Prasertklin v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 106
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Prasertklin v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 106
File number: MLG 3041 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 5 February 2025 Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – application for adjournment no longer pressed – whether the Tribunal misapplied or did not properly assess the applicant against the criteria set out cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) or the relevant Ministerial Direction – whether the Tribunal failed to consider the correct issue or made a decision was based on assumptions – whether the Tribunal failed to consider the applicant’s personal circumstances when affirming the delegate’s decision – whether the Tribunal failed to consider the degree of hardship caused to the applicant and his family – whether the Tribunal failed to comply with its procedural fairness obligations – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 357A, 359, 360, 360A, 476 & 499 and Division 5 of Part 5
Migration Regulations 1994 (Cth), cll 500.211, 500.212, 500.218 in Schedule 2 and Part 500 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1426
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
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of hearing: 8 November 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms K Petrovski Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 3041 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PITCHAKARN PRASERTKLIN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
Recent Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 11 September 2018 and thus predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Tribunal was initially listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, the Court made an order (at the hearing of this matter before this Court on 8 November 2024) substituting the ART as the second respondent in this proceeding.
The applicant’s migration history
The applicant is a citizen of Thailand (Court Book (“CB”) 2-4 & 22). He was granted an initial student visa (offshore) in June 2006 and first arrived in Australia in July 2006 as the holder of that visa (CB 50 & 76).
Since his initial arrival in Australia, the applicant has held either student visas or associated bridging visas (CB 50). He has completed the following courses:
(a)Certificate III in Hospitality from 7 October 2013 to 13 April 2014 (CB 9);
(b)Certificate IV in Hospitality from 21 April 2014 to 21 September 2014 (CB 9);
(c)Diploma of Hospitality from 6 October 2014 to 28 June 2015 (CB 10); and
(d)Advanced Diploma of Hospitality from 13 July 2015 to 13 December 2015 (CB 10).
On 25 August 2016, the applicant applied for the Student (Class TU) (Subclass 500) visa the subject of this review (the “visa”) (CB 1-18) and proposed studying a Diploma of Leadership Management and an Advanced Diploma of Leadership and Management (CB 10 & 19-20). The applicant appointed a migration agent to assist him with his visa application (the “representative”) (CB 5-6 & 29-31). With that visa application, the applicant also provided a signed statement of purpose, identity documents, financial information and confirmation of “overseas student health cover” (CB 19-33).
On 23 September 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicant (through his representative) for more information in relation to the visa application (CB 35-41).
On or about 28 November 2016, the applicant provided a medical report to the Department (CB 42).
On 27 February 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 46-51). The delegate found that the applicant did not meet cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (CB 51).
On 9 March 2017, the applicant applied for review of the delegate’s decision by the Tribunal (CB 52-53). In that review application, the applicant asked that all correspondence be sent to him directly (as the review applicant) (CB 53).
On or about 10 March 2017, the applicant sent an email to the Tribunal providing documents in support of his review application (CB 54). Those documents comprised of a submission letter and property documents (CB 55-60).
On 12 April 2018, the Tribunal invited the applicant (via email and pursuant to s 359(2) of the Act) to provide information in relation to his review application (CB 64-71). In particular, the Tribunal asked the applicant to provide “information about [his] proposed course(s) of study and [his] entry and stay in Australia as a student”. The Tribunal explained that specific details about the information requested were wet out in the “Request for Student Visa Information” questionnaire (the “questionnaire”) (CB 65).
On or about 25 April 2018, the applicant returned the completed questionnaire to the Tribunal (CB 72-80). In that questionnaire, the applicant “consent[ed] to the Tribunal deciding the review without a hearing” (CB 72).
On 5 July 2018, the Tribunal invited the applicant to attend a hearing before it on 13 August 2018 (CB 81-89).
On 13 August 2018, the applicant appeared at that Tribunal hearing to give evidence and present arguments in support of his review application (CB 91-93). The applicant was assisted at that hearing by a Thai interpreter (CB 91).
On 11 September 2018, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 96-102).
