Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1382
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1382
File number(s): MLG 369 of 2020 Judgment of: JUDGE CUTHBERTSON Date of judgment: 13 December 2024 Catchwords: MIGRATION – Student (Subclass 500) visa – decision of the Administrative Appeals Tribunal – where delegate determined that applicant not a genuine temporary entrant – where Tribunal found the applicant did not satisfy the primary criterion pursuant to cl 500.212 – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 353, 357A, 360, 360A, 476, 499
Migration Regulations 1994 (Cth) cl 500.212 of Sch 2
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Kandel & Ors v Minister for Immigration & Anor [2020] FCCA 2970
Kaur v Minister for Home Affairs [2019] FCA 2026
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
SZBEL vMinister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 29 October 2024 Date of hearing: 23 October 2024, 29 October 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr J. Macaulay Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 369 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAGDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The applicant’s application for judicial review filed on 5 February 2020 is dismissed.
4.The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $7,975.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CUTHBERTSON
INTRODUCTION
The applicant, who is a citizen of India, arrived in Australia on 27 September 2017 as the holder of a student visa in order to study English. He was granted a second student visa on 1 December 2017 to continue those studies. On 5 December 2018, he applied for a Student (Temporary) (Class TU) Subclass 500 visa. That application was refused by a delegate for the first respondent (the Minister) on 7 February 2019 on the basis they were not satisfied the applicant was a genuine temporary entrant (GTE) as required by cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations).
The applicant applied to the Administrative Appeals Tribunal for merits review of the delegate’s decision (review application) on 19 February 2019. On 16 January 2020, the Tribunal affirmed the delegate’s decision.
On 5 February 2020, the applicant applied for judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). The Minister opposes the application. For the reasons set out below, the application is dismissed.
BACKGROUND
Tribunal proceedings
On 6 November 2019, the Tribunal wrote to the applicant via his solicitor, inviting him to provide information in writing. The letter identified it was a requirement of the visa that he be enrolled in a registered course of study and a genuine applicant for entry and stay as a student. The letter advised he would need to provide sufficient information to the Tribunal to satisfy it that he met both of those visa requirements. He was invited to provide in writing all information about the courses of study he was undertaking and his entry and stay in Australia as a student. A link to a ‘Request for Student Visa Information’ form was provided for that purpose. The applicant was advised the Tribunal was required to have regard to Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (MD 69) when considering whether an applicant was a genuine applicant for entry and stay as a student. A copy of MD 69 was attached to the letter.
On 3 December 2019, the applicant’s representative submitted the form to the Tribunal. In that form, the applicant identified all the courses he had been enrolled in while in Australia including cancelled enrolments, courses successfully completed and current and future enrolments as follows:
·Certificate III in English as an Additional Language – first enrolled 14 February 2018 and completed in April 2018;
·Certificate IV in Leadership and Management – first enrolled 2 July 2018 and completed in June 2019;
·Diploma of Leadership and Management – first enrolled 2 July 2018, course start date August 2019 and due to complete August 2020;
·Advanced Diploma of Leadership and Management – first enrolled 29 November 2018, course start date September 2020 and due to complete September 2021.
The applicant indicated in the form that he had a Confirmation of Enrolment (CoE) in a registered course of study.
The applicant also provided the following additional information in the form (original reproduced):
16 Please give details of how and why the Main Applicant chose the education provider(s) for the Australian course(s) they are currently studying and/or propose to study in the future.
I am studying at this eductaion provider for almost 2 years and I love studying here. The teachers are very cooperative and I like their teaching style that is collaborative as well as informal. I have made several friends in this college and I am very satisfied with the education level and methods of teaching at this college. Please refer to the attached GTE Statement.
17 If there are similar courses available in the Main Applicant's home country or region to the course(s) they are currently studying and/or propose to study in Australia, please give details of the Main Applicant's reasons for not undertaking the course(s) in their home country or region.
The international exposure and competencies in English are the main reasons that I have considered while selecting studying in Australia. Meeting with people from different cultures and understanding their different way of lives motivates me to excel. Please refer to the attached GTE.
…
23 Please give details of the Main Applicant's community ties (if any) in their home country (eg. involvement in community groups or organisations).
I am a proud Indian and I dream about going back to India and build my own house and family in India. My mother lives in India with my brother who is around 33 years old. I want to return back to India and look after my old mother. She is alone and I want to earn a decent living and look after my family in India. I have a large group of friends and relatives and we all are very close to each other. I like to visit my friends and spend time with them. I feel lonely here in Australia as I do not have many friends here. I want to return and look after my family.
24Please give details of the Main Applicant's community ties (if any) in Australia (eg. involvement in community groups or organisations).
I do not have much community ties in Australia and I do not have many friends. I try to keep myself busy in my studies and work. I know that there is no point of building ties in Australia as I am going back to India after completion of my studies.
I go to Gurudwara, Logon occassionally for worship and feel closeness to God. Apart from them, I do not have close friends.
…
26 Please give details of the Main Applicant's plans, including employment plans, at the completion of the course(s) of study now proposed. Please include details of how these course(s) relate to the Main Applicant's future plans.
Once I complete my Australian qualification I plan to return to India and open a business operating in the managemen of events such as marriages and other religious occasions. I see great potential in the event management where my eductaion in English and leadership and management can play key roles.
27 Please give details of the remuneration the Main Applicant expects to receive in their home country, or a third country, using the qualifications they will gain from their current and/or proposed study.
I believe that with my business in event management, I can earn about Rs. 50,000 to $75,000 in the begining and then it will gradually grow as the business grow. I want to make my event management company as one of the biggest companies in Rajasthan in the event management.
