Pandit v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1404
•18 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pandit v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1404
File number(s): SYG 2793 of 2020 Judgment of: JUDGE DOUST Date of judgment: 18 December 2024 Catchwords: MIGRATION — judicial review — student visa — Ministerial Direction No. 69 — genuine temporary entrant criterion — procedural fairness — jurisdictional error not established — application dismissed Legislation: MigrationAct 1958 (Cth) ss 474, 476, 477
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of last submissions: 12 December 2024 Date of hearing: 12 December 2024 Place: Sydney The Applicant: In person Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
SYG 2793 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHEELAM PANDIT
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
18 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The Application lodged on 8 December 2020 and filed on 10 December 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DOUST:
BACKGROUND TO APPLICATION TO THE COURT
The applicant commenced the present application (Application) on 10 December 2020 seeking an order that the respondents, the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now Minister for Immigration and Multicultural Affairs (Minister) and the (then) Administrative Appeals Tribunal, now Administrative Review Tribunal (Tribunal) show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958 (Act).
The applicant filed an affidavit in support of the Application, annexing a copy of the decision of the Tribunal the subject of the Application.
The Application purports to proceed in respect of decisions of:
(a)the Tribunal made on 8 November 2020; and
(b)the Minister’s delegate (delegate) made on 13 February 2019
To the extent the Application invokes this Court’s jurisdiction pursuant to s 476 of the Act in respect of the Tribunal decision it has been made within the time specified in s 477 (1) of the Act.
The Application is well outside that 35-day period specified in s 477 of the Act to the extent it seeks to challenge the decision of the delegate. An order extending time would not avail the applicant however, as there is a more fundamental problem; so far as it challenges the decision of the delegate the application seeks to challenge a “primary decision” within the meaning of that term in section 476(4) of the Act. The delegate’s decision to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa), was a “privative clause decision” (within the meaning of that term in section 474 of the Act), which was reviewable by the Tribunal by application under Part 5 of the Act. As such, this Court has no jurisdiction in respect of it pursuant to section 476(2)(a) of the Act.
On 6 August 2024 a registrar of this Court ordered the application be adjourned for final hearing on a date to be advised, and directed the applicant to file and serve any amended application giving proper particulars of the grounds of the application along with any affidavit evidence and written submissions, on or before 21 August 2024.
The applicant has not filed and served any such application, affidavit evidence or written submissions.
On 24 March 2021 the Minister’s lawyers filed with the court a Court Book (CB) containing relevant documents held by the Department of Home Affairs (Department) concerning the applicant’s visa application. The CB was received into evidence with the consent of the applicant.
On 3 September 2024 the Minister filed written submissions. The applicant did not file any written submission, nor seek to hand up any such submission at the hearing.
THE APPLICANT’S VISA APPLICATION
The applicant, born 15 June 1971 is a citizen of India. She holds a Bachelor of Arts from Punjab University.
The applicant’s visa application stated that she was a private tutor in her usual country of residence and had worked for almost 8 years in that capacity from April 2010 to February 2018.
The applicant applied for a student visa on 10 December 2018, having entered Australia on 18 May 2018 and remained in Australia thereafter on a visitor visa. The applicant’s application recorded that she had entered and remained in Australia on 12 occasions previously between 2008 and 2018. On most occasions she remained for several months. In some instances, her visits to Australia were separated by a brief stay in another country in the region.
The applicant’s application disclosed that she was enrolled in an English language course, and her application was supported by a statement in which the applicant claimed that further studies in Australia would assist her to refine her fluency in the language, which language skills she utilised in her work as a private tutor.
THE DECISION OF THE DELEGATE
On 13 February 2019 the delegate wrote to the applicant, via an email directed to her nominated migration agent advising the applicant that her application for the visa had been refused.
The Decision Record attached with the letter recorded the delegate’s view that clause 500.212 in Schedule 2 of the Migration Regulations was not satisfied. That clause, known as the genuine temporary entrant criterion, provides as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor-the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The delegate referred to Ministerial Direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Direction) as setting out the factors that must be taken into account when assessing the genuine temporary entrant criterion for student visa applications. The delegate noted that the direction is made in accordance with section 499 of the Act. The delegate set out a summary of the factors to be considered, which included, inter alia:
(a)the applicant’s circumstances in their home country;
(b)the applicant’s potential circumstances in Australia;
(c)the value of the course to the applicant’s future; and
(d)the applicant’s immigration history.
