Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 52
•22 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 52
File number(s): BRG 249 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 22 January 2025 Catchwords: MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – review of a decision of the Administrative Appeals Tribunal – failure to consider according to law – failure to take into account considerations – misconstruing or misapplying an expression – no jurisdictional error established – application dismissed/ application allowed. Legislation: Migration Act 1958 (Cth) ss 5(9), 5(9A), 359, 476(1),499(1), 499(2A)
Migration Regulations 1994 (Cth) cl 500.212 in Schedule 2
Cases cited: LPDT v Minister for Immigration, Citizenship Migrant Servies and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of last submission/s: 15 January 2025 Date of hearing: 15 January 2025 Applicant: The applicant appeared un-represented Counsel for the First Respondent: Ms De Marco Solicitor for the Respondents: Minter Ellison Lawyers Second Respondent: Submitting appearance save as to costs. ORDERS
BRG 249 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DILRAJ SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
22 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be changed to “Administrative Review Tribunal”.
3.The application is dismissed.
4.The applicant is to pay the first respondent’s costs, fixed in the amount of $7500.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa.
BACKGROUND
Application for the visa and delegate’s decision
The applicant is a citizen of India. The applicant arrived in Australia on 24 August 2015 on a Student (Temporary) (Class TU) (subclass 573) visa for the purpose of studying a Diploma of Commerce followed by a Bachelor of Commerce (Court Book (“CB”) 29). The applicant completed the Diploma of Commerce but did not complete the Bachelor of Commerce (CB 105). The visa expired in August 2018 (CB 104).
On 15 March 2022, the applicant applied for a further Student (Temporary) (Class TU) (subclass 500) visa (“the visa”) (CB 20-35) for the purpose of completing a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis (CB 48-55).
On 31 August 2022, the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant met the genuine temporary entry criterion in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) (“delegate’s decision”) (CB 57-64).
Application for review to the Administrative Appeals Tribunal
On 19 September 2022, the applicant applied to the Tribunal for review of the delegate’s decision (CB 65-72). The applicant appointed a registered migration agent to assist him.
On 21 September 2022, the Tribunal acknowledged receipt of the application for review and advised the applicant that should he wish to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible (CB 77-86).
On 3 October 2023, the Tribunal wrote to the applicant advising him that he would need to provide sufficient information to satisfy the Tribunal that he met the requirements for the visa, that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The Tribunal invited the applicant to provide, in writing, all relevant information about the course(s) of study he was undertaking and his entry and stay as a student (CB 89-95). The Tribunal said that specific details about the information requested are set out in the Request for Student Visa Information form (“RSVI form”) and provided the applicant a link to that form. The Tribunal said that the information requested in the RSVI form should be received by 17 October 2023. That time was later extended to 14 November 2023 (CB 100). The Tribunal also told the applicant that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“Direction No. 69”). A copy of Direction No. 69 was attached.
The applicant provided a completed RSVI form (CB 101-112) together with supporting documents including a Statement of Purpose, certificates relating to the education completed by the applicant, an affidavit by the applicant’s father and documents relating to property owned by the applicant’s parents in India (CB 113-133).
On 15 February 2024, the Tribunal invited the applicant to attend a hearing on 9 April 2024, to give evidence and present arguments relating to the issues arising in the case, stating that it was unable to make a favourable decision based on the information before it alone (CB 134-144).
On 9 April 2024, the applicant attended the hearing. He was assisted by his migration agent (CB 159).
The Tribunal delivered an oral decision at the conclusion of the hearing affirming the delegate’s decision and giving reasons (CB 162-167). On 24 May 2024, the Tribunal provided a written record of its reasons for decision (“Decision”) (CB 169-175).
THE TRIBUNAL’S DECISION
The Tribunal referred to the fact that at the hearing, the applicant showed to the Tribunal an Overseas Student Confirmation of Enrolment (“COE”) for a Diploma of Automotive Technology at Macallan College, Brisbane and noted that the COE records the course has a commencement date of 1 April 2024 and a finish date of 30 March 2025 ([6]). The Tribunal noted that the applicant was pursuing the application for review to enable him to undertake this course of study ([6]; [10]). The Court notes that the applicant had completed a Certificate III in Light Vehicle Mechanical Technology in May 2023 and a Certificate IV in Automotive Mechanical Diagnosis in October 2023 (CB 121; 123).
