Kondepudi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1048
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kondepudi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2024] FedCFamC2G 1048
File number: SYG 1746 of 2021 Judgment of: JUDGE SKAROS Date of judgment: 17 October 2024 Catchwords: MIGRATION – Extension of Time Application – Student Visa – Administrative Appeals Tribunal - Whether the applicant was afforded a real and meaningful opportunity to give evidence and present arguments – Whether the applicant was afforded an opportunity to provide further evidence – No jurisdictional error made out - Application dismissed. Legislation: Migration Act 1958 (Cth) ss 359, 360, 362, 368D(2)(a), 368D(4), 477, 499.
Migration Regulations 1994 cl 500.212, regs 4.35D, 4.27B
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 8 October 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Knuckey, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 1746 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADITYA NARAYANA SHARMA KONDEPUDI
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to ‘Minister for Immigration and Multicultural Affairs.’
2.The application filed on 16 September 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
INTRODUCTION
The Administrative Appeals Tribunal (the Tribunal) affirmed the decision of a delegate of the first respondent (the Minister) refusing to grant the applicant a Student (Temporary) (Class TU) subclass 500 visa (the visa) on 29 July 2021. The applicant’s application for judicial review of the Tribunal’s decision was 14 days outside the time limit prescribed by s 477(1) of Migration Act 1958 (the Act). On 18 September 2024, this Court delivered reasons for judgment and made orders extending the time for the originating application, filed on 16 September 2021, so the matter can now be determined on its merits.
BACKGROUND
The applicant is a 30-year-old male citizen of India. He first arrived in Australia in July 2017 as the holder of a student visa, valid to September 2019, to undertake a Master of Technology (Software Engineering) from Federation University. He did not complete this course.
On 26 September 2019, the applicant applied for the visa based on an enrolment in a Graduate Diploma of Management (Learning at the Australian Health and Management Institute).
On 18 November 2019, the delegate refused to grant the applicant the visa as they were not satisfied that the applicant intended to genuinely stay temporarily in Australia.
On 12 March 2021, the Tribunal invited the applicant to provide information under s 359(2) of the Act about his course(s) of study and his entry and stay in Australia as a student. On 25 March 2021, the applicant submitted a response to this invitation which provided information about his enrolment and addressed the genuine temporary entrant criterion.
On 13 July 2021, the applicant was invited to attend a telephone hearing before the Tribunal scheduled for 29 July 2021. The Tribunal provided the applicant a copy of his Provider Registration and International Student Management System (PRISMS) record and informed the applicant that they may be referred to during the hearing.
Prior to the hearing, the applicant’s representative lodged written submissions with the Tribunal that:
(a)addressed the applicant’s struggle to ‘achieve course progress’;
(b)attached an updated genuine temporary entrant statement;
(c)attached a screenshot of the applicant’s academic course progress from his education provider;
(d)attached a course timetable; and
(e)attached screenshots confirming bookings with a psychologist between November 2020 and January 2021.
On 29 July 2021, the applicant attended the scheduled hearing where the Tribunal gave an oral decision to affirm the delegate’s decision.
On 3 and 7 September 2021, the applicant requested a written statement of the decision and reasons given orally. However, as this request was outside the prescribed 14-day timeframe, the Tribunal did not provide the applicant a copy of the written decision and reasons. The court book filed in these proceedings include a copy of the written statement of decision and reasons, dated 11 October 2021.
THE TRIBUNAL’S DECISION
The Tribunal’s written decision dated 11 October 2021, spans a total of six pages and 47 paragraphs and provides the Tribunal’s reasons for orally affirming the decision on 29 July 2021.
The Tribunal identified at [10] of its decision, that the relevant issue on review was whether the applicant was a genuine temporary entrant pursuant to cl 500.212 of the Migration Regulations 1994 (the Regulations).
At [12], the Tribunal identified that, in determining the relevant issue, it must have regard to the Ministerial Direction No.69 made under s 499 of the Act. This direction provided that the Tribunal must have regard to (as a guide, not a checklist):
· the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
· the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
· if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
· any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
At [17], the Tribunal identified the applicant’s course enrolment history and proposed future plans:
·Master of Technology, which he did not complete;
·Master of Business, which he did not complete;
·Graduate Diploma of Telecommunication, which he did not complete;
·Graduate Diploma of Management, which he did not complete;
·second Graduate Diploma of Management in Learning, which he completed in January 2021; and
·currently enrolled in a Master of Business Administration, which commenced in January 2021 and was scheduled to conclude in December 2022.
