Kumar v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 772
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 772
File number: SYG 1305 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 16 September 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Temporary) (Class TU) visa – whether Tribunal misconstrued or misapplied cl 500.212(a) in Schedule 2 to the Migration Regulations 1994 (Cth) – whether Tribunal made an illogical or irrational finding in applying cl 500.212(a) – no jurisdictional error – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Act 1958 (Cth) ss 476, 477, 499
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Ramanayake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 366 FLR 202; [2022] FedCFamC2G 5
Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238; [2016] FCA 858
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 12 September 2022 Place: Perth Counsel for the Applicant: Ms J Zhou Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 1305 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAVJOT KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
16 September 2022
THE COURT ORDERS THAT:
1.The application 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 LADHAMS:
Introduction
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 12 April 2018. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
The applicant raises a single ground of application alleging that the Tribunal misconstrued or misapplied cl 500.212(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) or made an illogical or irrational finding in its assessment that the applicant did not meet the criterion in cl 500.212(a).
For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision and the application for judicial review is dismissed.
Background
The applicant is a non-citizen who arrived in Australia in March 2012 as the holder of a student visa. The applicant applied for the student visa the subject of this application on 3 November 2016.
On 21 February 2017 a delegate of the Minister refused to grant the applicant the student visa. The delegate was not satisfied that the applicant met cl 500.212 of the Regulations.
On 3 March 2017 the applicant lodged an application to the Tribunal for review of the delegate’s decision. The Tribunal convened a hearing on 12 April 2018 at which the applicant gave evidence and presented arguments. The Tribunal then affirmed the delegate’s decision later on the same day.
Tribunal Decision
The Tribunal identified that the issue for its consideration was whether the applicant was a genuine applicant for entry and stay in Australia, as required by cl 500.212 in Schedule 2 to the Regulations.
The Tribunal considered that the applicant had not made satisfactory academic progress in the six years he had been onshore holding a student or related bridging visas. The applicant had completed three courses since his arrival in Australia in 2012: a Diploma of Management in 2013, a Diploma of Human Resources in 2014 and a Diploma of Marketing in 2017. He had previously completed a Master Diploma in Information Technology in India in 2010.
The Tribunal noted the applicant’s evidence that he had lodged an application for a Temporary Work (Skilled) (Subclass 457) visa (457 visa) in March 2018 in relation to his work as a mechanic and he was still awaiting a decision. The Tribunal considered the applicant’s evidence about his 457 visa application to be vague, and was not persuaded that he was unaware of the length of the sponsorship, which the applicant claimed he did not know but thought it might be for two to four years.
The Tribunal then addressed the 457 visa application in its reasons at [19]-[24]. These paragraphs are critical to the ground raised by the applicant in this application, and it is therefore useful to set them out in full:
19.The Tribunal has formed a view that the applicant has enrolled in the Advanced Diploma of Marketing for the purpose of supporting his student visa review and to wait until an outcome in his 457 visa application, not because he is genuinely committed to studying the course to enhance his career opportunities in India.
20.The applicant is claiming he intends to pursue a career in India in Information Technology, after he finishes the Advanced Diploma in Marketing in April 2020, whilst at the same time pursuing employment as a mechanic to obtain a 457 visa. If studying is his priority to achieve a qualification that will enable him to return to India to start his own Information Technology business, the Tribunal does not accept that his pursuing a 457 skilled visa as a mechanic is consistent with this stated career goal.
21.In written submissions, it is said that the applicant accepted the part time job he currently has as a mechanic because he could not get any other job. However, he is now intending, if he is granted a 457 visa, to work as a mechanic for two to four years. Working as a mechanic in Australia will, in the view of the Tribunal, be unlikely to equip him with relevant skills and experience to run his own Information Technology business or enhance his prospects of success. The Tribunal is not convinced that the applicant genuinely intends to return to India to work in Information Technology and has formed the view that he is hoping to find a pathway to remain in Australia.
22.The applicant was asked why he discontinued his studies when the student visa was refused in 2016 and said that it was because his path wasn’t clear and that if he started the course and the Tribunal hearing was soon after that, he would have an incomplete qualification and on his previous agent’s advice he decided to stop studying until he got the Tribunal invitation. He said he was also mindful he did not want to waste his parents’ money by starting a course he may not finish. When the applicant received the Tribunal’s invitation to the hearing, he enrolled in the Advanced Diploma the next day, which is consistent with his stated plan, but does not satisfy the Tribunal that he is genuinely intending to re-commence study or complete the course if he is granted the 457 visa.
