Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 952
•24 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952
File number(s): BRG 413 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 24 September 2024 Catchwords: MIGRATION – Student (Temporary) (Class
TU) visa– Administrative Appeals Tribunal –– judicial review – whether the Tribunal fell into jurisdictional error –– no jurisdictional error –– application dismissed.Legislation: Migration Act 1958 (Cth) ss 359 (2)
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submission/s: 16 September 2024 Date of hearing: 16 September 2024 Place: Brisbane Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Tran appeared on behalf of the First Respondent. ORDERS
BRG 413 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARSHDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
24 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name is to be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $6500.00
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 Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of the delegate of the Minister of Home Affairs (as the Minister was then called) (“the delegate”) to refuse to grant the first applicant a Student (Temporary) (Class TU) visa.
BACKGROUND
Application for a Student (Temporary) (Class TU) visa
The applicant is a citizen of India. The applicant arrived in Australia on a Vocational Education and Training Sector (Class TU) (Subclass 572) visa on 17 March 2016.
Since arriving in Australia, the applicant’s study history was as follows:
(a)On 15 January 2016, his enrolment in a Diploma of Business was cancelled due to “Change to COE/Student Details”.
(b)On 21 January 2016, his enrolments in a Diploma of Business and Advanced Diploma of Business were cancelled due to “Change to COE/Student Details”;
(c)From 21 March 2016 to 30 September 2016, he completed a Diploma of Business;
(d)From 14 November 2016 to 18 August 2017, he completed an Advanced Diploma of Business;
(e)From 9 October 2017 to 8 December 2017, he completed a General English Course;
(f)From 5 February 2018 to 6 September 2018, he completed a Certificate III in Light Vehicle Mechanical Technology;
(g)From 9 September 2019 to 29 November 2019, he completed a Certificate IV in Automotive Performance Enhancement.
On 24 September 2021, the applicant applied for a Student (Temporary) (Class TU) visa (“the visa”), to undertake an Advanced Diploma of Information Technology (Court Book (“CB”) 1-7). The applicant applied for the visa on the day that his Subclass 485 visa expired.
On 17 January 2022, the delegate refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the genuine temporary entry criterion in cl 500.212 of the Migration Regulations 1994 (Cth) (“the Regulations”). That criterion provides:
The applicant is a genuine applicant for entry and stay as a student because:
a.the applicant intends genuinely to stay in Australia temporarily, having regard to:
i.the applicant’s circumstances; and
ii.the applicant’s immigration history; and
iii.if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
iv.any other relevant matter; and
b.the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
i.the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
ii.the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
c.of any other relevant matter.
Application for review in the Administrative Appeals Tribunal
On 4 February 2022, the applicant applied to the Tribunal for review of the delegate’s decision (CB 77-84). The applicant was represented by a Migration Agent.
On 8 February 2022, the Tribunal acknowledged receipt of the application and advised the applicant that if he wished to provide material or written arguments for consideration, he should do so as soon as possible (CB 86 - 88).
On 17 March 2023, the Tribunal sent the applicant an invitation to provide information to satisfy it that the applicant met the visa requirements that the applicant was enrolled in a course of study and was a genuine applicant for entry and stay as a student. The Tribunal provided the applicant a link to the online Request for Student Visa Information. A copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“Direction No. 69”) was also attached (CB 90).
On 28 March 2023, the applicant completed the online request for information and provided documentation to the Tribunal (CB 98 - 127).
On 24 May 2023, the Tribunal invited the applicant to attend a hearing by telephone on 30 June 2023 (CB 130). The invitation requested the applicant to provide all documents he intended to rely upon to support his case and referred the applicant to the reasons for the decision made by the delegate.
On 13 June 2023, the Tribunal sent the applicant an invitation (“the s 359(2) request”)
(CB 135 - 138) to comment on or respond to information regarding his records of the Department of Education’s Provider Registration and International Student Management System (“PRISMS”) and the applicant’s movement history. The Tribunal advised the applicant that if it relied on this information alone in making its decision, the Tribunal may find that the applicant is not a genuine applicant for the purpose of entry and stay as a student and that this may be the reason that the Tribunal would affirm the delegate’s decision not to grant the applicant a Student visa.
