Patel v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 311
•10 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 311
File number(s): SYG 2625 of 2020 Judgment of: JUDGE ELDERSHAW Date of judgment: 10 March 2025 Catchwords: MIGRATION – Student visa – Impermissible merits review – Unparticularised grounds – Application dismissed Legislation: Migration Act 1958 (Cth), ss 474, 476
Migration Regulations 1994 (Cth), cl 500 sch 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Jordan (a pseudonym) v Secretary of Department of Home Affairs (No 2) [2024] FedCFamC2G 1315
Kumar v Minister for Immigration and Border Protection and Another (2020) 274 FCR 646
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 236 FCR 593
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: General Number of paragraphs: 59 Date of hearing: 10 February 2025 Place: Sydney Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr M. Gao (HWL Ebsworth) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2625 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAYESHKUMAR MAHESHBHAI PATEL
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
10 MARCH 2025
THE COURT ORDERS THAT:
1.The application filed on 19 November 2020 be dismissed.
2.The applicant must pay the first respondent’s costs and disbursements of and incidental to these proceedings, fixed in the sum of $5,600.
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 ELDERSHAW
INTRODUCTION
This is an application for judicial review made under s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the Administrative Appeals Tribunal (Tribunal) dated 29 October 2020 (Decision) concerning an application for a Student (Temporary) (Class TU) Student (subclass 500) visa (Student Visa).
The applicant seeks that the Tribunal’s Decision be quashed and a writ of mandamus directed to the Tribunal requiring it to determine the applicant’s application according to law. The applicant also seeks declaratory and injunctive relief, neither of which pertain to this application for judicial review of a decision of the Tribunal concerning a student visa.
The Minister seeks that the application be dismissed with costs.
The applicant, Mr Jayeshkumar Patel, is a citizen of India. He was born on 3 November 1992 and arrived in Australia on 26 February 2017. In these Reasons, “India” and “home country” are synonymous.
On 12 March 2019, the applicant applied to the Department of Home Affairs (Department) for a Student Visa. On 27 May 2019, the applicant’s application was refused by a delegate (Delegate) of the First Respondent (Minister). On 14 June 2019, the applicant applied to the Tribunal for a review of the Delegate’s decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s Decision.
For the reasons which follow, the application will be dismissed with costs.
DOCUMENTS
The Minister filed a Court Book on 21 January 2021, which was admitted into evidence without objection and marked Exhibit R1. The applicant relies on his application and affidavit both of which were lodged on 19 November 2020. The Minister relies on the documents comprising Exhibit R1, his Response lodged 25 November 2020 and written submissions filed 6 May 2021.
LEGAL FRAMEWORK
Clause 500 of sch 2 to the Migration Regulations 1994 (Cth) (Regulations) sets out the criteria for the grant of subclass 500 student visas.
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfies clause 500.212(a), i.e. that he “intends genuinely to stay in Australia temporarily”, the Tribunal is to apply Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications” (Direction). The Direction addresses a number of factors which guide the decision-making process relating to the genuine temporary entrant requirement.
This Court’s power to review the Tribunal’s decision is limited to review for judicial error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The Court is not permitted to undertake a review of the merits of the application for a visa: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
BACKGROUND AND MIGRATION HISTORY
The applicant arrived in Australia on 26 February 2017 for the purpose of studying a Master of Commerce on a student visa. According to the Provider Registration and International Student Management System (PRISMS) record found at page 77 of the Court Book, the applicant completed this degree. The visa relating to that course of study expired in March 2019.
The applicant travelled to India for 41 days in January 2018 for a family visit but has otherwise been in Australia since February 2017.
On 12 March 2019, the applicant applied for the Student Visa that is the subject of this judicial review proceeding. In that application, the applicant identified that he intended to study “Automotive Mechanical”. The PRISMS record identifies that the applicant applied for, but later cancelled, three automotive related courses in 2020, being Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Technology.