On 20 December 2019, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. Relevantly, the letter advised that the applicant should have regard to the refusal decision and any changes in his circumstances in providing documents and preparing for the hearing. The Tribunal also requested it be provided the following information at least 7 days before the hearing date:
1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations), for the grant of the visa.
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
3. We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
The Tribunal hearing took place on 16 January 2020. The applicant was represented during the hearing by his lawyer. The Tribunal made an oral decision that same day.
The applicant was sent a written record of the outcome of the review affirming the delegate’s decision to refuse the visa on 17 January 2020 and advised of his right under the Act to request a written statement of decision and reasons. On the same day, the applicant’s solicitor requested the Tribunal provide a written statement of the decision and reasons.
On 30 January 2020, the Tribunal sent the applicant a written statement of the decision and reasons which were given orally at the hearing.
The Tribunal’s decision
The Tribunal identified at [9] the issue in this case was whether the applicant intended genuinely to stay in Australia temporarily, referring to the GTE requirements set out in cl 500.212. The Tribunal noted at [10] that when considering whether an applicant is a GTE, it is necessary to have regard to MD 69 and set out the factors it was required to have regard to pursuant to that direction. The Tribunal stated at [12] it had regard to the information supplied by the Department of Home Affairs and provided by the applicant during the hearing. It also noted at [13] it had on file information which had not been provided by the applicant. This included printouts from the Provider Registration and International Student Management System (PRISMS) and the Department’s movement details relating to the applicant which was observed to be to the same effect as the information given by the applicant.
The Tribunal set out at [16] a summary of the applicant’s circumstances as follows:
(a) The applicant is a 28 year-old citizen of India who first arrived in Australia on 27 September 2017.
(b) The applicant has links in his home country in the form of his mother and brother. The applicant at hearing noted his family are a middle class family and do own property, which is in the names of his mother, himself and his brother since the unfortunate passing of his father in 2018. The applicant keeps in contact with his family on a regular basis through telephone calls and electronic media applications.
(c) As will be noted later in the decision, since his arrival in Australia the applicant has returned to India on one occasion.
(d) The applicant indicated in his completed Information form that he has no concerns in respect to requirements for military service commitments or political and civil unrest in the area of India where his family resides.
(e) In India, the applicant had completed a Bachelor of Commerce. Also, the applicant has property interests in India being agricultural property from which he earns an income.
(f) In Australia, the applicant does not have any family members and does not really socialise widely and claims that he is somewhat lonely here. He works part-time as a cleaner and earns approximately AU$25,000 annually for that. Any funding shortfalls are supplemented by his brother from India on request by the applicant. It would seem, however, that his expenses annually are reported in the Information form as slightly under AU$14,000, which means he is able to live comfortably enough here.
(g) Based on the information the applicant supplied in the Information form and as discussed in evidence at hearing, the applicant has completed the following courses:
i. Certificate III in English as an Additional Language completed in April 2018;
ii. Certificate IV in Leadership and Management completed in June 2019;
iii. He is currently in the middle of studying his Diploma of Leadership and Management, which he commenced in August 2019, and which is due to be concluded in August 2020; and
iv. Thereafter the applicant has an enrolment in an Advanced Diploma of Leadership and Management due to be undertaken from September 2020 to September 2021.
(h) In regard to the applicant’s future intentions, the applicant indicated that he wished to complete his Diploma and Advanced Diploma in Leadership and Management after which time he would return home to India. It was his intention to open a business in event management with a long term view that it would become a successful business, even extending to catering, and it was hoped that it would be a successful business.
(i) Initial earnings were projected by the applicant at between 50,000 and 70,000 rupees a month, which roughly equates to between AU$1,000 and AU$1,500.
(j) Based on the information supplied by the applicant to the Tribunal in his completed Information form, since his arrival in Australia he has departed Australia on one occasion in February 2018. It was noted that his Information form said February 2019 but this was clarified at hearing to be a typographical error and the departure was in February 2018. He returned home at that time for approximately a month, very sadly for him, to attend his father’s funeral.
(k) In the documentary information provided to the Tribunal, and also at hearing, the applicant gave sufficient evidence of his knowledge of living in Australia and his associated education provider.
(l) The applicant had previously obtained a student visa and he indicated that, but for the current refusal of his visa application, he had not had any other Australian visas refused or cancelled. His evidence is to the effect that he has complied with his visa conditions during his time in Australia.
(m) The applicant gave evidence that his travels only involved travel between India and Australia and that he had not travelled to any other countries.
(n) Apart from dealing with issues of concern, as will be dealt with later in this decision, the applicant did not suggest there were, or give evidence concerning, any other matters which may relate to his genuine temporary entrant status in Australia.
The Tribunal then set out the possible concerns it may have had in respect to several issues which it put to the applicant. The first (and major) issue was whether the applicant needed to undertake further studies in circumstances where he was proposing to return to Rajasthan where his family live and open his own event management business. The Tribunal was concerned that given the applicant’s existing studies and that he would be operating the business it would not be necessary for him compete with other applicants for such a position. When pressed, the Tribunal records that the best the applicant could put was that the further studies were advanced subjects and would help him in his business. He also referred to the studies allowing him to deal with marketing and other companies. The Tribunal recorded the applicant was not forthcoming with how the studies would assist in anything other than a general terms: see [18]-[20], [22].
The second issue flowed from the applicant’s evidence that his proposed event management business may even extend to catering. The Tribunal asked the applicant how it could be satisfied the applicant would not then seek to undertake further catering and hospitality management studies. The applicant told the Tribunal he had no such intention as he would be in a managerial role and did not need the hands-on studies himself: [21].