On 10 October 2018, the applicant applied to this Court for judicial review of the Tribunal’s decision.
THE TRIBUNAL’S SECOND DECISION
The application for judicial review is brought pursuant to s 476 of the Act. To succeed before this Court, the applicant must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is seven pages long and spans 40 paragraphs (CB 96-102).
The Tribunal began by explaining that the applicant had applied for the visa on 25 August 2016 and, on 27 February 2017, a delegate of the Minister had refused to grant the applicant the visa because it was determined that the applicant did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Regulations (that is, he was not a genuine applicant for entry and stay as a student). The Tribunal confirmed that the applicant had sought review of that decision and that he had appeared at a hearing before it (on 13 August 2018), with the assistance of a Thai interpreter, to give evidence and present arguments (at [1]-[4]).
The Tribunal then confirmed that the applicant had provided a copy of the delegate’s decision with his review application and summarised the key points of that decision. The Tribunal also noted that, at the time that the Department was assessing the visa application, the applicant claimed to have been studying a Diploma of Leadership and Management and also claimed to have been approved to study an Advanced Diploma of Leadership and Management (at [7]-[8]).
The Tribunal then set out the information and documentation submitted by the applicant and detailed the applicant’s study history in Australia, including the reasons provided by the applicant for changes in his course options. The Tribunal acknowledged that the applicant told the Tribunal that he was “prepared to forego a hearing in light of the information he submitted”, however, the Tribunal considered the applicant should still appear at the hearing. The Tribunal also outlined the applicant’s oral evidence given at the hearing (at [9]-[21]).
The Tribunal explained that the criteria for a Subclass 500 visa are set out in Part 500 in Schedule 2 of the Regulations and outlined the requirements for the applicant to be “a genuine applicant for entry and stay as a student” (as required in cl 500.212 in Schedule 2 of the Regulations). The Tribunal acknowledged that, when considering whether the applicant satisfied cl 500.212(a) in Schedule 2 of the Regulations, it was required to have regard to Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“Direction No. 69”) made under s 499 of the Act. The Tribunal noted that the factors specified in Direction No. 69 were not to be used as a checklist and were only intended to guide decision-makers when considering an applicant’s circumstances as a whole (at [6] & [22]-[27]).
The Tribunal accepted that some areas of work in Thailand may be inaccessible to the applicant, in part because he was transgender, but mostly because he did not have a higher qualification, and without this he would be required to open a business or carry out menial work. Even accepting these matters, however, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student. The Tribunal noted that, whilst he had been given an opportunity to do so, the applicant had not provided evidence of completion of a Diploma of Learning and Management or any Confirmation of Enrolment for his proposed course of study (being an Advanced Diploma of Leadership and Management) or any other course (at [28]).
The Tribunal explained that it had asked the applicant to provide evidence that his father was prepared to continue to fund his studies. Whilst the Tribunal had “sighted evidence” of a land title belonging to the applicant’s family, there was limited evidence of a stream of income for his parents or that they would continue to pay for his course and other expenses. The applicant also claimed to work 15 hours per week, however, the Tribunal considered it was “unclear” whether he would be able to earn the $18,000 the applicant estimated he would need to pay for his study by working such short periods. The Tribunal had serious concerns that the applicant may “need to resort to work in an unregulated work environment for longer than the specified allowable hours per week” (at [29]-[30]).
The Tribunal expressed doubts about the applicant’s relationship with his parents and questioned the extent to which his family was an incentive for him to return to Thailand. The Tribunal also considered relevant country information and found that “LGBTI persons … face some discrimination in [Thailand]” and concluded that the applicant would preference living in Australia where he may be admitted more easily into higher professions (at [31]-[32]).
The Tribunal had reservations about the applicant’s motivation to stay in Australia and determined that the applicant was using the visa program to maintain residency. The Tribunal had concerns that the applicant’s “continu[ed] change of mind about what he intend[ed] to do with his studies in Australia on return to Thailand” was inconsistent with “someone who has a clear study path” and “an identifiable goal”. The Tribunal was “not convinced by the applicant’s migration history in Australia” that his purpose in Australia was for the purpose of attaining higher education based on the period he had already been in Australia (having had ample opportunities to start and complete studies) (at [33]-[34]).
