Mulluri v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 55
•22 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mulluri v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 55
File number(s): BRG 142 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 22 January 2025 Catchwords: MIGRATION – Student (Temporary) (class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to afford procedural fairness – failure to consider circumstances relevant to genuine temporary entrant criterion – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 357(A), 359, 476(1), 476(2), 476(2)(a)
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 17 January 2025 Date of hearing: 17 January 2025 Place: Brisbane Applicant: The applicant appeared unrepresented. Solicitor for the Respondents: Ms Satyendra - MinterEllison. Second Respondent: Submitting appearance save as to costs. ORDERS
BRG 142 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRASANTH KUMAR REDDY MULLURI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
22 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the applicant be changed to “Prasanth Kumar Reddy Mulluri”.
2.The name of the second respondent be changed to “Administrative Review Tribunal”.
3.The application is dismissed.
4.The applicant is to pay the first respondent’s costs, fixed in the amount of $5900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Student (Temporary) (class T) (subclass 500) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of India. The applicant arrived in Australia on Student (Class TU) (subclass 500) visa on 11 November 2018 to undertake a Master of Information Technology at Charles Sturt University (“CSU”) (CB 53).
On 15 March 2021, the applicant made an application for a further Student (Temporary) (class TU) (subclass 500) visa (“the visa”) for the purpose of undertaking a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis (Court Book (“CB”) 21-60). In his Statement of Purpose to the Department, the applicant explained that he was facing difficulty in passing his last unit for the Master of Information Technology at CSU, that he had decided to complete the last unit later and that his family had suggested to him that he get skills in automotives (CB 53).
On 3 May 2022, the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant met the genuine temporary entry criterion in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) (“delegate’s decision”) (CB 66-70).
Application for review to the Administrative Appeals Tribunal
On 24 May 2022, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 71-78). The applicant appointed a registered migration agent to act as his representative and authorised recipient (CB 75).
On 25 May 2022, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments for consideration that he should do so as soon as possible (CB 89-97).
On 13 June 2023, the Tribunal wrote to the applicant advising him that he would need to provide sufficient information to satisfy the Tribunal that he meets the requirements for the visa being that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student (CB 99-106). The Tribunal invited the applicant to provide, in writing, all relevant information about the course(s) of study he was undertaking and his entry and stay as a student. The Tribunal advised that specific details about the information requested is set out in the Request for Student Visa Information form (“RSVI form”) and provided the applicant a link to that form. The Tribunal also told the applicant that in determining whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“Direction No. 69”). A copy of Direction No. 69 was attached.
The applicant provided a written submission and supporting documents to the Tribunal (CB 107-135). The documents included a Confirmation of Enrolment (“COE”) from Albright Institute of Business and Language (“Albright”) for a Diploma in Information Technology with a course start date of 10 July 2023 (CB 108), medical records (CB 109-114) and email exchanges in May to June 2023 between the applicant and CSU regarding the applicant’s request to re-enrol and complete his Master of Information Technology at CSU (CB 116-129). Also prior to the hearing, the applicant provided the Tribunal with another copy of some of those emails between the applicant and CSU in May 2023 (CB 165-168).
On 8 August 2023, the Tribunal invited the applicant to attend a hearing on 2 October 2023, to give evidence and present arguments relating to the issues arising in the case, stating that it was unable to make a favourable decision based on the information before it alone (CB 137-150). The invitation invited the applicant to provide all documents he intended to rely on. The hearing was subsequently rescheduled to 20 October 2023 (CB 153-164).
On 20 October 2023, the applicant attended the hearing (CB 169-171). The hearing was held by telephone. The applicant was assisted by his migration agent and an interpreter in the Telugu and English languages.
After the hearing, on 26 October 2023, the applicant provided the Tribunal with a written submission by him, a written submission by his migration agent and supporting documents (CB 172-182). Those documents included:
(a)The COE from Macallan College for a Certificate III in Light Vehicle Mechanical Technology with a course start date of 5 April 2021;
(b)The COE from Macallan College for a Certificate IV in Mechanical Diagnosis with a course start date of 7 November 2022;
(c)The COE from Milcom Institute for an Advanced Diploma of Information Technology with a course start date of 22 August 2022;
(d)An undated transcript from CSU containing an unofficial record of the applicant’s results in the Master of Information Technology and;
(e)A document from CSU dated 3 December 2021 headed Degree Planner for 201890 Starters Master of Information Technology for the applicant.
On 21 February 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 189-197).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicant met the requirements of cl 500.212(a) of Schedule 2 of the Regulations which required that the applicant is a genuine applicant for entry and stay as a student ([8]-[10]).
