Nazar v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2021] FCCA 617

FEDERAL CIRCUIT COURT OF AUSTRALIA

Nazar v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 617

File number(s):

PEG 114 of 2020

Judgment of:

JUDGE KENDALL

Date of judgment:

30 March 2021

Catchwords:

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal took into account irrelevant considerations – where the Tribunal found the applicant was not a genuine temporary entrant – no jurisdictional error – application dismissed.   

Legislation:

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth), cl 500.212 of Schedule 2

Cases cited:

Abebe v The Commonwealth [1999] HCA 14

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163

Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16

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

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

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

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs:

96

Date of hearing:

26 March 2021

Place:

Perth

Applicant:

In person

Counsel for the First Respondent:

Ms E Tattersall

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

PEG 114 of 2020

BETWEEN:

RIHAS MOHAMED NAZAR

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	30 MARCH 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

REASONS FOR JUDGMENT

JUDGE KENDALL

INTRODUCTION

1. The applicant is a citizen of India. He arrived in Australia on a student visa on 11 July 2015 (Court Book (“CB”) 45).

2. On 14 September 2017, the applicant applied for a Student (Temporary)(Class TU) Student (subclass 500) visa (the “visa”) (CB 1-29). The applicant was enrolled to study an Advanced Diploma of Leadership and Management, to be followed by a Bachelor of Business (Management) (CB 45).

3. On 28 March 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 43-50). The delegate was not satisfied that the applicant was “a genuine temporary entrant”. As such, the applicant did not meet the requirements of cl 500.212(a) of the Migration Regulations 1994 (Cth) (the “Regulations”).

4. The applicant applied for a review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 16 April 2018 (CB 51-52).

5. On 9 May 2019, the Tribunal invited the applicant to provide further information (CB 57-63). The applicant did so.  He also forwarded a Letter of Offer in a Graduate Diploma of Management (CB 64-83).

6. The applicant attended a hearing before the Tribunal on 1 July 2019 (CB 92-94).

7. On 11 March 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 97-112).

8. On 15 April 2020, the applicant applied for judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.

   TRIBUNAL’S DECISION

9. The Tribunal’s decision is 16 pages long and spans 55 paragraphs.

10. The Tribunal began by identifying the type of visa the applicant had applied for (at [1]-[2]) and noted that the delegate had refused the visa on the basis that the applicant did not meet cl 500.212 of the Regulations. The Tribunal also confirmed that the applicant had appeared at a hearing before the Tribunal (at [3]-[4]).

11. The Tribunal then set out the materials that were before it, as follows:

    5. Prior to the hearing the applicant provided to the Tribunal:

    •The Decision Record of the Delegate

    •A response to a Request for Student Visa information, and

    •A letter of offer from Lead College dated 21 May 2019 for a Graduate Diploma of Management.

    6. The Tribunal has also had regard to the Department file. It is noted that the applicant sent to the Department, among other items:

    •Certificates and transcripts for:

    •The Diploma of Leadership and Management and

    •His studies in India;

    •Financial documents, and

    •A statement of purpose, undated, and an ‘Additional Statement for Genuine Temporary Entrant,’ unsigned and undated.

12. The Tribunal explained that the issue before it was whether the applicant was a genuine applicant for entry and stay as a student (at [8]).  

13. The Tribunal then set out the relevant criterion, summarised the Ministerial Direction and noted the principles relevant to reviews of this sort, as follows:

    Genuine applicant for entry and stay as a student (cl.500.212)

    9. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a) the applicant intends genuinely co stay in Australia temporarily, having regard to:

    (i) the applicant’s circumstances; and

    (ii) the applicant’s immigration history; and

    (iii) if the applicant is a minor-the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv) any other relevant matter; and

    (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c) of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

    10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

    •the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    •the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    •if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    •any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

    11 . The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    12. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

14. The Tribunal first considered the applicant’s circumstances in India. Relevantly, the Tribunal:

    (a)noted that the applicant had completed a Bachelor of Aeronautical Engineering in India and was previously employed as an administrative assistant (at [14]);

    (b)referred to the applicant’s evidence that his father ran an automotive car parts business and noted that the applicant thought he would come to Australia to gain some qualifications to help his father run the shop. It was noted, however, that when the applicant’s father died, the shop was sold. Further, the applicant told the Tribunal at the hearing that, upon coming to Australia, he still felt that he would like to gain qualifications which would enable him to return to India and buy another shop of this sort and run it like his father (at [15]);