The Tribunal then identified that the determinative issue was whether the applicant meets the requirements for approval set out in cl 500.212 in Schedule 2 of the Regulations known as the genuine temporary entrant criterion ([7]). The Tribunal stated that in considering whether the applicant satisfies the genuine temporary entrant criterion it must have regard to the specified factors in Direction No. 69 ([8]). The Tribunal stated that the specified factors should not be used as a check list but rather, are intended as a guide to 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 ([8]).
The Tribunal then went on to assess each of the factors in Direction No. 69 having regard to the applicant’s facts and circumstances as follows:
(a)As to paragraph 9(a) of the Direction [reasonable reasons for not undertaking the course in the applicant’s home country]: the Tribunal noted that applicant accepted there were similar courses in his home country, India, but that such a course would take approximately three years whereas the course he was enrolled in would take one year; that the applicant’s evidence was that the course in Australia would provide a more practical education and would improve his employment prospects in India; and, that when the applicant completes the course he intends to returns to India to obtain or pursue a managerial role in the automotive industry ([11]). The Tribunal said that it was not satisfied that the applicant had established reasonable reasons for not undertaking the study in his home country or region. In so concluding, the Tribunal set out extracts from the Statement of Purpose the applicant had provided to the Tribunal in the RSVI form which stated (inter alia) that he is currently enrolled in a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis at Imagine Education Australia and that upon completion of those qualifications he would have “all the skillset required to pursue a career in Automotive in India” and that after completing the Certificate III and Certificate IV “I can easily get managerial positions in the automotive field” ([12]). The Tribunal referred to the study which the applicant had completed in Australia being a Diploma of Commerce, a credit in a Bachelor of Commerce and completion of the Certificate III and IV courses in Automotive Diagnosis and said that this together with the information in the applicant’s Statement of Purpose established that the applicant has attained an education in Australia that will assist him attaining work in the automotive industry in India in the positions referred to and that he can easily get managerial positions in the automotive field. The Tribunal concluded that the applicant has the knowledge and experience to now return to India to pursue work opportunities and that if the applicant requires further education to improve his employment prospects, he can pursue that education in India. The Tribunal assessed this factor against the applicant ([13]);
(b)As to paragraph 9(b) of the Direction [ties to home country], the Tribunal referred to the applicant’s evidence that his parents live in India, he is the eldest son and has one brother who lives in Australia with his wife. The Tribunal referred to the evidence of the value of the property owned by the applicant’s father in India and the father’s affidavit evidence that as the eldest son the applicant is the rightful owner of that property but noted there was no evidence that the applicant was required to return to India to maintain the property ([14]). The Tribunal noted that the applicant had returned to India three times since arriving in Australia in August 2015, that his parents had visited Australia once and that otherwise he communicates with his parents by phone and video calls. The Tribunal concluded that the applicant’s ties to India comprise his parents and property interests and there is no compelling need for the applicant to return to India to maintain these ties or care for his parents and property interests. The Tribunal further concluded that the applicant has now been in Australia for a sufficiently long time to establish a strong connection with Australia. The Tribunal then stated that undertaking a further course of study which is available in India, albeit it for a longer duration and primarily focussing on theory, suggests the applicant’s ties to India of themselves would not serve as a significant incentive for the applicant to return to India. Overall, the Tribunal assessed this factor against the applicant ([15]);
(c)As to paragraph 9(c) of the Direction [economic circumstances as an incentive not to return to home country], the Tribunal said that the evidence did not enable it to make an informed assessment and so assessed this factor as neutral ([16]);
(d)As to paragraphs 9(d) and (e) of the Direction [military service commitments and civil unrest], the Tribunal noted the applicant’s evidence at the hearing that he has no concerns about military service commitments or political and civil unrest in India. The Tribunal said it did not consider that the absence of such concerns provides an incentive for the applicant to remain in Australia or a disincentive to return to India. Accordingly, the Tribunal assessed these factors as neutral ([17]);