The delegate went on to consider those factors.
He noted, in respect of the applicant’s circumstances in her home country, the applicant’s stated age and Bachelor of Arts degree. However, he noted that the applicant had not provided any evidence of that study or any further study, nor had she provided any evidence of her employment or any self-employment. Whilst the delegate noted that the applicant’s parents resided in India, the applicant also had siblings living in Australia. The delegate concluded that the applicant’s parents in India did not constitute a strong incentive for the applicant to return home at the completion of the proposed study.
The delegate then considered the applicant’s potential circumstances in Australia, noting that the applicant had not provided specific information about her proposed education provider or details of the proposed course, nor had the applicant provided any evidence about having researched potential providers in her home country. He concluded the applicant did not show the level of knowledge he would have expected about her educational direction. He considered the presence of the applicant’s brother and sister living in Australia were strong personal ties that may serve as an incentive for the applicant to remain in Australia at the completion of her proposed course.
The delegate was not satisfied that the applicant had demonstrated that undertaking the proposed study would enhance her career prospects as a private teacher. The delegate noted that the applicant had not provided information about proposed improvements to her teaching business or any business plan showing how her proposed Australian studies linked to her career ambitions. The delegate was not satisfied that the applicant had demonstrated the value of the proposed course to her future.
Finally, the delegate considered the applicant’s immigration history. Whilst noting that the applicant had complied with the terms of past visas, the delegate also observed that the applicant, since her initial arrival in Australia in 2008 had spent some 1,446 days onshore and a total of 1,998 days outside of Australia. The delegate said that raised concerns that the applicant was applying for a student visa to maintain ongoing residency in Australia.
THE REVIEW BY THE TRIBUNAL
The applicant lodged her application for review by the Tribunal on 4 March 2019. She nominated a migration agent as her representative in respect of that application.
On 17 April 2020, the Tribunal wrote to the applicant’s migration agent with an invitation to provide information concerning the application.
The invitation was contained in an attached letter which stated that it was a requirement of the visa for the applicant to be both:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
The letter advised the applicant that she would need to provide sufficient information to satisfy the Tribunal that she met both of those visa requirements and invited her to give, in writing, all relevant information about the course of study she was undertaking and about her entry and stay in Australia as the student. The invitation directed her to provide specific details about the information requested by accessing the Request for Student Visa Information form, to which it provided a link. The invitation also provided the applicant with a copy of the Direction. The invitation requested the applicant to provide the information by 1 May 2020.
On 23 April 2020 the applicant nominated a new representative.
On 29 April 2020, in response to an application by the applicant, the Tribunal agreed to grant the applicant an extension of time to provide information in response to its invitation. The Tribunal advised that the information was to be provided by 28 May 2020.
The applicant provided a completed Request for Student Visa Information form to the Tribunal.
In the form, the applicant indicated that she did not consent to the Tribunal deciding the review without holding a hearing. The applicant also provided details of the educational institutions at which she had enrolled to study English, being that Duke College and AIBT. The applicant stated that similar courses were not available in her home country as English is the second language in India and it is not taught by native speakers.
The applicant also stated that she had jewellery to the value of $20,000, property to the value of $100,000, and a fixed deposit in the sum of $20,000 all of which were located in India.
In the section of the form concerning her future plans, the applicant stated that she had realised that many students wish to come to Australia to study but were unable to do so as they could not meet the English language requirements. She said that she planned to expand her tutoring service to include IELTS/PTE coaching and that her study in Australia would give her an advantage in growing her business. She set out a calculation as to how she could generate gross revenue of approximately $72,000 in a year by running 3 batches of 20 students each paying INR 5000 per month.
On 1 October 2020 the Tribunal wrote to the applicant’s migration agent advising of an invitation to the applicant to attend a hearing on 23 October 2020.
