Meerun v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 972
•4 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Meerun v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 972
File number: PEG 47 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 4 October 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal ignored relevant facts and relied on irrelevant facts – whether the Tribunal did not give “due and proper” consideration to information – whether the Tribunal placed “the wrong emphasis on matters” – whether the Tribunal made an incorrect inference – whether there was any evidence to substantiate the Tribunal’s findings – whether the Tribunal misconstrued or failed to consider all of the legislative requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal’s decision “goes against the interest of justice” – whether the Tribunal failed to give adequate weight to particular facts or evidence – whether the Tribunal failed to consider the impact of COVID-19 – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 476, 477, 359 & 359A
Migration Regulations 1994 (Cth), reg 1.15A and cl 500.212 in Schedule 2
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2002) 168 ALR 407
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
Division: Division 2 General Federal Law Number of paragraphs: 213 Date of hearing: 10 May 2024 Place: Perth Counsel for the Applicant: Ms N Naidu Solicitor for the Applicant: Waterbrook Legal Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 47 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAYNAAZ BIBI MEERUN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
4 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The application be 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 KENDALL:
BACKGROUND
The applicant is a citizen of the Republic of Mauritius (Court Book (“CB”) 21-22 & 46). She first arrived in Australia in September 2014 as the holder of a tourist visa (CB 158-159 & 338).
On 16 March 2020, the applicant applied for a Student (Class TU) (Subclass 500) visa (the “visa”) (CB 20-45). With that visa application, the applicant provided various identity documents (CB 46-49) and a completed “Form 956 – Advice by a registered migration agent/exempt person of providing immigration assistance” document appointing a registered migration agent (the “representative”) to assist her with her visa application (CB 50-52). The applicant also provided confirmation of overseas student health cover, various Overseas Student Confirmation-of-Enrolment (“COE”) documents, a completed “Genuine Temporary Entrant Questions” document and other supporting materials (CB 53-93).
On 4 May 2021, the Department of Home Affairs (the “Department”) asked the applicant (through her representative) to provide more information in relation to her visa application (CB 94-101). In particular, the Department sought police clearance certificates “from each country where [the applicant had] lived for a total of 12 months or more in the last 10 years” (CB 100-101).
On 4 June 2021, the applicant notified the Department that she had already applied for a police clearance from the Australian Federal Police (the “AFP”) but had not yet received it and, due to COVID-19 restrictions in the Mauritius, it would “take time to get the Mauritius Police clearance” (CB 102-103).
On 21 June 2021, the applicant notified the Department that she had been convicted (in Australia) of several driving offences (including “driving whilst disqualified to drive or under suspension and using a fake licence”) as well as two stealing offences which occurred in 2019 (which, she claimed, she had “missed” and which, as such, had not been disclosed) (CB 104-108).
On 26 October 2021, the applicant notified the Department that, due to the length of time it had taken for the Department to make a decision, the applicant had now enrolled in new courses of study and provided new COEs for two general English courses and a Certificate IV in Business course (CB 110-113).
On 10 November 2021, the applicant also provided the Department with responses to “genuine temporary entrant questions” (CB 114-122).
On 16 November 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 129-134). The delegate found that the applicant did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). In particular, the delegate was not satisfied that the applicant “genuinely intended to stay in Australia temporarily” (CB 134).
On 2 December 2021, the applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 135-142). In that review application, the applicant again appointed her representative to assist her with the Tribunal review (CB 139).
On 27 January 2022, the Tribunal invited the applicant (via email and through her representative) to provide information (pursuant to s 359 of the Migration Act 1958 (Cth) (the “Act”)) in relation to her Tribunal review application by completing a “Request for Student Visa Information form” (the “questionnaire”) (CB 146-149).
The invitation letter relevantly stated (CB 148-149):
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
…
The written information requested in the Request for Student Visa Information form should be received by 10 February 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 10 February 2022, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 10 February 2022 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
On 8 February 2022, the applicant’s representative sought an extension of time within which to provide the requested information. The basis for the extension was that the representative had “requested some documents and info from the college” and was “still waiting on them to be able to finalise” his response (CB 150).
On 9 February 2022, the Tribunal granted the applicant an extension of time within which to provide information (to 10 March 2022) (CB 151-153).
On 10 March 2022, the applicant’s representative provided the Tribunal with a completed questionnaire, a letter from him to the Tribunal regarding obstacles to the applicant’s studies and academic progress, medical certificates and related medical documentation, educational records and other supporting materials (CB 154-197).
On 6 April 2022, the Tribunal invited the applicant (via email and through her representative) to attend a hearing before it (by telephone) on 28 April 2022 (CB 198-208).
On 12 April 2022, the Tribunal notified the applicant (via email and through her representative) that, “[d]ue to circumstances beyond [their] control”, the Tribunal “Member [was] unable to conduct the hearing” on 28 April 2022 as previously advised. The Tribunal instead invited the applicant to a hearing (by telephone) on 19 May 2022 (CB 209-214).
On 12 May 2022, the applicant’s representative provided the Tribunal with a completed “Response to hearing invitation” form and notified the Tribunal that the applicant’s daughter would “be present, as a support person, during the hearing” (CB 215-219).
The applicant also provided the Tribunal with further medical records and COEs relating to a Certificate IV in Business and General English courses (CB 220-227).
On 17 May 2022, the Tribunal undertook a search of the applicant’s Provider Registration and International Student Management System (“PRISMS”) records (CB 228-229).
On 19 May 2022, the Tribunal notified the applicant (via email and through her representative) that the Tribunal hearing scheduled to take place on 19 May 2022 had been postponed due to issues obtaining an appropriate interpreter to assist the applicant (CB 230-232).
On 9 September 2022, the Tribunal invited the applicant (via email and through her representative) to attend a hearing (by telephone) scheduled to take place on 3 October 2022 (CB 233-237).
On 21 September 2022, the applicant’s representative notified the Tribunal (via email) that the applicant would “not be in Australia on the scheduled hearing date” because she “had already planned to travel to Cameroon” and would be away from 22 September 2022 until 4 October 2022. A copy of the applicant’s travel itinerary was also provided (CB 238-247).
On 23 September 2022, the Tribunal advised the applicant (via email and through her representative) that it would postpone the hearing until 11 October 2022 (CB 248-250).
On 5 October 2022, the applicant’s representative provided the Tribunal with a completed “Response to hearing invitation” form and again notified the Tribunal that the applicant’s daughter would “be present, as a support person, during the hearing” (CB 253-259).
The applicant also provided the Tribunal with further COEs relating to a Diploma and Advanced Diploma of Business and a General English course (CB 260-262).
On 11 October 2022, the applicant attended a hearing before the Tribunal (by telephone). The applicant’s representative and the applicant’s daughter were also present at that hearing (CB 263-266). An interpreter in the French language was made available to assist the applicant (CB 263).
That hearing was adjourned due to issues with the interpreter (noting that the applicant had requested a Mauritian Creole interpreter but a French interpreter had been provided) (CB 265 & 267-270).
On 9 January 2023, the Tribunal undertook a further search of the applicant’s PRISMS records (CB 271-274).
On 10 January 2023, the Tribunal invited the applicant (via email and through her representative) to comment on information (pursuant to s 359A of the Act) (CB 275-279). That invitation letter relevantly stated as follows (CB 277-278):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•Recent checks of the Provider Registration and International Student Management System (PRISMS) indicate that you had enrolled in:
Certificate I in Spoken and Written English on four occasions over the following dates:
01/06/2015 – 27/11/2015
21/03/2016 – 29/04/2016
04/08/2016 – 02/02/2017
09/02/2017 – 06/04/2017
Certificate II in Spoken and Written English on seven occasions over the following dates:
07/12/2015 – 03/06/2016
01/02/2016 – 29/07/2016
21/03/2016 – 29/04/2016
02/05/2016 – 29/07/2016
06/03/2017 – 04/09/2017
17/04/2017 – 16/10/2017
08/01/2018 – 16/10/2017
General English – Beginner to Advanced on six occasions over the following dates:
23/03/2020 – 26/07/2020
07/09/2020 – 10/01/2021
18/02/2021 – 23/06/2021
25/10/2021 – 24/04/2022
16/05/2022 – 07/08/2022
31/10/2022 – 30/04/2023
The Member has requested that you provide evidence that you have completed and passed these courses as you appear to be repeating the same courses over and over again.
This information is relevant to the review because you have applied for a Student visa and the PRISMS record indicates that you may have made little or no academic progression in any course from 24/01/2020. The Tribunal may conclude that you are undertaking a series of short, inexpensive courses primarily to maintain ongoing residence,
If we rely on this information in making our decision, we may find that you do not meet the genuine temporary entrant criterion in clause 500.212. If we make this finding we may conclude that you are not entitled to the grant of a Student visa.
