Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1167
•31 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1167
File number: PEG 206 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 31 May 2021 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicant was a genuine temporary entrant – whether the applicant was enrolled in a course of study – whether the applicant had access to sufficient funds – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 476, 499
Migration Regulations 1994 (Cth), cll 500,211, 500.212
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 16
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 109 Date of hearing: 27 May 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr S Valliappan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison Lawyers ORDERS
PEG 206 of 2020 BETWEEN: GURINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 MAY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
The applicant is a citizen of India. He arrived in Australia in late 2011 and subsequently held a student visa and a graduate visa (Court Book (“CB”) 60 and 150).
On 19 December 2018, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 23-48). He was enrolled to study a Diploma of Business.
On 5 March 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 57-61). The delegate was not satisfied that the applicant was “a genuine temporary entrant” and, as such, did not meet cl 500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”).
On 12 March 2019, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 62-63).
On 25 September 2019, the applicant was invited by the Tribunal to provide further information in relation to his current enrolment status and the genuine temporary entrant criterion (CB 80-87). The applicant, through his registered migration agent, provided a response to the Tribunal on 4 October 2019 (CB 88-101).
On 24 October 2019, the applicant’s representative provided the Tribunal with a current confirmation of enrolment and a personal statement signed by the applicant (CB 124-130).
On 30 October 2019, the applicant appeared before the Tribunal (CB 132-134).
On 31 October 2019, the applicant gave the Tribunal further documents related to his financial holdings (CB 135-140).
On 13 June 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 148-162).
On 9 July 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 15 pages long and spans 35 paragraphs. Seven of those pages outline Direction 69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act.
The Tribunal began by identifying the type of visa under review. It then summarised the delegate’s decision and confirmed that the applicant had attended a hearing before the Tribunal (at [1]-[5]).
The Tribunal explained that the issue in the present case was whether the applicant met cl 500.212 of the Regulations (at [7]) and outlined the requirements and considerations relevant to cl 500.212 as follows:
Genuine applicant for entry and stay as a student (cl.500.212)
8. Clause 500.212 requires as follows:
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) my 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.
Does the applicant intend genuinely to stay in Australia temporarily?
9. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
•the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•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.
10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal noted that the applicant had arrived in Australia in December 2011, had completed a Bachelor of Information Technology in India and was studying a Master of Science (Information Technology) in Australia (at [11]).
The Tribunal then itemised the documentary evidence before it as follows:
a. the delegate’s decision record, dated 5 March 2019;
b. a completed Request for Student Visa Information from, provided in response to a request made by the Tribunal pursuant to s.359(2) of the Act;
c. Confirmation of Enrolment (CoE) B0712328, in respect of the applicant’s enrolment in an Advanced Diploma of Leadership and Management course to be offered by Perth College of Business and Technology between 31 August 2020 and 20 August 2021;
d. CoE B0711864, in respect of the applicant’s enrolment in a Diploma of Business course to be offered by Perth College of Business and Technology between 4 November 2019 and 4 August 2020;
e. a letter from the Punjab National Bank dated 30 October 2019, setting out the balances at that date of 9 accounts held by the applicant with that bank;
f. an incomplete, and therefore undated, deed recording the transfer of house property at Maqsoodpur village near Jalandhar from Udham Parkash Singh (the applicant’s grandfather) to Gurmel Singh (the applicant’s father); and
g.an incomplete, and therefore undated, deed recording the transfer of a residential plot of land from G.P. Jindal to Smt. Sarbjit Kaur (the applicant’s mother).
The Tribunal noted that it had also considered the information in the Departmental file and a personal statement from the applicant dated 23 October 2019 (at [13]).
The Tribunal noted that the applicant had been in Australia for just under 9 and a half years. The Tribunal considered this to be “a significant period of time” and made the following findings relevant to that period of time (at [14]):
a. The applicant was granted a Class TU Subclass 573 Student visa in November 2011.
b. The applicant first arrived in Australia on 14 December 2011, at which time he was enrolled in a Master of Science (Information Technology course at Murdoch University.
c. The applicant started studying for his Master of Science (Information Technology) degree in February 2012.
d. In December 2013 the applicant returned to India for 28 days, for a holiday.
e. In or about July 2015 the applicant applied for a Class VC subclass 485 Skilled - Graduate (Temporary) visa.
f. The applicant finished his Master of Science (Information Technology) degree in August 2015.
g. The applicant was granted a Class VC subclass 485 Skilled - Graduate (Temporary) visa, valid from December 2015 to December 2018. The applicant spent that time working in supermarkets as a store person and night filler. He continued working in those positions up until the date of hearing, and may still be working in them.
h. In November 2016 the applicant returned to India for a period of 23 days to visit his family.
i. In March 2018 the applicant returned to India to visit his family once again, this time for a period of 20 days.
j. On an unknown date in December 2018 the applicant enrolled in a Diploma of Business course at Lead College.
k. On 24 December 2018 the applicant’s Class VC subclass 485 Skilled - Graduate (Temporary) visa expired, and his bridging visa A came into effect.
l. On 19 December 2018 the applicant made the application for a Class TU Subclass 500 Student visa that is the subject of this review application.
m. The applicant started studying for his Diploma of Business in January 2019.
n. The applicant’s application for a Class TU Subclass 500 Student visa was refused on 5 March 2019.
o. The applicant lodged his application for review of that decision with the Tribunal on 12 March 2019.
p. Shortly after receiving the Department’s notification of the refusal of his visa application, the applicant withdrew from his Diploma of Business course.
q. The applicant enrolled in a package of courses at Lead College on or about 23 October 2019 (on which date the CoEs referred to in paragraphs 12(c) and (d) were created, according to the dates appearing on their faces). That package consisted of a Diploma of Business course, which was to run from 4 November 2019 to 4 August 2020, and an Advanced Diploma of Leadership and Management, which was to run from 31 August 2020 to 20 August 2021.
r. The applicant attended before the Tribunal for a hearing of his review application on 30 October 2019.
s. The applicant commenced studying for his Diploma of Business on 4 November 2019, and is still enrolled in that course as at the date of this decision.
