Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 307
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 307
File number: MLG 1020 of 2017 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 27 April 2023 Catchwords: MIGRATION – Student (Temporary)(Class TU) (Subclass 572) visa – review of Administrative Appeals Tribunal – where applicant was not a genuine temporary entrant for the purposes of study – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 476 and 499
Migration Regulations 1994 (Cth) reg 572.223
Federal Circuit Court Rules 2001 (Cth) pt 3, div 1, item 3, sch 1
Cases cited: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145
Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of last submissions: 15 December 2020 Date of hearing: 15 December 2020 Place: Melbourne (by videoconference) The Applicant: Appeared in person Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent submitting an appearance save as to costs. ORDERS
MLG 1020 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPREET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
27 April 2023
THE COURT ORDERS THAT:
1.The Originating Application filed 18 May 2017 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Originating Application filed on 18 May 2017 (Application), the Applicant seeks judicial review of the Administrative Appeals Tribunal (Tribunal) decision, dated 20 April 2017 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse to grant the Applicant a Student (Temporary) (Class TU) (Subclass 572) visa (Visa).
The Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (MigrationAct). The Applicant has seven (7) grounds of review in the Application, which the Court will consider in detail below.
This matter was heard on 15 December 2020 and proceeded by way of videoconference on Microsoft Teams, as a result of the health protocols adopted by the Federal Circuit Court of Australia (as the Court then was) at the time due to the ongoing COVID-19 pandemic (Final Hearing). The Applicant did not request an interpreter. The Court is satisfied that the Final Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
BACKGROUND
The Court has before it a Court Book numbering 164 pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s written submissions, filed on 25 November 2020 (Minister’s Submissions), at [3] to [10], accurately summarise the factual history of this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant is a citizen of India, born on 28 February 1986.[1] The Applicant arrived in Australia on a student visa granted on 18 April 2008, which was due to cease on 10 November 2010. He was granted three further student visas, the last of which was valid until 5 June 2015.[2]
[1] Court Book (CB) 11.
[2] CB 114.
On 28 May 2015, the Applicant applied for the Visa.[3]
[3] CB 11–19.
The Delegate was not satisfied that the Applicant was a ‘genuine Applicant for entry and stay as a student’ as required by reg 572.223 in sch 2 of the Migration Regulations 1994 (Cth) (Regulations) at the date of the Delegate’s decision. This was on the basis that the Applicant did not meet the ‘genuine temporary entrant criterion’ having regard to the matters set out in reg 572.223(1) of the Regulations, and the factors identified in Ministerial Direction No. 53: Assessing the genuine temporary entrant criterion for Student visa applications (Ministerial Direction No. 53).[4]
[4] CB 112–117.
The Delegate’s reasons for so finding were comprehensive, and put the Applicant squarely on notice of the matters of concern in relation to his study and immigration history in Australia. The basis upon which the decision was made was described by the Delegate as follows:
Overall, given your study history, your potential circumstances in Australia, your immigration history and the lack of value of the courses to your future, I find that you are using the Student visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.[5]
[5] CB 116.
The Applicant sought review by the Tribunal, and appeared at a Tribunal hearing to give evidence and present arguments on 20 April 2017. He was assisted by his representative, who also attended the hearing.[6]
[6] CB 149.
On 20 April 2017, the Tribunal gave an oral decision and reasons at the conclusion of the hearing, affirming the Delegate’s decision.[7]
[7] CB 152-153, 162, [2].
On 24 May 2017, the Tribunal published a written record of its decision and reasons.[8]
[8] CB 161–164.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 161 to 164 of the Court Book. The Minister’s Submissions, at [16] to [27], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions as its own, with amendments, as follows.
As it had been for the Delegate, the issue for the Tribunal was whether the Applicant is a ‘genuine Applicant for entry and stay as a student’ as required by reg 572.223 of the Regulations, and in particular, whether the Applicant met the genuine temporary entrant criterion having regard to the matters set out in reg 572.223(1) of the Regulations and the factors identified in Ministerial Direction No. 53.[9]
[9] CB 162, [3]–[12].
The Tribunal summarised the provisions of Ministerial Direction No. 53, noting that it required the Tribunal to have regard to a number of specific factors, but that they should not be used as a checklist, but rather were intended to guide decision-makers to weigh up the Applicant’s circumstances as a whole in reaching a finding as to whether the Applicant met reg 572.223(1)(a) of the Regulations.[10]
[10] CB 162, [8]–[9].
The Tribunal discussed with the Applicant all the relevant matters, having regard to Ministerial Direction No. 53.[11]
[11] CB 162–163, [13]–[22].