On 11 January 2023, the Tribunal wrote to the applicant (via email and through her representative) to advise that it had been “unable to source a NAATI accredited Mauritian Creole interpreter” and explained that, in the circumstances, the Tribunal Member had decided to pose questions to the applicant in English in writing so that the applicant could provide written answers. The Tribunal also explained that a further hearing would also be scheduled to enable the applicant to add to her written evidence if she wished to do so and her representative would “be allowed to explain matters to the Tribunal” (noting that he spoke Mauritian Creole) (CB 280-284).
On 25 January 2023, the Tribunal sent the applicant (via email and through her representative) written questions in relation to her Tribunal review (CB 285-294).
On 30 January 2023, the applicant’s representative provided additional documents and the answers to the Tribunal’s written questions to the Tribunal via email (CB 295-322).
On 9 February 2023, the applicant attended a resumed hearing before the Tribunal (via telephone) and was assisted at that hearing by her representative (CB 323-326).
On 17 February 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 333-348).
On 27 March 2023, an application for judicial review of the Tribunal’s decision was filed in this Court on behalf of the applicant (CB 1-7). Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 of the Act. In the circumstances, the applicant required an extension of time to pursue the substantive proceeding.
On 31 January 2024, the parties wrote to the Court to advise that the Minister “consent[ed] to the required extension of time of three days being granted” and provided consent orders listing the matter for the “hearing of an extension of time and, if granted, final hearing on the same date”.
As will be discussed below, the Court considered it more appropriate (in circumstances where the Minister consented to the extension of time being granted) to make orders granting the applicant an extension of time within which to make her application.
Orders to that effect were made by this Court and, on that basis, the matter proceeded to a final hearing on 10 May 2024.
THE TRIBUNAL’S DECISION
To succeed before this Court the applicant must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 16 pages long and spans 67 paragraphs (CB 333-348). The final six pages contain a copy of Ministerial Direction No. 69 (“Direction No. 69”) (CB 343-348).
The Tribunal began by identifying that the applicant had applied for the visa on 16 March 2020 and that a delegate of the Minister had refused to grant the applicant that visa on 16 November 2021 on the basis that the applicant did not satisfy cl 500.212 in Schedule 2 of the Regulations. The Tribunal also noted that the applicant had applied to the Tribunal for review of that decision on 2 December 2021 and provided a copy of the delegate’s decision with that application (at [1]-[4]).
The Tribunal explained that it had written to the applicant on 27 January 2022 (pursuant to s 359 of the Act) and had asked the applicant to provide information relating to her enrolment status and addressing the genuine temporary entrant criterion. The Tribunal noted that it had also explained that it was required to have regard to Direction No. 69 when assessing whether the applicant was a genuine applicant for entry and stay as a student (providing the applicant with a copy of that document). The Tribunal also noted that the applicant was given until 10 February 2022 to provide the requested information and that, upon request, it had granted the applicant an extension to 10 March 2022. The Tribunal confirmed that it had received a response from the applicant on 10 March 2022 and listed the documents provided with that response (at [5]-[9]).
The Tribunal detailed that, on 6 April 2022, it had listed the matter for a hearing and sent a hearing invitation to the applicant. However, the Tribunal explained that the hearing needed to be postponed until 23 September 2022 as the Tribunal was unable to locate a Certified Mauritian Creole interpreter. The Tribunal noted that that hearing was rescheduled to 11 October 2022 at the request of the applicant. The Tribunal explained that a French interpreter was arranged for the hearing but that because the applicant was not able to speak French, and her English was poor, the hearing was again postponed. The Tribunal noted that it had made an exhaustive search for a Mauritian Creole interpreter but none was available (at [10]-[14]).
The Tribunal continued:
15.The Tribunal wrote to the Applicant and suggested a couple of options to ensure that the applicant was accorded procedural fairness at a hearing. The Tribunal furnished the applicant with questions in English in writing and listed the matter for a hearing on the 9 February 2023.The applicant was asked to bring with her a member of her family or a member of the Mauritian community who spoke English and Mauritian Creole. The applicant attended the hearing with her personal representative who was also able to speak Mauritian Creole and her daughter who interpreted the matters that the applicant found difficult to understand.
The Tribunal explained that it caused a search of the applicant’s PRISMS records (describing the system and its purpose) to be undertaken to ascertain whether the applicant was enrolled in a registered course. The Tribunal noted that the search revealed that the applicant held a COE as of 9 January 2023 (being the date of the search) (at [16]-[19]).
The Tribunal outlined that it had written to the applicant on 10 January 2023 (pursuant to s 359A of the Act) asking her to comment on the fact that she had been enrolled in the same English courses multiple times. She was given until 31 January 2023 to do so. The Tribunal confirmed that a response was received from the applicant on 30 January 2023 and, in that response, the applicant indicated that she had responded to this question in her letter dated 9 March 2022 – explaining, relevantly, that she was “a mature student and a very slow learner” (at [20]-[22]).
The Tribunal noted that the applicant had provided a fresh COE on 8 February 2023 and had appeared before the Tribunal on 9 February 2023 with the assistance of her representative (at [23]-[25]).
The Tribunal set out the criteria for the grant of the visa and, in particular, cl 500.212 in Schedule 2 of the Regulations, explaining that the applicant was required to be a genuine applicant for entry and stay as a student. The Tribunal explained that, in assessing whether the applicant met those requirements, it needed to have regard to Direction No. 69 (noting that the factors in Direction No. 69 were not to be used as a checklist, but rather as a guide to decision-makers when considering the applicant’s circumstances as a whole) (at [27]-[30]).
The Tribunal assessed the applicant’s circumstances in her home country, including evidence from the applicant of her travel to the Mauritius on three occasions, travel to France and the United Kingdom to visit her siblings and restrictions on travel due to the COVID-19 pandemic. The Tribunal also noted the applicant’s evidence that she contacted her brothers and sisters once a week, that she planned to go to either Mauritius or France later that year and that she had leased a property in the Mauritius for 19 years. The Tribunal accepted that the applicant had some family ties in her home country and placed some weight on those facts in the applicant’s favour. However, the Tribunal considered that those ties were not as close as her ties to Australia, where she had lived since 2014. Further, the Tribunal considered that, apart from the applicant’s lease on the property in the Mauritius, she did not have strong economic ties there and placed weight on those facts against the applicant’s case (at [33]-[40]).
The Tribunal considered the applicant’s circumstances in Australia and referenced the applicant’s evidence that her daughter was on a temporary visa but planned to apply to live in Australia permanently with her partner and three-year-old son. The Tribunal also noted that the applicant was employed as a cleaner for two different companies and that she also worked for a fresh food company and had been able to save $10,000. The Tribunal then outlined the applicant’s evidence that she was active in the Mauritian community in Australia. The Tribunal was of the view that the applicant had strong family, social and economic ties in Australia (including her only child and grandchild – both of whom expected to remain in Australia permanently). The Tribunal placed significant weight on those facts against the applicant’s case (at [41]-[48]).
The Tribunal then considered the applicant’s academic progress and the value of the proposed course to the applicant’s future. The Tribunal had regard to the applicant’s evidence regarding her chosen courses but was not satisfied that the applicant had demonstrated that obtaining a Certificate IV in Business would improve her career prospects or add value to her career plans. The Tribunal noted that it had had regard to the applicant’s evidence about the remuneration she expected to receive in her home country after completing her study but noted that that evidence was “generalised and lacking in detail”. The Tribunal found that the applicant’s circumstances indicated that the visa was being used to maintain ongoing residence in Australia. As such, the Tribunal could not be satisfied that the applicant genuinely intended to stay in Australia temporarily. The Tribunal acknowledged that it was important to allow for reasonable changes to career and study pathways but found the applicant’s testimony to be “fluid, vague and unconvincing”. The Tribunal also considered that the applicant had not progressed satisfactorily in her studies and had been slow in passing her courses in English (and noting that she had had to repeat the courses). The Tribunal placed significant weight on those facts against the applicant’s case (at [49]-[58]).
The Tribunal was satisfied with the responses provided by the applicant as to why she chose to study with her education provider and why she could not study in Mauritius and placed some weight on those facts in favour of the applicant’s case. The Tribunal also placed some weight in favour of the applicant on her compliance with visa conditions and her prior immigration history (at [63]-[64]).
Having considered all of the evidence before it, however, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and consequently found that she did meet the requirements set out in cl 500.212(a) in Schedule 2 of the Regulations (at [65]-[66]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [67]).
APPLICATION TO THIS COURT
On 27 March 2023, an application for judicial review was filed in this Court on behalf of the applicant. That application included a request for an order extending the time within which that application could be made under s 477 of the Act.
The grounds provided for the application for an extension of time were as follows:
1.The Applicant had a road traffic accident on 5 March 2023 which affected her activities of daily living and this resulted in this application being made on the 27 March 2023.
2.Applicant was not notified on 17 February 2023, the date this decision was made but rather on 20 February 2023 along with a notification letter.