23.It is accepted that the applicant has satisfactorily completed the courses he has undertaken. However, in the Tribunal’s view he has made slow and little academic progress and has not advanced beyond Diploma level in the six years he has been onshore. The applicant brought the issue the delegate’s putting negative weight against him studying low cost VET courses of short duration. It was pointed out to him that perhaps what was meant is that as he has a Master Diploma in Information Technology from India, it might reasonably be expected that he would enter the Australian tertiary education system at a higher level than Certificate III and by now have progressed to higher study. The applicant was told that this was the Tribunal’s view, in his circumstances. The applicant’s representative submitted that the level of education the applicant reached in India was really about the equivalent of a low level Diploma course in Australia. Even if this is accepted, the fact remains that the applicant, over a period of six years, still has not progressed beyond Diploma level in Australia. He was told that his enrolling in these VET courses seemed to suggest that he might be using the student visa programme to extend his time onshore until a better opportunity arose. The applicant disagreed. However, the Tribunal’s view is that a better opportunity has arisen, that is, the subclass 457 visa sponsorship.
24.The applicant said that from the time his student visa was refused to the time of this decision, he has continued to study informally online, but provided no corroborative evidence. Although it is noted that he has held a bridging visa during this time, the Tribunal would consider it reasonable to think that an applicant for a student visa, wanting to gain a qualification so he could return to his home country and start an IT business, would continue to study to progress academically so as to move further towards meeting his career goals whilst onshore holding a visa that did not prevent him from studying. The Tribunal does not accept as a reasonable excuse that the applicant cancelled his enrolment in 2016 because he thought the Tribunal hearing might be scheduled within three months.
The Tribunal was not satisfied that the applicant intended genuinely to remain in Australia temporarily, and therefore found that he did not meet the requirements of cl 500.212(a).
Proceedings of this Court
The application for judicial review was filed on 9 May 2018 which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application was dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on 16 March 2022 when the applicant failed to appear at a directions hearing. The applicant then filed an application in a proceeding seeking reinstatement of his application and the order dismissing the application was set aside by consent on 17 May 2022.
By amended application filed on 12 May 2022, the applicant raises a single ground of application:
The Tribunal misconstrued or misapplied cl.500.212(a) of the Migrations Regulations 1994 or otherwise reached in illogical or irrational finding that the Applicant did not meet the requirements of cl.500.212(a).
Particulars
A.The Tribunal found that the Applicant had applied for a Temporary Work (Skilled) visa (subclass 457) (‘457 Visa’).
B. The Tribunal then formed the view that:
i.the Applicant enrolled in the Advanced Diploma of Marketing for the purpose of waiting the outcome of his student visa review and his 457 Visa application (para [19] of the reasons);
ii.his 457 Visa application is not consistent with the stated career goal in IT (para [20]);
iii.the applicant does not genuinely intend to recommence study or complete his course if he is granted the 457 Visa (para [22]); and
iv.the applicant is using a student Visa program to extend his time onshore until a better opportunity arose and that better opportunity has arisen in the form of his 457 Visa sponsorship (para [23]).
C.The Tribunal made no finding that the Applicant intends to stay in Australia indefinitely.
D.The Tribunal then concluded that the Applicant did not meet cl.500.212(a) because he did not intend genuinely to stay in Australia temporarily.
E.As cl.500.212(a) is concerned with how long an applicant intends to stay in Australia, and nothing else, the Tribunal misconstrued or misapplied cl.500.212(a) or otherwise made an irrational or illogical finding that an application for a 457 Visa, being another temporary visa, evinces an intention not to remain in Australia temporarily.
The application came before me for hearing on 12 September 2022. The evidence before the Court comprised the court book and an affidavit of the applicant sworn on 28 April 2018 annexing the Tribunal decision. Both parties filed written submissions in accordance with Court orders.
Consideration
Relevant legislation and cases
It is convenient to commence consideration of the applicant’s ground by referring to the relevant legislation and some of the relevant authorities. There does not appear to be any dispute between the parties as to the relevant principles to be taken from the authorities.