At [23], the Tribunal found that the applicant’s family and community ties to India and Australia did not in and of themselves, constitute a strong incentive for the applicant to either return to India or stay in Australia as:
(a)the applicant’s mother and sister resided in India;
(b)the applicant had returned to India twice, in January 2018 and May 2019;
(c)the applicant was in regular contact with his mother and sister by telephone;
(d)the applicant had no community ties and no property in India;
(e)the applicant was not concerned about military service commitments or political or civil unrest in India;
(f)the applicant had no family living in Australia;
(g)the applicant lived in eastern Sydney alone;
(h)the applicant had no community ties or property in Australia; and
(i)the applicant was supported financially by his mother whilst being in Australia.
The Tribunal had regard to the applicant’s statements regarding his previous lack of course progress:
(a)The applicant was not able to cope with the academics, found it stressful and found study in Australia to be more practical than in India;
(b)The applicant could not complete the Graduate Diploma of Telecommunication because it was too technical; and
(c)The applicant’s migration agent submitted that although he struggled initially, he was now achieving academic success. The migration agent also submitted that the applicant’s mental health difficulties had affected his course progress, and that he had sought treatment for those difficulties.
The Tribunal accepted at [29] that the applicant was currently enrolled in a Master of Business Administration, and that he had three appointments with a psychologist. However, the Tribunal did not accept the applicant’s explanations for not having completed any course in Australia until January 2021.
The Tribunal stated at [31] that upon asking the applicant why the focus of his studies had changed, he responded that he found the technical component of some courses too hard and consequently swapped to Business courses, which would also allow him to help his mother’s business in India.
Taking into account this evidence, the Tribunal evinced a concern at [32] that the applicant was attempting to use the student visa program to extend his stay in Australia.
At [33], the Tribunal noted that the applicant’s self-assessment of the value of his course had changed from working in his mother’s business, to working as an executive in an IT company, to working as an analyst at a multi-national corporation like Deloitte or PwC. The Tribunal asked the applicant what his current future plan was, and the applicant said, ‘he might try to get a job as a business analyst and if not, he would work for his mother’. The applicant said he had not applied for any business analyst jobs in India.
The Tribunal then asked the applicant why his current course was necessary to achieve his plans. The applicant claimed he needed business knowledge to assist his mother’s business, and that, ‘Australia is one of the best countries for learning about management,’ and his Graduate Diploma would not be enough for him to complete his future plans or achieve his desired pay; he would need a Master’s degree, which would assist him to become a business analyst. The applicant’s migration agent submitted to the Tribunal that the applicant would like to work as a business analyst in India but would have to look after his mother’s business at some point.
Based on this evidence, the Tribunal found that the applicant had only provided vague details about his future plans and had failed to explain, in any meaningful detail, why his current course would help him achieve those future plans. The Tribunal also did not accept the applicant’s evidence regarding his expected salary in India.
The Tribunal took into consideration that the applicant had previously been granted a student visa, that this was his second application and, despite being in Australia for four years, he had only completed one course.
Notwithstanding that the Tribunal found that the applicant’s family and community ties in Australia did not, in and of themselves, constitute a strong incentive to stay, the Tribunal expressed concern at [43] that a further student visa may be used primarily for maintaining ongoing residence and was not satisfied that the applicant intended genuinely to stay in Australia temporarily because:
a. first, the Tribunal’s finding that the applicant’s family ties to India do not constitute a strong incentive for the applicant to return there;
b. second, the Tribunal’s finding that it is concerned that the applicant is attempting to use the student visa programme to stay in Australia for longer, based on the number of courses the applicant has been enrolled in and not completed, and the fact that the applicant has changed the focus of his studies a number of times;
c. third, the Tribunal’s finding is that the applicant has provided only vague details about his future plans, and that he has failed to explain in any meaningful detail why he requires his current course in order to complete his future plans;
d. fourth, the applicant’s immigration history insofar as the applicant is now making his second application for a student visa, and despite being in Australia for four years he has only completed one course.
