Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 219
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 219
File number(s): MLG 1301 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 21 February 2025 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – whether Tribunal failed to take into account all relevant considerations and evidence – whether Tribunal made a jurisdictional error by referring to the wrong visa subclass – whether failure to afford natural justice – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 476, 499
Migration Regulations 1994 (Cth) cll 500.212, 500.212(a), 500.212(b)
Cases cited: 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) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of last submission/s: 21 January 2025 Date of hearing: 5 February 2025 Place: Adelaide Applicant: Self-represented with the assistance of a Punjabi interpreter Counsel for the First Respondent: Maximilian Plitsch Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1301 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SATVIR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
21 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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Student (Temporary) (Class TU) (Subclass 500) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
The applicant is a citizen of India (Court Book (CB) 12-13). He first arrived in Australia on 25 October 2014 as the holder of a Student (Temporary) (Class TU) (Subclass 573) visa which was valid until 30 August 2017 (CB 49).
Since arriving in Australia, the applicant had enrolled in the following courses (CB 49, 70):
·Diploma of Business, commencing October 2014 – did not complete;
·Bachelor of Commerce, commencing July 2015 – never started;
·Diploma of Building and Construction, commencing August 2016 – did not complete;
·Advanced Diploma of Leadership and Management, commencing August 2017 – never started.
On 28 August 2017, the applicant applied for the Subclass 500 visa (CB 11-26). At the time of application, the applicant was enrolled in an Advanced Diploma of Leadership and Management and a Bachelor of Business (Business Management) (CB 40, 49).
On 23 October 2017, a delegate of the Minister refused to grant the applicant the visa (CB 43-51). The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 48). That criterion provides:
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.
On 31 October 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 52-53).
On 25 February 2019, the Tribunal wrote to the applicant inviting him to provide further information in a ‘Request for Student Visa Information’ form by 12 March 2019 (CB 58-59). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) (CB 60-64).
The applicant provided a completed ‘Request for Student Visa Information’ form (CB 65-74), where he confirmed he was currently enrolled in a Certificate IV in Building and Construction (Building) with an expected completion date of July 2019 (CB 70). The applicant’s enrolment history indicates there were periods between September 2015 and August 2016, and August 2017 and July 2018, where he was not enrolled in a course of study (CB 70). The applicant also advised that he had visited India for 33 days in January 2017 and 18 days in July 2018, respectively (CB 68).
On 21 March 2019, the applicant was invited to attend a hearing scheduled for 5 April 2019 (CB 75-78).
On 3 April 2019, the applicant provided the Tribunal with a statutory declaration and other supporting material (CB 79-88).
On 5 April 2019, the applicant attended the Tribunal hearing (CB 89-91). The applicant was assisted at the hearing by a Punjabi interpreter (CB 89).
On 16 April 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 95-99).
On 18 April 2019, the Tribunal notified the applicant of its decision (CB 93-94).
On 1 May 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) (CB 1-6).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s reasons began by identifying the visa under review, noting that the applicant had applied for the Student (Temporary) (Class TU) visa on 28 August 2017 (at [1]-[2]). The Tribunal observed that, at the time of application, the visa class contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, it noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]). The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily as required by cl 500.212 of Schedule 2 to the Regulations (at [3]).
The Tribunal confirmed that the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a Punjabi interpreter (at [4]). The Tribunal decision indicates the applicant attended the hearing on 4 April 2019 (at [4]), while the hearing record, case notes and hearing invitation indicate that the hearing took place on 5 April 2019 (CB 76, 89, 91-92). In any event, nothing appears to turn on this discrepancy.
The Tribunal found that the issue before it was whether the applicant met the genuine temporary entrant criterion in cl 500.212 of Schedule 2 to the Regulations (at [6]). The Tribunal set out cl 500.212 in that regard (at [7]).
The Tribunal explained that, in considering whether the applicant satisfied cl 500.212(a), the Tribunal must have regard to Direction 69. The Tribunal set out a number of factors it was required to consider, including the applicant’s circumstances in their home country, their immigration history, the intentions of a parent or legal guardian for an applicant who is a minor, and any other relevant information (at [8]). It emphasised that the factors specified should not be used as a checklist, but rather are intended to guide decision-makers when considering the applicant’s circumstances as a whole (at [9]).
