Kumar v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 36
•21 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 36
File number: MLG 654 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 21 January 2025 Catchwords: MIGRATION – student (subclass 500) visa – visa refused – first applicant in breach of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal denied the applicant procedural fairness – whether Tribunal failed to consider new evidence – whether Tribunal applied the wrong legal test – whether Tribunal failed to consider relevant facts – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) pt 5, div 5, ss 357A, 359(2), 360, 499, 499(2A)
Migration Regulations 1994 (Cth) sch 2, cls 500.211, 500.212, 500.212(a), 500.212(b), 500.212(c), 500.214, 500.218, 500.311, 500.312
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25; 288 FCR 1
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 13 December 2024 Date of hearing: 16 December 2024 Place: Melbourne Counsel for the Applicants: The first applicant appeared in person Counsel for the First Respondent: Mr J Macaulay Solicitors for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 654 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BARJINDER KUMAR
First Applicant
AMANDEEP KUMAR
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
21 JANUARY 2025
THE COURT ORDERS THAT:
1.The applicants’ application for judicial review filed on 8 March 2019 is dismissed.
2.The applicants pay the first respondent’s costs fixed in the sum of $7,467.00.
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 Gostencnik
BACKGROUND
The first applicant is a citizen of India, who arrived in Australia on 7 September 2007 on a student visa to study a General English course and a Diploma of Hospitality Management: Court Book (CB) 122. Since the applicant’s arrival in Australia, he has held 4 student visas, 1 skilled work visa; and enrolled in 8 courses, with 3 of these courses being incomplete: CB122. On 15 March 2017, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa to study a Bachelor of Professional Accounting at Holmes Institute, with the expected course date being 15 March 2018: CB1-CB17, CB120-CB122. The second applicant, who is also an Indian citizen and the first applicant’s partner, applied for a Student (Guardian) (Subclass 590) visa: CB1-CB17, CB124. A delegate of the (then) Minister for Immigration and Border Protection acknowledged the visa application on the same day it was lodged, and an ‘Acknowledgment of application receiving factsheet’ was transmitted to the applicant by email transmission: CB80-CB84.
The applicant provided supporting documents to the (then) Department of Immigration and Border Protection for his student visa application, including: a certificate in Diploma of Hospitality with the Victorian Institute of Culinary Arts and Technology: CB19; a statement of attainment for Certificate III and Certificate IV in Hospitality (Commercial Cookery) with the Victorian Institute of Culinary Arts and Technology: CB20-CB22; a statement of attainment for the Diploma of Hospitality with Victorian Institute of Culinary Arts and Technology: CB23; a certificate and statement of attainment in Certificate IV in Business with Barkly International College: CB24-CB25, a certificate and statement of attainment in Diploma of Business with Barkly International College: CB25-CB29; a certificate in Certificate III in Hospitality (Commercial Cookery) with the South Pacific Institute: CB30-CB31; appointment of a registered migration agent as an authorised recipient to receive and respond to written communication on behalf of the applicant: CB32-CB34; four affidavits of support affirmed by various family members: CB35-CB40, CB77; evidence of financial capacity: CB41-CB70, CB85-CB89; a marriage certificate: CB71; a certificate of overseas health cover: CB72; and an interim statement of results for the Bachelor of Business with Holmes Institute: CB75-CB76.
The applicant also provided the Department a statement of purpose addressing the Genuine Temporary Entrant (GTE) criterion: CB90-CB94. In that statement, the applicant confirmed his intention to study a bachelor course in the food and service industry and outlined his genuine intentions to stay in Australia temporarily. The applicant attached further documents relating to his financial, social and family ties to India: CB95-CB112.