The Tribunal stated that in considering whether the applicant satisfies cl 500.212(a) of Schedule 2 of the Regulations, the Tribunal must have regard to the specified factors in Direction No. 69 ([11]). The Tribunal went on to state that those factors should not be used as a checklist but as a guide to decision makers when considering the applicant’s circumstances in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion ([12]).
The Tribunal then considered the factors in Direction No. 69 by reference to the material the applicant had provided to the Tribunal prior to the hearing, the applicant’s evidence at the hearing, and the written submissions and documents provided by the applicant after the hearing.
The Tribunal considered the value of the course (a Diploma in Information Technology) to the applicant’s future and summarised the evidence as follows:
(a)Prior to coming to Australia, the applicant had completed a Bachelor of Information Technology in India and had thereafter worked in India including as a Technical Support Engineer ([18]);
(b)The applicant came to Australia in November 2018 to study a Master of Information Technology at CSU. He did not complete that course ([19]);
(c)The applicant’s evidence was that he was unable to undertake further study because he suffered from severe headaches and that he had moved to Brisbane to receive support and medical attention ([19]);
(d)In March 2021, the applicant enrolled in a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. The applicant commenced those studies but ceased those studies in June/July 2021 ([19]);
(e)The applicant gave evidence that he was cured in 2022 and consequently enrolled in a Diploma of Telecommunications at Milcom to commence in January 2022. The applicant gave evidence that he studied for three months and then was able to obtain enrolment in an Advanced Diploma of Information Technology. The applicant’s COE confirms that in August 2022 he enrolled in an Advanced Diploma of Information Technology which was to commence on 22 August 2022 and run for a period of two years. The applicant’s evidence did not explain what occurred with those studies ([20]-[21]);
(f)In July 2023, the applicant enrolled in a Diploma of Information Technology at Albright. That course was to commence in July 2023 and is expected to conclude in July 2025 ([21]).
The Tribunal observed that the applicant had resided in Australia for 5 years and 2 months and despite his medical issues, which the Tribunal accepted had interrupted his studies, is yet to complete any courses ([22]). The Tribunal referred to the medical reports the applicant had provided and accepted that the headaches interrupted the applicant’s studies during the end of 2020 and 2021 ([19]; [22]).
The Tribunal noted that a Diploma of Information Technology is substantially lower than the Bachelor of Information Technology the applicant had obtained in India and asked the applicant about this. The applicant gave evidence that the Diploma is quite advanced and would enable him to get back into information technology networking and telecommunications and the course was similar to the Masters course that he had previously studied at CSU. The applicant acknowledged that a Diploma is not a higher education course however, stated that it would provide him with practical skills for obtaining employment in India ([22]).
The Tribunal then went on to make the following findings as to the value of the course to the applicant’s future:
(a)The Diploma does not advance the applicant’s previous qualification and rather appears regressive ([23]);
(b)The Representative’s Submissions that the Diploma would assist the applicant start his own business in India is inconsistent with the applicant’s evidence that he wishes to complete the Diploma to enable him to work in a managerial level or technical support position ([24]);
(c)Having regard to the qualifications the applicant has already obtained, the Diploma would only marginally improve his level of remuneration and employment prospects back in India ([25]);
(d)The applicant could undertake further studies in India and so does not have a reasonable motive to undertake the studies in Australia, especially in undertaking a Diploma where he has previously completed a Bachelor of Information Technology in India ([26]);
(e)The applicant has changed his career path from Information Technology to Automotive Repairs to Telecommunications and back to Information Technology. The courses are not connected and reveal an intention to change career path due to a failure to complete courses ([27]);
(f)The courses in which the applicant has enrolled since ceasing studies in the Master of Information Technology do not reveal any progression having regard to the fact that the applicant already has a Bachelor of Information Technology, and the present course of study is inconsistent with his level of education ([28]);
(g)If the applicant wanted to progress his career, he would be studying at a Master’s level or a higher level than a Bachelor’s degree ([43]).
The Tribunal then considered the applicant’s potential circumstances in Australia and in India and summarised those circumstances as follows:
(a)Since 14 December 2020, the applicant has been living with his cousin and has been in stable accommodation in that location ([29]);
(b)Having lived in Australia for the last 5 years and two months, the applicant has a substantial degree of knowledge about living in Australia ([29]);
(c)The applicant had a substantial knowledge about both the course and the provider ([30]);
(d)The applicant has been engaged in various employment in Australia with earnings of approximately $48,000 to $60,000 per annum ([31]);
(e)The applicant’s evidence confirmed that the level of wages is higher in Australia than in India ([32]);
(f)The applicant’s evidence was that the economic conditions in India are not as favourable as those in Australia ([33]);
(g)The applicant has not returned home since coming to Australia ([34]);
(h)Apart from a vehicle in India, the applicant has no other assets in India ([35]);
(i)The applicant did not have any concerns about returning to India and had no concerns about military service commitment or political and civil unrest in his home country ([36]);
(j)The applicant has been supported in his studies by his family ([37]);
(k)The applicant has a mother at home with whom he said he was in daily contact. He is the only son ([40]).