On 19 June 2023, the applicant completed the “Response to hearing invitation” indicating that he will be attending the hearing (CB142 - 144). Annexed to the response was a timeline of events detailing the applicant’s study history along with an explanation of enrolments and travel to India (CB 145 - 148).
On 30 June 2023, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was assisted at the hearing by his Migration Agent. The hearing was conducted with the assistance of an Interpreter in the Punjabi and English languages (CB 161).
On 30 June 2023 and after the hearing, the applicant provided a submission in regard to his travel back to India (CB 152 – 155).
On 28 July 2023, the Tribunal affirmed the delegate's decision not to grant the visa. The Tribunal provided written reasons for its decision (CB 160 - 171).
THE TRIBUNAL’S DECISION
The Tribunal identified that the only issue on review was whether the applicant met the requirements of cl 500.212(a) of the Regulations which required that the applicant satisfy the genuine temporary entrant requirement. The Tribunal accepted that the applicant was enrolled in the course described in the certificate of enrolment being an Advanced Diploma in Information Technology [14].
The Tribunal stated that in considering whether the applicant satisfies cl 500.21(a), the Tribunal must have regard to the specified factors in Direction No. 69 ([9]) and identified those factors as:
(h)The applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
(i)The applicant’s immigration history, including previous applications for an Australin visa or for visas to other countries, and previous travel to Australia or other countries;
(j)If the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
(k)Any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Tribunal went on to state that the factors should not be used as a checklist but as a guide to decision makers when considering the applicant’s circumstance as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion ([10]).
The Tribunal then summarised the information the applicant had provided to the Tribunal in response to the s 359(2) request (“the s 359(2) response”) ([17] – [25] and [46] – [ 47]).
The Tribunal then proceeded to ask the applicant questions arising from the s 359(2) response and summarised the applicant’s answers as follows:
(a)The applicant had no employment history in India [27];
(b)After changing from business to automotive studies and then to information technology, the applicant said that after studying business he intended to gain knowledge in automotive and seek employment as a mechanic in India [28] – [29];
(c)As to why he needed business and information technology if he intended to work as a mechanic in India, the applicant said that he could not get a job in the automative field because of COVID-19 [30] – [32];
(d)The applicant agreed that he applied for the student visa on the same day that his Subclass 485 visa expired [33];
(e)The applicant said that he returned to study after the expiry of the Subclass 485 visa because he thought the future in IT was bright and in the event of another pandemic he could get a job in IT [34];
(f)As to the fact that he had returned to India only once, the applicant said that he had planned to return to India in March 2020 but then there was the lockdown, his visa application was refused in January 2022 and he had no travel rights [35];
(g)As to the cancellation of his enrolments in a Diploma of Business and an Advanced Diploma of Business, the applicant said that this was because he had no visa and that student fees were still being processed[36];
(h)As to the cancellation of his enrolment in a Diploma of Information Technology due to unsatisfactory progress, the applicant said that this was because the course went online which he could not do properly. He said that he contracted COVID-19 which affected his ability to study. He said he had a medical report but had not provided this to the Tribunal [37];
(i)He had no relatives in Australia ([38]);
(j)He did not have assets in India ([39]);
(k)He had not returned to India permanently after completing the business or automotive courses because “during COVID-19 are reliant on study for future career so chose IT” ([40]);
(l)He had not returned to India permanently after the Subclass 485 visa expired because during COVID-19 he was unable to find employment in his field, he was concerned about the future so he chose IT and would go back after he finished ([41]);
(m)The applicant continued to remain in Australia after his student visa application was refused as he was hoping the appeal would be decided in his favour ([42]).
The applicant’s representative made the following submissions ([45]);
(a)The enrolment cancellations in the Diploma of Business and Advanced Diploma of Business were because the applicant’s initial application for a student visa was delayed and he was not able to start the courses because he was overseas; and
(b)The applicant did not return to India because he had no travel rights and during the pandemic he was not able to travel.
The applicant’s representative was invited to clarify his submission and provide more detail about the applicant’s inability to travel and submit them after the hearing ([44]). The Tribunal observed, in respect of those further submissions, the applicant could have applied for dispensation to travel to India once restrictions were eased but there was no evidence that he did so. The Tribunal said that the applicant’s explanation was given some weight but his failure to attempt to return undermined his assertion of close ties to India somewhat ([48]).