The delegate refused the visa application on 16 June 2017, and a notification of the delegate’s decision was sent to the applicant by email transmission: CB113-CB125. The delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student in accordance with the applicable criteria under cl 500.212(a) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate expressed several concerns, including that the first applicant’s GTE statement expressed a desire to work in the food and catering industry, but this did not accord with his student visa application in which the applicant stated he was seeking to apply (for employment) in the field of business and accounting on completion of his studies. Further, as the first applicant held multiple temporary visas over 9.5 years, the grant of this student visa application would extend the applicant’s temporary stay in Australia to over 10 years. The delegate noted that this was not the intention of the temporary visa program, and consequently the first applicant did not satisfy cl 500.212 to the Regulations. Accordingly, as the second applicant was not a member of the family unit of a person who holds a student visa, the second applicant did not satisfy cl 500.311 of Sch 2 to the Regulations. The delegate therefore refused the applicants’ student visa applications.
TRIBUNAL PROCEEDING
The applicants subsequently applied to the (then) Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision: CB126-CB128. Receipt of the review applications was acknowledged in correspondence from the Tribunal dated 6 July 2017, which enclosed an ‘Information for migration review applicants – MR Division’ factsheet: CB146-CB155. On 9 January 2019, the Tribunal invited the applicants to provide information, in writing, about the course(s) of study the first applicant was seeking to undertake, and his entry and stay in Australia as a student: CB156-CB160. The Tribunal attached Ministerial Direction No.69 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' to the correspondence for the applicant’s reference: CB161-CB165. The correspondence explained that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No.69: CB159.
By correspondence dated 25 January 2019, the Tribunal invited the applicant to attend a hearing scheduled for 12 February 2019. The correspondence requested the applicant provide a copy of his current Confirmation of Enrolment (CoE) or any other documents to show that he is enrolled in a course of study; any other documents that show the applicant’s past studies in Australia; and a written statement addressing the GTE criterion: CB184-CB188. The correspondence enclosed an ‘Information about hearings – MR Division’ factsheet: CB189-CB192, and requested the applicants complete and return a ‘Response to hearing invitation – MR Division’ form to confirm attendance at the hearing, and to use the form to provide or attach any additional or new information the applicant wanted the Tribunal to consider: CB193-CB195.
The migration agent appointed by the applicants replied to the Tribunal’s email on 10 February 2019: CB198-CB199, and attached various documents on behalf of the applicants in support of the review application, including: transcripts and certificates of completion for various diploma and bachelor level degrees; an overseas student CoE for the Advanced Diploma of Leadership and Management with Australian Vocational Education & Training Academy: CB202, and a Statement of Purpose addressing the GTE criterion: CB200-CB201. The Tribunal summarised the content in the first applicant’s Statement of Purpose as follows: CB217:
•He came to Australia to study hospitality as a prelude to opening a chain of pubs in India;
•He worked as a cook in various restaurants;
•He came to understand he needed an understanding of business principles;
•As a married man with family commitments he needed a stability and accordingly enrolled in a Bachelor [of] Accounting and completed it in 2018;
•He is now enrolled in an Advanced Diploma of Leadership and Management. Similar courses are available in India. He is comfortable with the education programs in Australia;
•He outlined learning outcomes from such an Advanced Diploma;
•He is confident of gaining employment in India;
•He has extended family in India;
•He has visited India on 5/6 occasions since 2007.
The applicants attended the scheduled hearing before the Tribunal where they presented arguments and gave evidence with the assistance of their migration agent: CB204-CB207. The Tribunal affirmed the delegate’s decision on 13 February 2019 and the applicants were notified of the Tribunal’s decision on 14 February 2019 at which time they were provided with a copy of the Tribunal’s Statement of Decision and Reasons (Decision) dated 13 February 2019, and an ‘Information about decisions – MR Division’ factsheet: CB208-CB221.
At [1]-[6] of the Decision, the Tribunal summarised the application for review, and at [7]-[10], outlined the applicable law, student visa criteria and mandatory considerations by reference to cls 500.211, 500.212, 500.218, 500.312 of Sch 2 to the Regulations, and Ministerial Direction No. 69 made under s 499 of the Migration Act 1958 (Cth) (Act). The Tribunal set out and assessed the applicants’ claims and evidence at [11]-[50] of the Decision.