The grounds of review in relation to the substantive application were as follows (without alteration):
1. Jurisdictional error
2. Unreasonableness of Administrative Appeals Tribunal decision
3. Interest of justice
An affidavit (affirmed by the applicant on 27 March 2023) was filed in support of that application. The affidavit annexed a copy of the Tribunal’s decision and associated notification letter, together with a news article titled “WA government to spend $185 million in effort to lure students, tourists, workers back when borders open” (dated 1 December 2021). The contents of the affidavit will be discussed further below.
On 5 July 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence.
On 30 January 2024, an affidavit was filed on behalf of the applicant (sworn by the applicant on 29 January 2024). That affidavit annexed medical records relating to the applicant’s traffic accident.
On 31 January 2024, written submissions were filed on behalf of the applicant (largely addressing the request for an extension of time).
On 31 January 2024, my chambers was contacted by Ms Paige Durham from the Australian Government Solicitor (“AGS”), solicitor for the Minister. That email correspondence attached proposed consent orders and stated as follows:
This matter is currently listed for hearing of the application for an extension of time on 9 February 2024.
The first respondent consents to the required extension of time of three days being granted. As such, the first respondent considers it would be the most efficient use of the Court’s time for this matter to be listed for hearing of the application for an extension of time and, if granted, final hearing on the same date to avoid the possibility of this matter requiring two hearings before the Court.
The applicant has indicated they are not prepared to proceed to final hearing on 9 February 2024. Accordingly, the parties request that the hearing on 9 February 2024 be vacated and the matter instead be listed on a date to be advised for hearing of the application for an extension of time and, if granted, final hearing. Attached are proposed consent orders from the parties to that effect.
Please let us know if you require any further information.
On 1 February 2024, the Court responded to the parties as follows:
His Honour Judge Kendall has now had an opportunity to review the email correspondence and proposed orders provided. That correspondence is not clear. Whilst it is indicated that the Minister consents to the extension of time being granted, the parties also request that the matter be listed for a hearing of the application for an extension of time (and, if granted, a final hearing). His Honour is of the view that this is unnecessary in circumstances where the Minister consents to the extension of time being granted.
His Honour has therefore made the following orders (administratively) from Chambers (a sealed copy of which is attached):
1.The hearing of the application for an extension of time listed on 9 February 2024 be vacated.
2.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time to make the originating application in this matter be extended up to and including 27 March 2023.
3.The matter be listed for a final hearing in relation to the substantive application on a date to be fixed.
His Honour notes that the applicant’s submissions (due to be filed by 12 January 2024) were filed yesterday and only address the extension of time application. They do not address the substantive application. His Honour also notes that the Minister’s submissions (due to be filed by 26 January 2024) are yet to be filed. His Honour reminds the parties that, in circumstances where a filing deadline cannot be met, it is expected that Chambers be notified before that deadline has passed.
His Honour requests that the parties now confer and agree orders for the filing of any further material relating to the substantive application. His Honour also requests that the parties advise Chambers, by no later than 5 February 2024, of how long they may need to file any further materials and prepare for the substantive hearing. Finally, His Honour requests that the parties provide joint unavailable dates to Chambers for a period of two months after the date on which the parties will be ready to proceed to a final hearing.
His Honour will then list the matter for a final hearing and the parties will be notified accordingly.
On 5 February 2024, the parties provided joint unavailable dates and agreed consent orders which read as follows:
1.Orders 5 and 6 of the orders of Registrar Downing, made on 5 July 2023 be vacated.
2.By 4:30pm on 18 March 2024, the applicant file and serve any written submissions and any additional evidence on which the applicant seeks to rely.
3.By 4:30pm on 1 April 2024, the first respondent file and serve any written submissions and any additional evidence upon which the first respondent seeks to rely.
4.The matter be listed for final hearing of the substantive application on a date to be fixed after 7 April 2024.
Orders in the terms outlined above were made by the Court and the matter was re-listed for a final hearing on 10 May 2024.
On 26 March 2024, further consent orders were provided by the parties extending the timeframe for the parties to file submissions and further evidence. Orders granting those extensions were made by the Court.
On 16 April 2024, additional documents (being a letter and a Student Letter of Offer and Acceptance Agreement from the WA Institute of Further Studies) were filed on behalf of the applicant, together with written submissions.
On 26 April 2024, written submissions were filed on behalf of the Minister.
At 4.10pm on 9 May 2024 (the afternoon prior to the hearing), Ms Nitasha Naidu (“Ms Naidu”), a solicitor from Waterbrook Legal, contacted my Chambers seeking confirmation that “an interpreter had been organised for the applicant for the hearing” on 10 May 2024. The Court replied to Ms Naidu’s email that afternoon to advise that, in circumstances where an applicant is legally represented, the Court would not ordinarily arrange for an interpreter to be made available unless it was foreshadowed that the applicant would be required to actively participate in the hearing. Ms Naidu was also asked to notify chambers as soon as possible if she considered that there was a particular need for an interpreter to be made available in this matter for any reason. No response was received from Ms Naidu. In the circumstances, no interpreter was arranged by the Court. The Court notes that there was no need for the applicant to participate in the hearing and no issues arose at the hearing in this regard. Nor did Ms Naidu request, at the hearing, that an interpreter be provided.
As noted, Ms Naidu appeared on behalf of the applicant at the hearing of this matter on 10 May 2024. Ms Madisen Scott (“Ms Scott”) from AGS appeared on behalf of the Minister.
At that hearing, the Court asked Ms Naidu if she still intended to press for the additional documents (outlined above at [67]) to be tendered. She advised that she did not. On that basis, the Court did not have regard to the additional documents filed on behalf of the applicant on 16 April 2024.
The materials before this Court thus include the application for judicial review filed on behalf of the applicant on 27 March 2023, the affidavit of the applicant (affirmed and filed on 27 March 2023 and taken as read and in evidence at the hearing of this matter), a Court Book numbering 348 pages (marked as Exhibit 1), two sets of written submissions filed on behalf of the applicant on 31 January 2024 (the “January submissions”) and 16 April 2024 (the “April submissions”) and written submissions filed on behalf of the Minister on 26 April 2024.
At the hearing of this matter (on 10 May 2024), Ms Naidu raised a number of issues or concerns which were not raised in the application for judicial review or in either set of written submissions filed on behalf of the applicant. The Court expressed concerns about Ms Naidu’s conduct in this regard, noting that it put the Minister at a disadvantage as he would not have had any notice of the applicant’s case ahead of the hearing.
The Court ultimately allowed Ms Naidu to proceed – noting that if Ms Scott (for the Minister) was unable to respond to any of the matters raised in Ms Naidu’s oral submissions, the Court would give her more time within which to do so (either orally or in writing).
Ms Scott demonstrated remarkable patience in this regard. The Court thanks her for her cooperation and the significant assistance she gave the Court.
The written and oral submissions provided by Ms Naidu in this matter were limited and, to a large extent, sought impermissible merits review. The Court’s usual practice in circumstances where an applicant is not represented is to interpret the concerns raised by the applicant as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”)). In the circumstances of this matter, and noting the Court’s concerns (outlined above), the Court has followed that practice here.
CONSIDERATION
Grounds of review
The grounds of review in relation to the substantive application provide as follows (without alteration):
1. Jurisdictional error
2. Unreasonableness of Administrative Appeals Tribunal decision
3. Interest of justice
As outlined above, the Court had some concerns with the applicant’s grounds of review as articulated by Ms Naidu in the application and the January and April submissions prepared by her. With that in mind, the Court has considered the grounds of review as broadly as possible (noting the principles articulated in MZAIB). The Court was greatly assisted in this regard by Ms Scott – who did the same in relation to both the oral and written submissions provided by Ms Naidu. The Court again thanks Ms Scott for her assistance in this regard. The Court has largely adopted Ms Scott’s assessment of the applicant’s grounds of review (with some minor amendments and additions) below.
Ground one
Based on the information set out in the applicant’s submissions, ground one appears to raise the following concerns with the Tribunal’s decision:
(a)Issue one: the Tribunal ignored relevant facts and relied on irrelevant facts when it found (at [40]) that the applicant did not have sufficient economic, social and family ties to her home country and (at [48]) that her strong and close economic, social and family ties in Australia would serve as a significant incentive to remain in Australia;
(b)Issue two: the Tribunal did not give “due and proper” consideration to the fact that the applicant had intended to travel back to Mauritius in 2020 but was unable to do so due to the COVID-19 pandemic, that she had visited Mauritius prior to 2020 and that she had to manage her school funds so she could not be expected to travel back to Mauritius “just to establish… significant ties” to her home country;
(c)Issue three: the Tribunal placed “the wrong emphasis on matters” (at [42] & [46]) in finding that the applicant had strong family and social ties, causing the Tribunal to reject the entirety of the applicant’s claim to be a genuine student. The “wrong emphasis” included:
(i)taking into account an irrelevant consideration, being that the applicant’s daughter and grandson live in Australia and have plans to apply for a permanent visa, stating that the daughter’s desire to remain in Australia should not be tied to the applicant;
(ii)using language that suggested that the applicant’s daughter was on a pathway to gaining a permanent visa “which is not true”; and
(iii)finding that there was no settled intention by the applicant to seek a visa that would lead to anything other than to a temporary residence – which is consistent with an intention to genuinely stay temporarily in Australia;
(d)Issue four: the Tribunal incorrectly inferred, or was “biased to infer” (at [54]-[55]) that the absence of a detailed business plan meant that the applicant was not serious about opening a business in Mauritius and made an erroneous assumption (at [56]) which led it to make a finding with “no factual basis”; and
(e)Issue five: there was no evidence to substantiate a finding that the applicant had any intention of staying in Australia permanently or was using the student visa to maintain an ongoing residence.