The Tribunal also referred to a statement that the applicant had provided to the Department in support of his application for review explaining the reasons for the change in courses. The Tribunal observed that the applicant did not explain why he did not study in the field of automotives upon arrival in Australia or whilst in India. As to the applicant’s stated intention to return to India to open his own company the Tribunal observed that the applicant had provided no details of the nature of that intended business ([49]).
The Tribunal then set out a summary of the applicant’s evidence ([52] – [59]):
(a)The applicant returned to India only once since his arrival in Australia on 18 March 2016. Whilst the Tribunal gave some weight to the applicant’s explanation for not returning during the pandemic his failure to travel to India before global restrictions and failure to take any steps after travel restrictions eased was also given some weight, and did somewhat undermine his assertion of close ties to India ([52]);
(b)The applicant’s visa history ([53]);
(c)The applicant’s study history ([54]);
(d)The Tribunal accepted that the several cancellations of the applicant's enrolments in business courses were beyond his control but did not accept that the cancellation of the information technology course was beyond his control as it is reasonable to expect a diligent student to adapt to changes, especially in a technical course like an Advanced Diploma in Information Technology, which was shifted online ([55]);
(e)In the absence of any corroborating evidence on the duration and severity of his illness, this assertion was given little weight ([55]);
(f)The applicant’s immediate family resides in India and he owns no assets there ([56]);
(g)The applicant has stable employment in Australia ([57]);
(h)The Tribunal found the applicant’s explanation of changing of courses due to his experiences during the pandemic had little weight ([58]);
(i)The applicant had not explained to the satisfaction of the Tribunal why he had changed the direction of his studies on several occasions; why he had not returned to India before the onset of global travel restrictions; why he produced no evidence of taking any steps to obtain permission to return to India since the lifting of those restrictions; why he had changed career intentions on at least one occasion; why he did not return to India permanently when he had successfully completed business courses or automotive courses; whey he did not return to India permanently when his student visa application was refused; why he did not return to India permanently when his temporary resident visa expired; why he chose to return to study after the expiry of his temporary residence visa; why he chose to return to study after the expiry of his Subclass 4845 visa and why his existing skills and experience were insufficient to enable him to embark on his vague career path ([59]);
(j)The Tribunal accepted that the applicant has family ties in India but found that the applicant had been unable to demonstrate ties sufficient to act as an incentive to return to India at the completion of the actual or proposed study given the extended time he has already spent in Australia and his intention to stay longer ([61]);
(k)The Tribunal considered the applicant’s potential circumstances in Australia and considered that the length of the proposed stay indicated the applicant is studying for the purposes of staying in Australia. The Tribunal observed that whilst plans can change, the applicant’s conduct was inconsistent with that of a genuine temporary entrant and more aligned with an intention to extend his stay through the Student visa program ([62]);
(l)The Tribunal did not place weight on the value of the course to the applicant's future, including potential renumeration and career prospects in his home country ([63]);
(m)The Tribunal was not convinced the applicant’s proposed study would offer significant benefits for his career plan, considering the cost of the study and the extensive qualifications he already possesses in the business and automotive fields ([64]-[65] and [68]);
(n)Given the economic disparity between Australia and India, the Tribunal was not convinced that the applicant had a strong incentive to return to India ([67]);
(o)The Tribunal considered that the applicant had been in Australia for over seven years with only two trips to India, planned to stay until at least April 2025, owned no assets, had no employment history in India, and appeared to have stable employment in Australia. These factors indicated the applicant did not have strong personal ties to India and a minimal incentive to return ([69]);
(p)The applicant lodged his current application on the same day his previous visa expired from which it appeared that he commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study ([70]).
Having considered all of the information provided by the applicant, the Tribunal on balance concluded it was not satisfied that the information the applicant provided regarding his circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant mattes was sufficient to demonstrate that the applicant is a genuine temporary entrant ([71]). The Tribunal concluded that the evidence suggested the applicant had enrolled in another course for the purpose of securing a further student visa rather than due to a genuine interest in study and is using the student visa programme as a means of maintaining residency in Australia ([72]).