(e)As to paragraph 10 of the Direction [circumstances in home country relevant to others], the Tribunal said that the evidence did not enable it to make an informed assessment and so assessed this factor as neutral ([18]);
(f)As to paragraph 11(a) of the Direction [ties with Australia], the Tribunal noted that the applicant had arrived in Australia in August 2015 and had returned to India three times. The Tribunal set out the evidence the applicant had provided in the RSVI form as to his employment in Australia and that he currently is employed as a taxi driver. The Tribunal noted that the applicant had continuity of employment whilst in Australia. The Tribunal noted that the applicant had lived in Queensland since arriving in Australia and that the evidence established familiarity with the Australian living and working environment and work connections. The Tribunal concluded that the applicant had been in Australia for sufficiently long enough to establish a strong tie or connection with Australia and that this was a strong incentive to remain in Australia. The Tribunal assessed this factor against the applicant ([20]);
(g)As to paragraph 11(b) and (c) of the Direction [using the visa program to circumvent its intentions and to maintain an ongoing residence], the Tribunal noted that the applicant had held three Student visas and referred to the education the applicant had completed since arriving in Australia. The Tribunal concluded, having regard to that evidence, that the applicant has used the Student Visa Program for its intended purpose of study and not to maintain ongoing residence. The Tribunal therefore assessed this factor in favour of the applicant ([21]-[22]);
(h)As to paragraph 11(e) of the Direction [knowledge of living in Australia and the education provider], the Tribunal said it was satisfied that the applicant had a sound knowledge of living in Australia. As to the education provider, the Tribunal said that it was satisfied the applicant had undertaken a reasonable level of research before enrolling in the current course of study. Overall, the Tribunal said it assessed this factor in favour of the applicant ([24]);
(i)As to paragraph 12(a) of the Direction [whether the proposed course will assist the applicant to obtain employment], the Tribunal said that it was satisfied that the applicant’s current course of study is consistent with his current level of education and gave this factor weight in favour of the applicant. However, the Tribunal said it was not satisfied that the current course of study will improve the applicant’s employment prospects or will assist him to obtain employment having regard to the evidence already referred to. The Tribunal said that the evidence establishes that the applicant has obtained sufficient education in Australia to pursue work opportunities in his home country in the automotive industry and was not satisfied on the evidence that the current course of study would assist the applicant to obtain employment or improve employment prospects in his home country. The Tribunal assessed this factor against the applicant ([25]);
(j)As to paragraph 12(b) of the Direction [the relevance of the course to the applicant’s past or proposed future employment], the Tribunal found the applicant’s current course of study is relevant to his proposed future employment in India and assessed this factor in favour of the applicant ([26]);
(k)As to paragraph 12(c) of the Direction [the applicant’s expected remuneration in their home country in comparison to Australia], the Tribunal said that the evidence did not enable it to make an informed assessment and so assessed this factor as neutral ([27]);
(l)As to paragraph 14(a) of the Direction [immigration history with respect to previous visa applications for Australia or other countries], the Tribunal referred to the applicant’s visa history and assessed this factor as neutral ([28]);
(m)As to paragraph 14(b) of the Direction [immigration history with respect to previous travels to Australia or other countries], the Tribunal assessed compliance with conditions of visa in favour of the applicant; and that there is no evidence that the applicant had held a visa that was cancelled or considered for cancellation and so assessed those factors as neutral ([29]). As to the amount of time the applicant has spent in Australia, and the evidence and submissions in the RSVI form, the Statement of Purpose that upon completion of the Certificate IV course he would return to his home country to pursue work opportunities in the automotive industry, the availability of a similar course to the current course in his home country, the Tribunal found that the applicant had obtained sufficient education in Australia to pursue work opportunities in his home country and to obtain jobs in the areas quoted in the Statement of Purpose. For those reasons, the Tribunal concluded that if a further visa is granted it may be used primarily for maintaining ongoing residence. The Tribunal assessed this factor against the applicant ([29]);
(n)As to paragraph 16 of the Direction [any other relevant information], the Tribunal said that evidence establishes the applicant is a good student who applies himself to his studies. The Tribunal said it had considered that if the visa is not granted the applicant will be required to return to his home country and that tuition fees may not be refunded ([31]).