The Tribunal further noted that since the Applicant came to Australia in 2008, he has been enrolled in a large number of courses, many of which have been cancelled. The course contents were basically unrelated, ranging across English, Information Technology, hospitality, business, management at various levels, painting and decorating, commercial cookery, and marketing. The Tribunal also noted that at the time of the hearing the Applicant was studying an Advanced Diploma of Marketing.[12]
[12] CB 163, [16].
The Tribunal noted the Applicant’s evidence given at the hearing that he plans to help his father in his ‘crop farming business’.[13] In his written statement to the Tribunal, the Applicant said that he wanted to set up a business marketing farm produce of his family and local growers. However, when asked by the Tribunal, the Applicant was unable to provide any details about the business. That led the Tribunal to find that the Applicant does not have a considered business plan as the basis for his choice of studies.[14]
[13] CB 163, [17].
[14] CB 163, [17].
The Applicant gave no answer when asked by the Tribunal as to how his past and proposed studies provide value to his future career.[15]
[15] CB 163, [18].
The Applicant offered no explanation to the Tribunal, when the Tribunal noted that the Applicant’s current course requires him to complete eight (8) units of study, four (4) of which had already been completed in previous courses. The Tribunal noted that it was a pattern in the Applicant’s study history to enrol in courses where half of the units the Applicant had already completed in previous courses. At the same time however, the Applicant had not received recognition of prior learning for those subjects. That led the Tribunal to find that either the Applicant had not researched the courses, or that he had chosen the courses because they contained units the Applicant had already completed. The Tribunal found that this was not a behaviour of a genuine student.[16]
[16] CB 163, [19].
The Tribunal noted that the Applicant gave evidence that he has driven a taxi in Australia for five (5) years.[17]
[17] CB 163, [22].
The Tribunal found that the Applicant is not a genuine temporary entrant for the purpose of study based on the following:
(a)The Applicant’s study history, in particular his enrolments in a number of unrelated, short, relatively inexpensive courses, including information technology, hospitality, painting and decorating, commercial cookery, management and marketing;[18]
(b)The lack of value of the proposed course to his future business/employment plans;[19]
(c)The lack of a considered business plan in support of the Applicant’s chosen study courses;[20]
(d)The Applicant’s long stay in Australia;[21] and
(e)The Applicant’s employment in Australia.[22]
[18] CB 163, [16] and [20].
[19] CB 163, [20].
[20] CB 163, [17].
[21] CB 163, [22].
[22] CB 163, [22].
Whilst the Tribunal accepted that the Applicant’s family are in India, it found that his family ties do not provide a ‘strong incentive’ for the Applicant to return to India.[23]
[23] CB 163, [22].
The Tribunal found that the Applicant’s purpose in applying for the Visa was to ensure his ongoing residence in Australia.[24] The Tribunal was not satisfied that the Applicant intended genuinely to stay in Australia temporarily.[25]
[24] CB 163, [20].
[25] CB 163, [23].
The Tribunal was not satisfied that the Applicant met reg 572.223(1)(a) of the Regulations and consequently affirmed the Delegate’s decision.[26]
[26] CB 163-164, [23]–[25].
PROCEEDINGS BEFORE THE COURT
On 18 May 2017, the Applicant filed his Application seeking judicial review, with an accompanying Affidavit.
The Applicant was provided an opportunity to file an amended application by Orders of a Registrar of this Court, dated 6 December 2017. The Applicant did not do so and as such these Reasons for Judgment refer to the grounds set out in the Application. The Application contained the following grounds of review:
1.The Tribunal has erred in concluding that I am not a genuine student. I have been a genuine student since my arrival in Australia. I have always been enrolled in a registered course and completed the course in the due time. The Tribunal did not consider my course completions and my enrolments while deciding on my application.
2.In my submission to the Tribunal I explained my personal circumstances in my home country. I come from a well to do landlord family and I and my family has enough resources to support my education in Australia. I have valid reasons to go back to my country after finishing my study. The Tribunal did not consider my personal circumstances in my home country while deciding on my review application.
3.I have paid thousands of dollars in tuition fee to the Australian education providers during my stay in Australia as an International student. The Tribunal failed to consider the continuity of my enrolment in registered courses and paying my tuition fee on time while deciding on the genuinity as an international student.
4.I never have a gap between my studies and my enrolments. I always was enrolled in a registered course and completed it in a timely manner. I provided Tribunal with my certificates and course completions. The Tribunal did not consider the courses instead it referred the completions as irrelevant. The Tribunal was in error while referring the courses and course completions as irrelevant to the fact that I completed those courses were completed as a genuine international student.