On 20 October 2020 the applicant’s migration agent sent documents to the Tribunal, mainly, written submissions attaching a number of documents. They included a two page “GTE statement” (genuine temporary entry statement) from the applicant.
The Tribunal held a hearing of the application by telephone on 23 October 2020.
On 10 November 2020 the Tribunal wrote to the applicant’s migration agent enclosing a copy of a letter to the applicant advising of the Tribunal’s decision affirming the decision under review. That letter enclosed a decision record dated 8 November 2020.
THE TRIBUNAL’S REASONS
The Tribunal concluded, having regard to the applicant’s evidence that the applicant’s family ties in India did not of themselves present a significant incentive for the applicant to return to India. The Tribunal placed significant weight on the fact that the applicant had been travelling between India and Australia for 12 years, and that since she last saw her mother in India in December 2019 she had managed to keep in contact with her via electronic means. The Tribunal took into account the fact that the applicant resided with her sister and brother who are both Australian citizens.
The Tribunal concluded that when all the evidence was considered, on balance, the applicant’s family ties to Australia presented a significant incentive for the applicant to remain in Australia. The Tribunal took into account the fact that the applicant had lived with her sister and brother in Australia whenever she had been in Australia, and they supported her financially.
The Tribunal noted that there had been a gap in the applicant’s study in the period between April 2019 and June 2020. The Tribunal did not accept the applicant’s explanation for the gap in her studies, namely that she had been told by her previous migration agent that she could only study for three months. The Tribunal did not accept that explanation given that the applicant in fact re-enrolled in study in June 2020 and had continued to study since that time.
The Tribunal noted that the applicant had submitted a letter of offer dated 15 October 2020 from the Samarya Overseas Study Visa Consultants for a position as IELTS English tutor commencing on 1 July 2021. The Tribunal went on to observe that the offer was for a position where she would earn $5880 per year. The Tribunal queried why the applicant would take a job where she would be earning less than the $20,000 per year that she was earning before she left India.
The Tribunal took into account the applicant’s immigration history, noting that she had initially planned to undertake an English course that would conclude in January 2020 but now intended to extend her stay in Australia to 2 April 2021. The Tribunal noted that the applicant had been travelling back and forth between India and Australia for a period of 12 years and had been granted eight visitor visas. It noted that in the past the applicant had extended her visitor visa to support her sister with some mental health issues.
The Tribunal was ultimately not satisfied that the applicant intended genuinely to stay in Australia temporarily because:
(a)the applicant's family ties to India did not of themselves constitute a strong incentive for the applicant to return to India;
(b)the applicant's family ties to Australia constituted a strong incentive for the applicant to remain in Australia;
(c)it did not accept the applicant’s explanation for the gap in study between April 2019 and June 2020;
(d)the applicant expected to earn less when she returns to India than before she left;
(e)the applicant was originally planning to undertake an English Course that would conclude in January 2020, but now intended to extend her stay in Australia to April 2021; and
(f)the applicant had been travelling back and forth between India and Australia for a period of 12 years and was granted eight visitor visas before she applied for a student visa.
The Tribunal found that the applicant did not meet the criteria for the grant of a student visa, and affirmed the decision under review.
GROUNDS OF APPLICATION TO THE COURT
The applicant’s application sets out the following under the heading “Grounds of application”: (without alteration)
Procedural Fairness
1. The Department and Tribunal denied procedural fairness to the Applicant
Particulars
Department
a) Department did not give an opportunity to the applicant to provide evidence of her study from her home country.
b) Department did not consider GTE statement provided by the applicant where she mentioned that she has plans to go back to her home country to open her own coaching centre.
c) Department did not consider GTE statement provided by the applicant where she mentioned that a qualification from Australia would be an advantage in her professional career or business plan.
d) Department failed to consider that the applicant was assisted by a migration agent who failed to advise her to provide a business plan to support her student visa application.
e) Department failed to consider that applicant have been living permanently in her home country and only visiting Australia to spend time with her siblings and fully complied with all of her visa conditions in all of her visits to Australia.