Having regard to the evidence and submissions and the factors in the Direction, the Tribunal said that, on balance, the factors it had assessed against the applicant outweighed the factors assessed in favour of the applicant. The Tribunal concluded that it was not satisfied that the applicant intends to stay in Australia temporarily and was not satisfied that the applicant meets cl 500.212(a) of the Regulations ([32]). Accordingly, the Tribunal affirmed the delegate’s decision.
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Migration Act 1958 (Cth) by application filed on 7 May 2024. In support of the application, the applicant filed an affidavit affirmed by the applicant’s solicitor on 7 May 2024. Annexed to the affidavit is the notification of oral decision, and an acknowledgement by the Tribunal of a Freedom of Information request for access to the Tribunal’s file. As noted above, the Tribunal’s written reasons were provided to the applicant on 24 May 2024.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book. The first respondent prepared and filed a Court Book. By administrative oversight, the first respondent’s solicitors omitted to include in the Court Book an undated statement of purpose by the applicant which they said was contained on the Tribunal’s file. The applicant provided this statement of purpose to the Tribunal prior to the hearing and it is the statement of purpose that the Tribunal refers to in its reasons for Decision (Decision at [12]). A copy of this document was annexed to two affidavits by the first respondent’s solicitors filed on 5 and 6 December 2024 respectively. The applicant was provided with a copy of this document. The document will be taken as forming part of the Court Book.
The matter came on for hearing on 6 December 2024. At the commencement of the hearing, the first respondent’s solicitors informed the Court that they had identified an error in the Tribunal’s decision. That error was that the Tribunal, in determining its review of the delegate’s decision, had regard to Direction No. 69 rather than Direction No. 108 which had replaced Direction No. 69 prior to the Tribunal making its decision. The Court ordered that the matter be adjourned to 10 January 2025 and made orders requiring the parties to file written submissions addressing this issue.
The first respondent filed submissions on 19 December 2024 addressing the Tribunal’s determination of the application for review having regard to Direction No. 69 rather than Direction No. 108.
The material before the court was the application, the affidavit filed on behalf of the applicant, the first respondent’s response, the first respondent’s written submissions (filed on 22 November 2024 and 19 December 2024) and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents in Court with him. The Court also confirmed with the applicant that he had a copy of both Direction No. 69 and Direction No. 108.
The applicant appeared in person unrepresented. Despite the procedural orders requiring him to do so, the applicant did not file any written submissions. The applicant was given an opportunity at the hearing to make oral submissions in support of his application for judicial review and in reply to the first respondent’s submissions.
CONSIDERATION
For the applicant to be successful he must satisfy the Court that the Tribunal’s decision was affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite the procedural orders permitting him to do so, the applicant did not file an amended application. The grounds of review in the application are (without alteration):
1. The Second Defendant Respondent did not consider the applicant’s application for review according to law.
2. The Second Respondent ‘s decision to affirm the delegates decision was made in jurisdictional error.
3. The Second Respondent did not take into account and or did not give proper weight to the information and documents provided by the Applicant.
4. The Second Respondent misconstrued or misapplied the expression.
The application is poorly drafted and does not particularise the applicant’s grounds of review. This is disappointing given that the application was certified by a legal practitioner and the applicant told the Court that it was drafted by that legal practitioner.
The Court asked the applicant if he was able to, in his own words, explain what legal or procedural error he said the Tribunal had made. The applicant’s submission was that he had explained to the Tribunal why he needed to complete the Diploma (of Automotive Technology) for his future employment prospects in India but that the Tribunal did not agree and told him that he could go back to India and obtain employment without the Diploma. The applicant told the Court about his previous student visa, his experience when he returned to India because of the COVID-19 pandemic, his decision to return to Australia to pursue further studies, his history as a good student and why he wanted to obtain the Diploma. The applicant told the Court that he had expected that the Tribunal would grant him a visa and could not understand why, having regard to his circumstances and what he told the Tribunal about why he needed the Diploma, the Tribunal had not done so.