The Tribunal’s primary consideration was whether the first applicant was a genuine temporary entrant pursuant to the requirements of cl 500.212 of Sch 2 to the Regulations. The Tribunal considered the applicant’s written Statement of Purpose which was attached to the correspondence dated 10 February 2019; the applicant’s written response to s 359(2) ‘Request for Student Visa Information’; and noted the following about the first applicant’s evidence:
(1)the first applicant was a continuous resident in Australia since August 2007, and was the holder of 5 student visas and 1 skilled work visa: Decision at [11];
(2)he has been a resident in Australia for 11.5 years and seeks to remain for another 12 months. The first applicant currently holds a Bridging visa: Decision at [12];
(3)he completed multiple courses, including a Certificate and Diploma of Business, a Certificate and Diploma in Hospitality Management and a Bachelor of Professional Accounting: Decision at [13]-[14];
(4)he was employed as a customer service officer, cook and taxi driver in Australia: Decision at [15];
(5)he was not enrolled in a registered course during the period June 2018 to February 2019. The first applicant admitted that: he remained onshore during this time; needed to take a break from study; he wanted to have a date set for his review application before enrolling in a course; his family lives with him in Australia; and he continued to work during this period: Decision at [17];
(6)the first applicant had not returned to India since 2015, and he did not have a CoE as of 16 January 2019: Decision at [20]; and
(7)the first applicant acknowledged that there were similar courses in India, and advised he was comfortable with the education programs in Australia. He also stated that he wished to return home to pursue business opportunities, but did not provide any reasons for not undertaking study in his home country: Decision at [24].
The Tribunal made the following findings:
(1)the first applicant did not provide any reasonable reasons for not undertaking his intended qualifications in India: Decision at [24]-[25];
(2)his immediate family resides in Australia with him, and he has not returned to India since his marriage. As he did not proffer any community, financial or business ties to India, the Tribunal considered that the first applicant does not have a significant incentive to return to his home country, and is concerned that his intention to stay in Australia is motivated by factors other than studying: Decision at [26]-[27];
(3)the Tribunal accepted that the first applicant does not have any military service commitments in India, and whilst there was limited evidence before the Tribunal about the first applicant’s circumstances in his home country, the Tribunal made no adverse findings against the applicant pursuant to cl 10 of Ministerial Direction No.69: Decision at [28];
(4)the Tribunal was satisfied that the applicant is using the student visa program to circumvent the intention of the migration program and that he seeks to maintain ongoing residence in Australia: Decision at [31];
(5)the Tribunal accepted that there is no evidence suggesting the applicants were in a relationship of concern and made no adverse findings against them in relation to cl 11(d) of Ministerial Direction No.69: Decision at [32];
(6)the Tribunal considered the first applicant had an informed knowledge of living in Australia and his course of study, and provided some limited detail; however, it makes no adverse findings against the applicant pursuant to cl 11(e) of Ministerial Direction No.69: Decision at [33];
(7)as the first applicant is qualified, holding a set of professional qualifications with extensive industry experience, he is more than suited to finding work in a number of fields in both Australia and India. The Tribunal considered the course the first applicant was undertaking offers little more than marginal gain, and the applicant has already captured the value and utility through his previous studies: Decision at [34]-[36]; and
(8)the Tribunal considered that the first applicant spent a long period in Australia and his student visa was being used for the intention to maintain ongoing residence in Australia: Decision at [37]-[43].
Taking these findings into account, the Tribunal was not satisfied that the first applicant intends to genuinely stay in Australia temporarily and so did not meet the criterion in cl 500.212(a) of the Regulations: Decision at [48]-[49]. Accordingly, the second applicant was not a member of the family unit of a person who satisfies the primary criteria, and therefore does not satisfy cl 500.311 of Sch 2 to the Regulations: Decision at [50]. The Tribunal affirmed the delegate’s decision not to grant the applicants a student visa: Decision at [51]-[52].
