SINGH v Minister for Immigration - [2020] FCCA 1268

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1268

Catchwords:
MIGRATION – Application for Student Visa – Certificate IV in Commercial Cookery – previous Student Visa issued for applicant to undertake diploma courses in leadership and management – Tribunal not satisfied that applicant had a genuine intention to remain in Australia temporarily – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 65, 499.

Migration Regulations 1994 (Cth), sch.2, cl. 500.212.

Cases cited:

NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs

(2004) 214 ALR 264.

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 668.

Jatin v Minister for Immigration and Border Protection [2019] FCA 150.

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

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

Applicant:

OPINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 990 of 2019

Judgment of:

Judge Egan

Hearing date:

18 May 2020

Date of Last Submission:

18 May 2020

Delivered at:

Brisbane

Delivered on:

22 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Baston

Solicitors for the Applicant:

Tonio Lawyers

Solicitors for the First Respondent:

Mr Hawker, Solicitor of Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

The Amended Application for Review filed on 23 March 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 990 of 2019

OPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of India who arrived in Australia on 19 January 2017 as the holder of a Student Visa. The application for the visa made by the applicant was for the purpose of his undertaking a course of study for a Diploma and an Advanced Diploma in Leadership and Management.
The applicant completed the Advanced Diploma in June 2018. On 21 August 2018, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) Visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (‘the Act’) in order for him to undertake a Certificate IV Course in Commercial Cookery.
On 2 October 2018, a delegate to the Minister refused to grant the visa on the basis that the applicant did not meet the relevant cl. 500.212(a) criteria to Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 500.212 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.”
The delegate had found that the applicant did not genuinely intend to stay in Australia only temporarily.
On 15 October 2018, the applicant applied for review of the delegate’s decision to the Administrative Appeals Tribunal (‘the Tribunal’). On 21 August 2019, the Tribunal asked the applicant to provide further information in relation to factors which impacted upon a consideration as to whether a person had a genuine intention to remain in Australia temporarily – those factors being set out in Part 2 of Ministerial Direction No. 69 made pursuant to the provisions of s. 499 of the Act. The applicant responded to that request on 3 September 2019. He submitted a completed Form M17, made submissions and provided other supporting material. [1] The applicant’s reasons for seeking to be educated in Australia were set out within the Form M17 response. [2] The applicant’s submissions followed. [3]
[1]        Court Book (CB) pages 60 – 116 inclusive.
[2]        CB pages 66 – 67.
[3]        CB pages 75 – 88.
A Tribunal hearing took place on 17 October 2019 at which time the applicant attended in the company of his migration agent and an interpreter. On 18 October 2019, the Tribunal affirmed the decision of the delegate.
On 18 November 2019, the applicant filed an Originating Application for Review of the decision of the Tribunal. On 23 March 2020 the applicant filed an Amended Application for Review, the grounds of which relied upon at the hearing before the Court being as follows:
“Grounds of Application
1. Taking irrelevant consideration into account - The tribunal has relied heavily and prejudicially on the technical progression of courses selected by the applicant with reference to their categorisation according to the AQF standards of course progression. The fact that the tribunal member overlooked all other circumstantial and social references which are relevant to the applicant's decision to get a genuine qualification has been overlooked by the minister and tribunal's decision to affirm the minister's decision is a jurisdictional error.
2. Failure to take relevant matters into account - The tribunal failed to give due regard to the relatively young age of the applicant and the fact that throughout the course of his stay in Australia he was been consistently working towards one point focus of developing his natural talent in commercial cookery without breaching or altering any visa conditions imposed upon him as been misconstrued as strategy to extend his stay in Australia, which is cannot be supported by any evidence in fact.
3. Failure to take relevant matters into account- The tribunal failed to give due regard to the fact that the Australian qualifications have a higher standard of business regard. In the times of globalisation and free economies the comparison of the potential earning capacity with only the home country cannot be considered as a fair analysis of potential that the additional qualification may have on the career prospects of the applicant.
4. Bias - The tribunal relied heavily on the personal background of the applicant owing to the fact that the applicant comes from agricultural background and despite repeated clarifications from the applicant reiterating his desire to become a professional chef, the member did not accept the fact that the applicant could move away from his ancestral occupation and create a career for himself in an upcoming industry reflects bias on the part of the honourable tribunal member.
Procedural Fairness - The tribunal did not attempt to reconcile on the reasons based on which the applicant selected the subjects and made an observation that represent a regression in the applicant studies and used the same observation as a reasoning for rejecting the application. However, through analysis of course outcomes reflect that there is a synergy between the courses which were selected. While the standards of course progression are objective the application requires a more subjective analysis. The applicant mentioned that he received credit points from the earlier course in the correct enrolment reflects that these courses were in no way random and the course selection validates a natural progression. The lack of making necessary enquiries before dismissing the application is denying procedural fairness.”
Mr Baston of Counsel for the applicant conceded that the applicant could not succeed on Grounds 1, 2, 3 and 5 unless the applicant succeeded on Ground 4.