The Court agrees with the first respondent’s submission that the applicant’s complaint amounts to no more than disagreement with the view formed by the Tribunal as to whether the applicant had reasonable reasons for not undertaking the course in his home country (Decision at [11]-[13]) and whether the Diploma would assist the applicant to obtain employment in India (Decision at [25]). The submission does no more than invite the Court to engage in impressible merits review.
The Court then took the applicant to the application for judicial review and invited him to make any submission he wished to make in respect of each ground of review.
Ground one: failure to consider the application according to law
The application does not provide any particulars of this ground of review. At the hearing, the Court invited the applicant to explain how it was he thought the Tribunal had not considered his application for review according to law.
The applicant’s submission was to repeat what he had already said about his disagreement with the Tribunal’s view as to whether he had reasonable reasons for not undertaking the course in his home country and whether the Diploma would assist him to obtain employment in India.
The Court asked the applicant about the fact that the Tribunal had assessed the genuine temporary criterion by reference to Direction No. 69 when it was required to assess that criterion by reference to Direction No. 108. The applicant confirmed that he had read the first respondent’s further written submissions (of 19 December 2024) about this issue. The Court asked the applicant whether he wanted to address the Court about this issue in his submissions or whether he wanted to wait and address it in his oral submissions in reply. The applicant said that he would address the issue in his oral submissions in reply. When making his submissions in reply, the Court asked the applicant what he would like to say in reply to the first respondent’s written and oral submissions regarding the error the Tribunal made in assessing the genuine temporary entrant criterion by reference to Direction No. 69 instead of Direction No. 108. The applicant repeated the submission that he had earlier made that he had explained to the Tribunal why he wanted to obtain the Diploma and what it would mean to him for his employment prospects in India.
The criteria for a Subclass 500 (Student) Visa are set out in part 500 of Schedule 2 to the Regulations. An applicant for a visa must satisfy the primary criteria in clause 500.211 to 500.218 of the Regulations. Relevantly, the Tribunal identified that the determinative issue on review was whether the applicant satisfied clause 500.212 of the Regulations, which clause is known as the genuine temporary entrant criterion.
Clause 500.212 provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) 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
(b) because 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) because of any other relevant matter.
Pursuant to s 499(1) of the Act, the Minister may give a written direction to the Tribunal concerning the exercise of its functions under the Act. If such a direction is given,
s 499(2A) of the Act provides that the Tribunal must comply with the direction.
Direction No. 69 was given by the Minister pursuant to s 499(1) of the Act. It provided guidance to the Tribunal in assessing the genuine temporary entrant criterion under, relevantly, clause 500.212 (a) of the Regulations. Direction No. 69 was revoked and replaced by Direction No. 108 which commenced on 23 March 2024. Direction No. 108 applies to visa applications made before 23 March 2024 but not finally determined on that date. Direction No. 108 provides that the expression “finally determined” has the same meaning as is set out in subsections 5(9) and s 5(9A) of the Act. The applicant applied for the visa on 15 March 2022, but the Tribunal did not make its decision until 9 April 2024. Accordingly, it is accepted by the first respondent that the Tribunal was required to comply with Direction No. 108 and not Direction No. 69 in reviewing the delegate’s decision (first respondent’s further written submission (“FRFS” [10]-[11]).
The Court agrees with the first respondent’s submission that Direction No. 69 and Direction No. 108 are substantively indistinguishable (FRFS [14]). The preamble in each of the Directions is identical in providing that the Direction provides guidance to decision makers on what factors require consideration when considering the genuine temporary entrant criterion to determine whether the applicant genuinely intends to stay in Australia temporarily. Both Directions require the Tribunal to consider the same factors when assessing a student visa application: the applicant’s circumstances in their home country; the applicant’s potential circumstances in Australia; the value of the course to the applicant’s future; the applicant’s immigration history; and any other relevant matters. These factors, set out in Part 2 of each of the Directions, are expressed in identical language. Further, the Directions use identical language in providing that the factors specified should not be used as a checklist and are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal’s reasons for Decision, as set out earlier in these reasons, disclose that it considered each of the factors (in Direction No. 69 and which are identical to those in Direction No. 108) by reference to the evidence relevant to each of those factors in determining whether the applicant met the genuine temporary entrant criterion (FRFS [17]).