The Tribunal also found that little evidence had been submitted to demonstrate the applicant’s claim (made to the Department) that he had been offered a job. Further, the Tribunal was not satisfied that, if the applicant was genuinely interested in starting his own business in Thailand, he could not do so with the studies he had already undertaken in Australia (at [35]-[36]).
The Tribunal noted that the applicant did not wish to return to Thailand (where studying in one’s thirties was not the norm and finding employment in a well-paid job without high level qualifications would be difficult). However, the Tribunal found that the applicant’s study history demonstrated that studying at a higher level had not been possible for the applicant (at [37]).
The Tribunal was ultimately not satisfied that the applicant genuinely intended to stay in Australia temporarily and, accordingly, was not satisfied that he met cl 500.212(a) in Schedule 2 of the Regulations. The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [38]-[40]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 10 October 2018 contains six “grounds of review”, as follows (without alteration):
1.THE MINISTERIAL DIRECTION NO. 69 AND CLAUSE 500.212 HAS BEEN APPLIED INAPPROPRIATELY TO ASSESS THE VISA APPLICANT A NON-GENUINE STUDENT TO REFUSE VISA APPLICATION.
2.THE MERITS OF VISA APPLICATION AND REVIEW COULD PROPERLY BE TAKEN INTO CONSIDERATION TO DETEMINE A LEGAL ISSUE OF SOME IMPORTANCE.
3.THE ACTUAL ISSUE INVOLVED WAS NOT CONSIDERED APROPRIATELY. THE DECISION OF THE DELEGATE IS BASED MORE ON ASSUMPTIONS.
4.THE MEMBER DID NOT KEEP PERSONAL CIRCUMSTANCES OF VISA APPLICANT UNDER CONSIDERATION AND INAPPROPRIATELY UPHELD THE DECISION OF DELEGATE.
5.THE DELEGATE DID NOT CONSIDER THE DEGREE OF HARDSHIP BEING CAUSED TO APPLICANT AND HIS FAMILY MEMBERS WITH REFUSAL OF VISA.
6.THE DETERMINATION OF APPLICATION IN A PROCEDURAL MANNER HAS RESULTED IN UNFAIRNESS TO VISA APPLICANT WHO SPENT HUGE AMOUNT ON HIS STUDIES.
The applicant also filed an affidavit in support of that judicial review application (affirmed and filed on 10 October 2018). That affidavit annexed a copy of the Tribunal’s decision and associated notification letter.
On 12 June 2020, procedural orders were made by Registrar Carlton of the then Federal Circuit Court of Australia giving the applicant an opportunity to file an amended application, any supplementary court book, written submissions and any affidavit evidence.
On 1 July 2024, this Court vacated some of those orders and made further programming orders giving the applicant a further opportunity to file written submissions, any amended application and any additional evidence. The Court also ordered that the “matter be listed for a final hearing on a date to be advised”.
The applicant appeared before this Court (by video link on 8 November 2024) without legal representation but with the assistance of a Thai interpreter. Ms Kristina Petrovski (“Ms Petrovski”) from Sparke Helmore appeared on behalf of the Minister (also by video link).
The Court asked the applicant to confirm that he had received copies of the Court Book and the Minister’s written submissions. The applicant told the Court that he had not received a copy of the Court Book. The Court noted that it had before it the affidavit of service of Ms Petrovski (filed on behalf of the Minister on 1 November 2024) (the “Petrovski affidavit”). That affidavit indicated that the Court Book was sent to the applicant by email on 23 June 2020.
Based on the information contained in the Petrovski affidavit, the Court was satisfied that the applicant had been properly served with a copy of the Court Book. The Court explained this to the applicant and further explained that, to the extent that anything in the Court Book needed to be referenced, the Court would have the interpreter translate that material for the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 10 October 2018 (the affidavit being taken as read and in evidence at the hearing on 8 November 2024), a Court Book numbering 102 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 25 October 2024 and the affidavit of service of Kristina Petrovski filed on behalf of the Minister on 1 November 2024 (also taken as read and in evidence at the hearing on 8 November 2024).