On 27 May 2019, the Delegate refused the application for a Student Visa. Paragraph 4 of the Minister’s submissions fairly summarise the Delegate’s decision record, which I adopt:
4. On 27 May 2019, a delegate refused to grant the Applicant a Student visa. In the decision record, the delegate reproduced the genuine temporary entrant criterion in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) and outlined the factors referred to in Ministerial Direction No. 69 (Direction), made pursuant to s 499 of the Migration Act 1958 (Cth) (Act), to which decision-makers must have regard in assessing the genuine temporary entrant criterion. The delegate had regard to a number of factors in assessing the Applicant's circumstances, including the Applicant's previous study and immigration history, his ties to Australia and India, and the Applicant's evidence regarding the value of the proposed courses to his future. The delegate considered that the Applicant had failed to demonstrate the genuineness of the future benefit of the proposed courses of study and that his circumstances presented a significant incentive for him not to return to India. The delegate concluded that the Applicant did not genuinely intend to stay in Australia temporarily and consequently found that he did not meet the requirements of cl 500.212 of the Regulations.
(References omitted)
On 13 June 2019, the applicant lodged an Application with the Tribunal for Review of the Delegate’s decision.
On 7 May 2020, the Tribunal invited the applicant to provide sufficient information to satisfy the Tribunal that he met the requirements that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The letter explained that the Tribunal would have regard to the Direction when considering whether the applicant satisfied the genuine temporary entrant criteria and enclosed a copy of same.
The applicant lodged a Request for Student Visa Information in the approved form (Request). In that document, the applicant stated that he was currently studying a Diploma in Leadership and Management and intended to study an Advanced Diploma of Leadership and Management in the future.
As to why the applicant had chosen the education provider for the courses he was then studying, the applicant said in the Request:
I came to know the difference in education standards between Australia and India Thus, taking advice from my family members, I went on to seek professional advice from education agents who advised me that rather than failing, I could study from vocational courses so as to have foothold of the academic standards here. I thus was offered a place to study Diploma course at AHMI College Sydney Campus.
As to why the applicant was not undertaking the then course of study in India, the applicant said in the Request:
Similar courses are on offer in India as well and at a significantly cheaper fees. However, it is because to get quality education to secure my future, I came to Australia as described before. Courses on offer in India are mostly theoretical and lack continuous updating. This way, the courses on offer in India do not have much relevance to the real world which is just the opposite here. From my own experience, the teaching methodologies, assignment, course contents are much practical and have relevance to real life here. Furthermore, the course contents are modified here as per the needs of dynamic world today. Hence, there are no comparisons among the education system of these two countries. Even though my tuition fees are expensive here, because of the quality, I will have better career prospects in future and that is what really matters. The cost of today can be recouped in future because of higher remuneration and dignified job roles.
In the Request, the applicant stated that his wife, parents and brother resided in India and that he last saw each of them in February 2018, and that he had community ties in Australia and India by undertaking voluntary service at the temple. He denied any military service commitments or political or civil unrest in his home country and answered “No” in response to the question of whether he wished to provide any additional documents to the Tribunal.
As to his future plans, the applicant said in the Request:
As a business student, I am aware that businesses flourish where the economy is rising. As per the general theory of employment, during economic boom, unemployment is at trough and production is at peak. People experience higher purchasing power parity because of higher employment which results in increased spending and thus increased demand. As demand and supply go hands on hand, this will create increase in supply leading to further expansion of the economy. This cycle will continue to expand the economy more and more. This is actually what is happening in India at present. As a business student and as a person already familiarized with the way of life there, where shall I expect a better future than in India? Because of the rise in economy, there has been a lot of foreign direct investments diverted in the form of Multinational Companies in India and it is somewhere I plan to have a career upon return. I am fairly sure that my Australian qualifications (as abroad education is highly favored in India) together with the relevant work experience will help me land a job of my interest.
In the Request, the applicant wrote “NA”, which I understand to mean “Not Applicable”, in relation to the details of remuneration that he expected to receive in his home country or a third country using the qualifications he would gain from the then-current and/or proposed course of study.
On 14 October 2020, the Tribunal invited the applicant to attend a hearing by telephone with the assistance of a Hindi interpreter. The applicant accepted this invitation.
On 22 October 2020, the applicant emailed to the Tribunal a document styled “Genuine Temporary Entrant Statement”, which I have read in full.
On 27 October 2020, the applicant provided to the Tribunal his Overseas Student Confirmation of Enrolment. The currency of enrolment is not in issue.
On 29 October 2020, the applicant attended a hearing at the Tribunal by telephone with the assistance of a Hindi interpreter. The Tribunal affirmed the Delegate’s decision.