The Tribunal then made the following findings having regard to the applicant’s evidence and submissions, responses to the Tribunal’s concerns and the MD 69 factors at [23]:
(a) While the Tribunal does note the applicant’s reasons for studying in Australia rather than in India, for the reasons detailed below, the Tribunal is not satisfied of the necessity or indeed the explanation for the applicant to undertake those studies and concludes they are being undertaken for reasons other than genuine study as a student in Australia temporarily.
(b) The applicant has links in his home country in the form of his mother and brother. However, the applicant’s conduct in remaining in Australia for approximately two years and four months with only one visit to India during that time; his intention to remain in Australia where he appears to have made a life for himself and where he has the financial support from his family, as well as being supplemented by income from his employment here; and the ability to remain in contact with his family on a regular, if not daily, basis by electronic means, all lead the Tribunal to conclude there is not a significant incentive for the applicant to return to his home country.
(c) As to economic circumstances in the applicant’s home country, the Tribunal notes there is family support if he were to return. In those circumstances, this leads the Tribunal to find that the economic circumstances of the applicant would not present a significant incentive for him not to return to his home country.
(d) There are no requirements for military service commitments affecting the applicant which would present as a significant incentive for him not to return to his home country.
(e) There are no circumstances of political and civil unrest in the area where the applicant’s family are located in his home country which would present as a significant incentive for him not to return to his home country.
(f) In considering the applicant’s circumstances in his home country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from a middle class family but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.
(g) The applicant has few ties to Australia but has the means of family support to remain in Australia and the ability to earn an income. When this is coupled with the ability to remain in contact with his family by electronic means, as has already been noted, the combined effect of this and his situation in Australia, having the support to stay here, all lead the Tribunal to find this presents a strong incentive for the applicant to remain in Australia.
(h) The applicant was pressed as to the reasons why he was studying his existing studies. The applicant was asked why those studies would give him particular qualifications over and above that which he had already gained and the applicant was unable to satisfactorily explain the reasons for such studies other than generalised statements that these were advanced subjects which would help him.
(i) In those circumstances, the Tribunal considers the applicant’s conduct is designed to help him remain in Australia and the continuation of his studies is designed to circumvent the intentions of the migration program.
(j) For similar reasons, the Tribunal considers the student visa is being used to maintain ongoing residence in Australia.
(k) As there is no secondary applicant it is unnecessary for the Tribunal to consider whether the applicant has contrived a relationship for a successful student visa outcome.
(l) The applicant has demonstrated adequate knowledge of living in Australia and his intended course of study and the associated education provider.
(m) As noted above, the Tribunal is concerned as to the real reasons for the applicant undertaking the Diploma and Advanced Diploma of Leadership and Management and as such the Tribunal does not consider the applicant has satisfactorily explained how those qualifications will improve his employment situation when he is going to be running his own business.
(n) For similar reasons, the Tribunal is unable to conclude how the Diploma and Advanced Diploma of Leadership and Management relates to his proposed future employment in his own business given the applicant’s inability to explain just what particular skills, knowledge and attitudes he will gain that he does not already possess.
(o) In respect to remuneration, the Tribunal notes that the applicant’s stated intentions are to run his own business and he has ventured that he would earn approximately between AU$1,000 and AU$1,500 per month. That equates to approximately $18,000 per annum, which is less than he is currently earning in his part-time job in Australia.
(p) At hearing the applicant had been in Australia for approximately two years and four months during which time he had returned to his home country on one occasion. Were the applicant to remain in Australia until the conclusion of his proposed studies, the applicant will have been in Australia for just on four years.
(q) As to previous visa applications for the applicant, but for the current visa application under review, there is no evidence before the Tribunal that the applicant has previously been refused visas in Australia.
(r) There is no evidence before the Tribunal that any of the applicant’s previous visas in Australia have been cancelled.
(s) There is no evidence before the Tribunal that the applicant has travelled to countries other than Australia and his home country India, which makes it unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of any other country.
(t) As noted, were the applicant to remain in Australia to the completion of his proposed studies he will have been in Australia for just on four years. This will be in circumstances where the Tribunal is concerned as to the real reason for his studies, as dealt with above, and accordingly this leads the Tribunal to the conclusion that the use of the applicant’s student visa is primarily for the maintenance of ongoing residence in Australia and that he does not have a significant incentive to return to his home country.
(u) As there is no child secondary applicant, it is unnecessary for the Tribunal to make any findings in that regard.
(v) There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.
Balancing those findings, the Tribunal at [24] considered the weight of the evidence pointed to factors not favouring the applicant’s case as opposed to those supportive of his case, establishing there is not a significant incentive for the applicant to return to his home country and that the student visa was being used to maintain ongoing residence in Australia. The Tribunal concluded at [25] it was not satisfied the applicant intends genuinely to stay in Australia temporarily and, accordingly, did not meet cl 500.212 of Sch 2 to the Regulations.
THE APPLICATION FOR REVIEW IN THIS COURT
The application for judicial review filed on 20 May 2020 contains the following grounds:
1. The Tribunal failed to act according to substantial justice and merits of the case, and/or failed to act in a way that is fair and just.
2. The Tribunal misapprehended/misdirected its inquiries and/or finding lacks rational/logical connection in finding that I am not a genuine applicant for entry and stay as a student.
3. The Tribunal's decision involved jurisdictional error insofar as the Tribunal failed to comply with the directions/misdirected its enquiries and misapplied the law.
a. The Tribunal was required to ask itself whether I am a genuine temporary applicant for entry and stay as a student.
b. The Tribunal failed to assess how my study would assist with running my own events management business in India.
c. The Tribunal failed to properly engage with and comply with the Directions.
d. The Tribunal failed to make the relevant findings to support the decision.