PROCEEDING IN THIS COURT
By application filed on 8 March 2019, the applicants seek judicial review of the Tribunal’s decision. The applicants’ grounds of review are as follows:
1.The applicant seeks judicial review of the decision of Administrative Review Tribunal in this matter on the grounds that the tribunal erred jurisdictionally in determining the application adversely and failed to find that I satisfied the relevant provisions of the Migration Act 1958 and Migration Regulations 1994. application (sic) My application has been dealt with and decided unfairly due to following reasons. I was not given chance to present my case and evidence in support of my case.
2.Decision of Department of Home affairs was related to the criteria of provisions of class TU 500, clause 500.212. The department was not satisfied that clause 500.212 was met. The tribunal made an error and did not consider my case under this sub clause. Also, the tribunal did not consider my pervious qualifications. I have completed all the requirements of my course.
3.In looking at other requirements of sub class 500, there has been no attempt made by tribunal to take a broad view to see why I want to do the new course Advanced Diploma in Leadership and Management. The tribunal did not take any fresh evidence in relation to the case. The hearing was completed in 10 minutes and no questions were asked in relation to the proposed course. And future plan.
4.The tribunal also made an error by writing in decision record in para 26 that the applicant's personal ties in his home country are limited. But all family and extended family of myself and my in laws in India. The tribunal did not consider this and come to a decision.
5.It is considered that the tribunal's failure to at least consider the situation in the above light amounts to jurisdictional error as a result, destroying the validity of Tribunal's decision.
6.In Minister for Immigration v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Haynes JJ observed (Gleeson CJ agreeing) that
"It is necessary, however, to understand what is meant by 'Jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 at 179, if an administrative tribunal .. . falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. Jurisdictional error can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important,however,is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.'
7.It is submitted that the Tribunal has failed to consider a potential explanation and provisions of Student visa 500 refusal. The tribunal decision is made contrary to the (sic) to natural justice by not giving me due chance to present my case and evidence in support of application. Also by not considering the subclass 500.214 under which the student visa was initially refused. Also not properly considering the reason and effect (being depression) of non enrolment.
CONSIDERATION
As the applicants were not represented before the Court, at the commencement of the hearing of the application I explained the nature of the Court’s jurisdiction. Specifically, I explained that the Court may only grant relief if the applicants establish the Tribunal’s decision is affected by jurisdictional error. I explained that the High Court of Australia recently explained the nature of jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law... no decision at all’ and is in that sense ‘void’”. The High Court noted that jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified in LPDT at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion; and
(h)failing to observe some applicable requirement of procedural fairness.
The first applicant filed a late written submission which did not engage with the grounds of review advanced in the application, and apart from responding to the first respondent’s submission on costs, engages only with his personal circumstances and with the merits of his visa application. As I explained to the first applicant, the Court cannot undertake a merits review of the Tribunal’s decision. During his oral submissions, the first applicant was unable to explain nor expand on the review grounds set out in the application, explaining that a migration agent prepared the review grounds. He was unable to identify nor articulate any error made by the Tribunal. I deal with the review grounds contained in the application. And as the first respondent has done in its submissions, as some of the grounds contain more than one allegation of error, it is convenient to deal with the grounds according to themes.
Grounds 1, 3 and 7 – procedural fairness
Grounds 1, 3 and 7, inter alia, assert a lack or denial of procedural fairness. Specifically the applicants contend the Tribunal:
(a)dealt with and decided the review application unfairly, and contrary to natural justice, because it did not give the first applicant a chance to present his case and evidence;
(b)did not take any fresh evidence in relation to the case; and
(c)completed the hearing in 10 minutes and there were no questions asked about the proposed course or future plan.
Division 5, Pt 5 of the Act (as then in force) is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”: s 357A.
