Saini v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 60
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saini v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 60
File number(s): MLG 3698 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 23 January 2025 Catchwords: MIGRATION – Student (Subclass 500) visa – decision of Administrative Appeals Tribunal – where delegate determined that applicant not a genuine temporary entrant - where Tribunal found the applicant did not satisfy the primary criterion pursuant to cl 500.212 – no jurisdictional error – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Migration Act 1958 (Cth) ss 65, 353, 357A, 359, 359A, 359AA, 360, 360A, 363, 476, 499
Migration Regulations 1994 (Cth) cl 500.212 of Sch 2
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Kaur v Minister for Home Affairs [2019] FCA 2026
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submission/s: 27 November 2024 Date of hearing: 27 November 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr C. Orchard Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3698 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PREET SAINI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the application filed on 5 December 2020 is amended so as to seek a writ of mandamus.
2.Pursuant to rr 1.07 and 7.02 of the Rules, the Court dispenses with any requirement to make, file or serve an amended application as ordered in Order 1 above.
3.The applicant’s application for judicial review filed on 5 December 2020 as amended is dismissed.
4.The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $5,000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CUTHBERTSON
INTRODUCTION
The applicant, a citizen of India, first arrived in Australia on 17 May 2009 as the holder of a student visa granted offshore. On 8 March 2017, the applicant applied for a Student (Temporary) (Class TU) Subclass 500 visa in order to study a Diploma of Leadership and Management. This was her fifth application for a form of temporary student visa. That application was refused by a delegate of the first respondent (the Minister) on 16 June 2017 who was not satisfied the applicant was a genuine temporary entrant (GTE) as required by cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations).
The applicant then applied to the Administrative Appeals Tribunal for merits review of the delegate’s decision. On 28 November 2018, the Tribunal affirmed the delegate’s decision. The applicant has now filed an application seeking judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (the Act).
The Minister opposes the application. For the reasons set out below, the application is dismissed.
BACKGROUND
The delegate’s decision
The delegate noted the applicant had already completed a number of courses in Australia. These courses included a Diploma of Building and Construction Management, Diploma of Business, Diploma of Management and Advanced Diploma of Business. The delegate observed the package of courses the applicant was now proposing to study, namely a Diploma of Business and an Advanced Diploma of Business, was the same qualification level as the applicant’s previous studies. The delegate considered this raised concerns as it demonstrated a lack of education progression and advancement in the applicant’s study. The delegate considered there had been no credible explanation provided by the applicant for seeking to undertake the proposed courses. The delegate also considered the applicant’s circumstances in Australia and India may present a significant incentive not to return to her home country following the proposed studies. The applicant’s extensive onshore immigration history also raised concerns as to her intention to remain in Australia temporarily.
The delegate did not consider the applicant had provided evidence of close ties to India, noting she had spent a significantly lower proportion of time outside of Australia since first arriving. The delegate observed the applicant did not appear to be in a hurry to return to India and seemed to be prolonging her stay in Australia without being able to clearly demonstrate the benefit of undertaking the further course. Consequently, the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.
Review of delegate’s decision
On 3 July 2017, a migration agent lodged an application for review of the delegate’s decision with the Tribunal on behalf of the applicant. The applicant’s migration agent engaged with the Tribunal’s processes on the applicant’s behalf, including by returning a completed ‘Request for Student Visa Information’ form. Ultimately, however, the applicant appeared unrepresented at the hearing before the Tribunal which was conducted on 27 November 2018.
On 14 August 2018, the Tribunal wrote to the applicant’s migration agent inviting the applicant to provide further information about her review application. That invitation identified the relevant requirements for the visa (namely that the applicant must be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student), inviting the applicant to give information in writing about her proposed course of study and her entry and stay in Australia as a student. The form, which included specific details about the information being requested, was attached to the letter. The applicant was also directed to Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student guardian visa applications’ (MD 69).
