Lisa v Minister for Immigration and Multicultural Affairs

Case •

[2024] FedCFamC2G 811

•

30 August 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lisa v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 811

File number(s): SYG 3406 of 2019
Judgment of: JUDGE KAUR-BAINS
Date of judgment: 30 August 2024
Catchwords: MIGRATION – judicial review – jurisdictional error – legal unreasonableness – illogicality or irrationality – Administrative Appeals Tribunal – sch 2, cl 500.212 Migration Regulations 1994 (Cth) – student visa – application dismissed
Legislation:

Migration Act 1958 (Cth) s 499

Migration Regulations 1994 (Cth) sch 2 cl 500.212

Cases cited:

Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 24

Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061

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

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

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

Phuyal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1108
Division: Division 2 General Federal Law
Number of paragraphs: 43
Date of hearing: 19 August 2024
Place: Sydney
Counsel for the Applicant: Ms F. McNeil
Solicitor for the First Respondent: Ms M. Teo of Australian Government Solicitor
Solicitor for the Second Respondent: Submitting appearance save as to costs

ORDERS

SYG 3406 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

LISA LISA

First Applicant

RICKY HERMAWAN
Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KAUR-BAINS

DATE OF ORDER:

30 AUGUST 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.

2.The Amended Application is dismissed.

3.The Applicant pay the costs of the First Respondent fixed in the amount of $5,400.

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 KAUR-BAINS

  1. On 20 December 2019, the Applicant filed an Application in this Court seeking judicial review of a decision by the Second Respondent (Tribunal) dated 25 November 2019.  On 13 May 2024, a Notice of Discontinuance was filed by the Second Applicant, leaving the First Applicant as the remaining party, who will be referred to as the Applicant in these reasons.

  2. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.

    BACKGROUND

  3. The Applicant is a citizen of Indonesia who arrived in Australia on 2 January 2015. Relevantly, on 5 December 2017, the Applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (visa). On 19 January 2018, a delegate of the First Respondent (Minister) refused to grant the visa.

  4. On 5 February 2018, the Applicant applied to the Tribunal for a review of the delegate’s decision. On 19 November 2019, the Applicant appeared unrepresented before the Tribunal for a hearing, assisted by an Indonesian interpreter.

  5. On 25 November 2019, the Tribunal affirmed the decision of the delegate to refuse to grant the visa to the Applicant. This was on the basis that the Applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).

    RELEVANT LAW

  6. Relevantly, at the material time, cl 500.212 of Schedule 2 to the Regulations provided as follows:

    500.212

    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.

  7. In considering whether the Applicant satisfied cl 500.212(a) of the Regulations, the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Act. The “Genuine temporary entrant criterion” is defined in Direction No. 69 as referring, inter alia, to clause 500.212(a) of the Regulations.

  8. Direction No. 69 makes clear that the Tribunal, in considering the Genuine temporary entrant criterion (that is whether for the purposes of clause 500.212(a) the Tribunal is satisfied that the Applicant intends genuinely to stay in Australia temporarily), regard is to be had to:

    (a)The Applicant’s circumstances in her home country, potential circumstances in Australia and the value of the course to her future. This involves, inter alia,  considering reasons for not undertaking the study in the home country, personal ties to the home country and to Australia, economic circumstances of the Applicant that would present a significant incentive not to return home, evidence that the student visa programme is being used to circumvent the intentions of the migration programme, whether the student visa is being used to maintain ongoing residence and value of the course to the Applicant’s future.

    (b)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, the amount of time the Applicant has spent in Australia and whether the visa may be used primarily for maintaining ongoing residence.

    (c)Any other relevant information, including information that may be either beneficial or unfavourable to the Applicant.

  9. It is specified in Part 2 of Direction No. 69 that the factors specified were not to be used as a checklist, instead stating that:

    1.…The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion

    TRIBUNAL’S DECISION

  10. In this case, as accepted by the Applicant, on a fair reading of the reasons, the Tribunal asked itself the correct question, being whether the Applicant intends genuinely to stay in Australia temporarily, being the statutory test required by cl 500.212(a) of the Regulations (Tribunal’s reasons at [6], [8], [9], [10] and [19]).