The Tribunal concluded that the applicant has personal ties in Australia and in India but that by reason of his substantial ties in Australia he has a strong incentive to remain here rather than return home ([39]-[40]) having regard to the following:
(a)He has not returned home since 2018;
(b)Whilst in Australia he has been in stable employment and is in a well-paid job;
(c)He has been living with his cousin in stable accommodation;
(d)He has lived here for at least 5 years and intends to remain here for another year and a half.
When considering the applicant’s immigration history, the Tribunal noted that the applicant had not returned to India since arriving in Australia. The Tribunal acknowledged that the applicant’s medical issues and the COVID-19 pandemic travel restrictions would have made it difficult for him to return home during that period ([34]). However, the Tribunal found that the applicant’s failure to otherwise return to India was consistent with an intention to remain in Australia permanently ([34]).
In conclusion, the Tribunal was not satisfied that the applicant was a genuine temporary entrant for further stay as a full-time student and that the primary objective of the applicant was to maintain ongoing residence in Australia and to remain here permanently and that accordingly the applicant did not meet cl 500.212(a) of Schedule 2 of the Regulations ([43]-[45]). Accordingly, the Tribunal affirmed the delegate’s decision ([48]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 21 March 2024. The applicant also filed an affidavit affirmed on 21 March 2024. The affidavit repeats the grounds of review in the application and annexes the delegate’s decision and the Tribunal’s decision.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents in Court with him. The Court Book was made an exhibit in the proceedings.
The applicant appeared in person unrepresented.
Despite the order requiring him to do so, the applicant did not file written submissions. The applicant was given the opportunity at the hearing to make oral submissions in support of his application for judicial review and in reply to the first respondent’s submissions.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite the procedural order permitting him to do so, the applicant did not file an amended application. The ground of review set out in the application is (without alteration):
Ground One: The Grounds and particulars of the application were set out in the application under the Migration Act 1958, natural justice was denied at both Department of Home Affairs and at the AAT Tribunal and the AAT member did not interpret the specific clause 500.212 as per my given circumstances.
To the extent that the applicant seeks to allege error in the delegate’s decision, the Court explained to the applicant that the Court does not have jurisdiction to review the delegate’s decision (s 476(2)(a) of the Act).
The single ground of review is unparticularised. The first respondent submits that the application is capable of being dismissed for that reason alone (first respondent’s submissions (“FRS”) [18] citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21] per Reeves J). That may be so; however, it is also the position that the Court should be reluctant to dismiss a ground of review in circumstances where an applicant is self-represented (DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, [8]-[10] per Colvin J). The Court has proceeded on that basis.
Natural Justice
As to the applicant’s assertion that ‘natural justice was denied’, the Court invited the applicant to explain why he thought that the Tribunal had denied him natural justice or procedural fairness.
The applicant referred to the fact that the hearing had been by telephone and said that he had not been given any reasons.
The Court referred the applicant to the fact that a copy of the Tribunal’s written reasons was annexed to his affidavit which he had filed in support of his application for judicial review. The Court also notes that the Tribunal sent a copy of its written reasons for Decision to the applicant on 21 February 2024 to the email address provided by the applicant in his application to the Tribunal (CB 183-203). The applicant accepted that he had been provided with a copy of the Tribunal’s reason for Decision. The Court is satisfied that the applicant was provided with a copy of the Tribunal’s written reasons for Decision.
The applicant appeared by telephone before the Tribunal. He was assisted by his migration agent and an interpreter in the Telugu and English languages. Section 366 of the Act provides that the Tribunal may allow an appearance by the applicant before the Tribunal to be conducted by telephone. There is nothing in the Tribunal’s hearing record (CB 169-171) or its written reasons for Decision that indicate that the applicant did not have a meaningful opportunity to give evidence and present his arguments because the hearing was conducted by telephone or otherwise experienced any difficulty in giving evidence and presenting arguments by telephone. The applicant did not make any submission to that effect. The applicant was also given an opportunity to make further submissions and provide further documents after the hearing. The applicant took up this opportunity (CB 172-182). The Court finds that there was no denial of procedural fairness by reason of the hearing being conducted by telephone.