    (c)stated that the conflicting information that the applicant had provided about the number of siblings he had made it difficult for the Tribunal to assess the applicant’s family circumstances (at [16]);

    (d)accepted that the applicant had responsibility for his mother (who remained in India). However, the Tribunal found that, given that the applicant had been in Australia for four years and intended to stay for longer to continue studying, it was not apparent that the applicant’s mother required urgent or immediate support from him (at [17]);

    (e)was not satisfied that the applicant’s ties to India provided a significant incentive to return to India. However, accepting that the applicant did have some ties “generally” to India, those ties were given some weight in his favour (at [17]); and

    (f)noted that the applicant was not subject to national service and there was no political or civil unrest which would act as an incentive for him not to return. The Tribunal gave these factors some weight in the applicant’s favour (at [18]).

15. The Tribunal then considered the applicant’s reasons for coming to Australia and the course that he was intending to study. The Tribunal first detailed the applicant’s evidence, noting that:

    (a)the applicant arrived in Australia on a student visa in July 2015 (at [19]). He was enrolled in a Masters of Business Administration (at [20]). However, following the death of his father the applicant considered that he was not mentally fit for such a challenging course (at [21]). He “swapped” to a Masters of Mechanical Engineering but struggled with, and began to fail, subjects (at [22]-[23]);

    (b)after researching on the internet, the applicant enrolled in a Diploma of Leadership and Management. He completed that course in April 2017. He then completed an Advanced Diploma in Leadership and Management in April 2018 (at [24]-[25]); and

    (c)1.5 million engineers graduate in India each year and it is difficult to obtain employment. He felt that the leadership and management courses would give him an advantage over others as the course was advertised on the Institute of Engineers Australia webpage (at [26]).

16. The Tribunal noted that the applicant had stated that his course would “open up” a pathway for a successful career in the Middle East but had provided no details about this (such as what countries in the Middle East or what companies, businesses or industries he wanted to work in). The Tribunal referenced the applicant’s statements to the delegate and noted that these were similarly lacking in detail (at [27]).

17. The Tribunal found that the applicant had provided contradictory information about his circumstances, work prospects and his intentions. He had indicated that his brother lived in India but also stated that his brother works in Dubai. The applicant indicated that he wanted to open a shop in the Middle East but then he said that he wanted to manage a shop.  He also said he wanted to open an automotive parts store in India (at [28]).

18. The Tribunal continued:

    29. The Tribunal accepts that having brothers or other family members in another country may be an incentive to leave Australia and work with them when he has finished his education. The Tribunal places a small amount of weight on those plans in favour of the applicant. The Tribunal also accepts that the applicant is entitled to keep options open in deciding whether he wishes to return to India to seek work or travel to another country to do so, and the Tribunal does not place any weight against the applicant for him wanting to do so. However, the Tribunal is not satisfied that the applicant, having completed his Advanced Diploma in Leadership and Management, has made any inquiries as to the whether he can obtain employment and, if so, where and how. He told the Department that if he embarks on the bachelor course he would be entitled to exemptions and he would complete the course in two years. Being relatively close to completion of his intended studies, the applicant has not satisfied the Tribunal that he has taken any steps towards ensuring he is able to take any of the paths to employment he intends, or whether in fact the courses he has already completed or wishes to remain in Australia to complete will in any way assist on those paths, or advance his prospects over his current qualifications.

    30.No matter what the applicant’s actual intentions, the applicant did not provide to the Tribunal any further information about his prospects, his intentions in relation to future employment or running a business, or where that would be. The Tribunal does not have before it anything that indicates that the applicant has made any inquiries or performed any research on his ability to work in the Middle East or given any indication of practically how he intends to go about opening up a shop anywhere or obtaining employment anywhere. The applicant’s goals for the future were vague and unspecific. If the Tribunal can be satisfied that the course being undertaken, or proposed, has value or relevance to an applicant’s past or proposed future employment, either in their home country or a third country, the Tribunal can attribute weight in favour of the applicant that they are a genuine temporary entrant for study. In the present case, as has been set out, the Tribunal cannot be satisfied that any leadership or management course has any relevance or value to the applicant’s proposed future employment, or his running a business, in any country. Accordingly, the Tribunal can give no weight in favour of the applicant to this factor.