Subsequently, the Tribunal found the Applicant did not meet the requirements of the visa, specifically cl 500.212(a) of the Regulations, and affirmed the decision under review.
APPLICATION TO THIS COURT
The application which commenced proceedings in this Court contained two proposed grounds of substantive review, which have been considered by the Court further below.
The applicant also filed an affidavit on 16 September 2021, sworn/affirmed on 2 September 2021, which annexed a copy of the Tribunal’s decision record (but not the written reasons). The applicant also filed an affidavit sworn/affirmed 17 July 2024 which provided further details regarding the applicant’s grounds as well as annexing various documents, including academic transcripts and course records, a letter from NSW Victim Services, a letter from a doctor, and documents which appear to relate to the applicant’s mother’s business.
On 28 October 2021, a Registrar of the Court made Orders requiring the filing of a court book by the Minister by 9 December 2021. Orders were also made for the applicant to file an amended application and written submissions.
The Minister filed the court book on 4 November 2021. The applicant did not file an amended application or submissions.
On 18 September, the Court made Orders that the time for making the originating application in this matter be extended up to and including 16 September 2021 and gave ex tempore reasons.
The Court further ordered that the matter be listed for final hearing on 8 October 2024, and that the Minister was to file and serve, at least 7 days before the final hearing, a transcript of the Tribunal Hearing and any further submissions they wished to rely upon
On 1 October 2024, The Minister filed a supplementary written outline of submissions and an Affidavit of Madeline Mary Fry, which annexed the transcript of the Tribunal hearing held on 29 July 2021.
The parties appeared before the Court at the hearing on 8 October 2024. The applicant appeared in person. Mr Knuckey, a solicitor, appeared on behalf of the Minister.
The Court Book was tendered by the Minister at the hearing and was marked Exhibit CB.
The Affidavit filed by the applicant on 16 September 2021, in support of the application, included a copy of the Tribunal’s decision and notification letter. These documents were included in the Court Book; therefore, it was not necessary to read them into evidence.
The Affidavit filed by the applicant on 17 July 2024, contained three grounds of review which have been considered as submissions, however, the attached annexures contained information not put before the Tribunal and were consequently not admitted into evidence.
The Affidavit of Madeline Mary Fry, filed on 1 October 2024, was taken as read.
Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and outlined the role and power of the Court in judicial review proceedings.
GROUNDS OF REVIEW
The originating application raised the following grounds of judicial review (without alteration):
1. The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.
Particulars
a. The Applicant applied for a review on or about 9 December 2019. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.
b. The Second Respondent did not consider the Applicant's circumstances and did not provide any opportunity to submit further evidence pertaining to his case.
c. The Second Respondent provided an oral decision without providing the applicant with a detailed account of the decision.
2. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness and did not consider the Applicant's circumstances or provide him the opportunity to present further evidence.
The content of the Affidavit, filed by the applicant on 17 July 2024, raised the following additional grounds of judicial review (without alteration):
I feel the tribunal has made Jurisdictional error by not considering my psychological state and my educational status.
I strongly believe they denied me natural justice by not considering my genuine mental health issues.
AAT did not consider that my mother has a business and lives alone in India to where I will ultimately go after finishing my studies & head back with any internship or job experience.
At the hearing, the applicant made oral submissions in respect of the grounds of judicial review
Ground One
Ground one alleges that the applicant was denied procedural fairness under s 359 of the Act. It further alleges a failure on the part of the Tribunal to consider relevant considerations.
Section 359(1) of the Act provides for the Tribunal to get any information it considers relevant. However, if it gets such information, it must have regard to it when making its decision on the review.
The evidence before the Court indicates that the Tribunal, pursuant to s 359(2) of the Act, wrote to the applicant and invited him to provide information regarding his enrolment in a registered course of study and to provide information showing that he is a genuine applicant for entry and stay as a student. The applicant provided a response by way of a completed Request for Student Visa Information form (RSVI form) and supporting documentation. A review of the Tribunal’s statement of decision demonstrates that the Tribunal had taken into account, where relevant to its considerations, the information provided by the applicant in the RSVI form, as well as the supporting documents.
The Court is unable to identify any failure on the part of the Tribunal with respect to its obligations under s 359 of the Act. Ground one does not establish jurisdictional error.
