Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 702
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 702
File number(s): ADG 364 of 2018 Judgment of: JUDGE BROWN Date of judgment: 25 August 2022 Catchwords: MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal – citizens of India –no jurisdictional error establish – application dismissed with costs Legislation: Migration Act 1958 (Cth), div 5, pt 5, ss 359, 359AA, 359A, 474,
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Regulations 1994, cl 500.212 in Schedule 2
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1.
Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
NABE v Minister for Immigration & Indigenous Affairs (No 2) [2004] FCFCA 263
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
SXNXA v Minister for Immigration & Citizenship [2010] FCA 775
Division: Division 2 Family Law Number of paragraphs: 69 Date of hearing: 18 August 2022 Place: Adelaide Applicants: First applicant appeared in person Counsel for the First Respondent: Mr Chan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
ADG 364 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DALJIT SINGH
First Applicant
HARWINDER KAUR
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
25 AUGUST 2022
THE COURT ORDERS THAT:
1.The First Respondent’s name be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application filed 10 September 2018 is hereby dismissed.
3.The First and Second Applicants pay the First Respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 10 August 2018. The decision confirmed an earlier decision of a Delegate of the Minister of Immigration & Border Protection not to grant the applicant, Daljit Singh[2] a Student (Temporary) (class TU) Student (subclass 500) Visa,[3] pursuant to the provisions of the Migration Act 1958 (Cth).[4]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “Mr Singh” or “the Applicant”.
[3] Hereinafter referred to as “the student visa” or “the visa”.
[4] Hereinafter referred to as “the Act”.
Mr Singh is a citizen of India, where he was born on 12 February 1986. Mr Singh is the primary visa applicant, which supports an application by his wife, Harwinder Kaur (“Ms Kaur”), who was born on 5 November 1990, also in India. Both applicants are citizens of India.
The applicant first arrived in Australia in April 2008 pursuant to a Higher Education Sector (Subclass 573) Visa. It is relevant to tertiary studies. Thereafter he had applied onshore for a further five Subclass 572 visas and associated bridging visas between May 2008 and March 2017.
The applicant applied for the relevant visa on 14 March 2017. At that stage, Mr Singh indicated that he had previously engaged in a number of courses of study, after first arriving in Australia in April of 2008. These courses of study can be summarised as follows:
·Diploma of Community Welfare Work between July 2008 and November 2011;
·Diploma of Management between 23 April 2012 and 23 September 2012;
·Diploma of Business between 15 October 2012 and 21 April 2013.
In his application dated 14 March 2017, Mr Singh indicated an intention to pursue a course of commercial cookery. In respect of his future employment, he indicated as follows:
For the first few years I would like to work as a cook with a kitchen of any renowned restaurant or hotel to enhance my newly learned skills. Then I want to open and run a restaurant of my own. My international skills and exposure will provide me the edge to outdo the fierce competition in India.[5]
[5] See Court Book at page 12.
The conditions, which must be satisfied before the relevant visa can be granted, are specified in clause 500.212 in Schedule 2 of the Migration Regulations 1994.[6] The criteria are as follows:
[6] Hereinafter referred to as “the Regulations”.
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.
In general terms, before the relevant student visa can be granted, the Minister must be satisfied that the relevant applicant is only intending to remain in Australia, on a temporary basis, whilst he or she completes the proposed course of either tertiary or vocational education training.
The relevant Minister has provided directions[7] regarding how the regulatory regime set out above is to be administered. These matters, which any administrative decision maker is required to consider in making any student visa determination can be summarised as follows:
·The applicant’s circumstances in his/her home country, including the economic reasons for pursuing study in Australia;
·The degree of personal ties that the applicant has to their home country;
·The existence of sound reasons for not studying in the relevant home country;
·Factors that would provide a significant incentive for the applicant not to return to their own country;
·The applicant’s potential circumstances in Australia, including evidence that the applicant concerned may be using the student visa program as a mechanism to circumvent Australia’s migration program;
·The value of the proposed course to the applicant’s future, including whether the course would assist the applicant to gain employment in their home country and the relevance of any past or future employment in this regard; and
·The applicant’s migration history.