The Tribunal’s decision in the present matter turns on its conclusion that the applicant did not meet cl 500.212. That clause provides:
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.
The proper construction of this clause has been addressed in a number of cases of this Court and the Federal Court. While the parties cited a number of authorities in their submissions, the parties emphasised the principles in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25 (Dait) and Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros).
The Full Court of the Federal Court in Dait said at [35]:
In summary, the authorities may be distilled into the following four mutually inclusive propositions:
(1)An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of “any other relevant matter” pursuant to subcl (c): Inderjit [v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 528] (at [31]); Eros (at [8]-[9]); Sanjel [v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966] (at [18]).
(2)Subclauses (a), (b) and (c) address separate matters and require separate analyses: Eros (at [14]-[15]); Vidiyala [v Minister for Home Affairs [2018] FCA 1973] (at [28]).
(3)It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly: Eros (at [22], [30]-[33]).
(4)An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa: Sanjel (at [18]); Vidiyala (at [28]). If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the “whole idea or conception” contained in cl 500.212: Eros (at [8]).
Both parties to the present matter agree that the Tribunal considered only cl 500.212(a) and did not make findings in relation to cl 500.212(b) and (c). This approach was consistent with that found to be acceptable in Dait. I accept that the Tribunal in the present matter based its conclusion only on a consideration of cl 500.212(a).
Chief Justice Allsop’s judgment in Eros is concerned with the proper approach of the Tribunal in assessing cl 500.212, and in particular cl 500.212(a). His Honour at [12] adopted the approach of Logan J in Saini v Minister for Immigration and Border Protection (2016) 245 FCR 238; [2016] FCA 858 (Saini) to the effect that the words in cl 500.212(a) ‘are concerned with how long the visa applicant intends to stay in Australia and nothing else’. His Honour then said at [13]:
The proper approach to the application of the clause requires an appreciation of the relationship between the disaggregated elements of cl 500.212 in subcll (a), (b) and (c), and the whole question requiring evaluation in the chapeau. There are many considerations that may be relevant to assessing whether someone is genuine in his or her intention to stay temporarily for subcl (a) or whether he or she is a genuine applicant for entry and stay as a student for the chapeau to cl 500.212. Those considerations will be taken up in (a)(ii) and (iii) and especially (iv) insofar as they relate to the applicant’s intention as to how long to stay; and in (b) and (c) (especially (c)) as to whether the applicant is genuine in his or her desire to be a student. But subcl (a) is concerned, as Logan J said in Saini, with the genuine intention as to length of stay, and nothing else.
The applicant also referred to Ramanayake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 366 FLR 202; [2022] FedCFamC2G 5 (Ramanayake). In that case, after considering relevant authorities, Judge Lucev said at [32]:
… The test is not whether the applicant has a defined date of departure, but rather, whether there was an intention to remain “temporarily”… Indeed, an initial temporary period may continue to be temporary even where it is prolongated, provided that the prolongation is governed by the intention to fulfil the specific passing purpose… Intention is a mental state, which can be deduced from the evidence…
I address the relevance and application of Eros and Ramanayake to the present matter below.
Submissions of the parties[1]
[1] There is no dispute between the parties that the asserted error, if established, would be material. I therefore do not summarise the parties’ submissions on materiality.
Applicant’s submissions
The applicant’s submissions, consistent with the particulars to the ground of application, highlighted the Tribunal’s various references to the applicant’s separate application for a 457 visa. The applicant submitted that he evinced an intention to remain in Australia temporarily, and seeking a 457 visa to prolong his stay in Australia remains consistent with an intention to remain in Australia temporarily (as opposed to permanently) since the 457 visa is also a temporary visa. The applicant drew analogy to the judgment of Judge Lucev in Ramanayake, where the Court found that an applicant’s intention, apparently accepted by the Tribunal, to remain in Australia until the COVID-19 pandemic situation normalised in Sri Lanka did not preclude a finding that the applicant met the requirements of cl 500.212(a).
The applicant submitted that in finding that he did not intend to remain in Australia temporarily by reason of his application for another temporary visa, the Tribunal misconstrued cl 500.212(a) or otherwise reached an irrational or illogical finding.