Adjournment request
The Court notes that, on 5 November 2024, the applicant contacted the Court (via email) and requested an adjournment of the hearing, stating (without alteration):
Hello sir
I am [the applicant], my case number is MLG3041/2018, I will get an appointment for hearing on this Friday. But unfortunately I got the covid and still got a fever and sore throat, and I could not sleep well at night, I felt very weak so could I ask for patronage to get an adjournment request for my case please
Kind regards
Noting that the applicant was unrepresented, the Court agreed to consider the applicant’s adjournment request without requiring him to file an application in a proceeding. In order to properly assess the adjournment request, chambers notified the parties (also on 5 November 2024) that the matter would be listed for a hearing of the interlocutory application for an adjournment and a final hearing on 8 November 2024. The parties were advised that, in the event the Court determined that the matter could proceed, the final hearing would go ahead immediately following the hearing of the interlocutory application. Similarly, in the event that the Court did not consider the matter should proceed to a final hearing, the hearing would be adjourned to a later date.
At the commencement of the hearing, the Court asked the applicant if he still sought the adjournment (noting that he had originally sought an adjournment on the basis that he was unwell). The applicant told the Court that, as his symptoms were better, he no longer needed an adjournment and he was happy to proceed to the final hearing.
Substantive hearing
The Court noted that the applicant’s application for judicial review only sought relief by way of an order quashing the Tribunal’s decision. It did not seek a writ of mandamus. As such, this Court’s jurisdiction under s 476 of the Act was not properly invoked. The Minister was agreeable to the applicant “orally amending the application to rectify the oversight”. The Court explained this issue to the applicant and, with his agreement, made an order amending the application for judicial review to include a request for a writ of mandamus.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
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 stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that 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 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; 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].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. 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 (“Wu Shan Liang”) at 272.
Against this background, the applicant told the Court that he would like the Court’s help and assistance and that the reason that he chose Australia for education was “because of the quality of the education”. The applicant also told the Court that he wanted to bring the knowledge back to his country to “make it better”.
Unfortunately, the applicant’s comments do not raise any issue of jurisdictional error of the sort that this Court can address.
This leaves the Court to assess the applicant’s grounds of review without further assistance from the applicant. Noting that the applicant does not have legal assistance, the Court will, in its duty to the applicant as an unrepresented litigant, review the Tribunal’s decision itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
Ground one
As outlined above, ground one provides as follows:
1.THE MINISTERIAL DIRECTION NO. 69 AND CLAUSE 500.212 HAS BEEN APPLIED INAPPROPRIATELY TO ASSESS THE VISA APPLICANT A NON-GENUINE STUDENT TO REFUSE VISA APPLICATION.
The applicant claims that the Tribunal misapplied or did not properly assess the applicant against the criteria set out in cl 500.212 in Schedule 2 of the Regulations or the factors set out in Direction No. 69
In order to be granted a Subclass 500 visa, the applicant needed to satisfy the primary criteria for the grant of the visa (as set out in the Regulations in effect at the time of the Tribunal’s decision). That primary criteria is set out at cll 500.211 to 500.218 in Schedule 2 of the Regulations. Of particular relevance to this case is cl 500.212 in Schedule 2 of the Regulations which, at the time of the Tribunal’s decision, relevantly provided as follows:
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.
…
Direction No. 69 was made under s 499 of the Act and required that the Tribunal have regard to a number of factors when assessing the “genuine temporary entrant criterion” (set out in cl 500.212 in Schedule 2 of the Regulations) for the grant of a student visa.
The Court notes that Direction No. 69 specifically states (at cl 1) that:
Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.
The Tribunal in this case correctly set out the relevant legislative requirements and the way in which Direction No. 69 was required to be used in its written reasons. The Tribunal relevantly stated that:
Genuine applicant for entry and stay as a student (cl.500.212)
22. 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 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.
Does the applicant intend genuinely to stay in Australia temporarily?