Against this background, the Tribunal made the following findings.
The applicant arrived in Australia on 25 October 2014 as the holder of a student visa (subclass 573) which was valid until 30 August 2017. At that time, he was enrolled to undertake a Diploma of Business and a Bachelor of Commerce (at [10]). The Tribunal heard that he had enrolled in these courses at the advice of his relatives and his migration agent, but that he abandoned the courses because he did not understand the content (at [12]).
The Tribunal heard that the applicant then enrolled in a Diploma of Building and Construction in August 2016 but did not complete it because he said it was more about management than building and construction. When asked why it took him eight months to decide that it was the wrong course, the Tribunal noted that the applicant did not provide any meaningful response (at [13]).
The Tribunal found that the applicant had enrolled in a one-year Certificate IV Building and Construction course in July 2018 and had completed three of the units (at [13]). When asked to explain the change in direction of his study, the applicant said that his agent told him it was a good course and that he had decided there was a better career in building (at [14]). The Tribunal considered that the applicant had failed to demonstrate the value of this particular course to his future (at [14]).
The Tribunal found that the applicant was now working as a carpenter and earning AUD21 per hour. The applicant estimated that he would earn AUD1,000 per month as a carpenter in India if he was running his own business, which the Tribunal found was a strong incentive for the applicant to remain in Australia (at [15]).
The Tribunal found that the applicant’s family-owned agricultural land in India has an estimated worth of AUD300,000. Similarly, the Tribunal did not consider this was a significant incentive for the applicant to return to India (at [16]).
The Tribunal indicated that it had read the applicant’s statutory declaration provided on 3 April 2019. When asked if there was anything he wished to add to that statement, the applicant replied that he wanted to complete his course (at [17]).
The Tribunal found that there was not a significant incentive for the applicant to return to India given the disparity in economic circumstances between India and Australia, the lack of evidence of any substantial personal ties to India, and the fact that the applicant had only travelled outside of Australia on two occasions for a total period of 51 days in the four and a half years since arriving in Australia (at [19]-[21]).
The Tribunal expressed a concern that the applicant’s intention to remain in Australia was motivated by factors other than study. The Tribunal found that the applicant had not displayed any clear and substantial improvement arising from his proposed study, or otherwise demonstrated the value of the proposed course to his future (at [19]).
The Tribunal did not accept that the applicant was a genuine temporary entrant for further stay in Australia as a full-time student. The Tribunal noted that the applicant had previously been granted a visa for the purpose of higher education studies, erroneously referring to a 473 visa (at [22]). As there was no such subclass 473 visa in existence at that time, and given the evidence of the applicant’s prior visa history, it appears to the Court that the Tribunal was referring to the Student (Temporary) (Class TU) (Subclass 573) visa.
The Tribunal noted that the applicant had made this present visa application two days before his previous visa was due to expire (at [22]). On this basis, and in conjunction with the aforementioned factors, the Tribunal found that the applicant had applied for this visa and enrolled in the corresponding course in order to maintain ongoing residence in Australia, rather than with a genuine interest in study and overall academic progress (at [22], [24]).
The Tribunal had regard to all information provided by the applicant in support of his application (at [22]). The Tribunal also had regard to whether there was any other relevant matter with respect to the applicant’s intention to stay in Australia temporarily, but found that there was none (at [22]). The Tribunal found that there was no evidence before it with respect to the factors in Direction 69 to indicate that the applicant’s circumstances support a genuine intention to remain in Australia temporarily (at [25]-[26]).
The Tribunal found that the applicant did not have a genuine intention to stay in Australia temporarily and therefore did not meet the criteria in cl 500.212(a) (at [23]-[24]).
On the basis of its finding that the applicant was attempting to prolong his stay in Australia rather than having a genuine intention to study, the Tribunal further found that the applicant had not demonstrated that he intended to comply with the conditions subject to which the visa is granted, and therefore did not meet the requirements of cl 500.212(b) (at [26]-[27]).
The Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 500 (Student) visa (at [28]).
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [29]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 1 May 2019 contains nine grounds of review as follows (without alteration):
1.All the information that I have provided to the Administrative Tribunal is true and correct;
2.I make the declaration by virtue of my best knowledge and understanding;
3.The matter to be considered in Federal Circuit Court appeal is true;
4.The Tribunal has upheld the decision of the delegate of the Minister for Home Affairs through review application 1726658 without considering the material facts of the matter and circumstances and affirmed the decision in accordance that I do not meet clause 500.212(a) and 500.212(b) of student visa, which I strongly deny;
5.The Tribunal did not consider my economic circumstances and personal ties in India and gave decision in accordance being a non-genuine student;
6.The tribunal failed to consider my genuine issues and circumstances that led me to change the course and not completing it in time;
7.The Tribunal considered that Grounds of Refusal for being non-genuine did exist but did not consider the circumstances and valid reasons outside of my control;
8.The Tribunal committed jurisdictional error while hearing my matter before it and stated that I held visa 473 which I never held and never heard of;
9.The tribunal did not adopt principles of natural justice while disposing off my review application;
The applicant filed an affidavit with that judicial review application on 1 May 2019. The affidavit annexed copies of the Tribunal’s and delegate’s decisions, and repeated the grounds identified in the application, including two further paragraphs as follows (without alteration):
10.That I reside at the given address and I will represent my own case before the federal circuit court.
11.I make the declaration by virtue of my best knowledge and understanding.
The applicant appeared before the Court on 5 February 2025 without legal representation but with the assistance of a Punjabi interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 1 May 2019 (the affidavit being taken as read and in evidence at the hearing on 5 February 2025), a Court Book numbering 99 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 21 January 2025.
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952 at [40]. Accordingly, at the hearing of this matter on 5 February 2025, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court what he said the Tribunal did wrong.
Against this background, the applicant told the Court the Tribunal was wrong to find that he would have an incentive to stay in Australia rather than return to India because of superior earning prospects in Australia. He said that the Tribunal failed to consider his setup in India, including a house and land, which he does not have here. The applicant submitted that just because he is earning good money here does not mean he does not have good opportunities once he returns to India.
The applicant’s first oral ground, therefore, is that the Tribunal made a jurisdictional error by (1) asking the applicant about the difference in remuneration he would expect to receive in India compared with Australia, and (2) placing too much weight on his earning in Australia whilst not considering his assets in India.
The applicant’s second oral ground was that the Tribunal erred by referring to the subclass 473 visa which he had never held. The applicant did not accept that it was a typographical error and instead expressed a concern that the error may have negatively impacted the Tribunal’s decision.
The applicant’s third oral ground was that he had attempted to comply with the original visa conditions and restrictions, but that his initial diploma was deferred and he was unable to enrol or continue with any other courses on the basis of that deferral.
CONSIDERATION
As outlined above, the application formally sets out nine grounds. However, in reality, the grounds contain introductory statements and are repetitive in nature. This is not uncommon in applications by unrepresented applicants unfamiliar with drafting legal documents. Noting the applicant was unrepresented in this matter, the Court endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). In that sense, the Court is of the view that the applicant, through his written grounds, argues that:
·The Tribunal failed to consider “material facts of the matter and circumstances” (ground four);
·The Tribunal failed to consider the applicant’s economic circumstances and personal ties to India (ground five);
·The Tribunal failed to consider his reasons for changing his course and failing to complete it on time (ground six);
·The Tribunal failed to consider circumstances beyond the applicant’s control (ground seven);
·The Tribunal made a jurisdictional error by mistakenly referring to the applicant’s previous 473 visa (ground eight); and
·The Tribunal failed to afford the applicant natural justice (ground nine).
The applicant’s oral submissions are, in effect, re-statements of his written grounds. The first oral ground is captured by grounds four and five, the second oral ground is captured by ground eight, and the third oral ground is captured by grounds six and seven. Further, the two additional paragraphs in his affidavit do not raise any additional grounds.