4. The Tribunal failed to consider and ignored critical evidence, or otherwise failed to rely exclusively on relevant acts and information.
a. It was submitted to the Tribunal that my sole purpose in applying for the visa was to complete my course of study and return to India to establish and run my own events management business.
b. The Tribunal failed to give consideration to my stated objective of running my own events management business.
c. The Tribunal failed to properly engage with my submissions.
5. The Tribunals decision is otherwise unreasonable and/or illogical.
a. It was submitted that upon completing my studies I intend to return to India and establish and run my own events management business. I submitted that my business will be large and extend to liaising with contractors.
b. The Tribunal misdirected itself by raising the issue that I may attempt to remain in Australia and complete studies in commercial cookery and hospitality management.
c. The Tribunal drew unreasonable and illogical inferences.
d. The Tribunal Member unreasonably expected me to recall the subjects in my advanced diploma course and the particular skills, knowledge and attributes that the particular units provide.
The applicant also filed an affidavit in support on the same day. It sets out the background to his application for review and a summary of the evidence he says supports a finding he meets the GTE criterion. To the extent the affidavit sets out submissions directed at the grounds of review or other alleged errors, they are discussed below in the context of those grounds.
On 20 May 2020, procedural orders were made by a registrar of this Court to ready the matter for a final hearing. Those orders included that the applicant file and serve 28 days before the final hearing date any amended application with proper particulars of the grounds of the application, any affidavits, a supplementary court book, if any, and written submissions. No further materials were filed by the applicant in accordance with those orders.
On 9 October 2024, the Minister filed an outline of submissions.
HEARING OF APPLICATION
On 29 October 2024, the applicant appeared via videoconference, unrepresented, and with the assistance of an interpreter in the Hindi language. I spent some time explaining the hearing process to the applicant. I explained the role of the Court was limited to identifying whether the Tribunal made any serious legal errors when conducting its review of the delegate’s decision. Examples of such errors were identified including whether the Tribunal misapplied the law, failed to follow appropriate procedures, failed to take into account relevant information or took into account irrelevant information. I explained the Court was not able to look at the evidence again, make a different decision and give him a visa. I explained the remedy available if his application succeeded was to send the matter back to the Tribunal to decide again.
The applicant was then taken to the materials before the Court, namely the application, the affidavit filed by the applicant in support (received into evidence and marked A1), the Court Book filed by the Minister on 15 July 2020 (received into evidence and marked R1) and the Minister’s submissions. The applicant confirmed that he had a copy of the court book and had read the Minister’s submissions.
I took the applicant through his grounds of application and the Minister’s written submissions. The applicant was not able to provide submissions directed at those grounds. He told the court the courses he proposed to do were related to his future plans and that he did not agree with the Tribunal’s decision. He argued his intention for studying the course was not considered by the Tribunal and it also failed to consider that catering and management require leadership. He also said the Tribunal failed to consider that his proposed business and the course were interconnected.
RELEVANT LEGAL PRINCIPLES
The Court’s jurisdiction
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if he establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Statutory context
Section 65(1)(b) of the Act provides that after considering a valid application for a visa, the Minister, if not satisfied that criteria prescribed by the Act or the regulations for the visa have been satisfied, is to refuse the visa. When undertaking its review function, the Tribunal is similarly required to consider whether the criteria prescribed by the Act or the regulations for the visa have been satisfied.
The relevant criteria required to be satisfied for the visa are set out in Sch 2 to the Regulations. Clause 500.2, which sets out the primary criteria for the visa, provides that all criteria must be satisfied “at the time a decision is made on the application”. This necessarily includes any decision made by the Tribunal on review. Clause 500.212 sets out the following criteria:
(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.
Satisfaction of cl 500.212 requires an applicant to be both a genuine temporary entrant and a genuine student: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [8], per Allsop CJ.
Section 499(1) of the Act provides the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Where such a direction has been made, the person or body must comply with it: s 499(2A). MD 69 is such a direction. It provides that it applies to members of the Tribunal who review the decisions of primary decision-makers in relation to a student visa.
The preamble to MD 69 relevantly provides:
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a. the applicant’s circumstances; and
b. the applicant’s immigration history; and
c. if the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
The directions on assessing the GTE criterion relevantly state:
1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a. considering the applicant against all factors specified in this Direction; and
b. considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4. Circumstances where further scrutiny may be appropriate include but are not limited to:
…
c. the applicant intends to study in a field unrelated to their previous studies or employment; …
5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
In relation to the applicant’s circumstances, paragraph 6 of MD 69 provides that “decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia”. Paragraph 7 of MD 69 provides that “for primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future”. Paragraph 8 of MD 69 provides that “weight should be placed on an applicant’s circumstances that indicate the visa is intended primarily for maintaining residence in Australia”.
In relation to the applicant’s circumstances in their home country, paragraph 9 of MD 69 relevantly provides the decision makers should have regard to:
a. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b. the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c. economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia….
In relation to the applicant’s potential circumstances in Australia, paragraph 11 of MD 69 provides decision makers should have regard to:
a. The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b. evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c. whether the Student visa … is being used to maintain ongoing residence;
…
e. the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
In respect of the value of a course to the applicant’s future, paragraph 12 of MD 69 provides decision makers should have regard to the following factors:
a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b. relevance of the course to the student's past or proposed future employment either in their home country or a third country; and
c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
When considering an applicant’s immigration history (which refers to both their visa and travel history), paragraph 14 of MD 69 relevantly provides decision makers should have regard to whether previous applications for an Australian temporary visa were granted and the amount of time the applicant has spent in Australia and whether the student visa may be used primarily for maintaining ongoing residence. This includes considering whether the applicant has undertaken a series of short, inexpensive courses.