On 28 August 2018, the applicant’s migration agent submitted a completed form to the Tribunal which was signed by the applicant on the same day. The applicant advised in the form she had undertaken a Bachelor of Science and Post Graduation Diploma of Computer Application in India prior to arriving in Australia. The applicant also identified all the courses she had been enrolled in while in Australia as follows:
·Certificate III in Painting and Decorating – course started 30 July 2010 and completed on 14 September 2010;
·Diploma of Building and Construction – course started 1 October 2011 and completed on 15 October 2012;
·Diploma of Business – course started 15 November 2012 and completed on 15 November 2013;
·Diploma of Management – course started 10 February 2014 and completed on 9 August 2014;
·Advanced Diploma of Business – course started 10 November 2014 and completed on 9 March 2015.
The applicant also indicated in the form that she had a Confirmation of Enrolment (CoE) in an approved course of study. The CoE provided to the Tribunal concerned a Diploma of Leadership and Management which was due to start on 5 September 2018 and conclude on 3 March 2019. One of the questions requested information about the applicant’s plans, including employment plans, when she finished the course of proposed study. The applicant responded: “After completion of course I will look for job in my home country”.
On 8 October 2018, the Tribunal wrote to the applicant via her migration agent inviting her to appear at a hearing on 7 November 2018 to give evidence and present arguments relating to the issues in her case. The invitation included a ‘Response to hearing invitation – MR Division’ form that it asked to be completed and returned within 7 days of receipt of the hearing notice. It also requested that the applicant provide all documents she intended to rely on to establish that she met the criteria for the visa. The letter advised that the applicant should have regard to the refusal decision and any changes in her circumstances in providing documents and preparing for the hearing. The Tribunal also requested it be provided the following information at least 7 days before the hearing date:
1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
3. We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
A copy of MD 69 was attached to the letter.
On 7 November 2018, the applicant’s migration agent advised the Tribunal the applicant intended to attend the hearing by herself. On 7 November 2018, the applicant appeared for the hearing. The hearing was adjourned as another hearing had run over time. The Tribunal’s case notes record the applicant advised she was not aware of the hearing invitation and had been alerted to it as a consequence of the SMS messages sent to her reminding of the hearing date. She told the Tribunal she would call her representative and respond to the hearing invitation.
On 8 November 2018, the Tribunal advised the applicant via her migration agent that the hearing would be resumed on 27 November 2018. The hearing took place as scheduled on this occasion.
On 28 November 2018, the Tribunal affirmed the delegate’s decision not to grant the visa. The applicant was advised of that decision on 29 November 2018 by email sent via her migration agent.
THE TRIBUNAL’S DECISION
The Tribunal’s statement of decision and reasons noted the applicant was required to satisfy a range of criteria set out in the Regulations to be eligible for the grant of the visa. It identified the issue in this case was whether the applicant genuinely intends to stay in Australia temporarily. It noted the terms of cl 500.212 of Sch 2 to the Regulations set out the GTE requirements. It further noted that when considering whether an applicant is a GTE it must have regard to MD 69, setting out the factors required to be considered pursuant to the direction: at [6]-[9].
The Tribunal’s decision records at [10] discussing the considerations outlined in MD 69 with the applicant during the hearing. The Tribunal set out the evidence relating to the applicant’s immigration history, studies in Australia and India and her family circumstances at [11]-[18]. It recorded the relevant evidence and its findings in respect of the MD 69 considerations as follows:
16. The applicant stated that she originally came to Australia because she wanted to study and perhaps to settle here permanently and that after her brother died in a motorcycle accident she decided that she wanted to leave India. The applicant also stated that she would have a better future here and that she thought she may be able to bring her parents over too. The Tribunal appreciates the candour of the applicant's evidence but is concerned by this evidence as this indicates that the applicant is not a genuine applicant for entry and stay as a student.
17. According to the applicant's evidence she has a mother and father, and cousins back in her home country. The applicant stated that she remains in regular contact with her family and her parents come over here to visit for extended periods of time, in one case for up to 3 months. The Tribunal does not lend weight to this as an intention to return as the applicant is able to maintain her personal relationships from here in Australia and that her parents visit here.
18. According to the applicant's evidence her father owns a property worth $400,00AUD back in her home country. As this property is not in the applicant's name and as property can be sold or leased out the Tribunal does not lend weight to this as an intention to return.