Tribunal
a) Applicant highlighted above points in her submission to AAT and in her phone appearance on 23rd Oct 2020.
b) Tribunal failed to consider the GTE statement submitted to department where applicant indicated that she wishes to do complete this English language course which would help her advance her career in India as a private tutor and that a qualification from Australia carries a tactical advantage in pursuing her business plans in the same field in India.
c) Applicant informed tribunal that she was misled by her previous agent that in view of refusal of her student visa application that she could not continue studies. Applicant informed that she genuinely wishes to complete the English course and evidence of new COE was not to extend her stay in Australia. Tribunal failed to consider the genuine reasons for gap in her studies.
d) Applicant is a citizen of India. She has been living permanently in India and visited Australia often to spend some time with her siblings. Applicant is entitled to inherit a substantial amount of real estate property in India. Tribunal failed to consider Applicant's strong connection to her home country and that she clearly expressed intentions to complete the course and go back to India with an Australian qualification.
e) Tribunal failed to consider that applicant could not obtain the return tickets to India in the current Covid 19 pandemic.
f) Tribunal failed to consider that applicant could not have prepared a written business plan in the uncertainty where she did not know whether she was going to be granted the student visa.
g) Tribunal failed to provide an opportunity to the applicant to furnish a business plan for their consideration before making their decision.
h) Tribunal failed to consider that the low pay in her new job offer in India was due to the fresh start in her coaching career post Australian qualification in a new field.
i) Tribunal failed to consider applicant's immigration history where she has visited Australia on eight separate occasions and always complied with all conditions.
j) Tribunal failed to consider that the application for Student visa was for the duration of one year only and not an attempt to extend her stay permanently.
Thereby Department and Tribunal erred in its decision by failing to afford procedural fairness to the applicant.
ATTEMPT TO CHALLENGE PRIMARY DECISION
So far as the applicant seeks to challenge the decision of the delegate, which challenge appears from particulars (a) to (e) of Ground 1 under the heading “Department”, the application is in respect of a “primary decision” within the meaning of that term in section 476(4) of the Act. The decision of the delegate to refuse to grant the applicant a student visa, was a “privative clause decision” within the meaning of that term in section 474. That decision was reviewable by the Tribunal by an application under Part 5 of the Act (which review right the applicant exercised). As such, this Court has no jurisdiction in respect of that decision: section 476(2)(a).
The applicant is, of course, entitled to challenge the decision of the Tribunal. The Court must consider that decision.
ALLEGED ERRORS IN TRIBUNAL DECISION
In dealing with the present application, the Court does not undertake a review of the Tribunal decision on its merits. Instead, the Court may only intervene where the decision of the Tribunal involves “jurisdictional error”.
Although the application appears to advance only one ground, namely denial of procedural fairness (by both the Department and the Tribunal), that ground is elaborated, in respect of the Tribunal, by a series of particulars. Once the particulars are considered, it is apparent that many of the matters being advanced by the applicant are that the Tribunal failed to give weight to the matters she raised, or to accept her arguments, and do not reveal any failures of procedure.
The High Court considered the Tribunal’s procedural fairness obligations in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 [29], citing Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 (Alphaone) at 591‑592 as follows:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question (emphasis added).
The High Court went on at [32] as follows:
In Alphaone the Full Court rightly said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material (emphasis added).
The applicant was afforded an opportunity to provide submissions and evidence to the decision‑maker in a context where the decision from which she sought review clearly identified that the applicant had not demonstrated that she satisfied the genuine temporary entrant criteria. That decision also directed the applicant’s attention to the Direction. The applicant’s particulars do not identify any failure by the Tribunal to afford her procedural fairness, rather they convey disagreement with the Tribunal’s conclusions and invite the Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The weight to be given to the various pieces of evidence was a matter for the Tribunal and it is not the role of this Court, on review, to undertake that process itself: Tran v Minister for Immigration and Multicultural and Indigenous Affairs (Tran) [2004] FCAFC 297 at [5]-[7]. As cited in Tran, in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79], Allsop J (with whom Heerey J agreed) stated:
A failure expressly to mention or grapple with part of the competing body of
evidence before the Tribunal relevant to a finding made where the claim has
been addressed is not a jurisdictional error constituted by a failure to take into account a relevant consideration.The applicant’s particulars in respect of the Tribunal’s decision are dealt with in turn below.
a)Applicant highlighted above points in her submission to AAT and in her phone appearance on 23rd Oct 2020.