[7] See Ministerial Direction No 69.
In refusing the current visa application, the Ministerial Delegate indicated as follows:
I have taken into consideration the applicant’s previous immigration history. Mr Daljit Singh entered Australia on a student visa (subclass 573) on 18/04/2008 and was granted further 5 student visas onshore between periods from 07/05/2008 to 15/03/2017. Mr Daljit Singh has held student visas and associate bridging visa for more than 9 years and does not appear to have significant breaches of his student visas. However it should be noted Mr Daljit Singh has a significant study history with multiple education providers and enrolments in English, Community Welfare work, Youth Work, Management and Business. Mr Daljit Singh now applied for his seventh student visa on 14/03/2017 base[d] on his intention to undertake a package course in Commercial Cookery and Hospitality Management which is schedule[d] to be completed on 10/07/2020. This will extend Mr Daljit Singh’s stay in Australia to more than 12 years. I find applicants who have remained in Australia for a prolong[ed] period, are using the Student visa program as a means of maintaining ongoing residence in Australia and do not genuinely intent to stay in Australia temporarily.[8]
[8] See Court Book at page 57.
Given these findings, the Delegate refused Mr Singh’s application for the relevant student visa on the basis that he had not satisfied the various conditions attached to its grant, namely that Mr Singh intended to remain in Australia on a temporary basis, whilst he completed his studies.
Given this determination, on 18 May 2017, the applicant sought a review of the visa refusal decision from the AAT. Following on from this, the applicant was invited to provide material or written arguments for the AAT to consider, as soon as possible.
On 10 July 2018, Mr Singh and Ms Kaur were invited to appear before the Tribunal on 8 August 2018, to give evidence and make any necessary submissions which they wanted to present to the Tribunal for its consideration. They were requested to bring documents relevant to Mr Singh’s past studies in Australia and his current Certificate of Enrolment. In particular they were advised that the hearing would assess whether he was a genuine applicant for entry.
In this context, they were provided with a copy of Ministerial Direction Number 69 and invited to provide a written statement addressing the matters raised in the direction.[9] The record indicates that Mr Singh did appear (by telephone) before the Tribunal and provided oral evidence to it. He was assisted by his migration agent.
[9] See Court Book at page 70.
THE HEARING BEFORE THE AAT
The AAT hearing is to be characterised as a merits hearing, in contrast to the current proceedings, which are directed towards judicial review of the AAT proceedings. In the former, the AAT is able to gather evidence, whilst the latter involves a review of the legal basis for the decision in question and whether or not it is vitiated by jurisdictional error.
The Tribunal summarised the issue before it as being whether the applicant could be considered genuine in his application for a visa authorising temporary entry to Australia for the purpose of completing a course of further study.
Under the heading, Consideration of Claims and Evidence the Tribunal found that the applicant had been granted five previous onshore student visas and associated bridging visas in the period between April 2008 and March 2017.
The Tribunal further noted that the applicant had transitioned from courses in community welfare work to management and business and was currently seeking to pursue a course in commercial cookery and hospitality management.
In his oral evidence, the applicant indicated an intention to open his own restaurant in India, when he returned home. He further claimed that all his relevant courses were in the same stream - a future in hospitality was now his preferred career objective. Essentially, his earlier studies in business would augment his plan to open a restaurant or work in hotel management.
The applicant also provided evidence regarding his current health, which was characterised by diagnoses of type 2 diabetes and sleep apnoea, which was being treated with medication and a sleep apnoea machine.
The applicant further deposed that he had returned to India five times since arriving in Australia approximately 10 years earlier and had been away for various periods of time of up to 6 months on these occasions.