As earlier outlined, the applicants were invited to attend the hearing in accordance with s 360 of the Act (as then in force). They were asked to provide, and they provided information in the form of documents and statements relevant to the review. The applicants attended the scheduled hearing and they were assisted during the hearing by their migration agent. There is nothing in the material suggesting the hearing and the earlier invitation did not provide the applicants with a real or meaningful opportunity to put matters to the Tribunal. It is generally not the role of the Tribunal to assist the applicants in putting their case; nor to undertake an inquiry for the applicants; nor to ascertain whether the applicants’ case on review might be better supported by other evidence: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 at [36]; Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575 at [36] and [49].
There appears nothing from the way the hearing was conducted nor its length which might suggest the applicants were somehow precluded from or not permitted to present their case or to give evidence. The Tribunal records at [5] of the Decision that the first applicant gave evidence and presented arguments, whilst at [17], [24] and [26] it records aspects of the first applicant’s oral evidence. In addition to the written evidence summarised at [19] and [20] of the Decision, it is apparent that the first applicant was afforded an opportunity to give evidence, and the Tribunal appropriately considered the applicant’s written statements and documents. And the short duration of the hearing is likely to reflect, as earlier noted, the fact the applicants provided the Tribunal with many documents evidencing his qualifications, study history and financial capacity, and two statements addressing the matters contained in cl 500.212 of Sch 2 to the Regulations. The applicants do not explain how the duration of the hearing impacted their capacity to present their case on review before the Tribunal.
As to the contention that the Tribunal failed to take fresh evidence, the applicants have not identified what fresh evidence was available that the Tribunal did not take nor how such evidence was relevant to the Tribunal’s review. There is no suggestion the applicants sought to adduce evidence which the Tribunal refused to admit. In essence, the contention is little more than a complaint the Tribunal did not undertake an inquiry for the applicants. It was under no obligation to do so. Although in conducting the review, the Tribunal may get any information that it considers relevant: s 359 of the Act (as then in force), absent a particularised allegation that the Tribunal failed to consider some relevant information, a bare allegation the Tribunal did not take fresh evidence in relation to the case takes the matter no further and does not sound in jurisdictional error.
Although the Tribunal was not confined to whatever may have been the issues the delegate considered, the issues that arise in relation to a review are to be identified by the Tribunal. But if, as here, the Tribunal takes no step to identify any other issues than those that the delegate considered dispositive, and does not tell the applicants what that other issues are, the applicants may assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [35]. The applicants were thus on notice of the issues arising in relation to the decision under review and it fell to the applicants to make good their case. Nothing on the available material suggests the Tribunal did anything before, nor during the hearing to prevent the applicants adducing and giving evidence, producing relevant documents and generally putting their case.
Therefore, to the extent that grounds 1, 3 and 7 contend a failure to accord, or a denial of procedural fairness, they do not disclose jurisdictional error and so fail.
Grounds 2 and 7 – misunderstanding or misapplication of the applicable law
Grounds 2 and 7 contend, inter alia, the Tribunal erred because:
(a)the Department (the delegate) was not satisfied that the first applicant met cl 500.212, but the Tribunal did not consider his case under that clause; and
(b)it did not consider cl 500.214 under which the student visa was initially refused.
The contention that the Tribunal did not consider the first applicant’s case under cl 500.212 to the Regulations simply cannot be made out. As the Decision discloses, the Tribunal considered cl 500.212(a) as it was required to do. As earlier noted, the Tribunal set out the relevant law, including by reference to cl 500.212 and Ministerial Direction No.69: Decision at [7]-[10]. The Tribunal summarised the first applicant’s circumstances, including by reference to his immigration, study and employment history in Australia: at [11]-[18]. It summarised the first applicant’s evidence contained in his "Statement of Purpose" and response to the Tribunal’s s 359(2) request for information: at [19]-[20]. The Tribunal considered and made findings about the evidence considered in the context of the factors set out in Ministerial Direction No.69: at [21]-[47]. And it concluded the first applicant did not intend genuinely to stay in Australia temporarily, and so did not meet cl 500.212(a): at [48]-[49].
Clause 500.212 of the Regulations requires the first applicant to be a genuine applicant for entry and stay as a student. Clause 500.212 contains three sub-clauses, which must each be met by the first applicant. A failure to satisfy one means that the Tribunal does not need to further conduct its inquiry: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25; 288 FCR 1 at [31]-[32].