Particular (a) appears as a preamble to later particulars and does not of itself illustrate any error by the Tribunal.
b) Tribunal failed to consider the GTE statement submitted to department where applicant indicated that she wishes to do (sic) complete this English language course which would help her advance her career in India as a private tutor and that a qualification from Australia carries a tactical advantage in pursuing her business plans in the same field in India.
By this particular, the applicant does not identify any want of procedural fairness. Rather, the applicant alleges a failure by the Tribunal to consider relevant evidence.
This ground is not made out. On a fair reading of the decision, the Tribunal did not fail to give consideration to the applicant’s claims that the course she proposed to study would advance her career in India as a private tutor. From [32] of the decision, the Tribunal records its engagement with the applicant about the value of the courses to her future, and at [34], the Tribunal records that the applicant said that after studying in Australia she will be very good at English and will work initially at a consulting service and then in her own coaching centre.
The Tribunal was not required to refer in terms to the GTE statement, nor was it obliged to accept the applicant’s argument about the utility to her of the course she wished to study. The Tribunal was entitled not to accept that the applicant’s stated plans showed her to be a genuine applicant for entry and stay as a student. It does not follow that because the Tribunal was not persuaded by the applicant that it did not consider her argument.
No jurisdictional error is disclosed by this ground.
c) Applicant informed tribunal that she was misled by her previous agent that in view of refusal of her student visa application that she could not continue studies. Applicant informed that she genuinely wishes to complete the English course and evidence of new COE was not to extend her stay in Australia. Tribunal failed to consider the genuine reasons for gap in her studies.
Again, by this particular, the applicant does not identify any want of procedural fairness. Rather, the applicant alleges a failure by the Tribunal to consider relevant evidence.
There was no failure by the Tribunal to consider the reasons the Applicant proffered for the gap in her studies. It considered the reasons provided by the applicant, however, as is apparent from the Tribunal’s reasons at [31] and [45(c)]), it was not persuaded by the applicant’s explanation that her migration agent had told her that she could only study for three months. The Tribunal’s rejection of that argument was premised on the fact that the applicant re-enrolled for further study in June 2020.
It is not for this Court to consider for itself whether to accept the applicant’s explanation of the gap in her studies. This Court’s role is confined to determining whether there was jurisdictional error in the Tribunal’s review. No jurisdictional error is disclosed by this ground.
d) Applicant is a citizen of India. She has been living permanently in India and visited Australia often to spend some time with her siblings. Applicant is entitled to inherit a substantial amount of real estate property in India. Tribunal failed to consider Applicant's strong connection to her home country and that she clearly expressed intentions to complete the course and go back to India with an Australian qualification.
Again, by this particular, the applicant does not identify any want of procedural fairness. Rather, the applicant alleges a failure by the Tribunal to consider relevant evidence, which argument is advanced from the premise that the applicant made a submission that the Tribunal did not accept.
The Tribunal (at [43]) accepted the applicant’s evidence that she was to inherit property from her mother in India. Earlier in its decision, however, the Tribunal considered that the applicant’s family ties in India were not sufficient incentive for her to return. The Tribunal placed significant weight on the applicant’s pattern of travel to Australia over 12 years, and the fact that she resided with her Australian citizen siblings.
It was open to the Tribunal, having heard the applicant’s argument about her ties in India, to conclude, having regard to other evidence, that they did not represent a sufficient incentive for her to return. The weight to be given to the applicant’s claims, and the other evidence before the Tribunal was a matter for the Tribunal.
This paragraph does not identify any jurisdictional error which would entitle this Court to grant the relief sought by the applicant.
e) Tribunal failed to consider that applicant could not obtain the return tickets to India in the current Covid 19 pandemic.
Again, by this particular, the applicant does not identify any want of procedural fairness. Rather, the applicant alleges a failure by the Tribunal to consider the claim that she made. That claim is advanced on the basis that the Tribunal did not accept the applicant’s claim.