THE PROCEEDING IN THIS COURT
On 29 October 2020, the applicant commenced proceedings in this Court alleging one ground of review, namely:
Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached herewith.
CONSIDERATION
Submissions
The applicant’s affidavit states:
3. Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue)
First of all delegate mentioned in decision Record that, "The Tribunal does not have Jurisdiction. Then The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.2 l 2(a). please have a look annexure A .
I hope that I have put forward my position in a simple, clear and honest manner and that you will see that I am not in the breach of cl 500.2 I 2(a) condition.
I sincerely request that you give due consideration to the compelling and compassionate circumstances.
Also please acknowledge that current global circumstances, that being the pandemic of Covid-19, may impact on my ability to depart Australia. May I request you to look into the grounds.
I think I am become a victim of a procedure fairness issue/matter here as Administrative Appeals Tribunal has an error in my decision. This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects.
I have treated paragraph [3] of the applicant’s affidavit as a submission. The applicant provided no other written submissions nor made any oral submissions.
In his written submissions, the Minister says that the applicant does not particularise the “procedural fairness issue” and that:
(a)the Tribunal complied with its statutory obligations under Division 5 of Part 5 of the Act;
(b)the applicant was on notice of the dispositive issues under review as they were the same as were before the Delegate;
(c)the applicant was informed by letter dated 7 May 2020 that he was required to demonstrate that he was a genuine applicant for entry and stay as a student, and had been provided with a copy of the Direction;
(d)the applicant was invited to, and did, attend a hearing before the Tribunal at which time the Tribunal received evidence from the applicant about the dispositive issues; and
(e)the Tribunal gave the applicant a real and meaningful opportunity to participate in the hearing and give evidence in support of his application.
The Minister submits that the applicant’s submission that the Tribunal “must look into all necessary aspects” reflects a misunderstanding of the Tribunal’s role. The Minister submits that the task for the Tribunal was that it should assess whether the applicant intended “genuinely to stay in Australia temporarily” having regard to the matters identified in clause 500.212 (a)(i) to (iv) of the Regulations with the guidance of the Direction.
The Minister further submits that:
19. The choice of weight to be given to the factors for consideration under cl 500.212 and to evidence adduced to satisfy this criterion are matters exclusive to the Tribunal: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; [1986] HCA 40; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]. Further, the Tribunal had no obligation to investigate the Applicant's claims or conduct an inquiry to discover whether the Applicant’s case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 at [36].
20. The First Respondent submits that the Tribunal's reasons demonstrate that it correctly attended to its statutory task in this respect. The Tribunal identified the law and policy which should guide its decision and considered the Applicant's evidence against the factors outlined in Direction No. 69. The Tribunal's reasons indicate that it considered the Applicant's circumstances in his home country, his potential circumstances in Australia, the value of the proposed course to his future and his immigration history.
21. There was limited evidence submitted by the Applicant in support of his application. While the Tribunal did not refer to every matter raised by the Applicant, the First Respondent submits that it can be inferred that the Tribunal did not consider all of the provided material and claims to be relevant to the issue under review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [69]. Further, this is not a case where the Tribunal failed to consider a substantial, clearly articulated argument: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55].
22. Insofar as the Applicant asserts that he was "not in breach" of cl 500.212 of the Regulations, the First Respondent considers that this invites the Court to engage with the Tribunal's factual findings which is, in essence, an attempt at impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 at 491; [1996] HCA 6 (Wu Shan Liang). The Court's jurisdiction extends only to the correction of legal error and the task of fact finding is entrusted to the original decision maker: Wu Shan Liang.
Further contentions raised in the Applicant's Affidavit
23. In his affidavit, the Applicant asks the Court to consider the compelling and compassionate circumstances of his matter and that his ability to depart Australia may be affected by COVID-19. The First Respondent considers that these statements misunderstand the role of the Court.
24. The Applicant also states "the delegate mentioned in decision Record that, "The Tribunal does not have Jurisdiction". The First Respondent considers that it is unclear what the Applicant means by this statement, as the delegate's decision does not comment on the jurisdiction of the Tribunal (nor does the Tribunal's decision).