The applicant further submitted that the Tribunal conflated matters relating to whether the applicant genuinely intended to study with the intended length of his stay.
Minister’s submissions
The Minister submitted that the Tribunal’s finding that the applicant did not intend to stay in Australia temporarily did not disclose a misunderstanding of cl 500.212(a).
The Minister submitted that the Tribunal’s consideration of the applicant’s 457 visa application was not to the effect that he was seeking to obtain and comply with a temporary visa, with the consequence that his intended period of stay was temporary. The Tribunal made no finding that the applicant intended to return to India at the expiry of any 457 visa. Rather, the Tribunal’s finding was that the applicant’s pursuit of a 457 visa was inconsistent with his stated goal to return to India and work in Information Technology. The Tribunal said that it had ‘formed the view that [the applicant] is hoping to find a pathway to remain in Australia’. On this basis the Tribunal concluded that the applicant was not genuinely intending to return to India and instead was attempting to remain in Australia.
The Minister further submitted that the Tribunal referred to other matters which reinforced this conclusion, such as the applicant’s non-enrolment in an Advanced Diploma of Marketing, his enrolment in a series of short low cost Vocational Education and Training (VET) courses, and his ‘slow and little academic progress’ during his stay in Australia.
In oral submissions, counsel for the Minister submitted that the essential question for the Court’s consideration is whether the Tribunal found that the applicant intended to stay only until the end of his 457 visa, if granted, or whether the 457 visa application was the basis for a finding that the applicant intended to stay in Australia permanently. The Minister submitted that the latter construction should be preferred and noted that the Tribunal’s finding at the end of [21] that the applicant ‘is hoping to find a pathway to remain in Australia’ is not qualified by any time limit and should be construed as permanent. This was said to be reinforced by the Tribunal’s reasons at the end of [23] and that the reference to the applicant seeking to use the student visa programme ‘to extend his time onshore until a better opportunity arose’ should be read as an opportunity to remain permanently.
Counsel for the Minister sought to distinguish Eros and Ramanayake on the basis that there was no finding in the present matter that the applicant intended to stay in Australia only for a two to four year period or for the duration of the 457 visa if granted.
Applicant’s reply submissions
In reply, counsel for the applicant challenged the Minister’s construction of the final sentence of [21] of the Tribunal’s reasons on the basis that that construction leaves a lot of work for the word ‘remain’ to do. Further, counsel for the applicant challenged the Minister’s submission that the Tribunal’s reference at [23] to the applicant’s desire to remain onshore until a better opportunity arose was an allusion to something permanent or ongoing, asserting that this submission was not logical in the context of the applicant seeking a temporary visa. Even on the Tribunal’s view, a better opportunity should be viewed as a better opportunity to remain temporarily.
Resolution
While I acknowledge that the applicant’s application for a 457 visa, which is a temporary visa, is not necessarily inconsistent with an intention to remain in Australia temporarily, the focus of the analysis of this ground has to be on the Tribunal’s actual findings. The application for the 457 visa was part of the evidence considered by the Tribunal in deciding whether the applicant genuinely intended to stay in Australia temporarily, but did not necessarily lead to one conclusion over another. As Logan J explained in Saini at [29]-[30]:
29.… If there is evidence that, at the time of decision, an applicant harbours an intention to seek employment or undertake further study here that may well mean, in conjunction with other factors referred to in cl 572.223(1)(a), that a decision-maker is not satisfied that the visa applicant “intends genuinely to stay in Australia temporarily”.
30.Equally, that an applicant for a Student visa may, at the time of decision, hope, for example, to undertake post-graduate study if successful in respect of the study for which the particular visa is sought, but nonetheless still leave once any further study is completed, it may be open to conclude that the visa-applicant does still have, at that time, an intention, “genuinely to stay in Australia temporarily”. The Regulations do provide for other classes of visa which may be sought on-shore so as to permit the holder of a Student visa to seek a visa which would permit a longer stay for further study or for employment. That means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”. What is required is an evaluation by the decision-maker of intention at the time of decision.
The outcome of this matter therefore turns on the construction of the Tribunal’s reasons.
I acknowledge that:
(a)in the Tribunal’s finding that the applicant was hoping to find pathway to remain in Australia, and
(b)in the Tribunal’s suggestion that the applicant was using the student visa programme to extend his time onshore until a better opportunity arose,
the Tribunal has not used words such as ‘indefinitely’, ‘permanently’ or ‘ongoing’ in connection with the applicant’s intended stay in Australia, which would put this matter beyond doubt.