Otherwise, as to the Tribunal’s obligations to afford procedural fairness, Division 5 of Part 5 of the Act sets out an exhaustive statement of those obligations (s 357A of the Act). The Court finds that the Tribunal complied with those obligations because:
(a)Pursuant to s 359 of the Act, the Tribunal invited the applicant to provide information in relation to his application for review (CB 99-106). The applicant provided information to the Tribunal in response to that request (CB 107-135; 165-168);
(b)Pursuant to s 360 of the Act, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in the application for review (CB 137-164). The Tribunal notified the applicant as to those issues which were the same as the issues considered by the delegate. The Court agrees with the first respondent’s submission that this is not a case in which the Tribunal proceeded to determine the review on issues different to those considered by the delegate and which the applicant was not given notice (FRS [19(b)]; citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ);
(c)It is apparent from the Tribunal’s reasons for Decision that the applicant was afforded a real and meaningful opportunity to give evidence and present arguments in support of his application for review. The Court agrees with the first respondent’s submission that this is illustrated by the Tribunal’s summary of the applicant’s oral evidence and the written submissions and supporting documents that he provided to the Tribunal (FRS [19(c)]);
(d)The applicant was given an opportunity to provide additional submissions and supporting documents after the hearing (Decision at [17]). The applicant took up that opportunity (CB 172-182).
No jurisdictional error is established on the ground of procedural fairness.
Clause 500.212 and consideration of the applicant’s circumstances
As to the applicant’s assertion that the Tribunal did not interpret cl 500.212 ‘as per my given circumstances’, the Court asked the applicant to explain what he meant by this and what circumstances he was referring to.
The applicant said the Tribunal failed to consider the following circumstances:
(a)his medical documents which explain why he was switching courses;
(b)that he had completed 10 subjects towards the Master of Information Technology at CSU and not 8 as stated by the Tribunal at [19] of its reasons for Decision and that he had only one subject left to complete to obtain the Masters but CSU refused to allow him to complete that subject;
(c)that the main reason he chose a lower degree was because he could not get back in to finish his Masters (with CSU) which was evidenced by his email exchanges with CSU about his attempts to re-enrol in that course;
(d)that the Diploma of Information Technology would help him get a better job.
The Tribunal referred to the applicant’s oral evidence and to what it referred to as ‘the substantive reports and medical information’ provided by the applicant concerning his health and its impact on his studies ([19]). The Tribunal accepted the applicant’s evidence that his medical condition interrupted his studies during the end of 2020 and 2021 ([19]; [22]). Accordingly, the Court does not agree with the applicant’s submission that the Tribunal did not consider his medical certificates or the impact of his medical condition on his studies.
As to the number of subjects the applicant had successfully completed towards the qualification of a Master of Information Technology at CSU, the Tribunal stated that the transcript of results provided by the applicant indicates that he had either passed or obtained credits for 8 units and that he had failed 5 of the units he had undertaken in that course ([19]). The transcript to which the Court understands the Tribunal was referring is in the Court Book at 177. It records, as the Tribunal stated, that the applicant had either passed or obtained credits for 8 units and that he had failed 5 of the units he had undertaken. In his submissions, the applicant took the Court to a document from CSU dated 3 December 2021 headed Degree Planner for 201890 Starters Master of Information Technology (CB 178) and an email on 31 May 2023 from the applicant to CSU requesting re-enrolment in which he said that he had completed ten out of the twelve subjects of the coursework (CB 134). Those documents, the applicant submitted, showed that he had in fact successfully completed 10 subjects.
The applicant’s submission was that the Tribunal had therefore made an error in finding that he had either passed or obtained credits for 8 units. The Tribunal (at [19]) was referring only to what the transcript issued by CSU recorded. In that regard, the Tribunal’s statement of fact was correct. The Court accepts, however, that the Tribunal’s reasons for Decision do not refer to the evidence supporting the applicant’s contention that he had successfully completed 10 subjects. The difficulty with the applicant’s submission is that even if it could be said that the Tribunal in referring only to the transcript in its reasons made an error of fact, it does not amount to a jurisdictional error. The Tribunal was considering the value of a Diploma in Information Technology to the applicant’s future having regard to the qualification which the applicant already had which was the Bachelor in Information Technology he had obtained in India and whether he had a reasonable motive for undertaking the Diploma in Australia rather than in India. In doing so, it was relevant for the Tribunal to consider what other courses the applicant had enrolled in, whether he had completed those courses and whether the Diploma in Information Technology demonstrated a progression in the applicant’s studies, and which would improve his level of remuneration and employment prospects in India. As to the Master of Information Technology at CSU, the fact was that the applicant had not completed that course. The applicant did not contend otherwise at the Tribunal hearing.