Tribunal’s Consideration of Evidence

When considering the evidence put before the Tribunal and the claims of the applicant, the Tribunal recorded, at [9] of its reasons, that it was required to have regard to a number of Ministerial Direction No. 69 factors which included:
·“the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicants 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.”
At [10] of its reasons, it was noted by the Tribunal that the factors set out in the Ministerial Direction ought not to be used as a checklist, but rather as matters which should be taken into account as a guide to decision making, before a decision was reached, as to whether an applicant satisfied the genuine temporary entrant criterion or not.
At [13] of its reasons, it was recorded that in response to the Tribunal having asked the applicant as to why he had not undertaken the equivalent of a Certificate IV Commercial Cookery Course in India, if one was available there, the applicant replied that Australia offered the applicant ‘easy access to reputed institutes and the education standards and practical focus are much better than in India’. The applicant had set out in his submissions why he had not studied commercial cookery in India. [4]
[4] CB 78 – 80.
At [15] of its reasons, the Tribunal recorded that the applicant’s wife and parents lived in India. The applicant stated that he was an only child and that he had an obligation to return to India to care for his parents. He also said that he wanted to return home because he could not practise his religion. It was noted that the applicant’s family had land and a home in India. The applicant had said that he was financially supported by his family during his stay in Australia, and that though he did not have significant personal assets, he expected to inherit family owned assets. At [16] it was recorded that the applicant had returned to India in 2017 and 2018. At [17] it was recorded that the applicant had worked as a cook in Australia since February 2017 (one month after he had arrived in Australia) earning approximately AUD $25,000.00 (presumably per year) on the basis of 20 hours part-time work per week. At [18] it was recorded that the applicant intended to return to India to find a position as a chef in a reputable hotel close to Delhi where he said he would live, and where he anticipated he could earn the equivalent of AUD $31,000.00 per annum. It was also recorded that the applicant had not undertaken any steps to seek employment in India. At the hearing, the applicant was recorded as having said that he wanted to open his own hotel, but that he had not taken steps to do so.
At [19] of its reasons, the Tribunal made the following findings:
“(a) The applicant provided reasonable reasons for not undertaking the proposed course of study in his home country.
(b) The applicant does have family ties to his home country through the residence of his parents and wife, his religious practice, an obligation as a son and only child to care for his parents, and an expected inheritance. In considering the period of time the applicant has been in Australia, his change in intention to extend his period of residence in Australia, and the financial support received from the applicant's family while he has been in Australia, these circumstances are not a significant incentive to return.
(c) The applicant is supported financially during his study in Australia by his family, and currently earns approximately AUD25, 000 as a cook in his chosen profession in part-time employment. The applicant did not hold paid employment in India and has taken no substantive steps in relation to seeking employment in his home country. The applicant anticipates earning approximately AUD31, 000. The Tribunal accepts the applicant's living expenses in India are likely to be less than in Australia. In considering the applicant's economic circumstances as a whole they present as a significant incentive not to return home.
(d) The applicant does not have any military service commitments which would provide an incentive not to return home.
(e) There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia, to remain indefinitely.
(f) There is no relevant evidence regarding the applicant’s circumstances, relative to others in that country, and the Tribunal makes no findings concerning the applicant in that respect.”
At [21] of its reasons, it was recorded that though the applicant had said that it had always been his dream to become a chef, the applicant had nonetheless undertaken study in leadership and management to assist the family agricultural business – that being a business unrelated to food and hospitality. It was recorded by the Tribunal that the applicant had not sought to pursue his dream of becoming a chef by undertaking a cookery course until shortly before the end of his previous visa relating to the leadership and management courses. At [22] it was noted that the application for a new visa to study a different course, namely one related to his dream of becoming a chef, had not been made until August 2018, even though he had been working as a chef in Australia since February 2017. At [24], the Tribunal found that the applicant’s change in his fields of study/career paths was not reasonable. It was also noted by the Tribunal that after completion of the two diploma courses, the applicant had not returned to India to utilise his newly acquired qualifications in leadership and management to assist in the family business, even though he had said that that was the reason why he had travelled to Australia to study such courses. [5]