….
Circumstances and study in Australia and the value of the proposed course to the applicant's future
20. The applicant stated that she lives in Lynbrook and rents with her cousins and her daughter who is now a year or so old. Her daughter was born here in Australia, and she is now no longer with her husband as he had a drug habit and left her to return to India in late 2016 or early 2017 whilst she was on her 485 visa. The applicant stated that for a period of time prior to that her husband was on a dependent visa as part of her student visa. The Tribunal finds that the applicant's ties with Australia, particularly with her daughter here, are significant and do present as a strong incentive for the applicant to remain in Australia.
21. The applicant stated that her parents were assisting her to pay for her stay and study here in Australia.
22. The applicant stated that she was not working at the moment but that prior to this she was working in the painting and decorating industry earning up to $400 AUD per week and also in aged care. The Tribunal is concerned by this evidence and finds that this is evidence that the economic circumstances of the applicant here in Australia do present as an incentive to remain here.
23. According to the applicant's evidence she has returned to India on four occasions since her arrival here in 2009. Once in 2010 for a few weeks for her marriage. Once in 2011 for a few weeks to visit family. Once in January 2013 for a few weeks when she stated she has health issues and once in May 2016, again she stated, for health reasons.
24. Adopting the procedure of the act 359AA the Tribunal reviewed the applicant's study history with her paying particular regard to the applicant's PRISMS record. The Tribunal asked the applicant if she wished for some time to consider this record prior to having a discussion with the Tribunal.
25. The applicant reviewed her study record and then indicated she was prepared to proceed with a discussion with the Tribunal.
26. When asked by the Tribunal why she was now studying a Diploma of Leadership and Management as, since her arrival here in 2009 the applicant had already studied disparate and varying courses of study including painting and decorating, building and construction, and business and management courses the applicant stated that her current enrolment would help her to improve her leadership and management skills so she could return home and work in business. She also stated that it would help her cover business risk and it would help her to start her own business. The Tribunal is concerned by this evidence as the applicant has now completed numerous enrolments in the business and management field and did not actually articulate what she would be actually learning in her current enrolment that would assist her back in her home country particularly considering that she already has a bachelor level degree and postgraduate qualifications gained back in her home country. The Tribunal finds that this is evidence that the applicant is not a genuine applicant for entry and stay as a student and in particular is using the student visa system to circumvent the migration program.
27. The Tribunal is also concerned by this evidence as the applicant did not provide evidence of the relevance or utility of her current enrolment taking into account her previous enrolments here in Australia in several fields over a significant period of time.
28. The Tribunal finds that the applicant is undertaking a course that is not consistent with her current level of education and that this enrolment in a Diploma of Leadership and Management will not assist the applicant to obtain employment or improve employment prospects in her home country. In particular, the Tribunal notes that the applicant already has significant tertiary qualifications gained back in her home country that is a Bachelor of Science and a postgraduate Diploma in Computer Application.
29. The Tribunal further finds that this current enrolment is not relevant to the applicant's past or proposed future employment either in her own country or a third country, and that the remuneration the applicant could expect to receive in her home country or a third country using the qualifications to be gained from her current course of study will not be affected as the applicant already has a number of completed qualifications at this level in different and disparate areas of study and endeavour including building and construction, painting and decorating, and business and management.
30. The Tribunal is concerned by the applicant's lack of evidence in regards to her future stated intentions to work in business back in India at some point in the future. No specific material or evidence was provided to the Tribunal that outlined what this intention might actually be, what kind of business it might be, or in what type of industry.
31. The Tribunal was also concerned that the applicant did not provide sufficient or adequate reasons for not undertaking her current study, or indeed some of her previous enrolments, back in her home country and finds that the applicant does not have reasonable reasons for not undertaking her current enrolment of study in her home country or region as similar courses are already available there.