  11. At [8] of the Tribunal’s reasons, the Tribunal noted it must have regard to Direction No. 69 and the factors stated therein. At [9] of the reasons, the Tribunal set out the factors in Direction No. 69 were not to be used as a checklist but were only intended as a guide.

  12. At [10] of the Tribunal’s reasons, the Tribunal noted the Applicant understood the issue was whether she was a genuine temporary entrant. The Tribunal set out the Applicant’s evidence that she completed high school in Indonesia in 2011 and arrived in Australia in 2015.  The Tribunal also set out the Applicant had already completed a Certificate IV in Human Resources, which she completed in December 2019 and she was enrolled to commence an Advanced Diploma of Human Resource Systems in February 2020, which she expected to complete in June 2021.

  13. At [12] of the Tribunal’s reasons, the Tribunal noted the Applicant’s evidence that when she returns to Indonesia she wants to “work in a big company and start my own business.” At [13] the Tribunal noted the Applicant’s evidence that on her return to Indonesia she planned to open “a big retail shop”, which would require a lot of money. The Tribunal noted the Applicant had immediate family in Indonesia and she owned land there estimated at AUD$100,000. The Tribunal also noted the Applicant’s evidence that she currently earned about AUD$26,000 annually working in a salad bar.

  14. At [19] of the Tribunal’s reasons, the Tribunal noted that:

    In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she satisfies the genuine temporary entrant criterion.

  15. On a fair reading of the Tribunal’s reasons, the Tribunal from [20] referred to the factors in Direction No. 69 in determining whether it was satisfied that the Applicant intended genuinely to stay in Australia temporarily as follows:

    (a)The Tribunal considered and weighed up the Applicant’s evidence as to circumstances in her home country, being social, direct family and financial ties to her home country and other economic incentives to return. The Tribunal accepted the Applicant may have family ties to act as an incentive to return home, however, given the time the Applicant had spent in Australia and intended future stay, the Tribunal was not satisfied there was a significant incentive for the Applicant to return to Indonesia (at [20]).

    (b)The Tribunal considered the Applicant’s potential circumstances in Australia and the proposed additional stay until 2021, raised a serious concern the Applicant was studying for the purpose of staying in Australia (at [21]).

    (c)The Tribunal considered the value of the course to the Applicant’s future, her study history and the Applicant’s evidence as to the value of the additional study (at [22] to [25]). At [22] to [24], the Tribunal found the Applicant’s evidence as to the value of the course for her future was “extremely vague” and gave this evidence little weight.

    (d)The Tribunal was not satisfied the Applicant had demonstrated the proposed additional study would provide the Applicant with significant value to her future beyond the qualifications she already held (at [25]).

    (e)The Tribunal had regard, as required by Direction No. 69, as to whether there were any other relevant matters and found there were no other relevant matters (at [26]).

  16. At [27], the Tribunal said it weighed up all the information and the relevant factors in Direction No. 69 and stated: “the Tribunal finds that the Applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.” The Tribunal then explained in its reasons why it so concluded, being as follows:

    (a)Given the Applicant’s economic circumstances in her home country relative to her potential circumstances in Australia, the Tribunal was not satisfied the Applicant had significant incentive to return to Indonesia (at [28]).

    (b)After considering the time and monetary commitment of the Applicant’s course of study, compared with the lack of any clear and substantial improvements arising from that study, the Tribunal was not satisfied the Applicant had demonstrated the value of the proposed course of study to the Applicant’s future (at [29]).

    (c)After considering the evidence of the Applicant's immigration history, including the fact she had spent only 42 days in Indonesia since first arriving in Australia, the Tribunal assessed the Applicant’s incentive to return to Indonesia to be minimal (at [30]).

    (d)The Tribunal found the Applicant “clearly wished to stay and continue to study in Australia”. However, the Applicant had completed or was about to complete two vocational courses in human resources and it reasoned the Applicant appeared to have enrolled in her course of study for the purposes of securing the visa, rather than a genuine interest in this area of study.  The Tribunal also considered the length of time the Applicant had been in Australia, being from 2 January 2015 to late 2019, as supporting the Tribunal’s concerns the Applicant may be using the student visa primarily to maintain ongoing residence (at [31], [32] and [34).