    31. On the contrary, the lack of any real planned progression to employment in these circumstances suggests that the applicant is using the Student visa regime to maintain ongoing residence in Australia, and this weighs against him being granted a Student visa

19. The Tribunal noted that the applicant had provided no information which would enable it to make a comparison between the applicant’s potential circumstances in India or his potential circumstances in the Middle East, should he travel to either of these places with qualifications from Australia. The Tribunal determined that it could place only a very small amount of weight on the fact that, generally, an Australia qualification may assist the applicant gaining employment (at [32]).

20. The Tribunal continued:

    33. The Tribunal is not satisfied that the applicant has strong incentive to return to India because of his family ties, as has been set out above, and, from the lack of information provided by the applicant and the lack of ability to make any comparison, neither is the Tribunal satisfied that the applicant has strong incentive to travel to the Middle East to obtain employment there. The Tribunal is therefore not satisfied that the applicant’s incentive to return to India or travel to the Middle East outweigh any incentive he may have to remain in Australia and to continue working here. Because the applicant has not provided any information on expected salaries in the Middle East or India, or financial expectations in relation to starting a business in either of those places, the Tribunal cannot make a direct comparison with the applicant’s current income in Australia, and therefore the Tribunal cannot be satisfied that the applicant has a financial incentive to return to India or to travel to the Middle East. It would appear that upon return to India, his father’s business having been sold upon his death, the applicant does not have any prospective employment. Having regard to the applicant’s current circumstances in Australia, including his employment, compared to his little potential in India or the Middle East, the Tribunal is satisfied that the applicant has strong incentive to remain in Australia and gives this some weight against him being a genuine temporary entrant.

21. The Tribunal then noted that the applicant had also provided inconsistent information about the courses he had been enrolled in and had omitted references to a number of courses in the response he provided to the invitation to provide information (at [34]-[36]).

22. The Tribunal referred to the Bachelor of Business (Management) that the applicant was enrolled to complete. It noted the applicant’s evidence that after he found out his visa was refused, he cancelled the enrolment as he did not want to move to Melbourne and pay the fees for the course if he could not complete it (at [37]). As a result, the applicant was not enrolled in a course from April 2018 until May 2019. The Tribunal also noted that the applicant had agreed that he would be in breach of a student visa requirement in these circumstances (at [38]).

23. The Tribunal continued:

    39. The applicant did not take the opportunity to return to India, having already completed two courses in leadership and management, when he found out his Student visa application had been refused and he had completed the advanced diploma course. He said he spoke to an agent who told him that he should remain in Australia and await the outcome of the Tribunal review. He took up this advice because ultimately, he said at one point in the hearing at the Tribunal, he wishes to complete the bachelors program. The applicant told the Tribunal at the hearing that because he was not willing to risk wasting the fees for the bachelor program, he allowed the enrolment to lapse and did not enrol in anything further. He says that when he received notification of his review from the Tribunal he noted that he was asked whether he had current enrolment. He understood this to mean that if he was enrolled he had a better chance of winning the review and accordingly he looked around for a course to enrol in. That is the reason he enquired about enrolment in the Graduate Diploma of Management (Learning). The Tribunal notes that rather than enrol in a bachelor level course, the applicant has sought to enrol in a course at a level lower than the courses for which he originally came to Australia. The applicant told the Tribunal at the hearing at one point that once he completes the graduate diploma, that will see him well equipped and he will return to India. This is inconsistent with the other evidence before the Tribunal from the applicant that he intends to seek employment or a business in the Middle East, or that he had always intended to complete a Bachelor in Business. In addition, there is nothing before the Tribunal that explains why the applicant has enrolled in a Diploma of Management with a focus on learning as opposed to his original stream, being business

24. The Tribunal asked the applicant why he had enrolled in the Graduate Diploma of Management. The applicant stated that he felt that that course would teach him more about managing his own business, financial management and managing employees and felt there was much more he could learn (at [40]).

25. The Tribunal noted that the applicant had not paid the tuition fees for the course and that the applicant had conceded that he was not enrolled in any course (at [41]).