5.The Department of Immigration and Border protection (DIBP) in its decision concluded that I am using student visa to circumvent permanent migration programs. This is totally irrelevant to the genuinity of a student. The DIBP made this assumption from nowhere and without any evidence. I have never applied for any permanent visa or any other visa except student visa to study in Australia.
6.The DIBP and the Tribunal stated that the similar courses are available in my home country so I am an ingenuine student if I am applying for or completing the same course in Australia. This is highly irrelevant and make no sense assuming that if a student is completing a course in Australia which is also available in student's home country makes the student an ingenuine student for visa application.
7.The subclause 573.223 which is used to refuse my visa application by DIBP and the Tribunal states that the applicant is a genuine applicant if he provides a confirmation of enrolment, level of English required, educational qualifications required by the provider, intention to comply with the conditions, sufficient funds and any other relevant matter. I provided all these documents and evidences to the DIBP and the Tribunal in support of my education. The DIBP and the Tribunal did not consider these evidences while considering my application instead they considered irrelevant matters to consider that I am not a genuine student.
(Without alteration)
The materials before the Court include the Court Book (marked as Exhibit 1), and the Minister’s Submissions. The Court has also considered the transcript of the Final Hearing where both the Applicant and Counsel for the Minister provided oral submissions.
The Applicant appeared before the Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book, and a copy of the Minister’s Submissions.[27]
[27] Transcript P2–3:L44-L4.
At the Final Hearing, the Applicant noted that he had been in Australia for 12 years and undertaken regular study. Further, he said that it was very difficult to do anything in his home country due to a change of circumstances.[28] These are not matters relevant to the Court’s task on judicial review.
[28] Transcript P10:L16-L32.
The Court will now consider each ground for review.
CONSIDERATION
Ground 1
In Ground 1, the Applicant contends that the Tribunal failed to consider his course enrolments and completions.
It was submitted by the Minister that the Tribunal did consider the Applicant’s course enrolments and completions, and that such consideration was referred to in the Tribunal’s Decision.[29]
[29] Minister’s Submissions, [31].
It is clear from the Tribunal’s Decision that it considered the evidence before it and formed a view on the basis of the evidence about whether the Applicant met the genuine temporary entrant criteria.
The Tribunal, when considering the Applicant’s enrolments since his arrival in 2008, lists the themes of each course.[30] It is apparent from this exercise that the Tribunal did take into account evidence before it, namely the Applicant’s written submissions,[31] and the Provider Registration and International Student Management System (PRISMS) record,[32] both provided to the Tribunal on 16 April 2017.[33]
[30] CB 163, [16].
[31] CB 142-143.
[32] CB 144-146.
[33] CB 141.
The Tribunal proceeded to observe a pattern in the Applicant’s enrolment history: that the Applicant appears to enrol in courses that contain units that the Applicant has already completed, but are not recognised.[34] The Tribunal could not have made such an observation without considering the Applicant’s course enrolments and completions.
[34] CB 163, [19].
The Court agrees with the Minister’s Submissions. The Tribunal’s Decision demonstrates that Tribunal did consider the Applicant’s course enrolments and completions.
Ground 1 is therefore dismissed.
Ground 2
In Ground 2, the Applicant contends that the Tribunal failed to consider the Applicant’s personal circumstances in his home country.
It was submitted by the Minister that the Tribunal did consider the Applicant’s circumstances in India, and that such consideration was referred to in the Tribunal’s Decision.[35]
[35] Minister’s Submissions, [33].
The Tribunal, in the Tribunal’s Decision, states:
22.You have told the Tribunal you have driven a taxi in Australia for five years and when I look at your incentive to remain in Australia or return, while I acknowledge you have family back home, I am not satisfied this provides strong incentive as you have been here for nine years and now seek to remain longer so your actions would indicate you perceive an incentive to remain in Australia.[36]
[36] CB 163, [22].
The exercise of comparing the Applicant’s circumstances in Australia compared to India demonstrates that the Tribunal did consider the relevant evidence.
Furthermore, the Court notes that the substance of the relevant evidence before the Tribunal did not go much further than what is acknowledged by the Tribunal. The Applicant, in his written submission to the Tribunal, said:
My circumstances back home are quite good and we own agricultural farms in Punjab and Uttar Pradesh. My parents are quite well settled.[37]
[37] CB 143.
For the reasons above, I conclude that the Tribunal did consider the Applicant’s evidence concerning his personal circumstances in India, to the extent that such evidence was provided.