The Tribunal’s reasons record that it asked the applicant whether she had booked her return ticket to India for when she proposed to return in April 2021, and that the applicant responded that COVID-19 had prevented her from doing so. On a fair reading of the decision, the applicant’s failure to have booked her return ticket was neither dispositive nor of any particular importance. The absence of a return flight booking does not feature in [45] of the decision, where the Tribunal lists the reasons for its concern that the applicant is attempting to use the student visa system to stay in Australia and maintain ongoing residence, and its absence of satisfaction that the applicant genuinely intended to stay in Australia temporarily.
This paragraph does not identify any jurisdictional error which would entitle this Court to grant the relief sought by the applicant.
f) Tribunal failed to consider that applicant could not have prepared a written business plan in the uncertainty where she did not know whether she was going to be granted the student visa.
This ground is lacking in substance.
It is in the nature of a business plan that it is prepared in advance, and is based on assumptions, for example, the availability of finance, premises, materials, appropriately qualified staff, relevant planning or regulatory approvals, or the attraction of clientele or customers. It would not have been impossible for the applicant to have prepared a business plan in circumstances where she did not know whether the visa would be granted.
At [35] of the decision, the Tribunal records its enquiry whether the applicant had a business plan.
The Tribunal was entitled to make that enquiry in the course of evaluating the applicant’s claims about her reasons for undertaking the study. The existence of such a plan may have been regarded as evidence that the applicant’s proposed study plans having been the subject of some serious consideration and analysis. Equally, the Tribunal was entitled to regard the absence of such a plan as reflecting a want of such consideration. In the event, the absence of such plan was not dispositive in the Tribunal’s reasons. That factor did not feature in [45] of the Tribunal’s decision, where it set out the reasons that preceded its conclusion that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily.
This paragraph does not identify any jurisdictional error which would entitle this Court to grant the relief sought by the applicant.
g) Tribunal failed to provide an opportunity to the applicant to furnish a business plan for their consideration before making their decision.
This ground is lacking in substance.
In the primary decision, the delegate stated as follows:
The applicant however, has provided no further information about their proposed improvements to their self employed teaching business or a detailed business plan to show how their Australian studies link into their business career ambitions. The applicant has not referred to specific outcomes that will improve their own situation to enable them to achieve their career goals. I have noted that the applicant has failed to give strong reasons to satisfy me that their study plan in Australia will assist them to obtain employment or to implement changes to make their business more successful in their home country in the future. Therefore, I am not satisfied that they have demonstrated the value of your proposed courses to their future.
The applicant was on notice that her claims that the course of study would advance her career ambitions were in issue. In the GTE statement the applicant provided to the Tribunal, she stated:
…I am now planning to invest money in opening an advanced coaching center where not just primary student but secondary students tutoring will be offered too. I also have plans to employ some young tutors to flourish this business.
The applicant exercised her right to have a hearing of the Tribunal. She had an opportunity to provide a business plan to the Tribunal. The Tribunal was not obliged, in those circumstances to give the applicant a further opportunity to prepare a business plan.
This paragraph does not identify any jurisdictional error which would entitle this Court to grant the relief sought by the applicant.
h) Tribunal failed to consider that the low pay in her new job offer in India was due to the fresh start in her coaching career post Australian qualification in a new field.
The Tribunal did not fail to consider the applicant’s argument as to why she was prepared to take a role that would pay her less than what she had earnt before she left India. The Tribunal records (at [38]) that it asked the applicant why she would take such a job, and that she replied that it would be her first job after undertaking her study and that she would be promoted. The Tribunal referred to that matter at [45] as being among the reasons that gave it concern the applicant was attempting to use the student visa to maintain residence in Australia.
The applicant repeated her explanation for why she was prepared to enter into less remunerative employment at the hearing in this Court.
It is not this Court’s role to determine whether or not to accept the applicant’s explanation for why she was prepared to accept a role paying significantly less than she had previously earned.