1. The Tribunal continued:

   42. While the Tribunal accepts that enrolling in courses is expensive and the applicant risked losing his tuition fee, the Tribunal notes that the letter of offer of enrolment shows that the applicant was expected to commence the course on 8 July 2019, a week after the hearing, and that the applicant was only required to pay a fee of $2950 prior to commencement of the course, with a payment plan set out in the letter of offer. The Tribunal is not satisfied that the applicant had any genuine intention of commencing this course. There was nothing before the Tribunal from the applicant that showed that the course would progress his learning in the area, or will be a necessary course to undertake to expand his prospects of employment or running any planned business. While the Tribunal accepts the applicant may not have wanted to risk funds, by the time of the hearing at the Tribunal, the applicant had not been studying, and therefore not been paying fees for over 12 months, but had been working as he was allowed to do by his Bridging visa. The applicant has said that his brothers are funding his education

2. The Tribunal noted that it was the applicant’s own evidence that he had decided to stay in Australia and continue to work as a crowd controller after his visa was refused. Further, the applicant only decided to enrol in a further course when he received the information from the Tribunal asking him if he had maintained enrolment. He thus appeared to have enrolled in a course about which he had little knowledge (at [43]).

3. The Tribunal was satisfied that the enrolment was not genuine, that the applicant intended to use the visa to prolong and maintain ongoing residence in Australia and that he was not a genuine student. The Tribunal gave this significant weight against the applicant being granted the visa (at [44]).

4. The Tribunal then considered the applicant’s travel and migration history. It noted that the applicant had not previously had his visa refused. This weighed in the applicant’s favour (at [45]).

5. The Tribunal continued:

   46. However, the applicant first came to Australia having been granted a Higher Education Sector (subclass 573) visa to undertake a Masters of Business Administration. He did not commence that course, and instead enrolled in another Masters level course. He did not complete that course, and since that time has enrolled in and completed lower level courses. While he did enrol in a Bachelor of Business, being at a higher education level, that Bachelors course was still at a lower level than that for which he originally came to Australia, and only at the same level of the qualification he came to Australia with. In any event, he did not commence the Bachelor’s course, and instead later enrolled in a lower level course, being the Graduate Diploma. The applicant has not shown progression in his studies, and proposes to study at a lower level to his Indian qualifications, and at a lower level to the level for which he came to Australia. This adds weight to the finding that he has no real career plans for either India or the Middle East, and is not seeking to become skilled for employment or to run a business. Rather, it adds weight to a finding that the applicant is using the Student visa regime to maintain ongoing residence in Australia, and significant weight is to be given to this finding against him being a genuine temporary entrant for study.

6. There was no evidence before the Tribunal that the applicant was in a relationship of concern or that there were any family and community ties in Australia. This too weighed in the applicant’s favour (at [47]).

7. The Tribunal then stated:

   48. The applicant has travelled twice to India while he has been in Australia for family reasons. The Tribunal accepts that this illustrates that he has maintained some ties to his family in India, and this is to be given a little weight in his favour. However, as has been expressed elsewhere in these reasons, the Tribunal is not satisfied that the applicant has such ties to his family, community or employment in his home country that he has significant incentive to return. Neither, as has been expressed elsewhere in these reasons, is the Tribunal satisfied that he has significant incentive to travel elsewhere to seek employment or be with other members of his family, and these factors outweigh his ties to India, and weigh against him being a genuine temporary entrant.

8. The Tribunal was satisfied that the applicant was using the visa to maintain ongoing residence and to circumvent the intentions of the visa programme (at [49]).

9. The Tribunal noted that there were no other relevant matters to consider and that the applicant was not a minor (at [50]-[51]).

10. In light of the previous findings, the Tribunal was not satisfied that the applicant met cl 500.212(a) of the Regulations (at [52]-[54]). On that basis, the Tribunal affirmed the decision not to grant the applicant the visa (at [55]).

    PROCEEDINGS IN THIS COURT

11. The applicant’s application for judicial review filed 15 April 2020 provides 3 grounds of review, as follows:

    1. The Decision Maker has considered Irrelevant Material.

    2. The Decision Maker failed to consider claims.

    3. The Decision was unreasonable.

12. The applicant also filed an affidavit affirmed 15 April 2020 which provides:

    1. I am the applicant of these proceedings; I am lodging my application for an appeal to the Federal Circuit Court for the grounds outlined in my initiating application.

    2. I believe the decision maker at the Administrative Appeals Tribunal erred in reaching her decision due to the following reasons:

    3. The decision maker considered irrelevant Material regarding assessing his ties with India, also the applicant enrolment in other courses.