The Court agrees with the first respondent’s submission that the Tribunal’s error in applying Direction No. 69 and not Direction No. 108, in considering whether the applicant satisfied the genuine temporary entrant criterion, is not material (FRFS [13]). Despite the Tribunal’s error in applying Direction No. 69, the applicant was able to respond to all the factors specified in Direction No. 108 given that the factors are identical to those in Direction No. 69. Accordingly, there is no realistic possibility that the application of Direction No. 108 could have resulted in a different outcome (LPDT v Minister for Immigration, Citizenship Migrant Servies and Multicultural Affairs (2024) 98 ALJR 610 at [7], [13], and [14] per
Gageler CJ; Gordon, Edelman, Steward, Gleeson and Jagot JJ). The Tribunal’s error is not material.Ground one does not establish any material jurisdictional error by the Tribunal.
Ground two: making a jurisdictional error
The application does not provide any particulars of this ground of review. At the hearing, the Court invited the applicant to explain what jurisdictional error he thought the Tribunal had made.
The applicant said that he had no further submission to make.
The Tribunal specifically had regard to the completed RSVI form and the documents the applicant provided prior to the hearing. The Tribunal also had regard to the COE which the applicant provided at the hearing and had regard to the applicant’s oral evidence and argument at the hearing. The Court agrees with the first respondent’s submissions (filed on 22 November 2024) (first respondent’s submission (“FRS”) [22]) that the Tribunal’s reasons for Decision disclose that it dealt with all the applicant’s claims and evidence by reference to the genuine temporary entrant criterion. There is nothing in the Tribunal’s reasons for Decision which demonstrate that in weighing up the factors it reached a decision that was irrational or illogical on the material before it. The Court agrees with the first respondent’s submissions in that regard (FRS [23]).
Although the applicant does not contend that he was not afforded procedural fairness, the Court has considered whether the Tribunal complied with its obligations to afford the applicant procedural fairness. The Court agrees with the submission of the first respondent (FRS [24]) that the Tribunal complied with its obligations under Division 5 of Part 5 of the Act because:
(1)the applicant was invited, under s 359 of the Act, to provide additional information relevant to the issues arising in the application (CB 87-95); and
(2)the applicant was invited to a hearing to give evidence and present arguments on the issue arising in relation to the decision under review which were the same as the issues before the delegate (CB 135-144).
Ground two does not establish any jurisdictional error.
Ground three: failure to take into account and/or not give proper weight to information or documents
The application does not particularise what information or documents it is alleged that the Tribunal failed to take into account. At the hearing, the Court invited the applicant to explain what information or documents he said the Tribunal did not take into account or give proper weight to.
The applicant could not assist the Court by identifying what he said that Tribunal failed to consider beyond the submission that he had already made.
As already explained in these reasons, the Tribunal’s reasons for decision demonstrate that it considered all the applicant’s claims and evidence. The weight that the Tribunal attributed to the evidence and the factors relevant to considering the genuine temporary entrant criterion was a matter for the Tribunal (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986) 162 CLR 24 at [41] per Mason J; FRS [23]). In weighing up the evidence having regard to those factors, there is nothing in the Tribunal’s reasoning or conclusion that demonstrates irrationality or illogicality.
Ground four: misconstruing or misapplying the expression
The application does not identify what “expression” it is alleged the Tribunal misconstrued or misapplied. The sentence is incomplete. At the hearing, the Court invited the applicant to identify what expression he was referring to by reference to the Tribunal’s decision.
The applicant said he did not know.
The Court has carefully read the Tribunal’s reasons for Decision and cannot identify any expression which the Tribunal misconstrued or misapplied.
No jurisdictional error is established on ground four.
CONCLUSION
Having found no material jurisdictional error, the application is dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 22 January 2025
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