Issue one: whether the Tribunal ignored relevant facts and relied on irrelevant facts
As outlined above, the applicant seems to suggest that the Tribunal ignored relevant facts and relied on irrelevant facts when it found (at [40]) that the applicant did not have sufficient economic, social and family ties to her home country and (at [48]) that her strong and close economic, social and family ties in Australia would serve as a significant incentive to remain in Australia.
Unfortunately, Ms Naidu’s submissions did not identify which relevant facts were not considered or which irrelevant facts were considered. As correctly identified by the Minister, the applicant’s submissions instead seem to suggest that the Tribunal placed too much weight on matters which the applicant considers should not have been given as much weight.
It is well established that, in conducting a review, the weight that the Tribunal affords information before it is a matter for the Tribunal and forms part of its fact-finding function: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]. Further, the Tribunal is entitled to accept, reject or give weight to evidence tendered as it thinks is appropriate in the circumstances of the matter before it: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 (“Lee”) at [27].
The Court also notes that, as correctly submitted by the Minister, the Tribunal’s findings (at [40] and [48] in its written reasons) were based on the Tribunal’s consideration of the evidence that the applicant provided to it in response to matters which directly related to the applicant’s circumstances. The Tribunal was required to give consideration to those factors as required by cl 500.212(a)(i) in Schedule 2 of the Regulations and the factors set out in Direction No. 69.
No jurisdictional error arises in this regard.
To the extent that the applicant has suggested (in written submissions) that her intentions in Australia had not changed since her previous student visa was granted, the Court notes that the Tribunal was not bound by any previous decisions made in relation to the applicant. The Tribunal instead conducts a de novo review based on the evidence before it. Further, the evidence considered by the Tribunal was the evidence provided by the applicant in relation to the present visa application.
No jurisdictional error arises in relation to issue one.
Issue two: whether the Tribunal did not give “due and proper” consideration to the information
As noted above, by issue two the applicant suggests that the Tribunal failed to give “due and proper” consideration to the fact that the applicant had intended to travel back to Mauritius in 2020 but was unable to do so due to the COVID-19 pandemic, that she had visited Mauritius prior to 2020 and that she had to manage her school funds so she could not be expected to travel back to Mauritius “just to establish… significant ties” to her home country;
The Court notes that the Tribunal expressly referenced the applicant’s evidence in relation to the COVID-19 pandemic and its impact on her ability to travel as follows:
35. She stated that she was restricted from travelling due to the Covid Pandemic.
…
38.The applicant answered as follows: “I have been to Mauritius in 2015/2016, 2017 and 2018. I also went to France and UK in 2018. I went to Cameroun in April 2022 and September 2022. I contact my brothers and sisters once a week by messenger, WhatsApp or Viber. My plan was to go to Mauritius in 2020 but I could not because of covid 19. I will go Mauritius or France this year. Don’t know exactly when. Maybe on school holiday.”
The Tribunal did not make any adverse findings about the applicant’s evidence in this regard or reject that evidence.
The Tribunal accepted that the applicant had some family ties in her home country and placed some weight on those facts in favour of the applicant (at [39]). However, the Tribunal noted that, other than holding a lease on a property from the government, the applicant had not provided evidence of any strong economic ties that were likely to serve as a significant incentive for her to return to her home country and placed some weight on those facts against the applicant’s case (at [40]).
As outlined above, the weight that the Tribunal placed on the evidence before it was a matter for the Tribunal alone as part of its fact-finding function: NAHI at [11].
No jurisdictional error arises in this regard.
To the extent that the applicant argues that the Tribunal failed to consider that she needed to manage her school funds and she could not be expected to travel back to Mauritius “just to establish… significant ties” to her home country, the Court notes that this submission was not made by the applicant (or her representative) before the Tribunal or provided as an explanation for why she had failed to return to her home country in 2020 or after that date. The Tribunal cannot fall into jurisdictional error for failing to consider information that was not placed before it and the applicant cannot now seek to provide additional evidence or ask the Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at [31].
No jurisdictional error arises in relation to issue two.
Issue three: whether the Tribunal placed the wrong emphasis on matters
As explained above, the applicant also seems to suggest that the Tribunal placed “the wrong emphasis on matters” (at [42] & [46]) in finding that the applicant had strong family and social ties – thereby causing the Tribunal to reject the entirety of the applicant’s claim to be a genuine student.
Although not entirely clear, the “wrong emphasis” seems to include:
(a)taking into account an irrelevant consideration, being that the applicant’s daughter and grandson live in Australia and have plans to apply for a permanent visa – stating that the applicant’s daughter’s desire to remain in Australia should not be tied to the applicant;
(b)using language that suggested that the applicant’s daughter was on a pathway to gaining a permanent visa “which is not true”; and
(c)noting that there was no settled intention by the applicant to seek a visa that would lead to anything other than to a temporary residence – which is consistent with an intention to genuinely stay temporarily in Australia.
By issue three, the applicant is again, essentially, asking the Court to engage in impermissible merits review: Wu Shan Liang at [31].
To the extent that the applicant suggests that the Tribunal erred by considering the applicant’s future circumstances, the Court disagrees for the reasons that follow.
As submitted by the Minister (at [29] in written submissions filed on 26 April 2024), Direction No. 69 includes factors that the Tribunal should have regard to when considering the applicant’s circumstances. One of those factors is the applicant’s potential circumstances in Australia (as set out at cl 11 of Direction No. 69). Relevantly, Direction No. 69 states as follows (emphasis added):
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
…
As can be seen from the extract above, cl 11 of Direction No. 69 instructs the Tribunal to have regard to the applicant’s potential circumstances in Australia. This necessarily requires that the Tribunal assess what is likely to happen in the future.
Here, the applicant gave evidence at the Tribunal hearing that her daughter was, at that time, holding a temporary visa but planned to apply to live in Australia permanently. The Tribunal discussed that evidence as follows (emphasis added):
42.The applicant confirmed in writing that her daughter [name omitted] came to Australia in October 2014 on a student visa. She is on a temporary visa but confirmed at the hearing that she plans to apply to live in Australia permanently with her partner who is a dependent on her Visa. She is presently gaining experience in her chosen occupation and she said that she has a 408 visa as she is a critical worker. She has graduated in to make the application to live with her family in Australia. She has a 3-year-old son (the applicant’s grandson) who attends day-care where she works.
Having considered the information provided by the applicant about her daughter and grandson, and the applicant’s financial situation and community ties, the Tribunal ultimately made the following finding:
46.The Tribunal is of the view that the applicant has strong family, social and economic ties in Australia. She has a close family tie namely her only child and grandchild living in Australia. The close family expect to remain living in Australia permanently. She is engaged in employment and has been able to save whilst working.
In circumstances where the information regarding the applicant’s daughter’s future plans was provided to the Tribunal by the applicant and where there was the potential that those plans might impact on the applicant’s potential circumstances in Australia, the Tribunal was entitled to take that into consideration when making its decision.
No error arises in relation to issue three.
Issue four: whether the Tribunal made an incorrect inference
As outlined above, the applicant suggests that the Tribunal incorrectly inferred, or “was biased to infer” (at [54]-[55]) that the absence of a detailed business plan meant that the applicant was not serious about opening a business in Mauritius and made an erroneous assumption (at [56]) which led it to make a finding with “no factual basis”.
The Court notes that Direction No. 69 provides that a decision-maker “should have regard the following factors when considering the value of the course to the applicant’s future” (at cl 12 in Direction No. 69):
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
Here, the Tribunal noted that the applicant had provided the following information to the delegate about her future plans:
49.At the time of the Delegate’s Decision dated the 16 November 2021 the applicant was proposing to study Fashion Design. It is stated in the Delegate’s Decision as follows: “I have taken into account her following claim,” it is a dream for me that I complete a VET course in Fashion and Designing and achieve a relevant qualification so that for the remaining working age I have given my high age. I would be able to work as a qualified fashion designer “However, she has provided no evidence that her proposed courses are required in order to further her career in the field of fashion and designing especially when she has qualifications in the same field combined with her significant experience gained. In addition, the applicant stated: “with my advanced age, I will not continue to do English courses to reach the level required for Fashion and Design, I want to go back to my country after the completion of my Certificate IV in business to open my own business.” The applicant has not provided any evidence she has done business research or provided a business plan for her proposed business, considering the time and effort the applicant is investing to pursue these qualifications: I do not consider it unreasonable to expect the applicant to provide research based information or evidence to substantiate any claims made.”