    4. The decision maker failed to consider the applicant’s claims where he informed the AAT of all his siblings work and locations, also regarding proof of the applicant’s future plans, he was not asked to provide additional information/ evidence in support of his claims.

    5. The decision maker was unreasonable in dealing with his claims in relation to his employability in Middle East, and the tribunal was unreasonable assessing his plans to work in different countries after completion of his course. The decision maker was unreasonable in assessing the value of Australian qualification in India and how it would increase the applicant employability.

    6. For the Federal Circuit Court consideration, I have enclosed a copy of the Administrative Appeals Tribunal refusal.

13. The applicant was given an opportunity to file an amended application, any further affidavit evidence and an outline of written submissions. On 10 February 2021 (and again on 12 February 2021), the applicant filed written submissions. Those submissions state:

    I am including some points that support my review application.

    •On 2012, I have completed my Bachelors in Engineering and later on I started working at Car accessories and spares company which is my family own business. I worked for 3 years and my career aspiration has changed to business.

    •On 2015, I got granted for a student visa to study Masters in Business Administration at Edith Cowan University, Australia.

    •Initially the subjects for the Masters program in Business felt hard for me to study. Mainly, because I don’t have any basics on the business subjects and hence I changes my study to engineering.

    •My career aspiration was based on business and I was not happy on my engineering studies at Edith Cowan University and after 6 months, I decided not to continue this course.

    •I was trying to find a suitable course related to my career aspect and finally came to know about courses in Cambridge International College, Perth.

    •I made a mistake by joining one of the course called Certificate IV in frontline management in which I didn’t attend any classes because I realized this course does not suites my career aspiration.

    •On the other hand, I had a chat with numerous students studying at that college and came to know about a study program which involves a diploma and advanced diploma in leadership and management and a pathway to a bachelors program in Business Management and later on I joined that program.

    •I successfully completed Diploma and Advanced Diploma courses and was eager to do my bachelors program at Melbourne. Meanwhile I applied for a student visa extension on September 2017, Reason for that is I still got one semester of the advanced diploma course to be completed and also I need to do my bachelors program.

    •On March 2018, I got a visa refusal from immigration which I felt completely unfair because my intension is to pursue a degree or higher in business management.

    •On April 2018, I filed an application to review the decision on AAT.

    •On March 2020, AAT made a decision saying that my application was unsuccessful.

    •During the period 2018 to 2021, I did not study any course. I tried to enroll on one business course but I had no confidence on spending my time, effort and money on doing a course without a valid student visa.

    •Lot of changes has been occurred in terms of family and future prospects from last years. My 2 elder brothers, who were settled in Middle East, came back and settled in India.

    •I went to see my family in India 2 times in first two years and later I didn’t go because of all these troubles caused by the visa refusal.

    •I have completed the Diploma and Advanced diploma courses successfully which has gained me a lot of confidence on pursuing higher degree on business studies.

    •If my student visa gets approved, I will be doing a masters degree in Business, because now I got full confidence in finishing that course and go back to my country.

14. The materials before the Court thus include the application for judicial review dated 15 April 2020, the applicant’s affidavit affirmed 15 April 2020, the written submissions from the applicant dated 10 February 2021 and 12 February 2021, a Court Book numbering 112 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 16 February 2021.

15. The applicant appeared before the Court without legal representation. The Court confirmed that he had received a copy of the Court Book and the Minister’s written submissions.

16. Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

17. To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;

    (b)where the decision-maker ignores relevant material: Craig at 198;

    (c)where the decision-maker relies on irrelevant material: Craig at 198;

    (d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];

    (e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

    (f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

18. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

19. Against this background the applicant stated that the Tribunal asked him about a confirmation of enrolment and, despite his best efforts, he could not gain a confirmation of enrolment as he did not have a valid visa. The applicant also stated that the Tribunal told him that it would take two to three weeks for a decision but that it actually took seven months.

20. In reply submissions, the applicant stated that the type of course that he chose to do was “dependent on his circumstances”. He also explained why he had changed courses, stressing that his colleagues had changed courses and were granted a visa. 

21. The Court will address the applicant’s oral submissions further below.

    CONSIDERATION

22. The applicant’s affidavit (at [3]-[5]) provides “particulars” in support of the applicant’s grounds of review. The Court will address those particulars in the context of the relevant ground of review.