The Tribunal concluded the applicant did not meet cl 500.212(a) of the Regulations as it was not satisfied that the applicant intends to genuinely stay in Australia temporarily ([74]).
Accordingly, the Tribunal affirmed the delegate’s decision ([77]).
APPLICATION TO THIS COURT
These proceedings were commenced by application pursuant to s 476(1) of the Migration Act 1958 (Cth) (“the Act”) on 29 August 2023.
The grounds of review set out in the Application are (without alteration):
Ground One
The Second Respondent made a jurisdictional error by taking into account irrelevant considerations and materials.
Ground Two
The Second Respondent considered the applicant had only completed one course and has changed his course several times, therefore, he will not complete any further studies. The Second Respondent has come to his conclusion without any basis.
Ground Three
The Second Respondent made a jurisdictional error by making inconsistent/ self-contradictory findings.
Ground Four
The Second Respondent made a jurisdictional error by failing to take into account relevant considerations and ignoring relevant material.
Particulars
a. The Second Respondent failed to consider the Applicant’s qualifications would be beneficial to her career path in India.
b. The Second Respondent failed to consider the applicant’s course completion;
c. The Second Respondent failed to consider the applicant’s genuine reasons for not travelling.
d. The Second Respondent suggests that the applicant did not appear to have done any research about the feasibility of utilising his current studies, however, the applicant has clearly provided his career path and future prospects.
Ground Five
The Second Respondent has made a jurisdictional error by denying the Applicant procedural fairness.
Ground Six
The Second Respondent made a jurisdictional error by making an erroneous finding and reaching a mistaken conclusion and misconstruction the GTE requirement.
Ground Seven
The Second Respondent made a jurisdictional error by identifying the wrong issue and asking the wrong question.
Despite an order of the Court permitting him to do so, the applicant did not file an Amended Application.
The applicant also filed an Affidavit affirmed on 29 August 2023. The Affidavit sets out some background matters and annexes a copy of the Tribunal’s decision.
The applicant did not file any written submissions or further evidence.
The applicant appeared before the Court in person. The applicant was unrepresented. He was assisted by an Interpreter in the Punjabi and English languages.
The material before the Court included the Application for judicial review, the applicant’s Affidavit, the first respondent’s written submissions and a Court Book.
The applicant did not have with him in Court the first respondent’s written submissions or the Court Book with which he had been served. Accordingly, the Court ensured that the applicant had a copy of the materials. Before the hearing commenced, the applicant was given time with the Interpreter to review the materials. At the commencement of the hearing, the applicant confirmed to the Court that he understood the first respondent’s written submissions. The Court also ensured that the first applicant had access to a pen and paper.
CONSIDERATION
For the applicant to be successful, he must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [13] - [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
As the applicant was unrepresented, the Court explained that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly, the Court cannot make a decision on the merits of the applicant’s visa application. It was explained that the Court’s task is instead to determine whether the Tribunal made a legal or procedural error. In the event of such an error, it was explained that the Court could set aside the decision of the Tribunal and send the matter back to the Tribunal for a decision to be made according to law.
The applicant was given an opportunity by the Court to make oral submissions as to his grounds of review.
Ground One: Irrelevant Considerations and Materials
The application does not particularise how it is said that the Tribunal “made a jurisdictional error by taking into account irrelevant considerations and materials.”
The first respondent submitted that failure to particularise a ground of review can be a sufficient basis for it to be dismissed (first respondent’s written submissions (“FRS”)) [33] referring to WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 [60] per Lucev J,). That may be so, however, it is also the position that the Court should be reluctant to dismiss a ground of review in circumstances where an applicant is self-represented (DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, [8]-[10] per Colvin J). The Court has proceeded on that basis.
The applicant submitted that the Tribunal should not have considered the other courses he had completed and his study history in Australia as these matters were irrelevant.
The Court agrees with the first respondent’s oral submission that the applicant’s study history and the reason for changing the direction of his studies were matters that were directly relevant to the factors in Direction No. 69 namely, the value of the proposed course to the applicant’s future.
No jurisdictional error is established.
Ground Two: Conclusion without any basis
In this ground of review the applicant says that the Tribunal erred in considering he had only completed one course and had changed his course several times and in concluding that he will therefore not complete any further studies. The applicant says that the Tribunal came to this conclusion without any basis.