In Kaur v Minister for Home Affairs [2019] FCA 2026, Steward J considered the interaction of cl 500.212(a) of the Regulations and MD 69. He observed at [29] that cl 500.212(a) set out four factors which must be applied when making the finding of fact whether an applicant does or does not intend to stay in Australia temporarily. MD 69, in turn, must be applied. However, the language of MD 69 directs that the factors identified in the direction should be considered and should not be treated as a checklist but as a guide. Consequently, those factors which a decision maker must take into account are those which are the subject of substantial, clearly articulated claims made by the applicant. A failure to take into account such factors may constitute jurisdictional error. Further, a failure to consider a claim engaging a factor listed in MD 69 apparent on the face of the material before the Tribunal and which clearly emerges from that material, may also constitute jurisdictional error: Kaur at [30]; see also Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [15], per Middleton J.
CONSIDERATION
Ground 1 – did the Tribunal act according to substantial justice and the merits of the case or fail to act in a way that is just and fair?
This ground picks up the language of ss 353(b) and 357A(3) of the Act. Section 353(b) provides that the Tribunal in reviewing a decision shall act according to substantial justice and the merits of the case. Section 357A(3) provides that in applying Division 5 of Part 5 of the Act, which concerns the conduct of reviews of Part 5-reviewable decisions, the Tribunal must act in a way that is fair and just.
These provisions are facultative rather than restrictive. They do not create substantive rights, but condition the exercise of operative parts of Division 5 of Part 5 of the Act: Minister for Immigration and Citizenship v Li(2013) 249 CLR 332; [2013] HCA 18 at [15]-[16], per French CJ and [58], per Hayne, Kiefel and Bell JJ.
The applicant’s response when asked what he wanted to say about this ground directed the Court to the merits of the decision and his assertion his proposed course was related to his future plans. As already noted, it is not a function of this Court to examine the merits of the decision.
The Minister submits there is nothing to suggest the Tribunal failed to comply with its procedural obligations. The applicant was properly invited to a hearing in accordance with ss 360 and 360A of the Act. He attended that hearing. The Minister submits it is evident from the Tribunal’s reasons that the applicant was afforded an opportunity to give oral evidence. The Tribunal put further evidence to the applicant in the form of the PRISMS and the Department’s movement records, noting the information was consistent with that already provided by the applicant: at [13]-[15]. The Tribunal decided the case on the same basis as the delegate. Consequently, the applicant was on notice of the issues arising in relation to the decision under review.
I agree with the Minister’s submissions. The Tribunal undertook the review in a manner consistent with the statutory scheme. The applicant had an opportunity to present evidence and arguments in relation to his case both before and during the hearing to which he was invited and attended. The applicant was on notice of the issue identified by the Tribunal as dispositive, not only because it was the same issue considered by the delegate and which formed the basis of the delegate’s refusal decision: SZBEL vMinister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [34]-[35], per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. In addition, correspondence from the Tribunal, the salient parts of which are set out at [5] and [7] above and the Tribunal’s questioning of the applicant during the hearing drew the applicant’s express attention to the relevant issue, namely whether he met the GTE criterion. In that way, the applicant was afforded a hearing that was meaningful in the sense described by the High Court in Li at [58]-[61] as he was provided a real chance to present his case. For those reasons, the Tribunal conducted the review hearing in a manner that was consistent with its statutory obligations as they are conditioned by the requirements that it act according to substantial justice and the merits of the case and in a way that is fair and just.
This ground is not made out.
Grounds 2, 3 and 5 - did the Tribunal misapprehend or misdirect its inquiries, misapply the law or make findings which lack a rational or logical connection?
It is useful to deal with these grounds together as they make similar complaints. Ground 2 alleges such errors in the context of the Tribunal finding the applicant was not a genuine applicant for entry and stay as a student. It is not otherwise explained. Ground 3 alleges such errors by failing to assess how the applicant’s studies would assist him to run his own events management business. Ground 5 makes a similar complaint, specifically referring to the Tribunal raising the issue he may attempt to remain in Australia and complete studies in commercial cookery and hospitality management and “unreasonably expected [the applicant] to recall the subjects in my advanced diploma course and the particular skills, knowledge and attributes the units provide”.
The applicant’s affidavit set out the following submissions which appear directed at these alleged errors:
11. I believe that the Tribunal erred in finding that I did not meet GTE criteria.
12. The Member identified two issues in reaching the finding that I do not meet the GTE Criteria. The Tribunal Member describes the 'first and major issue' to be the 'need' to undertake further study. The Member stated that given my existing studies and intention to operate my own business, it would not be necessary for me to compete with any other applicants. The Tribunal Member found that it was not satisfied of the necessity of my proposed course.
13. I believe that the Member erred in this regard and misdirected itself by asking itself whether completion of the course was a necessity as opposed to assessing the value of the course to my future of running an events management business in India.
14. Further, the Tribunal Member erred in stating that I would not need the additional skills as I would not be competing with other applicants.
15. The second issue identified by the Tribunal Member was in regard to my events management business which would also include providing of catering. The Member expressed concern that I might then claim to need to undertake catering and hospitality management studies. As submitted, I intend to run an events management business. The skills I will attain from my Advanced Diploma of Leadership and Management (`Advanced Diploma') will assist me with managing my business and liaising with contractors (such as caterers). The inference drawn by the Tribunal Member is illogical and unreasonable. My work will be managing the business I will not be catering the food personally.