23. As for [1]-[2] and [6] of the applicant’s affidavit, these do not identify jurisdictional error. They will not be considered any further.

    Ground 1

24. Ground 1 argues that the Tribunal took into account “irrelevant materials”. The third paragraph of the applicant’s affidavit identifies the “irrelevant materials” as follows:

    The decision maker considered irrelevant Material regarding assessing his ties with India, also the applicant enrolment in other courses.

25. The applicant’s ties with India are a relevant consideration. Direction 69 makes express reference to the assessment of “personal ties” at [9(b)]. The applicant’s enrolment in other courses is also a relevant consideration as per [11(e)] of Direction 69 which refers to “previous study and qualifications”.

26. Accordingly, personal ties and previous enrolments were relevant considerations.

27. The only information and “material” that the Tribunal considered was information and material that the applicant himself had provided.

28. For example, the applicant himself provided the delegate’s decision (which contained his enrolment history) and he conceded that he had been enrolled in those courses. The applicant had the opportunity to provide evidence about these enrolments and, in fact, did so. He explained that he had enrolled in a course on the advice of his migration agent and that he did not continue in another course because it did not “suit him”.

29. The information and materials that the Tribunal considered when assessing the applicant’s personal ties to India and his previous study were entirely relevant. Further, the Tribunal’s findings and consideration of these materials was entirely sound.

30. In relation to the applicant’s personal ties, the Tribunal recognised that the inconsistent information provided had made it difficult to assess the extent of these ties. However, giving the applicant the benefit, the Tribunal accepted that on any view the applicant would have responsibilities to his mother. The Tribunal then assessed the extent of those responsibilities and, noting that the applicant’s mother was in good health and that the applicant had been in Australia for four years, found that these ties were not “significant”. It was entirely open for the Tribunal to come to this conclusion. The Tribunal did not deny that the applicant had ties to India.  However, the significance of those ties (which was the relevant consideration as per Direction 69) was not demonstrated by the materials that were before the Tribunal. That was a finding open to be made.

31. To the extent that the applicant may be taking issue with the fact that the Tribunal noted “confusion” about the number of brothers the applicant has and their whereabouts and is now suggesting this was irrelevant, no error arises in this regard. The Tribunal expressly stated that it placed no weight on “the confusion” (or inconsistency).

32. In relation to the applicant’s previous enrolments and study history, it is noted that the delegate also made reference to this. At no time did the applicant argue to the Tribunal that the study history was not relevant. In fact, the applicant himself referenced his study history and provided explanations for many of the courses. If any of the information addressed was “irrelevant”, the applicant ought to have told the Tribunal this was the case. He did not do so.

33. The Tribunal did not take into account any irrelevant materials or irrelevant considerations.

34. Ground 1 is dismissed.

    Ground 2

35. The crux of ground 2 is detailed in the fourth paragraph of the applicant’s affidavit as follows:

    The decision maker failed to consider the applicant’s claims where he informed the AAT of all his siblings work and locations, also regarding proof of the applicant’s future plans, he was not asked to provide additional information/ evidence in support of his claims.

36. The applicant argues that the Tribunal failed to consider the information that he provided about the “work location of his siblings”.

37. The Tribunal states:

    16. The number of siblings the applicant has is not clear. In his response to the Request for Student Visa Information form, the applicant has given the details of one brother, who he says lives in India. However, at the hearing before the Tribunal, the applicant told the Tribunal that he has two brothers, both of whom are studying overseas. In his original application for the visa, the refusal of which is subject to this review, he said he has 2 brothers, both of whom were, at least at that stage, in the United Arab Emirates. He said at the Tribunal hearing that his mother remains in India alone. While the Tribunal does not place any weight on this confusion, as it does not affect the determinations the Tribunal must make, the conflicting information has made it difficult for the Tribunal to assess the applicant’s family circumstances.

38. The Tribunal further states:

    28. The applicant has provided contradictory information to the Tribunal about his circumstances, work prospects and his intentions. While the form he completed as a response to the Request for Student Visa Information says that his mother and brother remain in India, he told the Tribunal that his brother lives in Dubai and he’s a supervisor in a labour supply company there…

    29. The Tribunal accepts that having brothers or other family members in another country may be an incentive to leave Australia and work with them when he has finished his education. The Tribunal places a small amount of weight on those plans in favour of the applicant…

39. Despite confusion, the Tribunal appears to have accepted that the applicant had two brothers. It also referred to one brother having a role as supervisor in a labour supply company in the Middle East.