(References Omitted)
During oral submissions, the Minister’s legal representative identified that the Tribunal considered the matters set out in:
(a)clause 9(a) to (e) of the Direction, as demonstrated by paragraph 17 of its Reasons;
(b)clause 11 of the Direction (to the extent relevant), as demonstrated by paragraphs 21 to 27 of the Tribunal’s Decision; and
(c)clause 12(a) and (b) of the Direction as demonstrated by paragraph 28 of the Tribunal’s Decision. These matters relate to the value of the course to the applicant’s future. The Minister’s legal representative submitted that the Tribunal did not need to consider clause 12(c) of the Direction, being that clause which, in broad terms, addresses remuneration that the applicant could expect to receive from the proposed course of study, because the applicant’s career plans and goals were vague. As such, there was nothing on which to consider future remuneration as envisaged by clause 12(c).
The Minister’s legal representative also submitted that:
(a)although the Tribunal did not consider the matter at clause 10 (as to the applicant’s circumstances in his home country relative to the circumstances of others in that country) of the Direction, nor was it required to do so in the absence of evidence: Kumar v Minister for Immigration and Border Protection and Another (2020) 274 FCR 646 at [108]; and
(b)the effect of the applicant’s ground of review is that he seeks a review of the merits of his student visa application.
Discussion
The applicant’s affidavit contained no more than bare assertions from which no intelligible ground of judicial review emerges. The applicant made no oral submissions to overcome this deficit. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60], upheld WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
If more is required, nothing arises from the material before this Court to suggest that the Tribunal did not consider the review application according to law. It applied the correct statutory provisions, correctly turned its mind to whether the applicant satisfied the “genuine temporary entrant criteria” (the issue of currency of enrolment not being in issue) and applied the Direction as a guide to decision making.
The Tribunal cited an accurate account of the applicant’s entry and visa history, time onshore, and study history. The Tribunal recognised that the applicant provided a “number of documents”, which it considered together with evidence given by the applicant. Although the Tribunal did not enumerate the “number of documents”, the applicant made no express or tacit submission that would cause me to believe that the Tribunal failed to have regard to all of the materials provided to it by the applicant.
It is plain from paragraphs 17 to 20 of its Reasons that the Tribunal had regard to the applicant’s circumstances in his home country, reasons for not studying in India, personal ties to India, and economic circumstances in Australia, and military service and civil/political unrest in India.
At paragraphs 18 to 20 of its Reasons, the Tribunal said:
18. The Tribunal is unable to accept that applicant’s assertion about study in his home country, it is a bare claim made without evidence. The applicant has not provided any specific details establishing benefits to be gained by studying the proposed course in Australia as opposed to studying in his home country considering the financial outlay required to study in Australia.
19. The Tribunal acknowledges that the applicant’s family reside in India, particularly his wife however the Tribunal finds that these family ties do not present as a significant incentive for the applicant to return to his home country in and of themselves, particularly considering that he has never lived with his wife and since the marriage has not been back to visit her. She has not visited him in Australia.
20. The Tribunal finds that the applicant’s potential economic circumstances in Australia as demonstrated by his consistent and ongoing employment outweigh his financial ties to his home country. The Tribunal notes that the applicant has potential interest in family property however does not consider this to be a financial tie that provides an incentive to return to his home country.
Having regard to the background of the matter, the applicant’s claims about studying in India, as set out by him in response to the “Information about current and proposed courses of study” in his Request for Student Visa Information” and his “Genuine Temporary Entrant Statement” dated 22 October 2020, were bare assertions. As such, the finding of the Tribunal at [18] of its Reasons was open to it to be so made. The Tribunal’s findings at [19] and [20] were based on an accurate factual account and also open to be made.
At paragraphs 21 and 22 of its Reasons, the Tribunal considered the applicant’s potential circumstances in Australia.
At paragraphs 23 to 27 of the Reasons, it said:
23. The Tribunal has concerns about the number of different vocational level courses which are not related to each other that the applicant has enrolled in. The Tribunal raised this concern about the changes in study pathways with the applicant and he responded that; he did not have appropriate guidance on his arrival, that he spent his first semester in Perth but then transferred to Sydney. He then learned from a friend that there was opportunity in nursing so got admission to nursing. The college where he was to study nursing closed down which caused him stress and he did not realise what he was doing and so paid the fees and accepted admission into the automotive course. After he obtained some stability, he realised that the automotive course was not for him and so enrolled in the leadership course.