16. It was submitted to the Member that the Advanced Diploma would equip me with the relevant skills to manage an events business. Originally, I came to Australia with the intention to obtain the necessary skills to return to India and obtain employment with a multinational corporation.
17. However, following my father's passing I realised that I would need to obtain employment closer to home. I decided I would instead leave Australia following the completion of the Advanced Diploma and manage an events business. I was inspired by this not only to be close to my family but also following my father's passing I realised I wanted to make a positive contribution to people and bring families together on special and significant occasions. I submitted to the Member that the Advanced Diploma would equip me with the skills I needed to run the business.
18. The Tribunal Member expressed concern with my inability to recall the exact units of study, the specific skills, knowledge and attributes from each subject. I believe that this is unreasonable. I explained to the Member that the Advanced Diploma was necessary for my future in running the events management businesses. The Tribunal Member failed to acknowledge that the units for my Advanced Diploma are not yet chosen. Rather, I first start the core units and determine the most appropriate elective units for my future in managing an events management business.
19.I believe that the Tribunal erred and failed to assess the value of the course to my future.
20. I believe that the Tribunal Member failed to take a reasonable and balanced approach.
21. Evidence was provided of the significant family, financial and social ties to my home country. Despite this, the Member found that there is not a significant incentive for me to return to my home country.
22. In assessing my economic circumstances, the Member found that my circumstances would not present a significant incentive for me not to return to my home country. The Member reaches the same findings for military commitments and political and civil unrest.
23. I believe that the Member erred as it failed to ask itself whether my circumstances would serve as a significant inventive to return to my home country. I believe that the Member misdirected himself in assessing whether my circumstances would not present a significant incentive for me to not return to my home country.
24. I believe that the Tribunal Member failed to have regard to the evidence, failed to weigh up and balance all of the relevant considerations and failed to make relevant findings to support the decision. For the reasons outlined above, I respectfully request a review of the Tribunals decision.
The Minister submits the Tribunal did not misapprehend or misdirect its enquiries. The Tribunal, having determined the applicant did not meet the GTE criterion pursuant to subcl 500.212(a), was not required to consider subclause (b) or (c): Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 at [32]. The Minister argues the Tribunal’s consideration of subcl (a) was comprehensive. In its reasons, it:
(a)set out the relevant law, including in relation to MD 69 at [8]-[11];
(b)summarised the applicant’s circumstances, including in relation to his circumstances in Australian and India, his completed studies and proposed studies, and his future intentions and expected remuneration at [16];
(c)considered the applicant’s evidence, set out its concerns with the applicant’s proposed courses and his understanding of those courses and how they would assist his future career plans at [17]-[22];
(d)made findings in relation to the applicant’s evidence in the context of the factors set out in MD 69 at [23]; and
(e)was not satisfied the applicant intended genuinely to stay in Australia temporarily, and thus did not meet cl 500.212(a) at [25]-[26].
As to the complaints that the Tribunal’s decision was lacking a rational/logical connection or was unreasonable and/or illogical, the Minister submits a decision will not be vitiated on such grounds unless “extreme” illogicality or irrationality is shown: Minister for Immigration and Citizenship v SZMDS(2010) 240 CLR 611; [2010] HCA 16 at [135], per Crennan and Bell JJ. In that context, the Minister noted the Tribunal’s reasons set out the following:
(a)in light of the applicant’s evidence that he intended to return to India to establish a catering business, the Tribunal enquired with the applicant about whether he intended to undertake catering and hospitality-related studies in Australia upon completion of the proposed courses;
(b)the Tribunal noted the applicant’s evidence that he had no intention of undertaking those studies, because he would be in a managerial role and would not need the hands-on studies himself at [21];
(c)notwithstanding this evidence, the Tribunal was concerned that the applicant was unable to satisfactorily explain the necessity for the proposed studies and the subjects he would be undertaking at [22] and [23(h)]; and
(d)the Tribunal was unable to conclude how the proposed studies related to the applicant’s proposed future business given his inability to explain the skills, knowledge and attitudes he would gain that he did not already possess at [23(n)].
As to the complaint in ground 3 and para [19] of the applicant’s affidavit that the Tribunal failed to assess how the applicant’s study would assist in running his own events management business in India or the value of the course to his future, the Minister submits this is plainly wrong. The Tribunal in its reasons set out the applicant’s evidence in this respect at [16(h)-(i)] and [18]. It also questioned the applicant about how the studies would assist him with business, noting the unsatisfactory response at [20] and stated its concerns and findings at [23(h)-(j) and (m)-(n)]. The Minister argues it was for the applicant to satisfy the Tribunal that the proposed study would assist him with his proposed business venture in India.
As to the complaint at [13] and [14] of the applicant’s affidavit, the Minister argues that part of the Tribunal’s consideration of the value of the proposed course to the applicant’s future included consideration of whether the skills he would obtain from them were necessary to put his plans into effect. As the qualifications and skills were not necessary for that purpose, their value to the applicant’s proposed business venture was reduced.
During the hearing, the Minister submitted that the facts of this case are analogous to that of Kandel & Ors v Minister for Immigration & Anor [2020] FCCA 2970. In Kandel, the Tribunal affirmed a decision to refuse a student visa application, as it found the applicant was not a genuine temporary entrant. The Tribunal’s decision set out a number of concerns it had about the applicant’s proposed course of study. First, the applicant had already obtained registered nursing qualifications abroad, which lead the Tribunal to question the need for further nursing qualifications in Australia. Secondly, and in relation to the first concern, was that the applicant appeared well equipped with qualifications already obtained to implement their future plans. Finally, the applicant was unable to identify particular subjects she needed to undertake to complete proposed courses. The Tribunal in Kandel was not satisfied of the necessity or the explanation given by the applicant to undertake the further studies. The applicant in that case alleged jurisdictional error on the part of the Tribunal by considering the necessity of the further studies. The error was framed as making an unnecessary inquiry, asking the wrong question, or raising an irrelevant issue. Judge Jarrett considered those matters were relevant because they went to the value of the proposed study to the applicant’s future: at [23].