32. The applicant also stated that she "likes this country because it made me independent" and that "I want to study here so I can settle here". She also stated that if she was not able to stay here she would return home to her home country and use whatever skills she has acquired here in some form of future business career. The Tribunal appreciates that the applicant is giving forthright and clear evidence as to her possible future intentions but unfortunately finds that this evidence indicates that the applicant is not a genuine temporary entrant and is using the student visa system to circumvent the migration program.
33. On the basis of the above, 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).
THE APPLICATION FOR REVIEW IN THIS COURT
The application for judicial review filed on 5 December 2020 contains the following grounds:
1. AAT decision is not acceptable. AAT member didn't consider my immigration history and bona fide track record of study in Australia. I applied student visa sub class 500 to do Diploma of leadership Management. AAT should have seen this case in new perspective than affirming the decision of Department of Home Affairs. I fulfil the criteria and terms of condition on which I should have given approval of student visa 500 visa as I am a genuine student and have intention to return back to my home country. I have more incentives in my home country. I am the only child of my aging parents, which makes me more genuine student who will return to her home country after completion of course. Clause 500.212 does apply in my case as my financial and social condition gives me great incentives in my home country. I want federal circuit court to intervene in this matter and review the decision of AAT, which is full of discrepancies.
2. AAT decision was not taken in fairly manner. AAT decision is legally unreasonable.
3. I am not happy the decision of AA T. In decision AA T simply affirm the decision of department of home affairs. AAT didn't give any weight to my strong position and incentives in my home country.
The applicant also filed an affidavit in support of her application on the same day. Relevantly, it states as follows:
1. I want to appeal in Federal Circuit Court to review the decision of AAT.
2. That AAT just affirmed the decision of DOHA without doing any further investigation.
3. Decision was not taken in fairly manner. AAT should have look into this case in new perspective. AAT simply affirm the decision of department of home affairs which is totally based on prejudice. I want review in this case.
The Minister filed written submissions on 11 October 2024.
PROCEEDINGS IN THIS COURT
The applicant first appeared before me on 29 October 2024 in person. When identifying the documents before me, it was identified the applicant’s nominated email address on her application was incorrectly misspelt by the applicant. The applicant submitted she notified the Court of this issue at the callover on 12 December 2023. Subsequently, all correspondence from this Court was sent to the applicant’s nominated email address, however as it was not her address on record, she did not receive the Court Book filed 28 October 2020 and the Minister’s written submissions filed 11 October 2024. I adjourned the matter to 27 November 2024 and ordered the applicant file a new notice of address for service and the Minister serve the Court Book and their written submissions.
The parties appeared before me on 27 November 2024 via videoconference. I spent some time explaining the hearing process to the applicant, identifying the documents before me and the issues considered by the Tribunal. I also explained the role of the Court was limited to identifying whether the Tribunal made any serious legal errors when conducting its review of the delegate’s decision. Examples of such errors were identified including whether the Tribunal misapplied the law, failed to follow appropriate procedures, failed to take into account relevant information or took into account irrelevant information. I explained the Court was not able to look at the evidence again, make a different decision and give the applicant a visa. I explained the remedy available if her application succeeded was to send the matter back to the Tribunal to decide again. To that end, I allowed an amendment to the application so that it sought a writ of mandamus.
CONSIDERATION
The Court’s jurisdiction
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if she establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
The statutory context
Section 65(1)(b) of the Act provides that after considering a valid application for a visa, the Minister, if not satisfied that criteria prescribed by the Act or the regulations for the visa have been satisfied, is to refuse the visa. Conversely, if satisfied of the prescribed criteria, the Minister is to grant the visa. Section 65, therefore, casts an obligation on the Minister to grant or refuse to grant a visa: Minister for Immigration and Multicultural Affairs v SGLB[2004] HCA 32 at [37], per Gummow and Hayne JJ; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [34], per Crennan, Bell, Gageler and Keane JJ. When undertaking its review function, the Tribunal is similarly required to consider whether the criteria prescribed by the Act or the regulations for the visa have been satisfied and grant or refuse the visa accordingly: SGLB at [37].
The relevant criteria required to be satisfied for the visa are set out in Sch 2 to the Regulations. Clause 500.2, which sets out the primary criteria for the visa, provides that all criteria must be satisfied “at the time a decision is made on the application”. This necessarily includes any decision made by the Tribunal on review.