In relation to his past changes of course streams, the applicant stated that he was young and not knowing much but more recently, after conferring with his father he had become certain in his career goals, which centred on opening a restaurant in India, when he returned.
The Tribunal made reference to the contents of clause 500.212 of the Regulations and Ministerial Direction no. 69 and, in the context of these matters and the evidence provided to it, was not satisfied that Mr Singh was a genuine applicant for entry and stay as a temporary student.
In these circumstances, the Tribunal found as follows:
The Tribunal is satisfied, based upon the evidence, that the applicant is not a genuine
applicant for entry and stay as a student for the following reasons:•The applicant has been in Australia for 10 years and has not progressed academically beyond the VET sector and could not adequately explain why he transitioned from English, to Community Welfare Work, to Youth Work, to Cookery, to Hospitality Management and thence Business;
•The applicant has not maintained appropriate connection with his home country having returned to India only 5 times in 10 years;
•The applicant, whilst providing evidence of his health issues has continued to engage in work and has not progressed academically during the period of 10 years he has been in Australia;
•The applicant has given evidence that he has breached visa conditions [8202] by not undertaking studies in the Higher Education sector for which his initial visa was granted and at the time of decision has not undertaken any studies in that sector;
•The applicant’s statement that he requires a Bachelor of Business and Tourism to open up a restaurant in India or work in a 5 Star hotel with having already completed Certificates in Cookery and a Diploma in Hospitality is not credible;
•The applicant has secured a Certificate of Enrolment, which will require the commencement of studies on 12 November 2018, which is a break of three months. The Tribunal is not satisfied that the applicant is a genuine temporary applicant, whose purpose is to study given the extended break between courses. Further, there is no reason advanced by the applicant to explain why he has not commenced studies in the Higher Education sector within the last 10 years, particularly given that he is a graduate from a university in India. The Tribunal is of the view that the applicant has been using low cost, short duration VET courses to facilitate residency that would more appropriately be obtained through alternative programs other than through student visas.[10]
[10] See Court Book at page 144.
The Minister concedes that the Tribunal erroneously found that the applicant was a graduate from a university in India. This is not the case. The applicant’s visa application indicates that he completed the senior secondary examination as prescribed by the Punjab School Education Board. The Minister does not concede that this error affects the legality of the AAT’s determination overall.
THE GROUNDS FOR REVIEW
Given this decision, on 10 September 2018 the applicant commenced proceedings in this court seeking a judicial review of the matter. He seeks an order that the decision be quashed and remitted to the Tribunal for re-hearing. The applicant has prepared his own grounds of review. They are not easy to follow.
The amorphous nature of the grounds of review make it difficult, if not impossible for the court discern what is the error attribute to the Tribunal, which attracts the jurisdiction of this court. This is of itself provides grounds for the dismissal of the application concerned.[11]
[11] See SXNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21] per Reeves J.
It is not the function of the court to make the applicant’s submissions for him or endeavour to decipher his application. However, as best I can discern, he asserts that the Tribunal fell into jurisdiction error because:
·It placed undue emphasis on the fact that the applicant had previously enrolled in vocational courses rather than a tertiary course, as had been the subject of his initial visa;
·It was incorrect for the Tribunal to consider his earlier 573 visa in the context of his migration history, as its application had been subsumed by the subsequent 572 visa granted to him and it was therefore not relevant;
·There was no evidence before the Tribunal that he had not complied with the initial 573 visa granted to him;
·Accordingly, it was not open to the Tribunal to take into account this aspect of his migration history against and it was procedural unfair and unreasonable;
·The Tribunal did not correctly apply Ministerial Direction No. 69 in respect of the extent of his family ties in India and the number of times he had visited that country since arrival in Australia;
·In this context, he asserts that it was improper for the Tribunal to expect a student to return to India annually;
·The Tribunal erred in failing to invite the applicant to provide comment orally at the hearing before it and thus breached section 359AA of the Act;
·The Tribunal erred by finding that he was a graduate student in India, when he was not;
·The Tribunal did not consider issues to do with his compromised health but rather unreasonably assumed he wished to prolong his stay in Australia;
·The Tribunal erroneously concluded that the applicant was prolonging his stay in Australia by utilising short, low-cost vocation courses, in so doing it identified an incorrect issue and ignored relevant material;
·The Tribunal denied the applicant procedural fairness because he was not given a sufficient opportunity to represent himself and was denied a fair opportunity to comment on factors which the Tribunal took into account in deciding the matter; and
·The Tribunal did not give sufficient weight or any weight to the fact that the applicant had not previously breached the condition to any of his previous visas.