26.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 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.
27.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.
The Court also notes that, as correctly submitted by the Minister (at [21] in written submissions filed in this Court on 25 October 2024), the Full Court of the Federal Court of Australia (the “Full Court”) has also provided guidance about how Ministerial Direction documents should be used by decision makers. Relevantly, the Full Court in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 stated (in relation to a similar Ministerial Direction in force prior to Direction No. 69):
108.The primary judge was correct not to draw the inference that those or any paragraphs of Direction 53 were overlooked. 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 to make express findings about those factors.
Here, the Tribunal considered the factors in Direction No. 69 that were relevant to the case before it. In particular, the Tribunal had regard to the:
(a)applicant’s potential circumstances in his home country (at [28], [31]-[32] & [35]);
(b)applicant’s potential circumstances in Australia (at [29]-[30] & [33]-[34]);
(c)value of the course to the applicant’s future (at [36]); and
(d)applicant’s immigration history (at [34] & [37]).
The Tribunal weighed the evidence before it (as a whole) and ultimately determined that the applicant appeared to be using the student visa system to maintain an ongoing residence in Australia and, as such, was not satisfied that the applicant was a genuine applicant for entry and stay as a student (at [33] & [38]). The Court also notes that the weight that the Tribunal gave to the evidence and the factors it considered was entirely a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
For the reasons set out above, the Court is satisfied that the Tribunal properly applied Direction No. 69 and cl 500.212 in Schedule 2 of the Regulations.
No jurisdictional error arises in relation to ground one.
Ground two
Ground two states:
2.THE MERITS OF VISA APPLICATION AND REVIEW COULD PROPERLY BE TAKEN INTO CONSIDERATION TO DETEMINE A LEGAL ISSUE OF SOME IMPORTANCE.
The Court considers this ground of review to simply be a plea for impermissible merits review: Wu Shan Liang at 272. As outlined above, this Court cannot review the merits of the applicant’s visa application or grant the applicant the visa that he seeks.
No jurisdictional error arises in relation to ground two.
Ground three
Grounds three relevantly provides as follows:
3.THE ACTUAL ISSUE INVOLVED WAS NOT CONSIDERED APROPRIATELY. THE DECISION OF THE DELEGATE IS BASED MORE ON ASSUMPTIONS.
To the extent that the applicant raises concerns with the delegate’s decision, this Court has no jurisdiction (pursuant to s 476(2)(a) and s 476(4) of the Act) to review the delegate’s decision (which is a primary decision): Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1426 (“Manandhar”) at [13]. Further, any defect in the delegate’s decision was, in effect, “cured” by the Tribunal’s decision: Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
To the extent that the applicant is suggesting that the Tribunal did not consider the correct issue or that its decision was based on assumptions, the Court disagrees for the reasons that follow.
As outlined by the Court above, the issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student (as required by cl 500.212 in Schedule 2 of the Regulations).
In order to determine that issue, the Tribunal considered the evidence and information provided to it by the applicant against the factors outlined in Direction No. 69 (and it was required, by s 499 of the Act, to do so). The Tribunal then weighed those factors and the applicant’s circumstances as a whole before determining that the applicant was not a genuine applicant for entry and stay as a student.
The Court is satisfied that the Tribunal identified and considered the correct issue in this case and determined it in accordance with the legislative requirements for the grant of the visa.
No jurisdictional error arises in relation to ground three.
Grounds four
Grounds four states:
4.THE MEMBER DID NOT KEEP PERSONAL CIRCUMSTANCES OF VISA APPLICANT UNDER CONSIDERATION AND INAPPROPRIATELY UPHELD THE DECISION OF DELEGATE.
To the extent that the applicant suggests that the Tribunal failed to consider his personal circumstances when affirming the delegate’s decision, this fails on a factual level.
As correctly submitted by the Minister (at [24] in written submissions filed in this Court on 25 October 2024), the Tribunal referenced the applicant’s personal circumstances in some detail. In particular, the Tribunal had regard to the written information provided to it by the applicant prior to the Tribunal hearing (including a written statement) (at [9]-[14]). The Tribunal also considered the applicant’s oral evidence given at the hearing before it (on 13 August 2018) (at [15]-[21]).