Did the Tribunal fail to take into account all relevant considerations and evidence?
Grounds four to seven effectively submit that the Tribunal made a jurisdictional error by failing to consider various factors including the applicant’s economic circumstances, personal ties to India, and his reasons for changing his course and not completing it on time.
The Minister submitted that the Tribunal plainly considered the applicant’s personal ties to India but concluded that they did not present a significant incentive for him to return to India. The Minister submitted the Tribunal particularly considered the applicant’s economic circumstances, including his higher earning capacity in Australia, the value of his family’s assets in India, and the absence of evidence of any personal assets in India (at [15]-[16], [19]-[21]).
With respect to the applicant’s oral submission that the Tribunal was wrong to consider the difference in remuneration between India and Australia, the Minister submitted at the hearing that the Tribunal was in fact required by paragraph 12(c) of Direction 69 and s 499 of the Act to have regard to this factor. The Minister submitted that the Tribunal did not make a jurisdictional error by taking this into account.
The Minister submitted that the Tribunal considered the applicant’s economic circumstances and family ties in India, including his financial incentives to remain in Australia or return to India (at [15]-[16]), and then provided reasons for its weighing of those considerations (at [19] onwards). The Minister submitted that the Tribunal’s reasons need to be read as a whole in that regard.
With respect to the applicant’s complaint in ground six that the Tribunal failed to consider his reasons for changing or not completing his course, the Minister submitted that it is not clear which course or courses the applicant is referring to, but that the Tribunal nevertheless took into account that the applicant’s explanation for changing from a business course to a building course was because his agent told him it was a good course, and that the applicant thought it would be better for his career (at [12], [14]). The Tribunal did not regard that explanation as satisfactory. The Tribunal also considered the applicant’s explanation for withdrawing from the Diploma of Building and Construction (Management) and found that he did not provide a meaningful response with respect to why it took him eight months to decide it was the wrong course for him (at [13]).
The Court accepts the Minister’s submissions in respect of these grounds. The Tribunal was required to take into account and to balance all of the matters referred to in Direction 69 in reaching its conclusion about whether the applicant satisfied the genuine temporary entrant criteria in cl 500.212(a). It is apparent to the Court that the Tribunal did not fail to consider the applicant’s “material facts…and circumstances”. The Tribunal not only considered the applicant’s economic circumstances and personal ties in India, his reasons for not completing or changing courses, and all other matters put to it by the applicant, but it was correct to do so in accordance with Direction 69.
No jurisdictional error arises in respect of grounds four to seven.
Did the Tribunal commit a jurisdictional error by referring to a Subclass 473 visa?
Through ground eight, the applicant submitted that the Tribunal made a jurisdictional error by referring to a subclass 473 visa which the applicant had never held. The applicant did not accept that this was simply a typographical error and instead believed that he had been negatively impacted by that error, although he did not articulate how that would result in a jurisdictional error.
The Minister submitted that the Tribunal’s reference to a 473 visa (at [22]) is clearly a typographical error given the previous references to a 573 visa (at [10] and [14]). In erroneously referring to a 473 visa, the Tribunal noted that that visa expired two days after the applicant made the present subclass 500 visa application. That timeline is consistent with the narrative outlined above in these reasons, and as noted, there was no such subclass 473 visa in existence at the time of the Tribunal’s decision.
For these reasons, and given the evidence of the applicant’s prior visa history, it is apparent to the Court that the Tribunal was referring to the Student (Temporary) (Class TU) (Subclass 573) visa when it mistakenly referred to a 473 visa. Such a mistake rises no higher than a typographical error and plainly has had no substantive effect on the Tribunal’s decision.
The Court therefore finds no jurisdictional error in respect of ground eight.
Did the Tribunal deny the applicant natural justice?
Through ground nine, the applicant submitted that the Tribunal did not adopt principles of natural justice in reaching its decision.
The Minister submitted that such an assertion is unparticularised and there is otherwise no evidence before the Court that the Tribunal had not complied with its obligations under Part 5 of Division 5 of the Act.