What is evident from the passage above is that, while the applicant expressed a desire to obtain a Certificate IV in Business and open her own business, the delegate was not satisfied that the applicant had provided any evidence of business research or any detailed business plan. The applicant was thus on notice from the time of the delegate’s decision (being from 16 November 2021) that the lack of a detailed business plan or any supporting research was an issue.
The Tribunal discussed the evidence provided by the applicant about her future career prospects and the idea of opening her own business as follows (emphasis in original):
52.The Applicant did state in writing when questioned about the remuneration that she expects to receive in her home country after completing the qualifications as she was asked as follows: “You say that you may earn $3000 to $5000 in your business in your home country but provided no evidence of how you came to that conclusion. Could you provide proof of how you calculated that figure? The applicant responded as follows: “I have some experience in buying from Bangkok and selling in Mauritius when I was young. At present, we can make 100% profit on one item if imported from India or China. To make a profit of around $4000 per month on clothes including shipping on a 100% profit margin, I will get $6400 profit. After paying salary of around $800 (RS2500) per month (for 2 staffs) and rent of around $1600 (RS50,000 monthly), I will be left with $4000 per month.”
53.The Tribunal notes that she has stated that she would rely on her experience of when she was young. She does not provide details of what sort of clothing items she plans to buy from India and China. She does not have specific details of how, and why and where she plans to set up her shop. She does not have a detailed business plan and in fact she said that she plans to get a loan before she opens the shop and will see an accountant to prepare a business plan as she would need to do so to get the loan. She does not explain how a Certificate IV in Business is likely to assist. It has taken her a long time to study her English Courses and the Tribunal does not have any faith in the fact that she will be able to complete her Certificate IV in Business due to the language difficulties.
54.The Tribunal would expect that if the applicant was serious about opening a business in her home country that she would be able to provide a detailed business plan to the Tribunal. The evidence supplied to the Tribunal was generalised. The Tribunal does not accept that the applicant will obtain a benefit from completing the Courses that she is proposing, in the future in her home country or a third country. The Tribunal places significant weight on those facts against the applicant’s case.
Having considered the evidence provided by the applicant about her future plans and her proposal to open her own business, the Tribunal then made the following findings:
55.The applicant said at the hearing that she plans to open a shop in her home country. The Tribunal finds that, overall, the evidence supplied is not thorough. One would expect that if she was really considering opening a shop that she would have made more of an effort in submitting detailed plans to the Tribunal. The Tribunal expects that she would have submitted evidence of the location, the work required to get it to a serviceable level and the cost of other business outlays.
56.Such circumstances indicate that the Student Visa in this case is intended primarily for maintaining ongoing residence in Australia. The Tribunal cannot be satisfied that the applicant genuinely intends to stay in Australia temporarily.
As correctly noted by the Minister (at [32] in written submissions filed in this Court on 26 April 2024), the absence of or vagueness in evidence is well recognised as a basis upon which a decision-maker is entitled to draw adverse inferences. That is what the Tribunal did here. It noted the applicant’s (arguably) vague evidence as provided to the Department about her business plans and set out the evidence provided to the Tribunal in that regard (both in writing and at the hearing before the Tribunal). The Tribunal considered that the evidence provided was “not thorough” and expected that the applicant “would have made more of an effort in submitting detailed plans to the Tribunal”, including evidence of the costs of starting such a business, possible locations and the work required to set up such a business.
The Court is satisfied that the Tribunal’s findings were based on a rational and evaluative assessment of the evidence before it (as provided by the applicant).
No jurisdictional error arises in relation to issue four.
The Court will consider whether any of the Tribunal’s findings were made without a factual or evidentiary basis when considering issue five below.
Issue five: whether there was any evidence to substantiate the Tribunal’s findings
By issue five, the applicant claims that there was no evidence to substantiate that the applicant had any intention of staying in Australia permanently or was using the student visa to maintain an ongoing residence.
The Court disagrees.
As correctly submitted by the Minister (at [35] in written submissions filed on 26 April 2024), the Tribunal’s findings that the applicant was using the visa to maintain an ongoing residence in Australia were made based on the following evidence and concerns:
(a)the applicant had made little academic progress since she began studying, it had taken her a long time to study her English courses (all of which were repeated), the applicant indicated that she was “not proficient enough to study for the Diploma of Business and plan[ned] to enrol in Certificate IV in Business” and, for those reasons, the Tribunal did “not have any faith in the fact that she [would] be able to complete her Certificate IV in Business due to the language difficulties” (at [20], [22], [53] & [58]);
(b)the applicant had not provided adequate evidence to the Tribunal for it to be satisfied that the proposed course would add value to her career plans (at [51]);
(c)the evidence provided by the applicant in terms of a business plan was “not thorough” and “generalised”(as outlined above in relation to issue four). Further, the Tribunal considered that, had the applicant genuinely had plans to pursue a career outside of Australia or in her home country, “she could have already left Australia to implement that plan” (at [54]-[55] & [59]);
(d)the Tribunal found “the applicant’s testimony” regarding her studies to be “fluid, vague and unconvincing” (at [57]); and
(e)the Tribunal found that the applicant had “demonstrated an intention to remain in Australia but did not articulate a lawful means of doing so outside the student visa program” (at [60]).
For the reasons outlined above, the Tribunal ultimately stated that “it follow[ed] the Tribunal [was] concerned that the applicant propose[d] to use the student visa program primarily to maintain ongoing residence in Australia” (at [60]).
The Court is satisfied that the Tribunal had a rational basis upon which to form the view that it did (largely stemming from the applicant’s own evidence, both written and oral).
No jurisdictional error arises in relation to issue five.
Ground two
As outlined above, ground two relevantly provides as follows:
2. Unreasonableness of Administrative Appeals Tribunal decision
Unfortunately, no particulars were provided in the application for review in relation to this ground of review. This is despite the fact that the application was prepared by a qualified solicitor.
In her April submission, however, the applicant appears to raise the following three issues:
(a)the course would provide the applicant with indispensable skills and knowledge and give the applicant invaluable outcomes;
(b)the Tribunal misconstrued cl 500.212 in Schedule 2 of the Regulations and failed to make a reasonable decision considering the evidence that properly supported the applicant’s claim to be a genuine bone fide student; and
(c)the Tribunal was required to consider all of the requirements set out in cl 500.212 in Schedule 2 of the Regulations (by reference to reg 1.15A of the Regulations).
To the extent that arguments are now being advanced about the utility of the course (noting the suggestion that the course would provide the applicant with indispensable skills and knowledge and give the applicant invaluable outcomes including, but not limited to, establishing business relationships, thinking critically and being able to make decisions in the workplace and experience in producing business documents), the Court again notes that it is not able to engage in merits review and any such arguments were required to be made to the Tribunal.
To the extent that the applicant suggests that the Tribunal misconstrued cl 500.212 in Schedule 2 of the Regulations and, had it not done so, it would have made a reasonable decision that the applicant was a genuine student, the Court disagrees.
Clause 500.212 in Schedule 2 of the Regulations relevantly states as follows:
The applicant is a genuine applicant for entry and stay as a student:
(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.
Here, the Tribunal undertook an assessment of whether the applicant satisfied the requirements set out in cl 500.212 in Schedule 2 of the Regulations and ultimately determined (at [66]) that the applicant did not satisfy cl 500.212(a) in Schedule 2 of the Regulations.
The required consideration of the different parts of cl 500.212 in Schedule 2 of the Regulations was canvassed in detail by the Federal Court in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (“Eros”) as follows:
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.
As made clear in Eros, cl 500.212(a) in Schedule 2 of the Regulations relates to a genuine intention as to the length of the stay – and nothing else. In the circumstances, the Tribunal was not required to make any factual finding in relation to whether the applicant was a genuine student when determining that the applicant did not genuinely intend to stay in Australia temporarily (and thus did not meet the requirements set out in cl 500.212(a) in Schedule 2 of the Regulations).
Insofar as the applicant claims that the Tribunal was required to consider all of the requirements set out in cl 500.212 in Schedule 2 of the Regulations (by reference to reg 1.15A of the Regulations), the Court disagrees.
The provisions set out in reg 1.15A of the Regulations relate to whether an applicant is a “spouse” and relevantly state as follows (emphasis added):
1.15A Spouse
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
(b) a Partner (Provisional) (Class UF) visa; or
(c) a Partner (Residence) (Class BS) visa; or
(d) a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
As can be seen from the provisions set out in reg 1.15A of the Regulations, when assessing a relationship for the purpose of granting a partner visa, the decision-maker must consider all of the circumstances of that relationship, including the factors set out in reg 1.15A of the Regulations.
That is not the case in this matter.
The applicant here did not apply for a partner visa and the provisions in cl 500.212 in Schedule 2 of the Regulations use different language to that included in reg 1.15A of the Regulations. Relevantly, cl 500.212 in Schedule 2 of the Regulations requires a decision maker to make an assessment of whether an applicant is a genuine applicant for entry and stay having regard to a number of factors (as set out above at [126]).