The primary criteria for the visa include those set out in cl 500.212 of Sch 2 to the Regulations, which 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.
Clause 500.212(a) concerns the GTE criterion.
The proper construction of cl 500.212 was the subject of a decision of the Full Court of the Federal Court in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25, per Jagot, Bromwich and Lee JJ. At [31], the Full Court recognised the criterion “requires satisfaction of a single state of affairs”. The language of the provision and its components “creates a waterfall effect”, “giving rise to a ‘whole idea or conception: “a genuine applicant for entry and stay as a student”’”: Dait at [31] citing Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [8], per Allsop CJ. Each of subcll (a), (b) and (c) demand discrete inquiries meaning that cl 500.212 requires the cumulative satisfaction of discrete elements. If one of those elements is not satisfied, “the decision-maker need not continue their inquiry”: Dait at [32].
Satisfaction of cl 500.212 requires an applicant to be both a genuine temporary entrant and a genuine student: Eros at [8], per Allsop CJ.
Section 499(1) of the Act provides the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Where such a direction has been made, the person or body must comply with it: s 499(2A) of the Act. MD 69 is such a direction. It provides that it applies to members of the Tribunal who review the decisions in relation to a student visa.
The preamble to MD 69 relevantly provides:
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a. the applicant’s circumstances; and
b. the applicant’s immigration history; and
c. if the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
The directions on assessing the GTE criterion relevantly state:
1. 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.
2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b. considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4. Circumstances where further scrutiny may be appropriate include but are not limited to:
…
c. the applicant intends to study in a field unrelated to their previous studies or employment; …
5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
In relation to the applicant’s circumstances, paragraph 6 of MD 69 provides that decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia. Paragraph 7 of MD 69 provides that for primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future. Paragraph 8 of MD 69 provides that weight should be placed on an applicant’s circumstances that indicate the visa is intended primarily for maintaining residence in Australia.
In relation to the applicant’s circumstances in their home country, paragraph 9 of MD 69 relevantly provides the decision makers should have regard to:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b. the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia.
In relation to the applicant’s potential circumstances in Australia, paragraph 11 of MD 69 provides decision makers should have regard to:
a. The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b. evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c. whether the Student visa … is being used to maintain ongoing residence;
…
e. the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
When considering an applicant’s immigration history (which refers to both their visa and travel history), paragraph 14 of MD 69 relevantly provides decision makers should have regard to whether previous applications for an Australian temporary visa were granted and the amount of time the applicant has spent in Australia and whether the student visa may be used primarily for maintaining ongoing residence. This includes considering whether the applicant has undertaken a series of short, inexpensive courses.
Finally, paragraph 16 provides decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia, including information that may be beneficial or unfavourable to the applicant.
In Kaur v Minister for Home Affairs [2019] FCA 2026, Steward J considered the interaction of cl 500.212(a) of the Regulations and MD 69. His Honour observed at [29] that cl 500.212(a) set out four factors which must be applied when making the finding of fact whether an applicant does or does not intend to stay in Australia temporarily. MD 69, in turn, must be applied. However, the language of MD 69 directs that the factors identified in the direction should be considered and should not be treated as a checklist but as a guide: at [30]. Consequently, those factors which a decision maker must take into account are those which are the subject of substantial, clearly articulated claims made by the applicant. A failure to do so may well constitute jurisdictional error. Further, a failure to consider a claim engaging a factor listed in MD 69 apparent on the face of the material before the Tribunal and which clearly emerges from that material, may also constitute jurisdictional error: Kaur at [30]; see also Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [15], per Middleton J.
Applicant’s submissions
The applicant submitted she has been a genuine student and got all the qualifications she enrolled in. She went to a migration agent and requested further time to complete her studies due to personal issues. She explained she was unable to get sufficient experience in her most recent course of study, Building and Construction, and subsequently she was unable to apply for another visa.