Particular 1(a)
By particular 1(a) the applicant complained that there was an inconsistency in the processing of review applications and that he did not know when a hearing would be allocated.
At the hearing before the Court, the applicant clarified that this complaint related to the conduct of the hearing. He said there were other cases being attended to by the Tribunal and he did not receive any proper communication about when his case would be heard. He said that he also felt that the Tribunal was distracted because there were too many cases that had to be heard at the same time, that his case was done in a hurry, and the Tribunal did not have time to consider his case.
In clarifying what occurred at the hearing, the applicant said that, at the start of the hearing, the Tribunal was speaking to multiple applicants. He was then placed on hold for about 10 to 15 minutes, after which his matter was heard. The applicant indicated that when his matter was being heard, only he and his representative were in attendance.
The Minister submitted that the applicant was notified of the hearing on 13 July 2021 in compliance with reg 4.35D of the Regulations. The Court accepts that the applicant was properly notified of the scheduled hearing date, which complied with the prescribed notification period set out in reg 4.35D of the Regulations.
The applicant’s complaint, however, appears to be directed at the conduct of the hearing rather than when he was notified of the hearing. The Court has reviewed the evidence before it, including the transcript of the Tribunal hearing and the material in the Court Book, to ascertain whether it discloses any failure on the part of the Tribunal to afford the applicant a real and meaningful hearing.
The evidence before the Court indicates that on 13 July 2021, the applicant was invited to appear before the Tribunal by telephone, at 9:30am on 29 July 2021 to give evidence and present arguments relating to the issues arising in his matter. The applicant attended the telephone hearing and was assisted by his representative. The transcript indicates that the applicant’s hearing, at which only he and his representative were present, commenced at 10:05 am. The timing appears consistent with information provided by the applicant from the bar table that, following a multi-applicant hearing introduction, he was on hold for about 10 to 15 minutes after which his own hearing commenced.
The transcript indicates that the Tribunal explained to the applicant the issue in the review and proceeded to ask the applicant questions relevant to the matters set out in Ministerial Direction 69. The applicant provided responses to the Tribunal’s questions, which were considered by the Tribunal in its reasons. The applicant’s representative also made oral submissions at the hearing. Those submissions were also considered by the Tribunal in its reasons.
The transcript indicates that towards the end of the hearing the Tribunal asked whether there was anything else to be added, to which the representative indicated there was not. The representative then asked the Tribunal if it required evidence about the applicant’s mother’s business, such as financial documents and tax returns, to which the Tribunal indicated they would not be required. The transcript indicates that the hearing was adjourned at 10:31am. The applicant appears to have been put on hold until the hearing resumed at 11:12, at which time the Tribunal delivered its oral reasons.
Leaving aside the offer to provide further documents pertaining to the applicant’s mother’s business, which the Court has considered further below, the evidence before the Court does not disclose that the manner in which the Tribunal conducted the hearing was unfair or did not give the applicant an opportunity to present evidence. Accepting that there was a general introduction with multiple applicants, the evidence before the Court clearly indicates that the applicant, who was represented before the Tribunal, was given the opportunity to give evidence and present arguments relevant to the issue in the issue in the review.
There is nothing in the evidence before the Court which discloses that the Tribunal was distracted by other matters or that it was in a rush as alleged by the applicant. The hearing transcript indicates that the applicant was asked questions, was given an opportunity to respond, the representative made submissions, and the Tribunal asked if there was anything further to be said before it adjourned the hearing to consider the evidence.
There is no evidence before the Court which suggests that the applicant was not afforded a real and meaningful opportunity to give evidence and present arguments at the hearing before the Tribunal.
As to the Tribunal indicating that it did not require financial evidence of the applicant’s mother’s business after the representative offered to provide it, the Court considers that nothing turns on this because the Tribunal appears to have accepted the evidence submitted at the hearing that the business generated about $4000 a month and employs about four or five people. In the circumstances, the Court does not consider that the Tribunal acted unreasonably when indicating that such evidence was not required.
Particular 1(a) does not establish jurisdictional error.