The circumstance the applicant presented, of wanting to undertake a course which would lead to substantially less remunerative work than she had previously undertaken, was a matter that the Tribunal was entitled to query. Having done so, it was then open to the Tribunal to either be persuaded by the applicant’s explanation for that course, or to not be persuaded.
This paragraph does not identify any jurisdictional error which would entitle this Court to grant the relief sought by the applicant.
i) Tribunal failed to consider applicant's immigration history where she has visited Australia on eight separate occasions and always complied with all conditions.
It is apparent from the Tribunal’s reasons that it had the applicant’s immigration history in Australia before it. That history was set out in the applicant’s visa application. It included the applicant’s response to the question: Has the applicant, or any person included in this application, ever been in Australia or any other country and not complied with visa conditions or departed outside their authorised period of stay? The applicant answered the question “No.”
Whilst the Tribunal did not expressly note the applicant’s prior compliance with her visa conditions, it did not suggest there had been any non-compliance by her. It is fair to expect that had the Tribunal formed the view that the applicant had failed to comply with the conditions of any of her visas, that would have been clearly stated in its reasons. I am satisfied that the Tribunal proceeded on the basis of a proper understanding of the facts in this regard.
There was no error in failing to expressly mention the applicant’s previous compliance with her visa conditions in the Tribunal’s reasons. The requirement of clause 500.212 is that the applicant is a genuine applicant for entry and stay as a student because, first (as set out in clause 500.212(a)), the applicant intends genuinely to stay in Australia temporarily, having regard to the matters set out at clause 500.212(a)(i) to (iv), and second, that the applicant intends to comply with any conditions subject to which the visa was granted (as set out in clause 500.212(b)) having regard to the matters set out in clause 500.212(b)(i) and (ii).
The Tribunal was entitled to form the view, even in circumstances of a compliant immigration history, that the applicant was seeking to obtain the visa to maintain ongoing residence. That conclusion was open to the Tribunal, notwithstanding her previous compliance with her visa conditions, given the fact that the applicant had spent a very substantial portion of the years prior to the application inside the country as a visitor. The Tribunal was not only considering whether the applicant would overstay any visa; rather, it was considering whether her real purpose in seeking the visa was to stay temporarily to engage in study, or whether it was to extend a long period of extended stays, and in effect to maintain residence in Australia. It was for the Tribunal, as part of its fact-finding function, to identify such evidence as it finds relevant to its reasoning and to give it appropriate weight.
Once the Tribunal had reached a conclusion adverse to the applicant in respect of the requirement in clause 500.212(a), the applicant was not capable of satisfying the requirement of clause 500.212, as both sub-clauses (a) and (b) were required to be satisfied for the criterion to be met.
There was no jurisdictional error by the Tribunal in failing to expressly mention the applicant’s history of compliance.
j) Tribunal failed to consider that the application for Student visa was for the duration of one year only and not an attempt to extend her stay permanently.
Thereby Department and Tribunal erred in its decision by failing to afford procedural fairness to the applicant.
Although the fact that the student visa was for a limited period was not stated expressly by the Tribunal, there is no reasonable basis to think that the Tribunal did not understand that to be the case.
So far as this particular refers to the Tribunal’s failure to consider that the visa application was not an attempt to extend her stay permanently, it employs circular reasoning. By its nature the visa being sought by the applicant was for a finite period. Clause 500.212 required the decision-maker to consider whether, in seeking such visa, the applicant was genuine. The fact that the visa itself is temporary is a feature of the application, and does not of itself militate in favour of an applicant’s bona fides in making such application. Those bona fides fall to be assessed by reference to other considerations. In this case, the Tribunal reached a conclusion adverse to the applicant having regard to her long history of stays in Australia over many years, and its view that the applicant’s account about her purpose in undertaking the study and her plans about returning to India were unpersuasive.
The Tribunal was not required to give weight to the fact that the visa was a temporary one, and there was no jurisdictional error in it not having expressly named that as a consideration militating in the applicant’s favour in its consideration.
CONCLUSION
As I have not been persuaded that the Tribunal decision involved any jurisdictional error that would empower this Court to intervene, the Application should be dismissed.
I will hear the parties as to costs.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 18 December 2024
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