In oral submissions, the applicant submitted that the Tribunal incorrectly stated he had completed only one course, frequently changed his course, and would not complete further studies.
The Court took the applicant to paragraphs 20, 46 and 54 of the Tribunal’s decision at which the Tribunal sets out the courses the applicant has completed and asked the applicant why he submitted that the Tribunal had found that he completed only one course and had no basis for concluding that he had changed courses several times.
In response, the applicant took the Court to paragraph 46 of the Tribunal’s decisions and said it was stated there that he had enrolled in one course three times and that is why he relied upon this ground of review.
Paragraph 46 of the Tribunal’s decision does not include any finding by the Tribunal but sets out the text of the s 359(2) request.
The Tribunal's decision ([20], [46] and [54])) showed that the applicant completed four courses and the PRISM records showed that he had changed his course direction several times. The Tribunal accepted that the applicant was enrolled in an Advanced Diploma of Information Technology but was not satisfied that the course would be of value to his career beyond his existing qualifications or that he had a genuine interest in information technology ([14], [54], [65], [68] and [70]).
Accordingly, the Court agrees with the first respondent’s submission (FRS [34]) that this ground cannot succeed at a factual level.
No jurisdictional error is established.
Ground Three: Inconsistent and self-contradictory findings
In ground three the applicant asserts that the Tribunal “made a jurisdictional error by making inconsistent/ self-contradictory findings”.
In oral submissions, the applicant submitted that he chose a different course because he was ‘not having experience in automotive’ and so if he went back to India it would of no use to him and that is why he chose a different course. The applicant also referred to the Tribunal’s statements that he had travelled to India only once and stated that he had been unable to return because of travel restrictions and because he had no travel rights.
In oral submissions, the first respondent submitted that paragraphs 52 and 59 of the Tribunal’s decision demonstrate that the Tribunal’s factual findings as why the applicant did not travel to India since his arrival in Australia in March 2016 apart from a two-month trip from December 2081 to February 2019 were reasonable. The Tribunal considered that the applicant could have travelled before the COVID-19 related travel restrictions, accepted that the applicant could not have travelled during the period of those travel restrictions and considered that the applicant could have taken steps after the easing of those restrictions to obtain permission to travel.
The Court agrees that the Tribunal’s reasoning shows no inconsistent or contradictory findings and otherwise demonstrates no jurisdictional error.
Ground Four: Failure to take into account relevant considerations and ignored relevant material
Ground four is an assertion that the Tribunal “failed to take into account relevant considerations and ignored relevant material”. The application provides four particulars of this assertion.
In particular (a) of ground 4, the applicant asserts that the Tribunal failed to consider that his qualifications would be beneficial to his career path.
The Court agrees with the first respondent’s submissions (FRS [36]). The Tribunal did consider whether the applicant’s qualifications would be beneficial to his career path but was not satisfied that the proposed study would be of value beyond the applicant’s existing qualifications ([14], [20], [65], [68] and [70]).
No jurisdictional error is established.
In particular (b) of ground four, the applicant asserts that the Tribunal failed to consider the applicant’s course completion.
In oral submissions, the applicant repeated the reasons why he had changed courses from business, to automotive and how the pandemic and the ability to work from home had motivated his decision to study information technology.
The Court observes that this submission is at odds with the applicant’s submission in support of ground one which was that the Tribunal erred in considering the courses that he had completed. In any event, as stated earlier, the Tribunal took into account the courses the applicant had completed, considered his explanations as to why he had changed courses but was ultimately not satisfied that his studying information technology would be of value to his career path beyond his current qualifications ([20], [46], [54], [65], [68] and [70]).
The Tribunal’s reasoning was rational, logical and entirely open to it.
No jurisdictional error is established.
In particular (c) of ground four, the applicant asserts that the Tribunal failed to consider the applicant’s genuine reasons for not travelling.
This ground repeats what has already been asserted in ground three. As stated in respect of that ground, the Tribunal’s decision demonstrated that its factual findings as to why the applicant did not travel to India since his arrival in Australia in March 2016 apart from a two-month trip form December 2018 to February 2019 were reasonable. The Tribunal considered that the applicant could have travelled before the COVID-19 related travel restrictions, accepted that the applicant could not have travelled during the period of those travel restrictions and considered that the applicant could have taken steps after the easing of those restrictions to obtain permission to travel ([52] and [59]).