I directed the applicant to the GTE criterion set out in cl 500.212, which was the basis for the Tribunal affirming the decision. She explained her parents have assisted her to come to Australia and it was her wish to settle here for a better future. I asked the applicant to explain what the Tribunal did wrong when it decided to affirm the delegate’s decision. She stated again she was a genuine entrant and does not know why they would find otherwise. She also submitted her migration agent refused to come with her to the Tribunal hearing and she was unsure if she answered the Tribunal’s questions “well enough” and she “was not in a good condition to answer questions” due to stress. She said she tried to answer but she was not sure if she answered the right way due to stress. She did not assert she asked for an adjournment. She reiterated she was aware she has completed many courses, but she completed all of them and was a genuine student. The applicant confirmed the Tribunal’s decision record accurately reflects the answers she provided to the Tribunal.
I took the applicant to her grounds of review where she asserted the Tribunal’s decision was not fair because she wants to know the reason why her visa was refused. In relation to her affidavit and her submission the Tribunal affirmed the delegate’s decision “without doing any further investigation”, she stated she should be considered as a genuine student as opposed to staying in Australia temporarily. She was unable to provide further submissions on ground three and how the Tribunal’s decision was based on prejudice. The applicant suggested in reply that she was expecting an interpreter for the hearing.
Minister’s submissions
At the outset, the Minister noted the Tribunal’s observations that the applicant’s evidence was “honest and direct” but that it indicated she was not a genuine applicant for entry and stay as a student. The Minister noted it was the Tribunal’s role to come to a decision based on the facts.
As to the applicant’s first ground, the Minister submits the Tribunal considered the applicant’s immigration and study history, including by putting the applicant’s Provider Registration and International Student Management System (PRISMS) information to her during the Tribunal hearing. The Minister points out the Tribunal considered that history in detail. Consequently, the Minister argues this aspect of the ground fails at a factual level. The applicant’s complaint otherwise expresses disagreement with the Tribunal’s decision. The Minister argues the remainder of the ground seeks impermissible merits review: Liang.
In respect of the applicant’s complaint at ground two that the Tribunal’s decision was legally unreasonable, the Minister notes this ground is not particularised in a meaningful way. The Minister argues the Tribunal’s decision was open to it for the reasons it gave, and the reasoning provided was coherent and logical. In the absence of particulars, the Minister submits this ground rises no higher than disagreement with the Tribunal’s decision and impermissible merits review: Liang.
As to ground three, the Minister argues it is for the Tribunal to identify the material it finds relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7]. The Minister submits the Tribunal gave detailed consideration to the applicant’s circumstances in India and her incentive to return and found they did not indicate an intention to return to India for reasons that were open to it.
The Minister argues the Tribunal otherwise complied with its procedural fairness obligations under Div 5 of Pt 5 of the Act. The applicant was invited to two hearings in compliance with ss 360 and 360A of the Act. The applicant attended both the hearings. The first hearing on 7 November 2018 was rescheduled by the parties’ agreement. The applicant advised she was notified of the Tribunal hearing from a text alert, not by her migration agent. She also told the Tribunal she would contact her migration agent about the hearings and advise them to respond to the hearing invitations. Subsequently, she was put on notice of the second hearing scheduled for 27 November 2018. Prior to the first hearing, the applicant’s agent advised the Tribunal the applicant would be attending the hearing by herself.
The Minister also submits the applicant was on notice from the delegate’s decision record and the Tribunal’s questioning at the hearing that the determinative issue on review would be whether she was a GTE to satisfy cl 500.212 of the Regulations. The applicant’s PRISMS record was put to her adopting the procedure pursuant to s 359AA of the Act. The Tribunal’s decision otherwise turned on the applicant’s written evidence to the Department, information contained in the delegate’s decision which the applicant provided to the Tribunal and the applicant’s written and oral evidence to the Tribunal, all of which fell within the exceptions in ss 359A(4)(a), (b) and (ba) of the Act. In those circumstances, the Minister submits there was no breach of s 359A of the Act.