However, I am not ultimately persuaded that the Tribunal has misunderstood that cl 500.212(a) is concerned only with the length of time that the applicant intends to remain in Australia, or that the Tribunal made a finding that was illogical or irrational.
The Tribunal has not made any finding that is inconsistent with its expressed lack of satisfaction that the applicant intends genuinely to stay in Australia temporarily. In particular, it has not made any express or implied finding that the applicant intends to return to India after his 457 visa expires, if that visa were to be granted.
In this way, the matter can be distinguished from cases such as Eros and Ramanayake. In Eros, the Tribunal was found to have misapplied cl 500.212(a) because it had made an express finding that the applicant intended to remain in Australia while her daughter was here, which on the evidence was two years. The Tribunal made no finding that the applicant had intended to stay indefinitely in Australia, although it had hinted at such matters, and ‘expressed concern’ without making a finding that the applicant proposed to use the student visa programme primarily to maintain ongoing residence in Australia. The Tribunal’s express finding on the evidence that the applicant intended to stay in Australia while her daughter was here was inconsistent with its conclusion that the applicant did not intend genuinely to stay in Australia temporarily. In Ramanayake, the Tribunal accepted the applicant’s evidence that he wanted to stay in Australia until the ‘pandemic situation’ normalised in his home country, which he expected to be in up to two years, and this finding did not support a conclusion that the applicant did not genuinely intend to stay in Australia temporarily.
Rather, what the Tribunal did in the present matter was to consider the 457 visa application as a relevant factor to the applicant’s intentions, and used the evidence of that visa application, amongst other things, to undermine his assertion that he intended to return to India and pursue a career in Information Technology.
While the Tribunal’s findings in this regard in [19]-[24] might also have been relevant to whether the applicant genuinely intended to stay as a student, I do not accept that the Tribunal has conflated the issues. As Allsop CJ acknowledged in Eros at [13], there are many considerations that may be relevant to whether a person is genuine in their intention to stay temporarily.
Considerations such as the applicant’s incentives to return to his home country, his study history, his migration history, whether he appears to be undertaking short, inexpensive courses to maintain ongoing residence, all of which were directly or indirectly discussed in the Tribunal’s reasons, are relevant considerations to take into account when deciding whether the applicant intends genuinely to stay in Australia temporarily. This can be seen from the broad nature of the matters to which the Tribunal is to have regard in cl 500.212(a)(i)-(iv), as well as the matters raised in Ministerial Direction No 69, which is a direction made by the Minister under s 499 of the Migration Act directed to decision-makers considering cl 500.212(a). The manner in which the Tribunal took these considerations into account in the present matter is not inconsistent with cl 500.212(a) being directed only to the applicant’s length of stay.
When the Tribunal reasons are read as a whole, I am satisfied that the Tribunal’s comments at [21] that it ‘is not convinced that the applicant genuinely intends to return to India to work in Information Technology and has formed the view that he is hoping to find a pathway to remain in Australia’ is consistent with its conclusion that the applicant does not intend genuinely to stay in Australia temporarily. I accept the Minister’s submission that that sentence is not qualified by any time period and, in the context of the Tribunal’s reasons as a whole, should be understood as a finding that the applicant is hoping to remain in Australia on an ongoing or indefinite basis. I am also satisfied that it amounts to a finding and not merely an expression of concern which was the reasoning for the error in Eros.
Finally, I do not accept that it was illogical or irrational for the Tribunal to find that the applicant did not genuinely intend to stay in Australia temporarily when the 457 visa he applied for is another temporary visa. As the applicant’s own visa history clearly shows, further visas can be applied for and granted even when a person is on a temporary visa only. What was important was the applicant’s intention at the time of the decision (see Saini, referred to at [33] above), and the Tribunal has given a plausible and intelligible justification for its conclusion that the applicant did not genuinely intend to remain in Australia temporarily at the time of its decision. The 457 visa application was part of, but not the only, evidence considered by the Tribunal to be relevant to its conclusion.
The ground of application is not established.
Conclusion
I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error. It follows that the application to this Court is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 September 2022
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