The Court notes, in particular, that the Tribunal acknowledged the applicant’s personal circumstances as they related to:
(a)the reason he did not pursue various courses and changes in course directions and education providers;
(b)difficulties the applicant had with higher level courses due to his level of English;
(c)his desire to return to Thailand and start his own business;
(d)financial support being provided by his family;
(e)difficulties the applicant would face if he were to try to study in Thailand at his age;
(f)difficulties he would face in obtaining a high-level position due to him being transgender; and
(g)his love of, and desire to continue to, study (particularly in Australia).
The Court is satisfied that the Tribunal considered the applicant’s personal circumstances insofar as those circumstances related to the factors set out in Direction No. 69.
No jurisdictional error arises in relation to ground four.
Grounds five
Grounds relevantly provides as follows:
5.THE DELEGATE DID NOT CONSIDER THE DEGREE OF HARDSHIP BEING CAUSED TO APPLICANT AND HIS FAMILY MEMBERS WITH REFUSAL OF VISA.
To the extent that the applicant raises concerns with the delegate’s decision, as outlined above (in relation to ground three), this Court has no jurisdiction (pursuant to s 476(2)(a) and s 476(4) of the Act) to review the primary decision made by the Minister’s delegate: Manandhar at [13].
To the extent that the applicant claims that the Tribunal failed to consider the degree of hardship caused to the applicant and his family, the Court notes that, as outlined above, the issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay in Australia. In order to make that determination, the Tribunal was required to have regard to the factors outlined in Direction No. 69.
Those factors were correctly summarised by the Tribunal in its written reasons as follows:
26.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 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.
As can be seen from the extract above, the degree of hardship caused is not one of the factors set out in Direction No. 69.
Whilst the degree of hardship caused to an applicant is often a matter taken into account by the Tribunal (or a delegate of the Minister) when determining whether to exercise the discretion to cancel an applicant’s visa, it is not a consideration when determining whether or not to grant an applicant a student visa. Further, the Court notes that the applicant did not raise any issues of hardship (or any other matters) that the Tribunal did not consider in its written reasons.
No jurisdictional error arises in relation to ground five.
Grounds six
Grounds six states:
6.THE DETERMINATION OF APPLICATION IN A PROCEDURAL MANNER HAS RESULTED IN UNFAIRNESS TO VISA APPLICANT WHO SPENT HUGE AMOUNT ON HIS STUDIES.
By ground six, the applicant claims that the Tribunal failed to comply with its procedural fairness obligations. The Court disagrees for the reasons that follow.
As previously explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 (and other similar matters), Division 5 of Part 5 of the Act (as was in force at the time of the Tribunal’s decision) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has complied with the relevant requirements in this matter and notes as follows:
(a)the Tribunal invited the applicant to provide information to it (pursuant to s 359(2) of the Act) (CB 64-71). The applicant provided a response to the Tribunal (CB 72-80) and the Tribunal had regard to that information (as it was required to do, at [9]-[14] in its written reasons);
(b)whilst the applicant consented to the Tribunal deciding his review application without a hearing (CB 72), the Tribunal determined it was in the interests of justice to invite the applicant to attend a hearing before it and the applicant ultimately did so (CB 81-89 & 91-93). The applicant gave evidence at that hearing in support of his review application and the Tribunal had regard to that oral evidence in its written reasons (at [15]-[21] in its written reasons). Accordingly, the Tribunal complied with s 360 and s 360A of the Act;
(c)the dispositive issue before the Tribunal (being whether the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 in Schedule 2 of the Regulations) was the same as the issue before the delegate – which led to the refusal of the applicant’s visa. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(d)the Tribunal questioned the applicant, listened to his responses and actively sought information from him about his circumstances. There is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness.
No jurisdictional error arises in relation to ground six.
CONCLUSION
The application for judicial review (filed by the applicant on 10 October 2018) has failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 February 2025
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