Discussion
The applicant’s grounds of review and submissions principally addressed her disagreement with the Tribunal’s ultimate conclusion that she did not meet the GTE criterion pursuant to cl 500.212(a) of Sch 2 to the Regulations. Those arguments were directed at the merits of the decision rather than identification of any legal error. To the extent the applicant’s submissions and grounds suggest jurisdictional error, I have considered them in turn.
Ground 1 – did the Tribunal consider the applicant’s circumstances including immigration history and bona fide record of study in Australia?
I agree with the Minister’s submissions that the applicant’s complaint these matters were not considered fails at a factual level. The Tribunal dealt with the applicant’s immigration and study history in considerable detail at [11]-[15] and at [24]-[26]. It also considered the applicant’s evidence of her return trips to India at [23]. It is clear the Tribunal analysed that information in the context of the factors set out in MD 69 at [26]-[31], concluding the applicant was not a genuine applicant for entry and stay as a student and was using the student visa system to circumvent the migration program. It is notable the applicant’s evidence to the Tribunal indicated a desire to settle in Australia which the Tribunal regarded as indicating she was not a genuine temporary entrant.
I note ground 1 referred to the Tribunal’s decision as being full of discrepancies. This was not explained beyond the applicant expressing disagreement with the Tribunal’s conclusions. That disagreement, as already noted, fails to raise a jurisdictional error.
In my view, the Tribunal has considered the relevant information in an orthodox manner and reached conclusions that were plainly open to it. I discern no error in the Tribunal’s consideration of these matters.
Ground 2 – was the Tribunal’s decision taken in an unfair manner or legally unreasonable?
In reviewing the delegate’s decision, the Tribunal was required to act according to substantial justice and the merits of the case: s 353(b) of the Act. The Tribunal’s way of operating was also governed by s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) which required the Tribunal, when carrying out its functions, to pursue the objective of providing a mechanism of review that was accessible, fair, just, economical, informal and quick, proportional to the importance and complexity of the matter and promoted public trust and confidence in the decision-making of the Tribunal. By these provisions, the Tribunal was “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law”: Minister for Immigration and Citizenship v Li(2013) 249 CLR 332; [2013] HCA 18 at [14], per French CJ.
Division 5 of Pt 5 of the Act provided an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it dealt with: s 357A(1). In applying Div 5, the Tribunal was required to act in a way that was fair and just: s 357A(3). The following paragraphs concern those parts of Div 5 of Pt 5 which are relevant to this application.
The Tribunal was required, subject to exceptions not presently relevant, to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 360(1). The Tribunal had the power to take evidence on oath or affirmation: s 363(1)(a). It also had the power to get any information that it considered relevant. If such information was obtained, it was required to have regard to that information in making the decision on the review. It was also empowered to invite a person to give information either orally or in writing: ss 359(1) and (2). These provisions gave the Tribunal wide discretionary powers to investigate an applicant’s claims but did not impose a general duty to make such inquiries: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [1], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [19], per French CJ and Kiefel J (Heydon and Crennan JJ agreeing).
The review process set out in Pt 5 involved a determination on the merits of whether or not the applicant satisfied the criteria for the visa: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [48], per Black CJ, French and Selway JJ. As the Full Court explained in the context of Pt 7 of the Act, “the conduct of a review is a necessary condition of the exercise of the Tribunal’s powers in making a final decision of the kind set out in s 415(2). A failure to undertake a review would vitiate any purported decision made pursuant to s 415”. Such a review requires consideration of the application which is the subject of the review in light of information, evidence and arguments relevant to the application and provided to the Tribunal or obtained by the Tribunal for itself: NABE at [49] citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44].
Applying the concepts of what is fair and just in the context of the duty of the Tribunal to invite an applicant to a review to appear and its centrality to the conduct of a review “requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case”: Li at [58]-[61], per Hayne, Kiefel and Bell JJ. That said, the Tribunal is not obliged “to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence”: Li at [82] per Hayne, Kiefel and Bell JJ. As explained by Gageler J (as his Honour then was) in Li at [98]:
The [Tribunal] does not fail to perform its statutory duty to review a decision merely because the manner of its performance of a procedural duty or its exercise or non-exercise of a procedural power might be assessed in the result not to measure up to one or more of the requisite statutory exhortations or aspirations. The [Tribunal] does fail to perform its statutory duty to review a decision where: (i) the manner of its performance of a procedural duty, or of its exercise or non-exercise of a procedural power, is so unreasonable that no reasonable tribunal heeding those exhortations or adhering to those aspirations could have done what the [Tribunal] in fact did; and (ii) that unreasonableness, or neglect, on the part of the [Tribunal] is shown to be material to the outcome of the review that the [Tribunal] has undertaken in fact.