The Minister submits the Tribunal’s decision ought not be construed as imposing an alternative requirement to that in MD 69. The language of need and necessity were all directed at ascertaining the value of the proposed course.
To the extent ground 3 asserts a failure to properly engage with and comply with MD 69, the Minister submits the Tribunal is only required to take into account those factors which are the subject of substantial, clearly articulated claims made by an applicant: Kaur at [30]-[31]. The Minister argues the Tribunal considered the matters in MD 69 that were clearly raised by the applicant in written and oral submissions.
Further, in circumstances where the Tribunal has directed at [11] itself that MD 69 indicated the factors specified were intended to guide decision makers and not be used as a checklist, the Court should be slow to infer the Tribunal did not adhere to its terms. The Minister also submits it is evident from the Tribunal’s reasons that it had regard to, but did not place any weight on, those factors in MD 69 for which no evidence was before it. For example, the Tribunal did not consider any military service commitments that would present as a significant incentive for the applicant not to return to India, or the impact of any political and civil unrest in India.
In respect of the applicant’s complaint at [23] of his affidavit that the Tribunal failed to ask itself whether his circumstances would serve as a significant incentive to return to India, and misdirected itself by assessing whether his circumstances would not present a significant incentive to not return to India, the Minister points out the Tribunal at [23] made a number of findings in relation to that question. Each of the findings made pick up the language of MD 69. For example, at [23(c)], the Tribunal considered the applicant’s economic circumstances in India, and concluded favourably to him that “the economic circumstances of the applicant would not represent a significant incentive for him not to return to his home country”.
As to the assertion in particular (d) of ground 3 that the Tribunal failed to make relevant findings to support its decision, the Minister submits this is not the case. Rather, the Tribunal’s decision discloses the relevant findings made in support of the Tribunal’s decision. The Minister submits those findings were based on the material before the Tribunal, including the applicant’s written and oral evidence. There is nothing in the reasons to suggest the Tribunal made its decision on any other basis.
The Minister submits the Tribunal’s line of questioning about whether the applicant intended to undertake catering and hospitality-related studies in Australia upon completion of the proposed courses was a reasonable area of enquiry that arose directly from the applicant’s evidence of his proposed future business plans. In any event, even if the Tribunal did act unreasonably in pursuing this line of enquiry, any error was not material, as the Tribunal did not make any adverse findings in this regard or rely on the applicant’s evidence on this topic in reaching its decision.
The Minister also argues it was not unreasonable for the Tribunal to make an adverse finding about the applicant’s inability to give evidence about the subjects he intended to undertake as part of the proposed courses. Referring to the applicant’s affidavit at [18] set out above, the Minister submits the Tribunal’s reasons do not disclose that the applicant made such a submission during the hearing. The Tribunal’s reasons at [20] suggest the applicant was “pressed at length to specify exactly what studies he would be undertaking and how that would assist him with his business” but not able to provide any detail to the Tribunal, other than to say, “these were advanced subjects and they would help him in his business”. Given the nature of the visa being sought, the Minister submits it was an obvious and reasonable line of enquiry for the Tribunal to ask the applicant what specific studies he would be undertaking.
No misdirection of inquiries or misapplication of the law
In my view, the Tribunal’s reasons disclose it understood the legal question it was faced with in the context of the review, that is, whether the applicant was a genuine applicant for entry and stay as a student as required by subcl 500.212(a). It has accurately summarised the statutory context and relevant considerations at [8]-[11] of its decision, including the requirement to have regard to MD 69. At [23], the Tribunal stated its findings included consideration of the MD 69 factors. This is clearly reflected in the reasons which at [23] consistently identify the relevance of particular findings to the MD 69 factors. It is not open to conclude that the Tribunal failed to properly engage with and comply with the “Directions” as asserted at ground 3(c).
Pursuant to MD 69 the Tribunal should consider the value of the proposed course to the applicant’s future. Paragraph 12 of MD 69 sets out the factors to which the Tribunal should have regard when considering this question including whether the proposed course would assist the applicant to obtain employment or improve employment prospects in their home country, the relevance of the course to future employment and the remuneration that is expected to be received using the qualifications to be gained from those studies.
The Tribunal’s reasons canvas these issues at [18]-[20], [22], [23(a), (h), (m)-(n)]. It is apparent the Tribunal did consider the need for the further studies to be undertaken in circumstances where the applicant intended to open his own business, would not be competing with others for a position and had sufficient knowledge. The inquiry, however, did not stop there. The reasons disclose at [20], [22], [23(h), (m)-(n)] the Tribunal was concerned to understand how the proposed studies would assist or were relevant to the applicant and his proposed business in those circumstances.
In my view, this demonstrates the Tribunal understood and asked itself the relevant question. While the necessity of the proposed course to future plans is not specified as a factor, in my view, that is no reason to conclude it should not be considered. If, for example, a course of study is necessary in order to pursue a proposed employment pathway, it would plainly assist a person to achieve that outcome and would be relevant. In circumstances where it is not necessary, a course of study may otherwise assist or be relevant to an applicant’s future. It is clear the Tribunal sought to elicit from the applicant information to address those additional but related questions referred to in paragraph 12 of MD 69. It did not confine its inquiry in the manner suggested by the applicant.