Particular 1(b)
By particular 1(b), the applicant alleges that the Tribunal failed to consider his circumstances and failed to give him an opportunity to submit further evidence. In oral submissions, the applicant said that in relation to the four points referred to by the Tribunal at [43] of its decision, which were of concern; namely the applicant’s family ties in India, his enrolment history, his future plans and his immigration history, the Tribunal had not considered the documents that he put forward and had not considered the merits of his case regarding those concerns. He said he has family property in India that will be divided between him and his sister, which is a strong tie to his country, he was enrolled in multiple courses, but he was always enrolled. He submitted that in relation to his future plans he wants to undertake a professional course, he made progress to demonstrate his dedication, and wants to succeed.
The Tribunal’s statement of reasons indicates that it had considered the evidence before it in relation to the four concerns to which the applicant refers. Any additional evidence that the applicant now raises regarding these concerns, such as the family property that would be divided with his sister and his future plans to undertake a professional course, was not before the Tribunal. The Tribunal made its decision on the evidence before it at that time. The Tribunal’s assessment of the evidence, its conclusions and findings as to why it was not satisfied that the applicant intends to genuinely stay in Australia temporarily were opened to it.
The applicant’s complaint appears to be a disagreement with the Tribunal’s consideration of the evidence and its findings. Such a complaint invites impermissible merits review, which the Court cannot engage in.
As to the applicant’s complaint that he was not afforded the opportunity to provide further evidence, the Court observes that the Tribunal invited the applicant to provide information relevant to the issues in the review under s 359(2) of the Act. A further opportunity was given, as indicated in the hearing invitation letter, for the applicant to provide evidence of his enrolment, past study in Australia, work history, and a written statement addressing the issues in Direction 69 as to whether he is a genuine applicant for entry and stay as a student. Furthermore, at the hearing, as indicated in the transcript, the Tribunal asked whether there was anything further to add, to which the applicant’s representative indicated there was not. In relation to the offer to provide financial information about the applicant’s mother’s business, the Court has dealt with this above at [56]. The evidence before the Court does not support the allegation that the applicant was not afforded the opportunity to provide further evidence.
Particular 1(b) does not establish jurisdictional error.
Particular 1(c)
Particular 1(c) states that the Tribunal made an oral decision without providing the applicant with written reasons.
The evidence before the Court indicates that the Tribunal made an oral decision (following the hearing) on 29 July 2021. The transcript of the hearing indicates that the Tribunal also gave an oral statement of the reasons for its decision. The Tribunal was entitled to give oral reasons at the hearing: this is provided for in s 368D(2)(a) of the Act and no error arises on this basis.
Section 368D(4) of the Act provides that, if the Tribunal makes an oral statement under s 368D(2)(a) of the Act and, within the period prescribed by the Regulations, the applicant makes a written request for the statement to be provided in writing, the Tribunal must reduce the oral statement to writing and, within 14 days after the day the request is received by the Tribunal, give a copy to the applicant by one of the specified methods: s 368D(4) of the Act. The period by which the applicant had to make the written request, as prescribed by the Regulations, was 14 days after the day on which the Tribunal made its oral statement: r 4.27B of the Regulations.
In this case, the applicant did not make the request within the prescribed period of 14 days. He did, however, make a written request for the written statement of decision and reasons on 3 September 2021 and 7 September 2021. The Tribunal refused to provide the written statement on the basis that the request had been made outside the prescribed period. While the Tribunal’s refusal to provide the written statement was not ideal, the Court accepts the Minister’s submission that the Tribunal, having received the request after the prescribed period had passed, was under no obligation to provide the written statement of decision and reasons. In any event, the Tribunal subsequently provided the statement of decision and reasons on 11 October 2021, by which time the applicant had lodged his application for judicial review.
At the hearing before the Court, the applicant claimed that while the Tribunal, during the hearing, told him the main points as to why his application had been rejected, it did not elaborate. While it was not entirely clear, the applicant appeared to contest what had been said by the Tribunal as recorded in the transcript. When asked whether it was the case that he could not recall all what the Tribunal said at the hearing, the applicant said he did not think the Tribunal said what was recorded in the transcript.
The transcript of the Tribunal hearing is in evidence before the Court. It was annexed to the Fry Affidavit in which the deponent attests that the transcript is an accurate representation of what was said at the hearing conducted on 29 July 2021. The Fry Affidavit and the transcript of the hearing were served on the applicant a week prior to the final hearing. If the applicant had concerns about the accuracy of the transcript of the Tribunal’s hearing, it was for him to put on evidence of this to the Court. He has not done so. In the circumstances, the Court accepts the evidence in the Fry Affidavit and finds that the transcript is an accurate record of what was said at the hearing on 29 July 2021.