[5] [21] of Reasons.
At [25] of its reasons, the Tribunal made findings as to the applicant’s ‘potential circumstances in Australia’ as follows:
“(a) The applicant has ties to Australia for the period of time the applicant has been living in Australia to study since 2017. The Tribunal is satisfied the applicant has developed friendships in Australia through his study, and considers the social and emotional connection to Australia to provide a strong incentive to remain
(b) The applicant’s pattern of enrolment, timing of his visa application on completion of his then intended courses of study shortly before the cessation of his then visa, change in field of study, and period of study evidence the student visa program is being used to circumvent the intentions of Australia's migration program.
(c) The Tribunal accepts that applicants will change their career and study pathways. The applicant told the Tribunal his dream was to always be a chef but he travelled to Australia for a different purpose. The applicant did not seek to pursue his career in cookery until completing his Diploma and Advanced Diploma and has sought to extend his temporary residence in Australia for a greater period than the period the applicant initially intended to remain. The matters set out in these reasons for decision, including the applicant's period of time in Australia, the enrolment in courses of study not contemplated at the time of travelling to Australia, the enrolment in a different field of study and the change in career and study pathways at the completion of an intended course of study prior to the cessation of the applicant's then visa, evidence the student visa is being used primarily to maintain ongoing residence in Australia.
(d) The applicant has a good knowledge of living in Australia, primarily through the length of time the applicant has been in Australia, and has a good understanding of the proposed course of study, education provider and his current study and living arrangements in Australia, which he intends to continue.”
At [26] – [29] inclusive of its reasons, the Tribunal noted the contradiction between the applicant’s initial stated intention of pursuing study in Australia in the leadership and management field, so that he might return to India and assist in the family agricultural business, with the later stated intention of pursuing a cookery course. Such analysis was set out at [35](e) of the reasons of the Tribunal as follows:
“(e) The applicant travelled to Australia in 2017 to complete a Diploma and Advanced Diploma of Leadership and Management to return to India to assist in his parents' business. Upon completing those courses of study the applicant has sought to extend his period of residence in Australia for some 21 months for a course of study not previously contemplated by the applicant in travelling to Australia despite the applicant stating that it was always his dream to become a chef. The applicant sought the current student visa under review shortly before the cessation of his then student visa to undertake further study in a field of study not contemplated by the applicant previously. The Tribunal does not accept the applicant's reasons for doing so as reasonable. The Tribunal considers the applicant enrolled in his current course of study for the primary purpose of maintaining his residence in Australia.”
At [30] of its reasons, when considering the value of the proposed course of study to the applicant’s future, the Tribunal found:
“(a) The applicant's current course of study is a regression from the applicant's previously attained qualifications in Australia.
(b) The applicant's proposed course of study is not relevant to the applicant's previous employment but is of relevance to his future career goals and aspirations. The proposed course of study will provide the applicant with assistance in seeking employment or improving his employment prospects.
The applicant has not taken substantive steps in relation to seeking employment and has not sought to utilise the qualifications the applicant travelled to Australia to attain. Given the timing of the applicants visa application, the enrolment in a different field of study shortly prior to the cessation of his then visa to pursue a pre-existing dream to work as a chef after completing two unrelated courses of study, the Tribunal considers the applicant's now stated career goals and aspirations have been formulated to justify the current course of study which would extend the applicant's temporary residence in Australia until May 2020.
(d) The remuneration the applicant can expect in his home country is uncertain. The Tribunal accepts the applicant's living expenses in India are likely to be less than in Australia. The applicant is financially supported in Australia and has previously engaged in part-time employment in Australia in his chosen profession.
(e) There is no evidence before the Tribunal in relation to comparative remuneration the applicant would receive in Australia and in India, in utilising the qualifications the applicant seeks to obtain, and the Tribunal makes no findings in that regard.”
At [37] – [40] inclusive of its reasons, the Tribunal, having recorded that it had complied with Ministerial Direction No. 69, found that the applicant did not meet the relevant cl. 500.212(a) criteria, namely that the applicant did not intend genuinely to stay in Australia temporarily.