I appreciate that the applicant is not legally qualified. However, my impression is that his application and the written submissions which support it can be characterised as an inchoate appeal to quash the relevant decision on the basis solely that the applicant is dissatisfied with it and would prefer the outcome was different.
THE APPLICABLE LEGAL FRAMEWORK UNDER THE ACT
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable. Legal unreasonableness is a broad concept but usually is confined to two major categories.
Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory.
Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness. The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision.
Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness. Which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
In order to be successful in his application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own decision for that of the Tribunal. Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from his application.
In determining whether the reasoning utilised by the AAT is illogical or irrational in nature, the reviewing court must look to the applicable statutory framework applicable to its decision as well as the decision itself. In so doing the court should not subject the AAT’s reasoning to any degree of heightened or overly zealous criticism or over-analysis, as this may have the unintended consequence of transforming a process of judicial review into one of involving a re-hearing on the merits.
In this context, the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang must be borne in mind.[12]In the case, the High Court indicated that a court, conducting judicial review “should not be concerned with unhappy phrasing” or “looseness in the language” in the decision being subject to review.
[12] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The High Court also emphasised the following passage from Attorney-General (NSW) v Quin[13]
The duty and jurisdiction of the court to review administrative
action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[14][13] Attorney-General (NSW) v Quin (1990) 170 CLR 1.
[14] See Attorney-General (NSW) v Quin (1990) 170 CLR 1 at page 35-36.
In essence, this court, in conducting a judicial review, has no authority to substitute its own judgment, in respect of factual issues, for that of the Tribunal or to exercise any discretion residing in it in a manner of its own election. Rather this court’s authority is to intervene only if it is satisfied that the Tribunal has exercised the jurisdiction conferred upon it erroneously or in a legally unreasonable manner.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme”, not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[15] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[15] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148].
It is not for this court to conduct a re-hearing on the merits and determine whether it considers that Mr Singh was or was not genuine in his intentions regarding the temporary or otherwise basis of his stay in Australia. That factual issues was for the Tribunal alone.
CONCLUSIONS
In my view, the applicant has not been able to establish (and indeed has not made any submissions in this regard) that there is any jurisdictional error in the decision of the AAT, which is subject to review in these proceedings. It is not the court’s function to seek out some basis on which it could be asserted that there is some species of jurisdiction error which could conceivably vitiate the Tribunal’s decision.
However, in my view, it is apparent from a reading of the Tribunal’s decision that it considered the relevant criteria applicable to the grant of the relevant visa. In the process, rationally and logically concluded that the applicant could not be considered a genuine temporary entrant to Australia, which was an essential precondition to the grant of the relevant student visa. It did so in the context of the relevant ministerial direction.
The central issue for the Tribunal and in respect of which it conducted a full merits hearing was whether the evidence available to it was capable of supporting the conclusion that the applicant was a genuine applicant for entry to Australia on a temporary basis, whilst he pursued an approved course of study.
This decision making process was to be informed by its considerations of the conditions attaching to the visa in the context of the directions of the relevant minister contained in Ministerial Direction Number 69. In my view, the Tribunal correctly considered these criteria and did so in a logical and reasonable way.
