb injury and also submitted that he had mental health issues which impacted his ability to complete his studies.
As to the applicant’s thumb injury, I refer to and repeat my comments set out in paragraph [47]. Further, at the hearing the applicant confirmed that he did not put any material before the Tribunal which indicated that he had any mental health issues.
Ground 3 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 4
By Ground 4 the applicant submits that the Tribunal acted unreasonably in failing to provide a fair, meaningful or reasonable opportunity to comment or respond to relevant matters raised to present his evidence that he genuinely intends to stay temporarily for the purpose of his education.
This ground is entirely unparticularised. Further, at the hearing, the applicant was unable to identify the relevant matters he was denied an opportunity to respond to. This is a sufficient basis upon which to dismiss this ground. WZAVW; BDE16. Additionally, the applicant again submitted that he had mental health issues that prevented him adequately representing himself. There is no evidence before the Court of the applicant’s asserted mental health issues and, as already set out, the applicant confirmed that he did not put any evidence before the Tribunal that he had any mental health issues.
Ground 4 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 5
By Ground 5 the applicant contends that the Tribunal erred by failing to consider all of the evidence in the case.
This ground is entirely unparticularised. At the hearing the applicant said that the evidence not considered by the Tribunal related to his thumb injury. I refer to and repeat my comments in relation to that matter set out in paragraph [47] above.
Ground 6
By Ground 6 the applicant submits that the Tribunal erred by failing to provide proper reasons for its decision and the findings of any material questions of fact on which the decision was based. At the hearing the applicant was unable to articulate any basis upon which it could be said that the Tribunal had failed to provide proper reasons for its decision or findings of fact in support of this ground. Further, at the hearing the applicant said that the Tribunal had provided reasons but they were “wrong”. By this submission the applicant seeks impermissible merits review. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Tribunal complied with s 368D(2) of the Act. Its oral statement described its decision on review and its detailed reasons for that decision including its material questions of fact and referred to the evidence upon which those findings were made. It considered the evidence and made factual findings that were open to it about the applicant’s circumstances and immigration (as required by cl 500.212(a)(i) and (ii)), relying upon Direction 69 to provide guidance where relevant.
Ground 6 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 7
By Ground 7 the applicant submits that the Tribunal did not conduct the merits review in the manner required by law. This ground is entirely unparticularised. Further, at the hearing, the applicant was unable to identify any relevant non-compliance. This alone is a sufficient basis upon which to dismiss this ground: WZAVW; BDE16.
In further oral submissions in relation to Ground 7, the applicant again submitted that the Tribunal failed to consider his thumb injury and his grandfather’s death. I refer to and repeat my comments set out at paragraphs [47] – [49] above in relation to these matters.
Finally, the applicant said that he deserved a chance to get the Visa. The applicant was properly invited to attend a hearing before the Tribunal. He did so attend and was provided with an opportunity to provide evidence and make submissions. It is not enough that the applicant disagrees with the Tribunal’s findings and decision. As the Court endeavoured to explain to the applicant, the role of this Court is not to undertake a general review of the Tribunal’s decision. Merits review is beyond the jurisdiction of this Court: Liang at [272].
Ground 7 therefore also discloses no jurisdictional error.
Accordingly, none of the grounds advanced by the applicant disclose jurisdictional error. Further, no error is apparent on the face of the Tribunal’s decision or in relation to the conduct of the Tribunal.
DISPOSITION
For the reasons set out above, the Application must be dismissed.
The Minister seeks that the applicant pay its costs in the fixed amount of $6,000. I note that this is below the amount provided in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 13 September 2024
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