Ground 4 – Bias

This ground asserted bias on the part of the Tribunal. It was asserted that the Tribunal did not accept that the applicant wanted to move away from his ‘ancestral occupation’ and create a career for himself in another industry notwithstanding that it was said that the applicant had repeatedly said to the Tribunal, during the hearing and in his submissions, that he wished to become a professional chef. In aid of that submission, the applicant, in his submissions, quoted pages 7 – 10 of the transcript of part of the hearing before the Tribunal as follows: [6]
[6] Exhibit 2
“MR O’BRIEN: But that wasn’t your intention was it? Your intention was to return to work in an agricultural business, wasn’t it?
MR SINGH: That’s was – that’s all family business. We don’t do it ourselves, but we have some people that do the business. My job was just to look after them, but I have to do some good thing with my future, so I have tried to become a chef and open a hotel.
MR O’BRIEN: Why didn’t you change your course of study to a Certificate IV in Commercial Cookery after you finished your diploma if it was your dream to become a chef?
MR SINGH: Because in the diploma, the subjects were limited. So, now, also in certificate IV, I am getting credit for my diplomas – the advanced diploma. Sorry. So I did the advanced diploma so I can get the credit as well and get more skilled from the business management.
MR O’BRIEN: One of the other concerns the tribunal may have is you’ve enrolled in the Certificate IV in Commercial Cookery and sought the visa shortly before your then-visa ceased, which may indicate you were enrolling in a series of courses to circumvent Australia’s migration program. Do you have anything to say in relation to that?
MR SINGH: As I already said then, when working in a kitchen, my – I was shifting towards the cooking, so I thought and.. the certificate IV.
MR O’BRIEN: I know what you say, but – and I will put the concern to you again, just for the sake of completeness – but you’ve indicated in your written submissions that it was always your dream to work as a chef, and I think you had indicated you dreamt at Radisson Blu in India. You’d been working as a chef in Australia since February 2017. So why didn’t you seek to undertake those studies in – at the start of January 2018 instead of completing an Advanced Diploma of Leadership and Management?
MR SINGH: Because I got the…. See for the full course. So I thought it would – my visa would be in danger, that – so I tried to complete my courses. Then, after that, I go for the certificate IV.
MR O’BRIEN: One of the other concerns the tribunal may have in relation to your pattern of enrolment is your certificate IV is a regression to the diploma and advanced diploma qualifications you already held – have. And your course of study or your pattern of study may not indicate reasonable academic progression. Do you have anything to say in relation to that?
MR SINGH: The – including the highest level of course is a Certificate IV in Commercial Cookery, so I applied for that. That’s what you’re asking, sir?
MR O’BRIEN: Sure. The concern was that you’ve done a diploma and advanced diploma and now you’re going backwards for a certificate IV. But I take it from your response is the certificate IV is a qualification that gives you different skills in a different area; is that what you were - - -
MR SINGH: No. It’s ---
MR O’BRIEN: And it’s the base course of cookery.
MR SINGH: No. It’s the highest course. Because certificate I, II, III and Certificate IV is the highest. After I choose to do the cookery, so here in colleges and so I found the certificate IV is the highest level of the course in my field, so I applied for this one.
MR O’BRIEN: If your dream was always to work as a chef or in hospitality, why didn’t you study in hospitality management as opposed to leadership and management?
MR SINGH: In leadership management, I get the skills to become a leader; that’s really important for me. So I got into this diploma and advanced diploma rather than the hospitality diploma
MR O’BRIEN: Another concern the tribunal may have is you, when you applied for the visas, or your initial visa, your intention was to undertake leadership and management courses to return to assist in your family business. You wanted until after those courses were completed or shortly before those courses were completed and applied for another visa for a Certificate IV in Commercial Cookery. They indicate to the tribunal that you’re enrolling in a course of study after completed one or a series of studies in a different field to maintain ongoing residence in Australia for the primary purpose of maintaining ongoing residence. Do you have anything to say in relation to that?
MR SINGH: My advanced diploma was completed on 29th June and I applied for another student visa on 21st August 2018. It was after two months of completion
MR O’BRIEN: Why did you wait two months to apply for another course in Australia shortly before your visa was finished?
MR SINGH: I was searching for the institute and I was searching for course that took me in the two months before applying for the visa.