Equally significantly, the Tribunal informed the applicant of the issues which it was required to consider. It did so at the hearing itself and beforehand in the letter sent to Mr Singh inviting him to come to the hearing. In this letter was enclosed the relevant Ministerial Direction. Accordingly, in my assessment, the relevant hearing was procedurally fair.
In these circumstances, there can be no breach of section 359AA of the Act. The section provides a discretion to the Tribunal to ask an applicant orally at the hearing to provide particulars of any information sought or required by it. In this case, the applicant had been earlier provided with details of the salient issues in the matter.
As such, there was no further information required to be elicited from the applicant by it. Rather, the applicant was advised that it was up to him to provide information which, from his perspective, was relevant to both the visa condition and the Ministerial Direction.
In my view, for similar reasons, it cannot be said that the Tribunal has contravened any of the other provisions applicable to the conduct of review proceedings contained in Part 5 of Division 5 of the Act, particularly section 359 and 359A. The Tribunal gave the applicant an opportunity to provide information to it prior to the hearing and indicated the parameters of the information which it considered would be relevant to its review jurisdiction. As such, I am satisfied there has been no legal unreasonableness afforded to the applicant.
In my view, the issue of the initial visa, which enabled the applicant’s first entry to Australia was a factual issue. In these circumstances, it was entitled to find that the applicant had not pursued a course of tertiary study but rather had pursued vocational education. As such, in my view, in having regard to his previous migration history, it was entitled to find that he had not complied with the condition applying to his earlier visa.
In particular, there is no evidence to indicate that he attempted to persuade the Tribunal other than he had not taken up the opportunity encompassed within the Subclass 573 visa initially granted to him to undertake a course of tertiary study. Rather the applicant agreed with what appeared to be an incontrovertible fact, namely he did not pursue a tertiary course in accordance with his first visa.
In these circumstances, I agree with the submission of counsel for the Minister that it is axiomatic from what occurred – namely the applicant did not pursue a course of tertiary study – that he did not comply with the condition attaching to that visa, which required tertiary study.[16] As such, this cannot constitute jurisdictional error.
[16] See written submissions of the First Respondent filed 9 August 2022 at [14] – [16].
In addition, in my view, it was open to the Tribunal to conclude that the applicant was not maintaining sufficiently strong ties with his home country given the length of his stay in Australia. The issue for the Tribunal, as previously indicated, was whether the applicant was genuine in his assertion that he only sought to be in Australia on a temporary basis, whilst he completed a course of study.
This is a factual issue, the determination of which is to be resolved by reference to several competing considerations, none of which is wholly determinative. In this context, the Tribunal, as it was entitled to do, looked at several factors, which included the length of time he had been in Australia (10 years); his apparent lack of academic progression; as well as how often he had returned to India. It is impermissible, in my view, for me to substitute my assessment of how these various factors should balance against each in the determination of the central jurisdictional issue.
In my view, in these circumstances, it was both logical and open to it, for the Tribunal to conclude that the applicant was not a genuine applicant in the sense that he was remaining only temporarily in Australia, which was an essential prerequisite for the grant of the visa in question.
The Minister concedes that the finding made by the Tribunal that the applicant held a bachelor’s degree from an Indian university was erroneous. However, in my view, this error can have no logical implication in respect of the overall probity of the decision reached by the Tribunal in respect of the issue which it was required to resolve to discharge the jurisdiction conferred upon it, namely was the applicant genuine in his motives for seeking the relevant visa authorising a further course of vocational study, given the length of his stay in Australia and the fact that he had undertaken earlier courses of a vocational nature.
In these circumstances, the erroneous finding was not germane to the jurisdictional fact the Tribunal had to determine and so cannot amount to a jurisdictional error sufficient to vitiate the Tribunal’s decision. It has been described by the Full Court as an uncontroversial proposition that mere factual error by a Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.[17]
[17] See NABE v Minister for Immigration & Indigenous Affairs (No 2) [2004] FCFCA 263 at [53].