Clause 500.212 to the Regulations provides:
The applicant is a genuine applicant for entry and stay as a student because:
(a) having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(b) because 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) because of any other relevant matter.
As is evident from the above, cl 500.212(a) of the Regulations requires that the applicant genuinely intends to stay in Australia temporarily, having regard to the applicant's circumstances, immigration history, and any other "relevant" matter. The Tribunal was also required to consider Ministerial Direction No.69 to the extent that it was relevant: s 499(2A) of the Act. Ministerial Direction No.69 sets out a range of matters the Tribunal should consider when considering cl 500.212(a). In considering the first applicant’s evidence, the Tribunal decided that he did not meet cl 500.212(a): Decision at [48], because it was not satisfied the applicant intends to stay in Australia temporarily. Having so determined, the Tribunal was not required to assess cl 500.212(b) nor (c). Because each criterion in cl 500.212(a), (b) and (c) must be satisfied, a failure by the first applicant to satisfy (a) means that he does not meet cl 500.212.
Similarly, because the Tribunal concluded the first applicant did not satisfy cl 500.212 to the Regulations, the Tribunal was not required to assess cl 500.214. To the extent that the applicants allege the delegate refused the first applicant’s visa by reference to cl 500.214, that allegation is incorrect. The delegate plainly decided the application on the basis the first applicant did not satisfy cl 500.212(a): CB124.
Therefore, to the extent that grounds 2 and 7 contend error because the Tribunal misunderstood or wrongly applied the applicable law, the grounds are not made out, they do not disclose jurisdictional error and so fail.
Grounds 2, 4 and 7 – failure to consider evidence and fact find error
Grounds 2, 4 and 7 contend, inter alia, the Tribunal failed to consider evidence and made an erroneous factual finding, specifically that the Tribunal:
(a)did not consider the first applicant’s previous qualifications or that he completed all the requirements of his course;
(b)at para [26] found that the applicant’s personal ties to India are limited, whereas all of the first applicant’s family and extended family and his in-laws are in India; and
(c)did not consider the reason and effect (being depression) of non-enrolment.
Whether jurisdictional error arises from a failure to consider particular evidence is a “case specific inquiry”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [77], and merely ignoring relevant material which the Tribunal is not bound to consider does not establish jurisdictional error. The relevant inquiry is as to the importance of the materials to the exercise of the Tribunal's function and thus the seriousness of any error.
The applicant’s previous qualifications is not a mandatory consideration and as the first respondent correctly points out, the question whether the Tribunal was required to take the first applicant’s previous qualifications into account depends on the importance that consideration is to the exercise of the Tribunal’s function. The first respondent notes, and I accept, that Ministerial Direction No.69 provides some guidance in providing that:
(a)in assessing cl 500.212 (GTE Criteria), circumstances where further scrutiny may be appropriate include whether the applicant intends to study in a field unrelated to their previous studies: cl 4(c);
(b)in considering an applicant’s potential circumstances in Australia, decision makers should have regard to the applicant’s knowledge of living in Australia and their intended course of study and education provider, including by reference to previous study and qualifications: cl 11;
(c)in considering the value of the course to the applicant’s future, decision makers should have regard to whether the proposed course is consistent with their level of education, allowing for reasonable changes to study pathways: cl 12; and
(d)in considering an applicant’s immigration history, decision makers should have regard to the amount of time the applicant has spent in Australia and whether the student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification: cl 14.