In response to the Tribunal’s request for information as to the course of study the applicant was presently undertaking (CB 99-106), the applicant provided the COE for a Diploma of Information Technology at Albright. The applicant provided an explanation to the Tribunal as to why he had enrolled in a Diploma of Information Technology. In his written submission to the Tribunal, provided prior to the hearing, the applicant stated that because CSU did not grant him the opportunity to continue the telecommunications course “presently underway” he had made the decision to rejoin a telecommunications course elsewhere (CB 107). At the hearing before the Tribunal, the applicant gave evidence as to why he required the Diploma of Information Technology given that he had already obtained a Bachelor of Information Technology. The applicant told the Tribunal that the Diploma of Information Technology was quite advanced, would enable him to get back into information technology networking and telecommunications ([22]). He also told the Tribunal that the course was similar to the Master’s course that he had studied at CSU ([23]). In his further written submission to the Tribunal provided after the hearing (CB 172-173), the applicant explained that after his visa application to undertake the Certificate III in Light Vehicle Mechanical Technology and Certificate IV in Automotive Mechanical Diagnosis was unsuccessful he decided to make his career in information technology again and applied for the Advanced Diploma of Information Technology at Milcom Institute but that after three months his health forced him to take leave of absence from the college. After his health improved, the applicant said that he contacted CSU to grant him the opportunity to continue with the telecommunications course “previously underway” but was unsuccessful. The applicant said that he then made the decision to rejoin the Advanced Diploma of IT elsewhere.
The applicant submission to the Court was that the main reason he chose a lower degree was because he could not get back in to finish his Masters (with CSU) which he said was evidenced by his email exchanges with CSU about re-enrolment in that course (CB 116-135). His submission was that the Tribunal did not consider or understand this.
The Tribunal did not explicitly refer to the applicant’s explanation, that is, that because he was unsuccessful in his attempt to re-enrol in the Masters of Information Technology at CSU he made the decision to rejoin the Advanced Diploma of IT elsewhere. The Court notes that the applicant did not in fact enrol in an Advanced Diploma but in a Diploma of Information Technology at Albright. A fair reading of the Tribunal’s reasons for Decision, as a whole, is that the Tribunal gave the applicant’s explanation little weight and went on to consider the value of the Diploma of Information Technology to the applicant’s future career prospects in India and considered the Diploma to be a regression having regard to the fact that the applicant had obtained a Bachelor of Information Technology in India.
The task for the Tribunal was to consider whether the applicant satisfied the genuine temporary entrant criterion having regard to the factors in Direction No. 69. As already stated, it was relevant to that task for the Tribunal to consider the applicant’s study history, the courses he had undertaken and not completed and the value of the proposed study to his future having regard to his existing qualifications. That is the task that the Tribunal undertook.
The Court does not agree with the applicant’s further submission that the Tribunal did not consider whether the Diploma of Information Technology would help the applicant get a better job. In that regard, the Tribunal had regard to the applicant’s evidence and the submissions made by the applicant’s migration agent ([22]; [24]). The Tribunal concluded that the Diploma would only marginally improve the applicant’s level of remuneration and employment prospects in India ([25]).
The Tribunal’s reasons for Decision disclose that it considered the evidence the applicant gave as to the changes in courses he had made ([19]-[20]), why he required a Diploma in Information Technology and its relevance and value to his future employment prospects in light of the level of education he already had ([22]-[28]). The Tribunal’s conclusions were based on a consideration of the material before it and are neither irrational nor illogical.
Otherwise, as to the requirements of cl 500.212(a) of the Regulations, the Court is satisfied that the Tribunal’s reasons for Decision disclose that it understood and considered the requirement in cl 500.212(a) and had regard to the factors in Direction No. 69. The Tribunal’s reasons for Decision disclose that it considered all the applicant’s evidence and circumstances in considering those factors. The weight to be attributed to the evidence relevant to those factors was a matter for the Tribunal (FRS [21]; citing Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at [41] per Mason J).
To the extent that the applicant’s complaint expresses his disagreement or dissatisfaction with the view the Tribunal formed, it amounts to no more than a request that the Court engage in impermissible merits review.
No jurisdictional error is established in respect of the Tribunal’s consideration and assessment of whether the applicant satisfied the genuine temporary entrant criterion.
CONCLUSION
For the reasons given above, no jurisdictional error is established. Accordingly, the application is dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 22 January 2025
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