    (e)At [35] of the Tribunal’s reasons, the Tribunal made a clear finding, based on the matters set out “above” in its reasons, that the Tribunal was not satisfied that “the applicant intends genuinely to stay in Australia temporarily.”

    GROUNDS IN THE AMENDED APPLICATION

  17. The Amended Application for judicial review filed on 8 April 2024 contained the following grounds for review:

    1.The Tribunal at [35] found that “the applicant does not meet clause 500.212(a).” The Tribunal fell into jurisdictional error in making this finding for reasons including the following:

    (a) Clause 500.212(a) required the decision-maker to consider whether “the applicant intends genuinely to stay in Australia temporarily”. Clause 500.212(a) is “concerned and only concerned with the intention as to length of stay”: Eros v Minister [2020] FCA 1061 at [22].

    (b) A review of the Tribunal's reasoning process at [20]-[34] indicates that, in coming to its finding at [35]:

    i. The Tribunal conflated issues as to whether the applicant was “a genuine student” (at [21]), intended to “stay in Australia as a student” (at [27]) and had a “genuine interest in study” (at [31] and [32]) with the matter required to be addressed by clause 500.212(a).

    ii. The Tribunal did not find that the applicant desired or intended to remain in Australia beyond the end of the visa for which she applied.

    iii. The Tribunal considered that “the applicant is studying for the purposes of staying in Australia” (at [21]), “has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia” (at [31]) and “appears to be using the student visa program as a means of maintaining ongoing residence in Australia” (at [32]). This focus on the applicant's dual motive (to study and remain in Australia during the period of the visa) when she applied for the visa indicates an incorrect construction of clause 500.212(a).

  18. In the Applicant’s written submissions dated 5 April 2024 (prepared by Counsel for the Applicant), inter alia, the following was contended:

    (a)At [13], the Applicant accepted the Tribunal’s reasons indicated it “asked itself and addressed the correct question.”

    (b)At [15], the Applicant accepted the Tribunal correctly must have regard to guidance in Direction 69 concerning cl 500.212(a).

    (c)At [22], the Applicant’s “complaint about the Tribunal’s decision arises because of the [Tribunal’s] reasoning process at [27] – [34].” 

    (d)At [26] that “although the Tribunal asked the correct question, in the course of answering the question, it erred by conflating the question of the applicant’s “intention as to length of stay”, with the applicant’s intention concerning her studies during the stay. The Tribunal did not therefore properly or correctly interpret or apply clause 500.212(a).” (emphasis added)

    Applicant’s submissions in Court

  19. Given there appeared to be a contradiction in the Applicant’s written submissions highlighted in bold at [18(d)] of the preceding paragraph, with the Applicant’s acceptance set out at [18(a)], that the Tribunal “asked itself and addressed the correct question”, this was explored with Counsel for the Applicant who appeared at the hearing. Counsel for the Applicant confirmed at the hearing that the Tribunal did ask the correct question in relation to cl 500.212(a) of the Regulations.

  20. The Court then asked the Applicant’s Counsel to precisely identify the jurisdictional error alleged by Ground 1 in the Amended Application. As a result, Counsel for the Applicant characterised the jurisdictional error alleged as being that the Tribunal engaged in irrational, illogical or legally unreasonable reasoning as disclosed in the Tribunal’s reasons at [27] to [34].

  21. In relation to the Tribunal’s reasoning in its decision, the Applicant submitted as follows:

    (a)In relation to [27], the Tribunal’s reference to the Applicant “as a student” at the end of the paragraph is an indication that the entirety of that paragraph was focused on the Applicant’s intentions with regard to study.

    (b)In relation to [28], the difficulty with this paragraph is that it stops short of actually saying that the Applicant’s intention is to stay longer than temporarily. The focus of this paragraph should have been directed to the temporal question alone, rather than whether the Applicant had an intention to be in Australia as a student.

    (c)In relation to [30], the Tribunal falls short in this paragraph of what would support a finding that the Applicant failed to meet the temporary entrant criteria.