The first applicant’s previous qualifications are therefore relevant in assessing whether he meets the GTE Criteria. But contrary to the applicants’ contention, the Tribunal plainly considered the applicant’s prior qualifications and that his prior studies were completed. The Decision discloses the Tribunal considered that:
(a)the first applicant had previously completed studies in Business at Certificate and Diploma level, Hospitality Management at Certificate and Diploma level, and Professional Accounting at Bachelor level: at [13]-[14];
(b)the first applicant was not enrolled and did not study in an approved course in the period June 2018 to February 2019, because he wished to take a break from studying and felt that he needed to have a date set for the Tribunal review before he re-enrolled: at [16]-[17];
(c)the first applicant was enrolled in an Advanced Diploma of Leadership and Management, which he said was also available in India: at [19];
(d)the first applicant studied extensively in Australia in both the vocational (VET) and higher education sectors for many years, and it was not clear why he had not returned to India to pursue employment opportunities given the vocational, management/business and professional qualifications obtained in Australia: at [24], [30] and [33];
(e)the proposed course was a VET course, and the applicant had not satisfied the Tribunal that the proposed course would have anything but marginal value considering his previous qualifications at Certificate, Diploma and Bachelor level, and industry experience: at [35]-[36]; and
(f)given the extensive time in Australia studying a range of courses, and the significant gap in studying, and that the applicant only enrolled in the proposed course as the date of hearing approached, the Tribunal found the student visa program was being primarily used to maintain residency in Australia: at [41]-[42].
The consideration undertaken was detailed and it featured in the Tribunal’s assessment whether the first applicant met cl 500.212 of the Regulations. The allegation is not made out.
As to the applicant’s ties to India, the Tribunal relevantly considered the first applicant’s statement of purpose and written response to the s 359(2) request for information, which indicated that the applicant’s extended family resided in India; he had returned on six occasions; had not returned since November 2015; and maintained contact through his family, but did not advise of any community nor financial ties to India. The Tribunal considered the abovementioned matters, however, as noted in the Decision at [26]-[27], it found that there was no strong incentive for the first applicant to return to his home country on the basis that his immediate family resides with him in Australia, and he had not returned since his marriage in 2015. The Tribunal noted the absence of any personal community ties in India, that while the first applicant had personal ties in the form of his extended family, these ties did not, of themselves, constitute a strong incentive to return home when considered against the absence of any strong economic and personal circumstances in India. Thus, the Tribunal considered the first applicant’s evidence that his extended family was in India, and this was the only evidence relevant to the first applicant’s personal ties to India the Tribunal considered weighed in his favour. The contention that the first applicant’s personal ties to India were not considered must fail.
The guidance provided by Ministerial Direction No.69 is that an applicant’s “personal ties” are broader than familial ties and extend to other matters such as community and employment ties. In this regard and taking into account the evidence before the Tribunal, its finding that the applicant's personal ties to India are limited was open. The Tribunal’s factual finding was therefore not erroneous.
As to the first applicant’s contention that his depression was the reason for his period of non-enrolment, the Tribunal found that the first applicant was not enrolled and did not study in an approved course for the period June 2018 to February 2019. The first applicant’s explanation was that he wished to take a break: Decision at [17]. The Decision does not record that the applicant asserted that he had depression, or that this was a reason for the study break, nor did he produce any evidence, such as an affidavit by him or his migration agent deposing to those facts; a statement from a medical practitioner attesting to his condition and that he suffered from depression during the relevant period; or the audio recording of the hearing. There is no evidence that the applicant suffers from depression, much less that this issue was raised with the Tribunal. No jurisdictional error is thereby disclosed.
It follows that none of the grounds raised by the applicants in their judicial review application disclosed jurisdictional error. As the first applicant was unrepresented before the Court, I have also reviewed the Tribunal's decision and the material in the CB filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the grounds of review the applicants advanced. I have not identified any arguable case of jurisdictional error.
Consequently, the application will be dismissed.
Costs
The first respondent sought an award of costs in the amount of $7,467.00 in the event the application failed. The applicants did not advance any cogent reason why in that event a costs order in the amount sought should not be made. Considering the history of this matter, the result, the work involved as disclosed from the filings and that the amount sought is less than the amount currently fixed by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), I consider the amount of cost sought is reasonable and the applicants should pay the first respondent’s costs fixed in the amount of $7,467.00.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 21 January 2025
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