Ground 2 is dismissed.
Ground 3
In Ground 3, the Applicant contends that the Tribunal failed to consider the continuity of his enrolment and payment of his tuition fees.
It was submitted by the Minister that the Applicant’s contentions are without merit.[38]
[38] Minister’s Submissions, [34].
The Tribunal’s Decision expressly acknowledges the Applicant’s continuous enrolment in a large number of courses since his arrival in Australia in May 2008.[39] What concerned the Tribunal, as the Minister pointed out, was that the Applicant has been enrolled in disparate and unrelated fields.[40]
[39] CB 163, [16].
[40] Transcript P7:L43.
The Court has already agreed in relation to Ground 1 above, that the Tribunal considered the Applicant’s course enrolments, from which the Court concludes that the Tribunal had regard to the continuity of those enrolments.
The Tribunal does not in any way acknowledge the Applicant’s assertion that he paid his tuition fees on time. The only reference the Tribunal makes in relation to tuition fees is that the courses the Applicant has chosen are ‘relatively inexpensive’.[41]
[41] CB 163, [20].
In the context of the entirety of the Tribunal’s Decision, a finding that the Tribunal did not consider the payment of tuition fees holds no probative value. Regardless, the Tribunal formed the apprehension that the Applicant had chosen to study inexpensive courses of little ensuing value to his future.[42]
[42] CB 163, [20].
It follows that the Applicant’s contentions do not raise an arguable case of jurisdictional error.
Ground 3 is dismissed.
Ground 4
In Ground 4, the Applicant contends that the Tribunal incorrectly found the completion of the Applicant’s courses to be irrelevant.
The Minister submitted that the Tribunal made no such finding, and that the Tribunal was simply not satisfied that completion of the courses demonstrated that the Applicant was a genuine temporary entrant, particularly given the Applicant’s long stay and employment in Australia.[43]
[43] Transcript P8:L3-8.
It is apparent from the Tribunal’s Decision that the Tribunal did find the completion of the courses to be relevant. That can be plainly inferred by the Tribunal’s observation that the Applicant had repeatedly completed courses and then chosen to study further courses that contained units the Applicant had previously completed without seeking prior recognition.[44] The Tribunal could not make that observation without regarding the completion of the courses to be relevant.
[44] CB 163, [19].
Even though the Tribunal regarded the completion of the courses to be relevant, it did not assist in persuading the Tribunal that the Applicant intended to stay in Australia temporarily. Arguably, it had the opposite effect.
Ground 4 is dismissed.
Ground 5
In Ground 5, the Applicant contends that the Delegate’s decision considered irrelevant matters.
The Delegate’s decision, however, as a primary decision within the meaning of s 476(4)(a) of the Migration Act, is one in which the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to, pursuant to s 476(2)(a) of the Migration Act.
The contention therefore fails for want of jurisdiction.
Ground 5 is dismissed.
Ground 6
In Ground 6, the Applicant contends that the Delegate and Tribunal erred in considering the availability of similar courses in India, stating that such consideration is “highly irrelevant”.
In accordance with s 476(2)(a) of the Migration Act as referred to above, consideration of Ground 6 will only go as far as it relates to the Tribunal’s Decision.
It was submitted by the Minister that the Applicant’s contention in Ground 6 is without merit.[45] The Minister submitted that consideration of the availability of similar courses in a review applicant’s home country is mandated by Ministerial Direction No. 53 at [9(a)].
[45] Minister’s Submissions, [37].
The objective of Ministerial Direction No. 53 is to provide decision makers (i.e. the Delegate and the Tribunal) with guidance on the state of satisfaction for a “genuine temporary entrant”, including for the purposes of reg 572.223(1)(a) of the Regulations.
The Minister is empowered to make such directions by s 499 of the Migration Act. Section 499(2A) of the Migration Act imposes an obligation upon the Delegate and the Tribunal to comply with any ministerial direction. Failure to comply with a ministerial direction constitutes jurisdictional error: Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 at [22].
Relevantly, Ministerial Direction No. 53 provides, at [9]:
9.In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
a.Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives as established by the applicant.
[…]
Paragraph [9] of Ministerial Direction No. 53 directs decision makers to “have regard to” the factors set out in sub-paragraphs (a)-(e). In Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at [62], the Full Court of the Federal Court opined that the expression “have regard to” requires a decision maker to take into account each and every prescribed factor even though not all of them will be material in the circumstances. Specifically in relation to the application of Ministerial Direction No. 53, the Full Court of the Federal Court in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 said, at [83]:
83.In [Ministerial Direction No. 53], where it provides that the decision-maker “must have regard to” the factors mentioned, the phrase – read in context – means that the decision-maker should turn his or her attention to each factor during the decision-making process and consider whether and how it should be brought to bear in reaching the decision.