    (d)In relation to [31], the Tribunal made a finding that the Applicant’s motive was to secure a further stay in Australia, rather than based on a genuine interest in her area of study. Counsel for the Applicant submitted that finding was not relevant to the Applicant’s intention as to length of stay.

    (e)In relation to [32], in considering the Applicant’s motivation and finding there was no genuine intention to stay in Australia temporarily, the Tribunal looked only at the Applicant’s motivation for study, but not intention as to length of stay.

    (f)In relation to [35], while the Applicant accepted there was a finding the Tribunal was not satisfied that the Applicant intended genuinely to stay in Australia temporarily, it was not supported by any finding that there was an intention to overstay and no finding as to length of time.

  22. During the hearing, Counsel for the Applicant accepted the Tribunal did make a finding, that it was not satisfied the Applicant genuinely intended to stay in Australia, but said the finding was based on a reasoning process that was legally unreasonable, irrational or illogical.

  23. Counsel for the Applicant also relied on Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros) for the proposition that jurisdictional error can arise when the Tribunal focuses on an Applicant’s genuine intention to stay as a student, rather than intention as to length of time.

    Minister’s submissions in Court

  24. The Minister submitted the Tribunal had regard to all necessary factors required by Direction No. 69, those being:

    (a)The Applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the Applicant’s future – the Minister submitted that this factor was addressed at [20]-[25] of the Tribunal’s decision.

    (b)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 – the Minister submitted that this factor was addressed at [30] of the Tribunal’s decision.

    (c)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 – the Minister submitted that this factor was addressed at [26]-[29] of the Tribunal’s decision.

  1. The Minister submitted that although the Tribunal did make a finding about the Applicant’s intention to study, it also made a separate finding as to the Applicant’s intention as to length of stay. The Minister submitted that while only the finding as to length of stay was required by the legislation, it was open to the Tribunal to make both findings. The Minister referred the Court to Phuyal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1108 as being relevant to that point.

    CONSIDERATION 

  2. In relation to the Applicant’s grounds for judicial review, the Court will first address the grounds of review based on legal unreasonableness and then illogicality or irrationality. 

    Legal unreasonableness

  3. The Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Allsop CJ, Robertson, Mortimer JJ (as her Honour then was)), in considering legal unreasonableness referred to the High Court decisions in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [44] and observed that:

    … legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):

    [105] It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383-384; [1969] ALR 369 at 380; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].

  4. In this case, the Tribunal who exercised the requisite power has given reasons. It is the justification given in the reasons and the intelligibility of the exercise of the power as explained in the reasons, which this Court needs to examine, bearing in mind the constraints applicable to that task.

    Examination of the Tribunal’s reasons

  5. The reasons of the Tribunal as set out at [10] to [12] of this judgment, disclose the Tribunal was aware of the correct statutory question and that it was required to have regard to Direction No. 69. The reasons then disclose, as set out at [13] to [15] of this judgment, that the Tribunal logically and in a reasoned way noted and weighted up the Applicant’s evidence as relevant to the matters required to be considered by Direction No. 69 (as set out at [8] of this judgment). The reasons then, as set out at [16] of this judgment, made an ultimate finding that the Tribunal found the Applicant was not able to satisfy it that the Applicant intends a temporary stay in Australia as a student. That ultimate finding was based on the finding at [35] of the Tribunal’s reasons, that the Tribunal was not satisfied that “the applicant intends genuinely to stay in Australia temporarily”, which finding was based on the reasons set out at [16(a)] to [16(d)] of this judgment, which included an assessment of the factors set out in Direction 69, which the Tribunal could consider. Such factors included the economic circumstances in the Applicant’s home country and incentive to return to the home country; value of the applicant’s proposed course to her future; immigration history to assess whether she had an incentive to return to her home country and whether facts existed to suggest the Applicant was using the student visa primarily to maintain ongoing residence.