40. It is unclear what “claim” the Tribunal has not considered.

41. The Tribunal accepted that the applicant had brothers and that this might be an incentive for the applicant to leave Australia (because he might want to work with them – whether that would be in India or the Middle East). This weighed in favour of the applicant.

42. On the evidence before the Court it cannot be said that the Tribunal failed to consider the applicant’s claims about his brothers. The Tribunal was, perhaps, “confused” by the claims in light of the contradictory information before it but any confusion in this regard was ultimately irrelevant. The Tribunal accepted that the applicant had brothers and that this might provide an “incentive to return”.

43. There was no failure to consider the applicant’s claims “where he informed the AAT of all his siblings work and locations”.

1. Further, it was for the applicant to provide the evidence and information necessary to support his claims: Abebe v The Commonwealth [1999] HCA 14. It was not for the Tribunal to ask the applicant for more information or to identify gaps and deficiencies in the evidence.

2. Accordingly, any suggestion that there was “an error” on the basis that the Tribunal did not ask the applicant to provide additional information or evidence about his future plans is rejected.

3. Ground 2 is, accordingly, dismissed.

   Ground 3

4. By ground 3, the applicant claims that the decision was “unreasonable” as:

   The decision maker was unreasonable in dealing with his claims in relation to his employability in Middle East, and the tribunal was unreasonable assessing his plans to work in different countries after completion of his course. The decision maker was unreasonable in assessing the value of Australian qualification in India and how it would increase the applicant employability.

5. It is well-accepted, as the Minister notes in his written submissions, that the threshold for unreasonableness is high. The decision or finding made must be one which no reasonable decision-maker could have come to in the same circumstances. It is not sufficient for there to simply be disagreement with the Tribunal’s findings.

6. The passages in the Tribunal’s decision that the applicant appears to take issue with provide as follows:

   30. No matter what the applicant’s actual intentions, the applicant did not provide to the Tribunal any further information about his prospects, his intentions in relation to future employment or running a business, or where that would be. The Tribunal does not have before it anything that indicates that the applicant has made any inquiries or performed any research on his ability to work in the Middle East or given any indication of practically how he intends to go about opening up a shop anywhere or obtaining employment anywhere. The applicant’s goals for the future were vague and unspecific. If the Tribunal can be satisfied that the course being undertaken, or proposed, has value or relevance to an applicant’s past or proposed future employment, either in their home country or a third country, the Tribunal can attribute weight in favour of the applicant that they are a genuine temporary entrant for study. In the present case, as has been set out, the Tribunal cannot be satisfied that any leadership or management course has any relevance or value to the applicant’s proposed future employment, or his running a business, in any country. Accordingly, the Tribunal can give no weight in favour of the applicant to this factor.

   31. On the contrary, the lack of any real planned progression to employment in these circumstances suggests that the applicant is using the Student visa regime to maintain ongoing residence in Australia, and this weighs against him being granted a Student visa.

   32. The applicant has not provided any information to the Tribunal by which it can make a comparison between the applicant’s potential circumstances in India should he return with any qualifications from Australia, or his potential circumstances in the Middle East, should he go there with qualifications from Australia. While the Tribunal accepts that any qualification from an Australian university or college may assist a person in India gaining employment, without anything further in relation to the applicant’s intended prospects of employment, whether he does in fact intend to open his own business and where, or a comparison of likely salaries and conditions, the Tribunal can place no weight on the applicant having any reason to complete a further qualification in Australia, other than a very small amount of weight on a general finding that a qualification for anyone from India obtained in Australia will have a general benefit when they return home.

7. There was nothing unreasonable about the Tribunal’s consideration of the applicant’s employability in the Middle East, its assessment of his plans to work in different countries after completion of his course and its assessment of the value of an Australian qualification in India and how it would increase the applicant’s employment prospects.