When invited to elaborate on this submission at the hearing, the applicant said he had tried to comply with the requirements of his previous visa. He said that his diploma had been deferred, which led to the “cancellation” of his visa. He said he then quickly tried to take further steps to re-enrol and maintain his visa requirements, and contended that if he intended to just live in Australia, why would he put himself through the effort and expense of making sure he was enrolled to study, and to fulfil the requirements of study? He said that the Tribunal had not afforded him natural justice with respect to his attempts to comply with his previous visa requirements, as well as in respect of the Tribunal’s emphasis on his earning prospects in Australia compared to India, as previously discussed.
In oral submissions, Mr Plitsch submitted on behalf of the Minister that there is no evidence before the Court that the applicant has had a visa that has expired or has been cancelled. In any event, the Court accepts that the applicant is effectively asserting that he is a genuine student and has made an effort to comply with his visa conditions.
The Minister submitted that the applicant is effectively asking the Court to engage in impermissible merits review. Mr Plitsch submitted that the applicant’s proffered explanations for previous periods of non-enrolment and his attempts to otherwise comply with his visa conditions are not relevant to the issue before this Court. The Court agrees with this submission and notes that it had already taken time to explain to the applicant that it is not the role of this Court to engage in merits review (at [42] of these reasons). Mr Plitsch further submitted that the Tribunal’s conclusion that the applicant was not a genuine student for the purposes of his visa application does not reveal a failure by the Tribunal to afford the applicant natural justice, nor does it reveal an apprehension of bias.
The Court agrees with the submissions of the Minister in respect of this ground. There is nothing before the Court to demonstrate that the Tribunal did not comply with its procedural fairness obligations under Part 5 of Division 5 of the Act. It was plainly not a breach of natural justice for the Tribunal to question the applicant about matters contained in Direction 69, including the difference in remuneration he might expect to receive in India and Australia, nor was it a breach of natural justice for the Tribunal to rely on those findings in making its decision.
The Court therefore finds no jurisdictional error in respect of ground nine.
Paucity of reasons
The Court asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. Mr Plitsch, as counsel for the Minister, drew the Court’s attention to [27] of the Tribunal’s decision where it states:
On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
While acknowledging the immediate paucity of reasoning for that conclusion, Mr Plitsch submitted that the words “on the basis of the above” are intended as a reference to the entirety of the Tribunal’s reasoning preceding that paragraph, including the Tribunal’s prior conclusion that the applicant was not a genuine temporary entrant, and with reference to the applicant’s incomplete studies and lapses in enrolment, which the Tribunal had canvassed with the applicant at [13]-[14] of its reasons. Mr Plitsch submitted that the visa which the applicant sought, and the visa which he was previously granted, would have been subject to condition 8516. This condition requires the applicant to continue to satisfy the criteria for the grant of the visa, which Mr Plitsch submitted the applicant had not done and the Tribunal had so found earlier in its reasons.
In any event, Mr Plitsch submitted that any error which the Tribunal might have made by the paucity of its reasons at [27] could not have been material because the criteria in cl 500.212 are conjunctive, meaning that the applicant must satisfy cll 500.212(a) and 500.212(b). As the Tribunal determined that the applicant had not met the criteria in cl 500.212(a), it was not required to determine whether he met the criteria in cl 500.212(b).
The Court agrees with these submissions and accepts that the phrase “on the basis of the above” at [27] refers to paragraphs [24]-[26] immediately preceding that statement, as well as the earlier paragraphs which support the Tribunal’s finding that the applicant was not a genuine temporary entrant for the purpose of cl 500.212(a) (at [23]). In any event, the Court also accepts that the Tribunal was not required to explicitly address cl 500.212(b) in circumstances where it had already found the applicant did not meet the criteria in cl 500.212(a) and had articulated its reasons for that finding.
No jurisdictional error therefore arises in that respect, however the Court is nevertheless grateful to Mr Plitsch for addressing it. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision.
The Court is satisfied that, even adopting the broad approach referred to in [48] of these reasons, no jurisdictional error is apparent.
CONCLUSION
The application for judicial review, supporting affidavit and additional submissions presented by the applicant have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 21 February 2025
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