Contrary to the Applicant’s contention, had the Tribunal failed to consider the availability of similar courses in India, the Tribunal’s Decision would be affected by jurisdictional error for failing to “have regard to” at the factor in paragraph [9(a)] of Ministerial Direction No. 53.[46] Thus, the Tribunal’s consideration of the availability of similar courses in India is relevant.
[46] Takhi v Minister for Immigration, Citizenship & Multicultural Affairs [2018] FCA 2051 at [22].
Ground 6 is dismissed.
Ground 7
In Ground 7, the Applicant contends that an applicant is deemed to be a genuine temporary entrant for the purposes of reg 573.223 of the Regulations if he or she provides to the decision maker certain documents.
Again, in accordance with s 476(2)(a) of the Migration Act, consideration of Ground 7 will only go as far as it relates to the Tribunal’s Decision.
It is assumed that Ground 7 is affected by typographical error and that the Applicant was referring to reg 572.223 of the Regulations, as reg.573.223 is not applicable to the grant of the Visa.
The Applicant asserts that because he provided documents concerning his ‘confirmation of enrolment, level of English required, educational qualifications required by the provider, intention to comply with the conditions, sufficient funds…’, he is a genuine temporary entrant. It was submitted by the Minister that the Applicant’s contention that the mere provision of certain documents is determinative of satisfying the genuine entrant criteria is misconceived.[47]
[47] Minister’s Submissions, [38].
Sub-regulation 572.223(1A) of the Regulations provides:
(1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:
(a) the applicant gives the Minister evidence that the applicant has:
(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii)educational qualifications required by the eligible education provider; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.
Compliance with sub-reg 572.223(1A) of the Regulations is not determinative of satisfying the genuine temporary entrant criteria. Contrary to the Applicant’s interpretation, it operates as a secondary threshold to satisfying that the Applicant is a genuine temporary entrant pursuant to sub-reg 572.223(1) of the Regulations.[48]
[48] Migration Regulations 1994 (Cth), r 572.223(1)(b).
The Court therefore agrees with the Minister’s Submissions that the Applicant’s contention that the provision of the documents referred to in Ground 7, were determinative of his status as a genuine temporary entrant, is misconceived.
With respect to the Applicant’s contention that the Tribunal did not consider all of the material referred to in Ground 7, it was submitted by the Minister that the Tribunal complied with its obligations to consider the factors in reg 572.223 with reference to the factors in Ministerial Direction No. 53,[49] and determined that the Applicant was not a genuine temporary entrant.[50]
[49] Migration Act 1958 (Cth), s 499(2A); Takhi v Minister for Immigration, Citizenship & Multicultural Affairs [2018] FCA 2051 at [22].
[50] Transcript P8:L38-41.
The information and materials that the Tribunal is required to have regard to are prescribed by sub-reg 572.223(1) and (1A) of the Regulations and Ministerial Direction No. 53. As discussed in Ground 6 at [69] above, “have regard to” requires a decision maker to engage with each of the prescribed factors.[51] The question of whether a decision maker has had regard to the mandatory criteria is a question of fact.[52]
[51] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at [68].
[52] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at [71].
The Tribunal explicitly noted, at [23]:
Having considered your circumstances as a whole, including the issues in [Ministerial Direction No. 53], I am not satisfied you are a genuine student who intends to stay temporarily in Australia. Therefore I find you do not meet clause 572.223(1)(a).
The Tribunal’s express reference to reg 572.223 and Ministerial Direction No. 53 exhibit that the Tribunal had regard to the mandatory criteria it was bound to consider. It is not for this Court to engage with the merits of the Tribunal’s Decision.
The Applicant further asserts that the Tribunal considered irrelevant matters in concluding that he was not a genuine student. It is unclear from the Applicant’s submissions what ‘irrelevant’ matters were considered by the Tribunal, as this element of Ground 7 remains unparticularised.
Ground 7 is dismissed.
CONCLUSION
The Applicant’s Application has not identified any jurisdictional error.
The Application is dismissed.
At the Final Hearing, the Minister sought costs fixed in the sum of $6,000.[53] This amount is below the schedule rate of $7,467 allowed in pt.3 div.1 item 3 of sch.1 to the Federal Circuit Court Rules 2001 (Cth), applicable at the time of the Final Hearing. Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $6,000.
[53] Transcript P9:L7.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 27 April 2023
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