  6. I agree with Judge Laing’s observations at [25] in Phuyal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 110, where her Honour said:

    … Whilst the question for the Tribunal under cl 500.212(a) was the intended duration of the applicant’s stay, many of the matters raised under Direction No. 69 were directed towards assessing that intention within the context of the applicant’s claimed intentions towards study (such as the requirement that the value of the course to an applicant’s future be considered). The rationale behind this is obvious. A person seeking a visa for reasons other than the temporary purpose claimed may have other intentions towards the duration of their stay in Australia. This is reflected in cl 14(b)(iii) of Direction No. 69, which required consideration of “whether the [visa] may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses”.

  7. Therefore, it was reasonable and open for the Tribunal to consider the Applicant's intention in respect of her study as being relevant to the statutory question as to her intentions to genuinely stay in Australia temporarily. Further, for the reasons outlined in [29] of this judgment, I do not accept the references in the Tribunal’s decision to “temporary stay”, are made in a conclusionary manner. 

  8. Further, in relation to the Applicant’s argument that the Tribunal made no express finding as to any intention of the Applicant to overstay and the absence of that finding indicates a gap in the Tribunal’s thinking, I do not accept that contention. The Tribunal made an express finding that it was not satisfied that “the applicant intends genuinely to stay in Australia temporarily.” There is no statutory requirement for the Tribunal to make a specific finding as suggested by the Applicant “as to any intention of the Applicant to overstay.”

  9. The Tribunal’s reasons as set out in this judgment were open to the Tribunal to make on the evidence and provide a reasonable justification and an intelligible basis of the exercise of the power that the Tribunal was not satisfied the Applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

    Illogicality and Irrationality

  10. The High Court decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [133] sets out the relevant legal principles regarding the test for illogicality or irrationality as follows:

    [130] In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

    …

    [133] However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

  11. For the reasons set out at [29] to [33] of this judgment, this Court considers using the words of the High Court in SZMDS that “it was open to the Tribunal to engage in the process of reasoning in which it did engage and make the findings that it did make on the material before it”. 

  12. Therefore, no jurisdictional error is disclosed on the ground of legal unreasonableness, illogicality or irrationality.

  13. For completeness I will also address the matters as articulated in the Amended Application at paragraphs 1(b)(i) to 1(b)(iii).

    Conflation – Paragraph 1(b)(i)

  14. For the reasons set out at [29] to [31] of this judgment the Tribunal did not “conflate issues” as to whether the Applicant was a genuine student, with the intended length of stay.

    Alleged error in not finding that the Applicant desired or intended to remain in Australia beyond the end of the visa for which the Applicant applied – Paragraph 1(b)(ii)

  15. Paragraph 1(b)(ii) of the Amended Application alleges the Tribunal did “not find that the applicant desired or intended to remain in Australia beyond the end of the visa for which the applicant applied”.  During the hearing the Applicant also suggested the Tribunal ought to have made a finding “as to there being an intention to stay indefinitely in Australia.” The Applicant pointed to the decision in Eros, particularly [22] and [31], as supporting such an argument. Eros is not support for the proposition that the Tribunal has to make a finding as contended by the Applicant as aforesaid. Rather, Eros supports the proposition that the Tribunal must make a finding as to whether the Tribunal is or is not satisfied that “the applicant intends genuinely to stay in Australia temporarily.”

    Focus on dual motive – Paragraph 1(b)(iii)

  16. For the reasons set out in [30] of this judgment and as required by Direction No. 69, there was no error in the Tribunal considering the Applicant’s motive to study and remain in Australia. This was a matter the Tribunal could consider in determining whether or not it was satisfied that “the applicant intends genuinely to stay in Australia temporarily.”

  17. Therefore, a review of the Tribunal’s reasons, as set out at [10] to [16] does not disclose jurisdictional error based on the contentions outlined at paragraphs 1(b)(i) to 1(b)(iii) of the Amended Application.

    CONCLUSION

  18. For the above reasons, the Amended Application must be dismissed.

    COSTS

  19. The Minister submitted in Court that were he to be successful, he would seek costs in the amount of $5,400, based on fixed fee arrangements. Counsel for the Applicant submitted in Court that she did not wish to be heard as to the Minister’s costs. Costs should follow in the ordinary course and the Applicant ought to pay the Minister’s costs fixed in the amount of $5,400.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.

Associate:

Dated:       30 August 2024

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