That is what the Tribunal did in this matter.
No jurisdictional error arises in relation to ground two.
Ground three
Ground three states:
3. Interest of justice
Again, no particulars were provided by the applicant’s solicitor in relation to this ground and, unfortunately, the written submissions filed on behalf of the applicant make no reference to ground three.
In addressing ground two, the April submissions do, however, state that it is “incumbent in the interests of justice to ensure that the applicant’s dream is realised, and the applicant has invested a significant amount of money and time in her education, which should not be allowed to go to waste”.
The April submissions also state that it is “undoubtedly demonstrated that the applicant is a genuine student who is not circumventing the student visa program to maintain an ongoing residence in Australia, but her only shortcoming is that she is a slow learner.”
The Court considers both submissions to simply be a plea for impermissible merits review. This Court cannot make any findings about whether or not the applicant is a genuine student. Nor can it find error simply because the applicant has invested a lot of time and money in her education.
No jurisdictional error arises in relation to ground three.
The applicant’s affidavit
As outlined above, an affidavit was filed in support of the application for judicial review. That affidavit was deposed by the applicant and included what appears to be complaints raised by the applicant herself. This is somewhat unusual in circumstances where the applicant was legally represented. However, given the concerns raised by the Court above, the Court will consider the issues raised in that affidavit.
The affidavit annexed a copy of the Tribunal’s decision and associated notification letter, together with two media articles.
An application for judicial review is, ordinarily, confined to the material that was before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. Further, any new evidence should not be permitted for the purpose of showing a finding of fact was wrong or to better support an applicant’s claims and evidence.
Here, the applicant has provided the articles to show that “Australia wants to attract international students” but complains that her visa was not granted. It appears that the purpose for which the applicant seeks to provide the articles to the Court is, in effect, to encourage the Court to engage in impermissible merits review.
Accordingly, the Court places no weight on the articles annexed to the affidavit and they do not identify any jurisdictional error on the part of the Tribunal. The Court also notes that Ms Naidu did not seek to rely on the articles before this Court.
The affidavit itself contained 27 paragraphs of information and relevantly stated as follows (without alteration):
1.On 16 March 2020, I made an application for a Temporary (Class TU) (Subclass 500) student visa to undertake studies in Australia.
2.On 16 November 2021, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused to grant the visa because I did not satisfy the requirement of 500.212 of Schedule 2 to the Migration Regulations 1994(Cth) (the Regulations).
3.On 2 December 2021, I lodged a merit review application with the Administrative Appeals Tribunal (Tribunal) pursuant to subsection 338(3) of the Migration Act 1958 (Cth), which is a de novo review under section 2 of the Administrative Appeals Tribunal Act 1975
4.On 9 February 2023, I appeared before Member [name omitted], who conducted a hearing in which she affirmed the delegates' decision on 17 February 2023.
5.Member [surname omitted]’s failure to give considerable weight to certain facts which includes the fact that I have obtained new admission in Certificate IV in Business and was waiting to complete the remaining English language course, led to jurisdictional error.
6.In considering whether I satisfied clause 500.212(a) with regards to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa application’, the direction indicated that the listed factors were not a checklist but was intended to serve as a guide.
7.The fact that my daughter is currently on a temporary visa in Australia was used unfavourably in the Tribunal's decision.
8.It is a fact that I have strong ties with my home country and have significant incentives to return there. The fact that I have not been offered work at the completion of my English language courses is irrelevant because a high number of international students are not awarded jobs after completing their courses.
9.The fact that I have not visited Mauritius recently should never have been given weight in the Tribunal's decision. I have travelled out of Australia numerous times and returned without any issues. I have to manage my funds to pay for fees and living expenses and I cannot be expected to travel to Mauritius regularly as proof that I have close family and cultural ties, as the Tribunal's decision suggests.
10.My age is outside the current age limit for skilled migration which is set at 45 years of age to reflect the level of benefit to the Australian workforce and economy expected of such persons.
11.The Tribunal’s consideration that my ties to Mauritius are not as close as my ties to Australia does not have any factual basis; for instance, I possess a Mauritius passport and maintain Oversea Student Healthcare Cover and do not have access to Medicare (or reciprocal health benefit) or Centrelink. Hence it is clear that my ties to Mauritius are more substantial than my ties to Australia.
12.The Tribunal’s inference that I am making use of my temporary visa to stay in Australia permanently does not have any basis since is there is no benefit in this. I am on temporary visa with the purpose of gaining the required skills to enable me to return to my home country.
13.The fact that I intend to engage in a business upon my return to Mauritius is sufficient to establish that, notwithstanding my slow progress in learning as a mature student, I have a future plan and intention to leave Australia after the completion of my studies.
14.Furthermore, the mere fact that I did not have a detailed business plan does not equate to unseriousness or an unrealistic business plan because it is a future plan that needs time and planning.
15.I am a mature student who happens to as a slow learner, which is recognised in the world we live in today. I have always attended my classes and completed assigned tasks, which meets the definition of a bonafide student.
16.As a bona fide student, I am enrolled in a recognised college and attend classes and subjects to be deemed a full-time regular student. Australia wants to attract international students whilst my student visa was not granted, annexed hereto and marked “SBM-01” is a copy of a recent news story.
17.English as a second language is complex, and similarly with me those from a culturally and linguistically diverse background would attest to this fact.
18.I disagree with the Tribunal decision in paragraph 56: that the Student visa is being used to maintain an ongoing residence in Australia primarily. Studying in Australia has been hard work, which includes paying for my studies.
19.There is no incentive for me to continue to hold a Student visa as a means to stay in Australia permanently, rather I have endeavoured to develop myself and acquire skills to fulfill a lifelong passion.
20.The difficulties caused by the Covid-19 pandemic did not seem to reflect in the Tribunal decision.
21.The considerations of the Tribunal between paragraphs 61 to 64 and the fact that I have completed all past studies, notwithstanding my slow learning ability, should not be used to deny me an opportunity to start and complete my Certificate IV in Business.
22.I have had severe health issues that contributed significantly to my slow pace in the past, and this was brought to the attention of the Tribunal.
23.The fact that I have completed all the previous courses and validly enrolled, and about to begin my Certificate IV in Business are decisive factors that establish that I do intend to genuinely stay in Australia temporarily pursuant to clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth).
24.This jurisdictional error has necessitated this subsequent judicial review application to the Federal Circuit and Family Court of Australia for consideration due to the oversight of relevant matters on the part of the Tribunal decision maker.
25.It is in the best interest of justice to seek judicial review to remedy the error and remit the application back to Administrative Appeals Tribunal for reconsideration.
26.The remittance to the Administrative Appeals Tribunal that results in a reversed decision would cause further remittance of the student visa application to the Minister for Immigration, Citizenship and Multicultural Affairs for reconsideration to grant a student visa.
27.I have attached the Tribunal decision delivered by Member [name omitted] on 17 Febraury 2023. annexed hereto and marked “SBM-02” is a copy of the Administrative Appeals Tribunal decision and notification letter.
The Court has again been greatly assisted by Ms Scott’s written submissions, which forensically address the concerns raised by the applicant in her affidavit. The Court has adopted the paragraph groupings used by Ms Scott to deal with paragraphs raising similar concerns or issues and will address the paragraphs of the affidavit (set out above) in like groupings.
Paragraphs 1-4, 6 & 27
Paragraphs 1-4, 6 and 27 do not contain any information that could be considered a ground of review or particulars to any ground of review.
Instead, those paragraphs summarise the factual or procedural background, include statements regarding relevant legislative provisions (including how the Tribunal was to assess those provisions) or simply claim that it is in the interests of justice to remit the decision to the Tribunal for reconsideration.
No jurisdictional error is identified in paragraphs 1-4, 6 or 27.
Paragraphs 5 & 9
Paragraphs 5 and 9 raise concerns about the weight the Tribunal gave to particular facts. In particular, the applicant references the level of weight that was or was not given to her admission to study a Certificate IV in Business and her lack of any recent travel to Mauritius.
As explained by the Court above, the weight that the Tribunal placed on the evidence before it was a matter for the Tribunal alone as part of its fact-finding function: NAHI at [11]. No jurisdictional error arises in this regard. Further, the Tribunal is entitled to accept, reject or give weight to evidence tendered as it thinks is appropriate in the circumstances of the matter before it: Lee at [27].
No jurisdictional error arises in relation to paragraphs 5 or 9.
Paragraphs 7, 10, 13-19 & 22-23
Paragraphs 7, 10, 13-19 and 22-23 either include statements of disagreement with various findings made by the Tribunal or include general assertions about how the Tribunal ought to have interpreted particular facts or circumstances.
To the extent that the applicant disagrees with the Tribunal’s findings, the Court notes that disagreement, no matter how strongly felt, does not give rise to jurisdictional error on the part of the Tribunal.
Insofar as the applicant takes issue with how the Tribunal interpreted facts or circumstances, any such assertions simply seek impermissible merits review.