The Tribunal also did not misdirect itself when it raised whether the applicant may choose to undertake commercial cookery and hospitality qualifications in the future. This line of inquiry was clearly relevant to determining the genuineness of the applicant’s reported intention to return to India when he had finished his current courses and, therefore, the dispositive issue. The Tribunal noted the applicant stated he had no intention of undertaking that further study. This issue appears to have been taken no further. It did not appear in the list of findings at [23] that were relied upon by the Tribunal when arriving at the conclusion that it was not satisfied the applicant intends genuinely to stay in Australia temporarily. It is not open to conclude the Tribunal drew an adverse, unreasonable or illogical inference in respect of this issue as asserted by the applicant in his affidavit at [15].
No failure to consider relevant matters
As explained above, it is not correct to assert the Tribunal failed to assess how the course would assist the applicant to run his own business. It plainly did. It did not, however, accept the applicant’s evidence in this respect. In this context, it was legitimate for the Tribunal to ask questions directed at ascertaining the value of the proposed studies to the applicant’s future. The questioning directed at eliciting information regarding the subjects to be studied and the skills, knowledge and attributes that would be acquired were directly relevant to ascertaining the value of the course. This also went to paragraph 11(e) of MD 69 which directs attention to the applicant’s level of knowledge of and research undertaken in respect of a proposed course. As to the complaint that the Tribunal failed to acknowledge that the units had not yet been chosen, it is not apparent that evidence was given by the applicant during the hearing.
In respect of the applicant’s allegation the Tribunal failed to ask itself whether his circumstances would serve as a significant incentive to return to his home country, this was also not the case. This issue was expressly considered by reference to the applicant’s evidence at [16(b)-(e)]. The Tribunal acknowledged the applicant’s links to India, his economic circumstances in India, absence of a requirement for military service or civil unrest in India, and lack of ties in Australia at [23(b)-(g)]. Some of these were considered to not present a significant incentive for him not to return to his home country.
Ultimately, the Tribunal determined the evidence weighed more heavily in favour of establishing there was not a significant incentive for the applicant to return to his home country and which pointed to the student visa being used to maintain ongoing residence in Australia: at [24]. It is a matter for the Tribunal to evaluate the evidence before it. It is a matter for the Tribunal to determine what weight to afford the evidence and the representations made in a support of a claim: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24], per Kiefel CJ, Keane, Gordon and Steward JJ.
The Tribunal’s findings are rational, reasonable and logical
First, and contrary to the applicant’s assertions at ground 3(d) and para [24] of his affidavit, the Tribunal did not fail to make relevant findings to support its decision. It plainly made the findings it was required to make for the purposes of subcl 500.212(a) in accordance with the guidance provided by MD 69. These findings are set out in detail at [23] of the reasons.
For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], per Robertson J. A decision is not illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion: SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [84], per McKerracher and Reeves JJ agreeing.
As Crennan and Bell JJ explained in SZMDS at [131]:
…the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In my view, the Tribunal’s conclusion the applicant was not a genuine applicant for entry and stay as student was one that could not be described as illogical, irrational or unreasonable in a relevant sense. It could not be said to be a conclusion that no rational or reasonable mind could arrive at. The applicant’s complaint rises no higher than arguing the merits of his case. It may have been open to the Tribunal to conclude that the applicant met the GTE criterion, but that is not sufficient to establish jurisdictional error. It was also open to conclude, as the Tribunal did, that the applicant was not a GTE.
No jurisdictional error arises in this context of these grounds.
Ground 4 – did the Tribunal fail to consider or ignore critical evidence, or fail to rely exclusively on relevant acts and information?
The particulars of ground 4 refer to the applicant’s evidence that his sole purpose for applying for the visa was to complete the course of study and return to India to establish and run his own business. It is then asserted the Tribunal failed to give consideration to that objective and failed to engage with his submissions.
The Minister acknowledges that a failure to address a claim, either expressly or impliedly, may amount to jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40. However, in this case, the Tribunal set out the submissions referred to by the applicant but did not accept the applicant’s explanation. The Minister submits the Tribunal’s finding at [23(a)] that the applicant was undertaking the studies for reasons other than study as a student in Australia temporarily was open to it. The reference to the submission and the findings also demonstrates the Tribunal engaged with the applicant’s submission.
I accept the Minister’s submissions on this ground. The asserted error fails at a factual level. The Tribunal set out in detail the applicant’s evidence about his reasons for undertaking the proposed study at [16(h)]. The Tribunal, however, also referred to other evidence such as the applicant’s inability to specify the studies and how they would assist him in other than general terms. The Tribunal’s assessments of the evidence and relevant findings at [23(a), (h)-(j), (m)-(n)] demonstrate clear engagement with the applicant’s arguments. It ultimately rejected the applicant’s submissions. In my view, the Tribunal’s findings and conclusions were open to it.
Summary
The application fails to identify any jurisdictional error. In addition, I have also carefully considered the materials before me and am satisfied that the Tribunal did not fall into jurisdictional error when affirming the decision to cancel the applicant’s visa.
CONCLUSION
For the above reasons, I dismiss the application.
In the event the applicant was unsuccessful, the Minister sought costs in the fixed sum of $7,975.00 which is below the scale amount prescribed in Sch 2, Pt 2 of the Rules. It was submitted a full indemnity was reasonable in the circumstances. The applicant did not dispute that such an order should be made in the event his application was unsuccessful.
I am satisfied that costs should follow the event and that the amount sought is reasonable. It falls short of the scale of costs in migration matters set out in Sch 2, Pt 2 of the Rules. I order that the applicant pay the first respondent’s costs of and incidental to the application fixed in the amount of $7,975.00.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 13 December 2024
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