24. The Tribunal accepts that from time to time people will change a study pathway due to a genuine change in a career course or a desire to re-educate. The Tribunal finds however that in the circumstances the applicant’s explanation for the changes is not consistent with the behaviour of a genuine student.
25. The Tribunal understands the difficulty with the education provider closing however the applicant then enrolled in courses in a further two subjects and does not make a further attempt to study nursing. He has done so after being enrolled in business subjects initially and after having competed a business qualification in his home country.
26.The Tribunal considers that the applicant has not demonstrated how these changes in pathway will be beneficial in the future considering his previously obtained qualifications or that they are changes made for a genuine purpose.
27. The Tribunal considers that the applicant has been enrolling in a series of courses not for the primary purpose to study and progress academically but to prolong stay in Australia.
I am satisfied that the findings relating to the applicant’s potential circumstances in Australia arose from the evidence, including the study history set out in the PRISMS record and “Genuine Temporary Entrant Statement” dated 22 October 2020, and were open to be so made.
In the context of the “Value of the course to the applicant’s future”, the Tribunal found at paragraph 29 and 30:
29. On the basis of the information that has been provided, the Tribunal is unable to conclude that the applicant has any career plans or goals. When asked about what he would like to do the applicant was vague about what they might be. He told the Tribunal that he would like to open a restaurant but provided no specific details as to how he might to do this other than that it was a dream that he has had and that he has already discussed this with his father. He also said that he would like to be a manager one day.
30. The Tribunal does not consider that the applicant has established the value of the course to his future. The Tribunal is unable to accept how the applicant says the course is of value he has not provided any detailed or compelling evidence as to his plans or goals against which to assess this fact. The Tribunal is unable to conclude that there is any connection between career goals and the current course of study.
The findings as to the “Value of the course to the applicant’s future” arose from the evidence, including the information contained in the Request under the heading “Information about future plans” and his “Genuine Temporary Entrant Statement” dated 22 October 2020. Such findings were open to be made by the Tribunal.
At paragraph 33 to 35 of its Reasons, the Tribunal found that:
33. The Tribunal considers that an applicant who is a genuine temporary entrant in Australia for the purpose of studying and to progress academically will be able to demonstrate circumstances that evidence a genuine intention to remain temporarily as a genuine student. The Tribunal acknowledges that these things will be different in each individual case and may change over time with respect to an individual applicant.
34. The Tribunal considers that the applicant has failed to establish such circumstances and as such the Tribunal does not accept the applicant’s claim to be a genuine temporary entrant.
35. Considering the above individually and collectively, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Bearing in mind that it is for the Tribunal, and not the Court, to assess the strength of the evidence and determine what weight to afford to the evidence and what inferences may be drawn from it: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J, Keifel and Downes JJ agreeing.
As to the extent to which the Tribunal was required to refer to the evidence and contentions before it, the Full Court of the Federal Court said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 236 FCR 593 at [46] per French CJ, Sackville and Hely JJ:
[46]It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
Furthermore, as identified by the majority of the Full Court of the Federal Court in Kumar v Minister for Immigration and Border Protection and Another (2020) 274 FCR 646 at [108] per Derrington and Thawley JJ:
…There was no obligation on the part of the Tribunal to refer in its reasons to immaterial matters about which no submission had been made, and which were not the subject of evidence, less still make express findings about those factors.
As such, the bare, albeit descriptive and discursive, assertions made by applicant in the material before the Tribunal were not matters that the Tribunal was required to traverse.
For these reasons, I agree with the Minister’s written submissions as to why the ground fails. I am satisfied that the Tribunal considered the application and the logicality and rationality of the conclusion it reached that the applicant did not satisfy the genuine temporary entrant criterion.
The ground of review fails.
CONCLUSION ON APPLICATION FOR JUDICIAL REVIEW
Jurisdictional error on the part of the Tribunal has not been demonstrated, for which reason the application will be dismissed.
APPLICATION FOR COSTS
As the application has been dismissed, the Minister seeks costs of $5,600.