8. Relevantly:

   (a)the Tribunal could not assess the applicant’s employability in the Middle East (just as it could not assess his employability in India) as the applicant had provided no information about what business, companies or industries the applicant would like to work in or the steps he has already taken to enquire about or secure employment (at [27]);

   (b)the Tribunal did, in fact, accept that the applicant was entitled to keep his plans open in deciding whether he wishes to return to India to seek work or travel to another country such as the Middle East. It placed no weight against the applicant simply because he wanted to work in different countries after he completed his course (at [29]); and

   (c)the Tribunal could only attach minimal weight to the value of an Australian qualification in increasing the applicant’s employability as the applicant had provided no evidence or information to the Tribunal about what his intended employment would actually be (at [32]).

9. Here, there was a lack of any clear indication of what the applicant’s future plans actually were. In the absence of any clear intentions, the Tribunal could not properly assess the applicant’s employability in India or the Middle East.

10. The Tribunal did not “act unreasonably”. It came to logical conclusions and findings based upon the information (and lack of information) before it.

11. Ground 3 is, accordingly, dismissed.

    Written Submissions

12. The applicant’s written submissions filed on 10 February 2021 and 12 February 2021 do not identify any jurisdictional error. The Court notes that the content of the submissions filed on each date is identical.

13. The first 11 dot points recount factual matters that occurred prior to the Tribunal’s decision. Largely, those matters appeal to the merits of the visa application and explain why the applicant enrolled in courses and why he did not complete some courses. The Court has no jurisdiction in relation to the merits and they do not assist the applicant on judicial review.

14. The final five dot points also do not identify jurisdictional error. Again they relate to the merits of the applicant’s visa application. They explain that there have been “lots of changes to the applicant’s family” and note that his visa refusal has caused troubles.

15. Even if the Court accepts the applicant’s statements that he is confident and ready to complete his studies and will then return to India, this provides no assistance to him in the context of the review application before this Court. The applicant’s statements do not identify any jurisdictional error in the Tribunal’s decision.

16. The applicant’s written submissions filed 10 February 2021 and 12 February 2021 fail to identify any jurisdictional error.

    Oral Submissions

17. In oral submissions, the applicant stated that the Tribunal asked him about a confirmation of enrolment.  He also explained that, despite his best efforts, he could not gain a confirmation of enrolment as he did not have a valid visa.

18. Critically, at no time did the applicant indicate to the Tribunal that he had not obtained a confirmation of enrolment because he was having difficulty doing so without a valid visa. Rather, the first applicant chose not to commence the course he was enrolled in as “he did not want to do so and then be unable to complete the course because the visa was refused”. The applicant also advised the Tribunal that he had not made inquiries about enrolling in a course until, relevantly, the Tribunal prompted him to do so.

19. In circumstances where the applicant never told the Tribunal that the “gap” in his studies or “the period without an enrolment” arose because “he could not enrol”, it cannot be said that that the Tribunal erred by failing to consider that information.

20. The applicant also stated that the Tribunal told him that it would take two to three weeks for a decision and instead it took seven months. There is no evidence that the applicant was told that a decision would be made within two to three weeks. In any event, even if that was the case, there is no set period within which the Tribunal must make a decision.

21. Further, there is nothing to suggest that the “delay of seven months” had any effect on the Tribunal’s decision. The Tribunal made no credibility findings based on the applicant’s demeanour. The Tribunal noted inconsistencies between the information before it and a lack of specifics in that information. It cannot be said that a delay of this sort had any effect on the Tribunal’s determinations in this regard.

22. Accordingly, to the extent that the applicant is alleging that the delay between the hearing and the decision gave rise to jurisdictional error of some sort, the Court rejects this argument.

23. Finally, the applicant advised the Court that “many of his colleagues have changed courses (which was one of the reasons that the Tribunal did not consider him a genuine student) and that they were granted a visa”. This strikes the applicant as unfair given that he has been denied a visa in similar circumstances.

24. Different decision-makers come to different conclusions. Each case is fact specific. While the applicant may consider it unfair that others he believes were in similar circumstances to him were granted a visa and he was not, the Tribunal’s decision is entirely sound. The Tribunals reasons are logical and intelligible.  They forensically detail why the Tribunal was not satisfied that the applicant was a genuine temporary entrant.

25. Overall, the reasons Tribunals were “sufficient unto the day”: Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [7].

26. The applicant’s oral submissions do not identify any jurisdictional error.

    CONCLUSION

27. The applicant’s application for judicial review, his written submissions and his oral submissions to the Court have failed to identify any jurisdictional error. The Court has otherwise been unable to identify any error.

28. The application is, accordingly, dismissed.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       30 March 2021