In my view, the Tribunal complied with its procedural fairness obligations and the statutory scheme. The applicant was invited to a hearing and attended. She had an opportunity to present evidence and make submissions. The applicant has referred to difficulties associated with not having her migration agent present. There is no suggestion the applicant requested an adjournment to allow her agent to be present. There was no information before the Tribunal to suggest the agent ever intended to be present. In fact, the migration agent told the Tribunal the applicant would be appearing unrepresented. The Tribunal’s decision to proceed in those circumstances could not be said to be legally unreasonable.
The complaint in paragraph 2 of the applicant’s affidavit to the effect the Tribunal affirmed the decision without doing further investigation is not further explained. As noted above, the Tribunal is not under any duty to inquire or investigate. The applicant has not identified any failure on the part of the Tribunal to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained”: SZIAI at [25], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
To the extent the complaint of legal unreasonableness is directed at the Tribunal’s conclusions, there is no merit in that complaint. The Tribunal accepted the applicant’s evidence. That evidence was duly assessed in the context of the cl 500.212(a) of Sch 2 to the Regulations and MD 69. The GTE criterion turns upon factual matters upon which reasonable minds could reasonably differ. Consequently, it is very difficult to show that no reasonable decision-maker could have arrived at the decision in question: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [137], per Gummow J. The Tribunal’s findings and conclusion that the applicant did not meet the GTE criterion were based on logical grounds. They were not irrational or legally unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [35].
Ground 3 – did the Tribunal ‘simply’ affirm the delegate’s decision?
There is no merit in this complaint. The Tribunal did affirm the delegate’s decision. The decision record, however, discloses the Tribunal traversed the evidence before it carefully. It arrived at its own conclusions. There is not the least suggestion of a constructive failure to exercise its jurisdiction to the review the delegate’s decision pursuant to s 348(1) of the Act. The applicant did not explain how the Tribunal decision was based on prejudice. In my view, there is no basis to conclude the Tribunal’s decision was based on prejudice or any other impermissible matter.
Ground 3 – did the Tribunal fail to give weight to the applicant’s incentives in her home country?
It is clear on the face of the Tribunal’s decision that it gave close consideration to the applicant’s circumstances both in India and Australia when assessing the applicant’s incentive to return to her home country. The Tribunal ultimately concluded those circumstances did not lend weight to an intention to return to her home country, but suggested there was a significant incentive for her to remain in Australia.
What weight is to be afforded to particular evidence or representations in a matter for the Tribunal: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [54], per Edelman J. It is not open to conclude the Tribunal’s assessment of the relevant factors was legally unreasonable, illogical or irrational.
Are there other legal errors not identified by the applicant?
The applicant was not represented in this Court. I have considered the Tribunal’s decision alert to the possibility of legal error in an effort to make the process as fair as possible to the applicant: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [100], per Mortimer J (as her Honour then was). I have not identified any jurisdictional error.
CONCLUSION
For the above reasons, I dismiss the application as amended.
The Minister indicated it sought costs in the fixed sum of $5,000.00 in the event that the applicant was unsuccessful in these proceedings. The applicant explained that she could not afford the amount sought. As a general principle, a party’s capacity to pay is not a relevant factor in the exercise of the discretion to award costs.
I am satisfied that costs should follow the event and that the amount sought is reasonable. It falls well short of the scale of costs in migration matters set out in Sch 2, Pt 2 of the Rules. I order that the applicant pay the first respondent’s costs of and incidental to the application fixed in the amount of $5,000.00.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 23 January 2025
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