No jurisdictional error is established.
In particular (d) of ground four, the applicant asserted that the Tribunal suggested that the applicant did not appear to have done any research about the feasibility of utilising his current studies, however, the applicant asserted that he has clearly provided his career path and future prospects.
The Tribunal did not make the suggestion that the applicant did not appear to have done any research about the feasibility of his current studies. What the Tribunal did find was that the applicant’s evidence about his career path was vague and that he not provided cogent details of his future career path ([59]), had not explained to the Tribunal’s satisfaction why his existing skills and experience were insufficient to enable him to embark on his vague career path ([63]) and that is was not satisfied that the proposed study would provide the applicant with significant benefits in his proposed career plan considering the cost of the study and the fact that the applicant already had extensive qualifications obtained in Australia in both business and automotive studies([65]).
The Tribunal’s reasoning was rational, logical and entirely open to it.
No jurisdictional error is established.
Ground Five: Procedural Fairness
In ground five, the applicant asserts that the Tribunal denied him procedural fairness.
No particulars are given in the application of the way in which the applicant says that he was denied procedural fairness.
In oral submissions, the applicant said that he had wanted to submit a document to the Tribunal that showed that his Certificate of Enrolment was cancelled because he had COVID-19 but that the Tribunal did not permit him to do so. In the absence of corroborating evidence, the Tribunal said that the assertion that the enrolment was cancelled because the applicant contracted COVID-19 was given little weight [55]. There is no evidence that the applicant asked for but was denied the opportunity to submit supporting medical evidence to the Tribunal.
The applicant also said in oral submissions in reply that he wanted to submit his documents ‘for travelling’ but that he was told to wait for the decision. That submission is not supported by the facts of what happened. As noted, the applicant provided a written submission to the Tribunal after the hearing about his travel to India.
In his oral submissions in reply, the applicant also said that he was not sure he could have applied for travel rights (after the easing of travel restrictions) whilst his matter was with the Tribunal. This was not something that he had explained to the Tribunal at the hearing or in his written submission after the hearing.
The Court otherwise agrees with the first respondent’s submission that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Act for the reasons set out in those submissions (FRS [40]).
No jurisdictional error is established on this ground.
Ground Six: erroneous finding, mistaken conclusion and misconstruction of GTE requirement
In ground six, the applicant asserts that the Tribunal “made an erroneous finding and reached a mistaken conclusion and misconstruction of the GTE requirement”.
No particulars were provided in the application of this ground.
In oral submissions, the applicant said that the Tribunal made an erroneous finding and reached a mistaken conclusion and misconstrued the GTE requirement in stating that he was ‘just finding ways to live in Australia’. The Court understood the applicant to be submitting that this finding was erroneous and mistaken because it was all of the circumstances, which he had explained to the Tribunal, that led to his course changes.
The Court agrees with the first respondent’s submission that the applicant’s complaint is one of disagreement with the conclusion the Tribunal reached on the evidence before it (FRS [42]). The Tribunal’s reasons demonstrate that it had regard to the statutory requirements, considered all of the evidence before it and made a reasoned, logical and rational decision that was open to it on the evidence and was consistent with a correct construction of cl 500.212(a) of the Regulations.
No jurisdictional error is established.
Ground Seven: Identification of the wrong issue and asking the wrong question
In ground seven, the applicant asserts that the Tribunal made a jurisdictional error by identifying the wrong issue and asking itself the wrong question.
The applicant was unable to articulate what the wrong issue or wrong question was. His oral submissions dealt again with the circumstances which led him to change courses and why he was unable to travel to India.
The applicant’s study history and travel history were directly relevant to the consideration of whether the applicant met the requirements of cl 500.212(a) of the Regulations.
The Tribunal did not ask itself the wrong question. The Tribunal correctly addressed itself to the requirements of cl 500.212(a) of the Regulations, considered all of the evidence before it relevant to those requirements and rationally reasoned as to why it was not satisfied that the applicant was a genuine temporary entrant.
No jurisdictional error is established
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 24 September 2024
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