In addition, given the undesirability of courts such as this one inadvertently transforming an exercise in judicial review into an impermissible merits review, the High Court has noted as follows:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.[18]
[18] Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481.
I agree with the submission of the Minister that the Tribunal was satisfied that the applicant could not be regarded as a genuine temporary entrant applicant, whose purpose was to study given the following circumstances:
·The breaks between his various courses of study;
·The length of his stay in Australia; and
·His predilection to select short vocation courses, when his original visa had been predicated on tertiary study.
In these circumstances, I do not consider the erroneous finding, which appears in the decision as follows:
…there is no reason advanced by the applicant to explain why he has not commenced studies in the Higher Education sector within the last 10 years, particularly given he is a graduate from a university in India.[19]
This is capable of being considered material or central to the manner in which the Tribunal exercised the jurisdiction conferred upon it. Rather it is an error which must be regarded as being incidental or peripheral to the determination which the Tribunal was required to make.
[19] See Court Book at page 144 [30].
In my view, the complaints of the applicant regarding the Tribunal not giving adequate considerations to issues relating to his health as explanation for the length of his stay in Australia and the fact that he had utilised his time, in this country, to undertake low-cost vocational courses are issues which go to the merits of his case and as such this court is not at liberty to embark upon its own fact finding in respect of them.
In this context, in my assessment, when the reasons are read as a whole, these matters were taken into account in the manner in which the Tribunal determined the case on the basis it was satisfied that the applicant was not a genuine temporary entrant to Australia. It did have regard to the applicant’s state of health and the nature of the course undertaken by him when it reached this conclusion.
As the plurality (Derrington & Thawley JJ) expressed it in Kumar v Minister for Immigration and Border Protection:[20]
Some factors may weigh in favour of the visa applicant, some may weigh against, some may be neutral, some may be of marginal significance and some may be irrelevant in the particular circumstances. The weight to be given to the various factors mentioned in Direction 53 is a matter for the decision-maker.[21]
[20] Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16.
[21] Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [85].
In my view, all the various factors relevant, both for and conceivably counter, to the central issue regarding the validity of the temporal aspects of applicant’s visa application and any ulterior factors motivating his application were considered by the Tribunal. As such, it discharged the jurisdiction conferred upon it appropriately.
In conclusion, in my view, given the finding that the applicant had been in Australia over 10 years at the time of hearing; had demonstrably changed his study pathway on several occasions; and had come to Australia on a higher education visa, which he had not utilised; it cannot be said that the relevant decision demonstrates any error of jurisdiction or is vitiated by any aspect of legal unreasonableness in a procedural sense. The applicant was told what the issues in the hearing were in advance of the hearing and was able to comment in respect of them, which he did.
In this context, counsel for the Minister relies on the following observations of Logan J in Kumar v Minister for Immigration and Border Protection as being an appropriate description of the proceedings before the AAT in the current matter, namely that it can be described as being:
A routine, merits based evaluation in the course of public administration. It was not just inherently specific to the material before the Tribunal but also reactive to the way in which the [applicant] had put [his] claim for the visa over the course of an administrative decision-making continuum that culminated in the hearing conducted by the Tribunal. The Tribunal’s reasons rationally explain why, having regard to the Minister’s directions and the material before it, there was an absence of satisfaction by the Tribunal that the [applicant] was a genuine student. They were sufficient unto the day.[22]
[22] Kumar v Minister for Immigration & Border Protection [2020] FCAFC 16 at [7].
I agree. The AAT in this case provided the applicant with such a routine and fair merits based rehearing of his visa application. Its conclusion was logical and its reasons adequate. The AAT was entitled to conclude that Mr Singh was not a genuine student for the purposes of the Act and the Regulations made under it.
For these reasons, the application must be dismissed. The first respondent seeks costs in an amount of five thousand dollars ($5,000.00), which is less than the amount prescribed by the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. I will make an order to this effect.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 25 August 2022
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