MR O’BRIEN: Another concern the tribunal may have is that your dream of becoming a chef has been formulated to justify your current course of study. Do you have anything in relation to say to that?
MR SINGH: Translator. I’m doing this…. For my future. The skills I am getting here in Australia are because, in Australia, the… is the third largest country that’s accepting student from overseas. So in my college itself we have students from China, Thailand, India, Brazil. So I will get the experience from these, so that will be very beneficial for me for my future.”
It was submitted that the Tribunal had ‘clearly placed undue weight on the applicant’s family having agricultural ties in the applicant’s home country’ and that the Tribunal had conflated the fact that the existence of the family agricultural business with an assumption that the applicant would work in such business. It was submitted that there was nothing irreconcilable between the applicant having ties to an agricultural family business and the applicant wishing to forge a career in commercial cookery in his home town. [7]
[7] Paragraphs [47] – [50] inclusive of Applicant’s Submissions filed on 30 April 2020.
It is clear that in the parts of the transcript called in aid by the applicant, the Tribunal member was testing the applicant’s evidence by reference to the fact that the applicant had not earlier sought to change his course of study from leadership and management to cookery. A Tribunal is entitled to do just that.
It has been found that when a Tribunal has undertaken a robust and forthright testing of claims and evidence, that in itself does not justify a finding of apprehended bias, let alone actual bias. As was said in NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 214 ALR 264 per Allsop J at [19]:
“[19] Third, the place of a decision-maker such as the tribunal here should be recognised as different from a judge in open court: Jia at CLR 563–4; ALR 465; Laws at 70–1; ALR 435–6; Ebner at CLR 343–4; ALR 646–7. The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”
Further, in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J it was said:
“[38] In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] – [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”
In Jatin v Minister for Immigration and Border Protection [2019] FCA 150 at [21], Mortimer J, when dealing with a Tribunal’s ability to test the claims of an applicant before it, said as follows:
“[21] I do not accept the appellant’s submission that the Tribunal precluded the appellant from advancing evidence in support of his case, or cut him off inappropriately or in a way that prevented him from giving explanations he wanted to give. Rather, in the face of reasonably vague evidence from the appellant, the Tribunal attempted to focus his mind on issues of particular concern to it and to invite him to give it a further explanation. As the Minister submitted, the best example of this, and something that occupied much of the review hearing, was the Tribunal’s attempt to have the appellant focus on its concern about why the appellant had moved from a bachelor degree course at a well-established University to a Certificate IV course, and one that appeared less relevant to the appellant’s stated intention of going back to India to assist his father in the business of running a hotel there. It is apparent the Tribunal was sceptical about the appellant’s explanation of saving money, and it was open to it to adopt the attitude it did to the appellant’s explanation during the course of the hearing. In doing so, the Tribunal gave the appellant a chance to understand its preliminary views, and to deal with them.”
The Tribunal’s reference to the initial student visa application having been made by the applicant with a view to the applicant completing the leadership and management course, and then returning to India to use such course in the furtherance of the family agricultural business, was factually based. The Tribunal, in those circumstances, was entitled to probe the applicant for his justification in seeking to diverge from his original plan, both in relation to his course study, as well as in relation to his future life intentions.
In circumstances where the Tribunal did not accept the applicant’s explanation for such change, it was open to the Tribunal to find, as it did, that the applicant’s further visa application was sought by him for the purpose of maintaining his residence in Australia.
As such, it was open for the Tribunal to find that the applicant did not meet the relevant cl. 500.212(a) criteria, in that he did not have a genuine intention to remain in Australia temporarily.
The Tribunal did not err in so finding. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
As a consequence of the concession made on the part of Counsel for the applicant that the success of the other grounds of the Amended Application for Review depended upon the applicant’s success in respect of Ground 4, it is unnecessary for the Court to deal with such other grounds.
No jurisdictional error has been established on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 22 May 2020