Legal Framework
In Jordan (a pseudonym) v Secretary of Department of Home Affairs (No 2) [2024] FedCFamC2G 1315 at [14] to [23], Judge Mansini summarised the principles relating to costs orders in migration matters as follows:
[14] The Court has a wide discretion to make costs orders: s.214(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
[15] Division 22.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFLRules), which applies to migration proceedings, provides a number of options to the Court in the exercise of its discretion under s.214(3). Relevantly, at r.22.02, that an application for costs may be made within a time allowed by the Court and, in making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules; or
(d)set a time for the payment of the costs, which may be before the proceeding is concluded.
[16] The Court may specify the maximum costs that may be recovered on a party and party basis, whether on its own initiative or on application of a party subject only to a specified amount not including an amount that a party is ordered to pay because the party has failed to comply with Court orders, has sought leave to amend a document or has otherwise caused a party to incur costs that were not necessary for the economic and efficient progress of the proceeding or the hearing of the proceeding: rr.22.03(1) and (2).
[17] Division 22.3 then outlines a process for quantification of costs where not specified in the order.
[18] Whilst expressly not precluding an application under Part 22, in migration proceedings the Court may order an unsuccessful party to the proceeding to pay the costs of the successful party in accordance with the event based scale at Division 1 of Part 2 of Schedule 2: rr.29.13(1) and (3). For final proceedings, that amount is presently $8,371.30.
[19] Whilst the GFL Rules deal with the way in which the Court’s discretion may be exercised they do not require the exercise of the discretion in a particular manner: Gehlert at [65]. The Full Court’s guidance as to the exercise of the discretion in Gehlert relevantly including the following:
[66]However, the presence of r 29.13, and the presence of Pt 2 of Sch 2 in the scheme for the award of costs by the FCFCOA in migration proceedings evinces an intention that any application for costs be measured or assessed in a context where the Court (or Judge) is conscious that a majority of the Judges of the Court have agreed to fix a scale of costs considered to be generally applicable to migration proceedings, and considered to provide an express benchmark for what may be seen as fair and just in a given case.
[67]The same is true of Pt 1 of Sch 2 in relation to GFL proceedings other than migration proceedings. However, the critical point is that both parts of Sch 2 are to operate as benchmarks or guidance, informed as they are by the external review processes to which the parties referred in argument, and consideration of what is likely to be incurred in conducting proceedings in the GFL jurisdiction. It remains up to an individual Judge, in the particular circumstances of the case before them, and being faithful to the broad discretion in s 214(3) of the FCFCOA Act, informed by r 22.02 of the GFL Rules, to decide if the scale costs are in fact fair and just in the circumstances of the particular costs application before the Court.
[20] The overarching principle in regards to whether it is appropriate to fix costs in the amount prescribed by the GFL Rules is that costs should be set to provide the successful party a fair indemnity for the costs they have incurred in having had to litigate: CIQ17 v MICMSMA (No 2) [2020] FCCA 3467 (Manousaridis J) at [26].
[21] The guidance from the established case authorities as to the (non-exhaustive) factors that may be relevant includes: number and complexity of the grounds; number of interlocutory proceedings and hearing duration; the usual steps involved in a migration matter (see AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256 (Given J)); retention of Counsel by one or both parties; length and quality of written submissions and the Court book.
[22] The Court was not asked to do so here but, for completeness, the inability to meet a costs order without more is not sufficient reason to deny a successful party his or her costs: Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 1212.
[23] The event-based scale at Division 1 of Part 2 of Schedule 2 of the GFL Rules is a guide and a relevant benchmark to take into account.
Consideration
The Court has a discretionary power to order costs. I must consider what is fair and just in the circumstances of the case. The applicant made no submissions as to the issue of costs.
The matter was straightforward with one ground of review. There were no interlocutory applications. Neither party retained counsel. The Minister’s solicitors compiled the Court Book and prepared submissions that were both useful and proportionate in their length and detail to the grounds of review. The applicant made no submissions in respect of his substantive application at the hearing beyond the contents of his affidavit, such that his application could have been determined on the papers without need of a hearing.
I accept that imposing a costs order on a self-represented litigant is substantial. However, the issue is whether the demand by the successful party is reasonable, rather than the payer’s ability to pay it.
In the premises, an order that the applicant pay the Minister’s costs, fixed in the sum of $5,600 will be made.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 10 March 2025
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