Paragraphs 7, 10, 13-19 and 22-23 do not identify any jurisdictional error on the part of the Tribunal.
Paragraph 8
In paragraph 8, the applicant raises concerns about a finding in relation to not being offered employment at the completion of her course.
The Court assumes the applicant is referencing the following passage included in the delegate’s decision (emphasis added) (CB 131):
I have considered the applicant’s circumstances in her home country. In a statement supporting the application, the applicant has declared her relationship status as Separated and has declared the following as un-accompanied family members, i.e. her mother, two brothers with their usual country of residence as Mauritius and three sisters with their country of residences as Italy, France and England. While, I acknowledge her family as evidences of her offshore ties, I do not consider these ties on their own serves as significant incentives for her to depart Australia when weighed against the significant period already spent in Australia. In addition, I give considerable weight to the fact that the applicant has not been offered a job at the completion of her course and has been unable to demonstrate any substantial ties to her home country aside from her family. In addition to this, the applicant noted in her student visa application that; “she was a dressmaker by profession and was providing services like Alteration and mending of clothes and was also giving dress making tuition to students on a very small scale, date from Jan 1994 – Sep 2014.” While I have considered this information, I noted that this is not ongoing employment and therefore do not consider it as a significant economic tie to Mauritius. On balance, I am not satisfied the applicant has demonstrated she has significant incentive to return to her home country upon completion of her proposed study.
This Court has no jurisdiction to review the delegate’s decision: s 476(2) and s 476(4) of the Act. Further, the Tribunal conducts a de novo review which “cures” any error in the delegate’s decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
No jurisdictional error arises in relation to paragraph 8.
Paragraphs 11 & 12
Paragraphs 11 and 12 suggest that there was no factual basis for the Tribunal’s findings regarding the applicant’s ties to Mauritius not being “as close as [her] ties to Australia” and that she is using the Student visa program to maintain residence in Australia.
As already set out by the Court above (in relation to issues one, four and five of ground one), the Tribunal’s reasons were based on evidence given by the applicant (in writing and orally at the Tribunal hearing) and have a logical and probative basis.
No jurisdictional error arises in relation to paragraphs 11 and 12.
Paragraph 20
By paragraph 20, the applicant suggests that the difficulties she faced as a result of the COVID-19 pandemic were not “reflected” in the Tribunal’s written reasons.
This fails on a factual level.
As set out above, the Tribunal expressly referenced the applicant’s evidence in relation to the COVID-19 pandemic and its impact on her ability to travel as follows:
35. She stated that she was restricted from travelling due to the Covid Pandemic.
…
38.The applicant answered as follows: “I have been to Mauritius in 2015/2016, 2017 and 2018. I also went to France and UK in 2018. I went to Cameroun in April 2022 and September 2022. I contact my brothers and sisters once a week by messenger, WhatsApp or Viber. My plan was to go to Mauritius in 2020 but I could not because of covid 19. I will go Mauritius or France this year. Don’t know exactly when. Maybe on school holiday.”
The Tribunal did not make any adverse findings about the applicant’s evidence in this regard or reject that evidence.
No jurisdictional error arises in relation to paragraph 20.
Paragraph 21
Paragraph 21 refers to the Tribunal’s reasons at [61]-[64] and seems to suggest that, in those paragraphs, the Tribunal’s considerations in relation to the applicant’s “slow learning ability” and the completion of her past studies were “used to deny” the applicant the opportunity to complete a Certificate IV in Business.
The Tribunal’s considerations in those paragraphs read as follows:
61.There are no issues concerning military service in the applicant’s home country and there is no civil or political unrest.
62.There is no relevant evidence regarding the applicant’s circumstances in her home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.
63.The Tribunal is satisfied with the answers given by the applicant as to why she chose to study at WAIFS and why she could not study in Mauritius as she was a mature student. The Tribunal places some weight on those facts in favour of the applicant’s case.
64.The Tribunal does not make any adverse findings against the applicant in relation to her compliance with Visa conditions or prior immigration history. The applicant told the Tribunal that she does have a Visa history outside of Australia. She has travelled to Europe previously and other countries. The applicant has complied with the migration laws of other countries as there is no evidence that she has not done so. The Tribunal places some weight on those facts in favour of the applicant’s case.
As can be seen from the extracts above, the Tribunal either placed weight on factors in the applicant’s favour or did not make any findings in relation to other issues. Nothing in those paragraphs was weighed against the applicant.
Insofar as the applicant takes issue with the weight given to any of the factors discussed in those paragraphs by the Tribunal, the weight that the Tribunal placed on the evidence before it was a matter for the Tribunal alone as part of its fact-finding function: NAHI at [11]. Further, as noted above, the Tribunal is entitled to accept, reject or give weight to evidence tendered as it thinks appropriate in the circumstances of the matter before it: Lee at [27].
To the extent that the applicant otherwise disagrees with any of the Tribunal’s findings in paragraphs [61]-[64] of its reasons, as outlined above, disagreement does not give rise to jurisdictional error on the part of the Tribunal.
No jurisdictional error arises in relation to paragraph 21.
Oral submissions
As outlined above, Ms Naidu (as solicitor for the applicant) raised a number of new or additional “grounds of review” in her oral submissions before this Court.
The Court expressed its concerns to Ms Naidu about her approach in this regard but notes that Ms Scott (for the Minister) was able to address the new grounds of review at the hearing.
Those additional grounds of review (as raised in oral submissions by Ms Naidu) are addressed below.
Additional ground one
The first additional “ground” raised by Ms Naidu was that the Tribunal ignored relevant material in the form of medical information (from CB 167) relating to a fall which caused injury to the applicant’s back and served as an “obstacle” to her studies.
The Court notes that, as pointed out by Ms Scott in oral submissions in reply at the hearing of this matter, the Tribunal (at [9]) referenced materials provided to it by the applicant on 10 March 2022.
Relevantly, the Tribunal states (emphasis added):
9.The applicant answered on the 10 March 2022 and provided the Tribunal with the following documents:
MR 17 Form
Submission
Medical Information
Documents verifying completed Qualifications
Support Letter from the College
Lease of Property in Mauritius
OSHC information
Enrolment at SIA
Previous support letters showing that her English is very poor.
The Court notes that the submission referenced by the Tribunal (above) is a letter from the applicant’s representative to the Tribunal dated 9 March 2022 (CB 167-168). Attached to that submission were a number of medical certificates and an “Emergency Medicine Summary” (referenced by the Tribunal as “Medical Information” above) (CB 169-181).
That submission (dated 9 March 2022) included the following information (emphasis added) (CB 167):
The applicant is aware that she has spent a long time studying English courses. She would like to emphasise that she is a mature student and a very slow learner; this is the reason as to why it has taken her so long studying English courses from Oct 2014 to present. The other reason which caused an obstacle in her studies is that she has been suffering from a sharp pain in her lower back since 11 Dec 2019; on that day, she was at a train station when she fell and hurt her ankle and lower back. Following this incident, she has been getting constant pain in her lower back and has seen several doctors to find out the reason; she has also done an MRI but they could not identify the problem. All medical certificates will be attached to her online AAT application.
Information relating to the applicant’s injury was again provided to the Tribunal by way of a further letter from the applicant’s representative dated 30 January 2023 (CB 295-297). That letter relevantly states (emphasis added) (CB 296-297):
The applicant has already explained this in a letter dated 09/03/2022 which has already been submitted to AAT. I have attached this letter again (see ANNEX AAA1).
The applicant is aware that she has spent a long time studying English courses. She would like to emphasise that she is a mature student and a very slow learner; this is the reason as to why it has taken her so Jong studying English courses from Oct 2014 to present. The other reason which caused an obstacle in her studies is that she has been suffering from a sharp pain in her lower back since 11 Dec 2019; on that day, she was at a train station when she fell and hurt her ankle and lower back Following this incident, she has been getting constant pain in her lower back and has seen several doctors to find out the reason; she has also done an MRI but they could not identify the problem. All medical certificates will be attached to her online AAT application.
The Tribunal acknowledged receipt of that submission in its written reasons, as follows:
22.On the 30 January 2023 the applicant responded and stated she had already explained this in a letter dated the 9/3/2022 which was already submitted to the AAT. The applicant is aware that she has taken a long time English Courses. She stated that she is a mature student and a very slow learner.
As can be seen from the passages extracted from the Tribunal’s decision above, it is clear that the materials of concern were before the Tribunal and the Tribunal clearly identified that it had received and had had regard to that information. Whilst the Tribunal may not have specifically referenced the information provided about the applicant’s injury in detail, the Court notes that the Tribunal is not required to refer to every piece of evidence: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (“Applicant WAEE”) per French, Sackville and Hely JJ at [46].
Nor is the Tribunal required to give a “line by line refutation of the evidence” given by an applicant generally or in circumstances where there is evidence that is contrary to findings of material fact made by the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2002) 168 ALR 407 at [65]). The Tribunal was only required to refer to the pieces of evidence that it found “germane” to its reasoning: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (“Yusuf”) at [67]-[68], [73]-[74], [77], [89] and [91].