Returning to the issue of the written statement of decision and reasons which was provided to the applicant by the Tribunal on 11 October 2024, the Court accepts, as submitted by the Minister, that it was relevantly identical to the oral decision and reasons delivered by the Tribunal at the hearing before it on 29 July 2021.
The Court further accepts that the oral decision complied with the requirements of s 368D(2)(a) in that it described the decision that was on review before it, the reasons for its decision, the findings on material questions of fact and referred to the evidence on which it made those findings.
The applicant’s complaints that he was not given written reasons or that the oral reasons did not reflect what the Tribunal said at the hearing are entirely without merit.
The ground in particular 1(c), and the related contention raised by the applicant in his oral submissions to the Court, do not establish any jurisdictional error on the part of the Tribunal.
Ground Two
Ground two alleges that the Tribunal denied the applicant procedural fairness, did not consider his circumstances and did not provide the applicant with the opportunity to present further evidence.
The applicant’s complaint that he was denied the opportunity to present further evidence has been considered by the Court above at [56]. For the same reasons discussed, the Court does not accept that the applicant was denied an opportunity to present further evidence. To the extent that this refers to the Tribunal indicating that it did not require evidence pertaining to the financial circumstances of his mother’s business, as the Court has found, nothing turned on this as the Tribunal appears to have accepted what was said at the hearing about the business.
In oral submissions, the applicant suggested that the Tribunal did not consider the evidence (and did not give him the opportunity to present further evidence) regarding his mother’s business. He said if he was given the opportunity to provide the further evidence, the decision could have been different.
It is evident from the statement of reasons (at [30], [34] and [38]) that the Tribunal had regard to the evidence pertaining to applicant’s mother’s business. The Tribunal did not express any concerns or doubts about the veracity of that evidence. Presenting further evidence regarding the financial circumstances of his mother’s business would not have resulted in a different outcome because the reasons given for why the Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily, as set out at [43] of the written reasons, were a combination of factors, none of which related to the business, which led the Tribunal to be concerned that the applicant was using the student visa to maintain ongoing residents in Australia.
The weight given to the evidence was entirely a matter for the Tribunal. The applicant’s complaint appears to be directed at the Tribunal’s consideration of the evidence and the findings that it made. Such a complaint invites merits review which the Court is not permitted to engage in.
In respect of general procedural fairness obligations, the Court accepts the Minister’s submission that the Tribunal invited the applicant to the hearing as required by s 360 of the Act. The statement of decision indicates the Tribunal discussed with the applicant various matters relevant to the issue in the review. The applicant was asked questions by the Tribunal, was given an opportunity to respond and his representative was given an opportunity to make submissions on his behalf.
There is no substantive evidence before the Court which suggests that the applicant was not afforded a real and meaningful opportunity to give evidence in relation to the issues in the review.
Ground two does not establish jurisdictional error.
Additional grounds
Other grounds, which appeared in the applicant’s Affidavit filed on 17 July 2024 and at the oral hearing before the Court, allege that the Tribunal failed to consider the applicant’s psychological state (including genuine mental health issues), his education status, including that he had almost completed his Graduate Diploma, or that his mother has a business and lives alone in India where he has to ultimately return when he completes his studies and internship and/or job experience. The applicant contends that if the Tribunal had considered these matters the decision would have been in his favour.
The statement of decision indicates that the Tribunal did have regard to the evidence pertaining to the applicant’s studies, including the courses he had completed and those he was enrolled in. It also indicates that the Tribunal had taken into account the evidence of the applicant’s appointments with a psychologist via Zoom in November 2020, December 2020 and January 2021. It also indicates that the Tribunal had regard to the evidence relating to his mother’s circumstances and business in India.
The applicant’s complaints do not disclose any failure on the part of the Tribunal to consider his evidence. They are but a disagreement with the Tribunal’s assessment of the evidence, its conclusions and findings. Such a disagreement does not found a basis for establishing jurisdictional error.
The additional grounds do not establish jurisdictional error.
CONCLUSION
As none of the grounds establish jurisdictional error, the application for judicial review must be dismissed.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 17 October 2024
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