Further, the Tribunal’s ultimate findings indicate that it had regard to the applicant’s reasons for her slow academic progress. The Court references, in particular, the following passage from the Tribunal’s decision:
58.The Tribunal was concerned by the amount of time the applicant has spent in Australia whilst only studying English. The Tribunal does take issue with the applicant’s progress in her Courses as she appears to have successfully completed her English courses but very slowly over 9 years. The Tribunal considers that she has not progressed satisfactorily as she has been slow in passing her courses in English and has had to repeat the Courses. She stated that she is not proficient enough to study for the Diploma of Business and plans to enrol in Certificate IV in Business. The Tribunal places significant weight on those facts against the applicant’s case.
In the passage above, the Tribunal acknowledged that the applicant had successfully completed the English courses but had been slow to do so. Essentially, the Tribunal took the applicant’s evidence into account. However, having had regard to the length of time that the applicant had been in Australia and had been studying those courses, the Tribunal was not satisfied that the applicant’s progress was satisfactory.
The Court is satisfied that the Tribunal had regard to the “medical information” and other material provided by the applicant to explain her slow academic progress.
No jurisdictional error arises in relation to additional ground one.
Additional ground two
The second additional “ground” raised by Ms Naidu was that the Tribunal failed to consider relevant material in the form of a statement from the applicant’s brother (at CB 75-76) in determining whether the applicant was a genuine student
The Court has reviewed the letter of support provided by the applicant’s brother (and submitted to the Department in support of the applicant’s visa application). As correctly explained by Ms Scott in oral submissions in reply, the Tribunal had access to the Department’s file and would thus have had access to the letter of support from the applicant’s brother.
The Court notes, however, that the letter of support relates to financial support the applicant’s brother undertakes to provide. The issue before the Tribunal in this case related to whether the applicant was a genuine applicant for entry and stay as a student (as required by cl 500.212 in Schedule 2 of the Regulations). The Tribunal was not required to consider financial capacity as part of that assessment and did not do so. Further, as set out above, the Tribunal was only required to refer to the pieces of evidence that it found “germane” to its reasoning: Yusuf at [67]-[68], [73]-[74], [77], [89] and [91].
No jurisdictional error arises in relation to additional ground two.
Additional ground three
The third additional “ground” raised by Ms Naidu was that the Tribunal failed to consider relevant material in the form of letters from the applicant’s teachers that stated that the applicant was “making progress” in her studies (at CB 79 & 90) when it determined that it “did not have faith that the applicant would be able to complete the Certificate IV in Business”.
The letters referenced by Ms Naidu are a letter from the West Australian Institute of Further Studies dated 20 March 2020 (CB 79) and a letter from Skills Institute Australia dated 13 February 2020 (CB 90). The letters thus reference the applicant’s academic progress approximately three years prior to the Tribunal’s decision.
The first letter relevantly stated (CB 79):
This is to certify that the above student was enrolled as a full-time student in the following courses at West Australian Institute of Further Studies. CoE’s were issued and approved for the student to commence her studies on the 04th August 2016 and end on the 16th October 2017.
•10362NAT/085920A - Certificate I in Spoken and Written English
•10363NAT/080461G - Certificate II in Spoken and Written English
[The applicant] only completed 4 units out of 7 as she found the course quite challenging for her. As per 2018, WAIFS has enforced the new rules and regulations with a shift towards ELICOS-type course. The course [the applicant] wishes to re-enrol for is WAIFS English 2, which caters for students at Pre-Intermediate level. While the course is predominantly about General English, the English department has managed to integrate the applied skills previously catered for.
This also means that the improved new course differs greatly from the one she studied 3 years ago. Therefore, we believe that this student will benefit from the changes and hope that she will be able to make the most of her opportunity.
The second letter relevantly stated (CB 90):
[The applicant] who is a student in our Pre-intermediate class, would benefit greatly if she was granted further time to study English and consolidate her knowledge. This extra time would help her to have a better command of the English language which will in turn furnish her with better skills to enter the job market when she returns to her home country.
Reading: [The applicant]’s reading skills are not yet secure; she has however made slow but steady progress in her understanding of English texts.
Listening: is an area in which [the applicant] is not yet confident, she must try to make more progress in order to maximise her ability. However, she can understand the basic meaning of easier listening scripts. She needs to pay more attention to important details.
Writing: [The applicant] produces a limited range of vocabulary with errors in spelling. Her basic sentence structures are correct with some error in punctuation. There is evidence of structure and sequencing, but logical structure is not always clear.
Speaking: [The applicant] finds spoken communication difficult, but she is progressing at a slow rate. She speaks with a moderate level of accuracy and needs to focus more on communicating with greater fluency. She should also pay close attention to pronunciation when learning vocabulary.
Based on her progress in the above four disciplines and the fact that [the applicant] is a slow learner who takes longer to grasp a new concept I would recommend a further 39 weeks study in English to obtain an Upper Intermediate exit level.
The Court notes that the Tribunal had regard to the applicant’s previous studies and additional English studies completed by the applicant after the date of the letters referenced above. In particular, the Court notes the Tribunal’s summary of information put to the applicant in relation to her English studies, as follows (at [20] in the Tribunal’s reasons):
On 10 January 2023, the Tribunal sent the following s.359A letter to the applicant:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are that recent checks of the PRISMS records indicate that you have been enrolled in:
Certificate I in Spoken and Written English on 4 occasions on the following dates:
01/06/2015 to 27/11/2015
21/03/2016 to 29/04/2016
04/08/2016 to 02/02/2017
09/02/2017 to 06/04/2017
Certificate II in Spoken and Written English on 7 occasions over the following dates:
07/12/2015 to 03/06/2016
01/02/2016 to 29/07/2016
21/03/2016 to 29/04/2016
02/05/2016 to 29/07/2016
06/03/2017 to 04/09/2017
17/04/2017 to 16/10/2017
08/01/2018 to 16/10/2017
General English Beginner to Advanced on 6 occasions over the following dates:
23/03/2020 to 26/07/2020
07/09/2020 to 10/01/2021
18/02/2021 to 23/06/2021
25/10/2021 to 24/04/2022
16/05/2022 to 07/08/2022
31/10/2022 to 30/04/2023
The Member has requested that the applicant provide evidence that you have completed and passed these courses, as you appear to be repeating the courses over and over again.
…
As outlined above, the Tribunal had regard to the applicant’s response to that correspondence and the reasons provided by the applicant for her “slow progress”. The Court also notes that, as explained above, the Tribunal is not required to refer to every piece of evidence: Applicant WAEE at [46]. The Tribunal was only required to refer to the pieces of evidence that it found material to its reasoning: Yusuf at [67]-[68], [73]-[74], [77], [89] and [91].
Noting that the applicant’s own evidence post-dated the letters provided by the applicant’s past teachers (some three years prior to the Tribunal’s decision), the Court considers it both reasonable and logical that the Tribunal would preference the applicant’s evidence about her difficulties with studies over older evidence. Further, the Tribunal had regard to the explanations provided for the applicant’s slow academic progress (at [58] of its reasons) but still found that (limited) progress to be unsatisfactory.
No jurisdictional error arises in relation to additional ground three.
Additional ground four
Whilst not entirely clear, the fourth additional “ground” raised by Ms Naidu essentially suggests that the Tribunal considered irrelevant information when having regard to the applicant’s business plan – arguably because the applicant had not yet embarked on the Certificate IV studies where she would have gained the required knowledge to embark on getting the business proposal and future plans down on paper.
The applicant (in written submissions) suggests that the Tribunal incorrectly inferred that the absence of a detailed business plan meant that the applicant was not serious about opening a business in Mauritius. This is discussed above (at [105]-[113]) in relation to issue four of ground one above.
As set out by the Court above, Direction No. 69 provides that a decision-maker “should have regard” to certain “factors when considering the value of the course to the applicant’s future” (at cl 12 in Direction No. 69). Those factors include the relevance of the course to the student’s past or proposed future employment in their home country or a third country (see cl 12(b) in Direction No. 69.
Here, the applicant claimed that she wanted to return home and open a business (being her proposed future employment). In that context, the Tribunal was entitled to (indeed, required to) have regard to the applicant’s future business plans (or lack thereof). The Tribunal did so.
To the extent that the applicant now takes issue with the weight the Tribunal placed on the lack of a detailed business plan, as noted by the Court above, the weight that the Tribunal placed on the evidence before it was a matter for the Tribunal alone as part of its fact-finding function: NAHI at [11]. Further, the Tribunal is entitled to accept, reject or give weight to evidence tendered as it thinks is appropriate in the circumstances of the matter before it: Lee at [27].
No jurisdictional error arises in relation to additional ground four.
CONCLUSION
The application for judicial review filed on behalf of the applicant and the applicant’s affidavit (both filed on 27 March 2023) together with Ms Naidu’s oral and written submissions to this Court (read and interpreted as broadly as possible) have failed to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding two hundred and thirteen (213) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 4 October 2024
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