The Tribunal then noted that it had asked the applicant why he had withdrawn from the Diploma in Business and noted that the applicant had explained that because his visa was refused, he did not believe he could study. The Tribunal had difficulty accepting this explanation as the applicant’s “bridging visa notice” clearly stated that there were no conditions and the applicant had continued working. The Tribunal considered it open to infer that the applicant had enrolled in the course shortly prior to the Tribunal’s decision because he did not want to have the decision affirmed on the basis of non-enrolment. This, the Tribunal found, weighed against a finding that the applicant was a genuine temporary entrant (at [15]).
The Tribunal determined that there was no evidence that the applicant had been refused a visa, had a visa cancelled or had breached any conditions attached to any of his visas. This weighed in the applicant’s favour (at [16]).
On balance, the Tribunal considered the applicant’s immigration and study history weighed against him being a genuine temporary entrant (at [17]).
While the Tribunal accepted that the applicant was “close to his family”, the Tribunal did not accept that the applicant’s ties to India constituted a strong incentive to return to India (at [18]).
The Tribunal then determined as follows:
19.The applicant also gave evidence that he owns assets in India, in the form of deposits in bank accounts and land. He provided documentary evidence with a view to substantiating this evidence, in the form of the documents noted at paragraphs12(e) to (g) above. The first of those documents does support his claim to own funds on deposit, in the total amount of INR[omitted] (at current exchange rates the equivalent of approximately AUD[omitted]). That is a very substantial amount. The applicant stated at hearing that some of these deposits are jointly owned, and in his response gave AUD[omitted] as the value of his share. It is not clear on the evidence before the Tribunal whether that joint ownership creates any impediment to the transfer of the applicant's share of the amounts on deposit to him wherever in the world he is. The second and third of those documents, which are copies of deeds of transfer of real property, do not support the applicant's claim to ownership, as they each record the transfer of a property to one of his parents. It is difficult, on the evidence before the Tribunal, to see what legal interest (if any) the applicant has in either of these properties. He may, however, have an expectation of inheritance in due course. The applicant gave evidence that his only employment in India was voluntary work as a computer operator for the Department of Transportation. He therefore has no record of paid employment in India that might assist him to find a job there. For these reasons, the Tribunal finds that the applicant has some economic ties with India, but that they are not strong and are unlikely to offer him any serious incentive to return to that country after he has finished his studies.
20.The applicant was asked at hearing to explain why he chose to pursue his current studies in Australia rather than in India. His response was that he wanted to know how business worked in Australia, particularly policy and procedures. The applicant has addressed the same issue in the written evidence and materials before the Tribunal. In his response (see paragraph 12(b) above) he wrote "The reason to do this course here to understand the techniques and strategies which is implemented from Australian perspective to do business", and similarly in answer to a different question "The purpose of this course is to learn the management that how to manage business. What are the strategies required to manage the business in Australia." The Tribunal asked the applicant at hearing whether this knowledge would be of any use in India. The applicant answered, in a manner rather lacking in conviction, that it could help. Whilst this motive would make perfect sense for a person wishing to engage or work in business in Australia, the Tribunal does not find it an adequate reason for a person who, as the applicant says he does, intends to return to India and work in business there. The Tribunal finds that the applicant's evidence on this point weighs against his claim to be a genuine temporary entrant.
21.The applicant stated at hearing that he has no military service commitments to fulfil when he returns to India, and has no concerns regarding civil and political unrest in that country. There is no evidence before the Tribunal contradicting these statements. The Tribunal accepts the applicant's evidence that regard, and finds that these matters do not present the applicant with any reason to avoid returning to India. To that extent, they support the applicant's claims.
22.Taking these matters together, the Tribunal finds that the applicant's circumstances in his home country give him some incentive to return there at the end of his studies in Australia, it is not an especially strong incentive. The Tribunal finds that this gives only a little support to his claim to be a genuine temporary entrant.
The Tribunal continued:
23.The applicant gave evidence that he has no community involvements in Australia. He also gave evidence at hearing that he has an uncle living in Australia with his family, and that the applicant has a close relationship with his uncle and his uncle's family. The applicant also stated at hearing that although he is unmarried, he has a girlfriend in Australia, who is an international student from Mauritius studying for a bachelor's degree in hospitality management. The applicant's evidence was that at the date of hearing she had three years to go before she finished her studies. The Tribunal finds that the applicant has personal ties to Australia by reason of all of these relationships. His relationship with his girlfriend is, the Tribunal finds, a particularly strong tie giving the applicant a pressing reason to attempt to stay in Australia.
24.The applicant stated at hearing that his only Australian assets were a car worth approximately AUD[omitted] and a bank account containing approximately AUD[omitted]. The applicant has, as was noted above, been employed on a part time or casual basis in Australia as a night filler and store person by supermarkets in Australia. To that extent, he has some employment history in Australia that might help him find other work. The applicant submitted with great vehemence in his personal statement mentioned in paragraph 13 above that it was, in effect, absurd to suppose that this employment could act as an incentive to stay in Australia. The Tribunal agrees with that submission. The Tribunal finds that the applicant has only weak economic ties with Australia, and that those ties are too weak to constitute anything but a minor incentive to stay in Australia.
The Tribunal then determined:
25.At the date when the applicant applied for a Class TU Subclass 500 Student visa, he had been living in Australia for approximately 7 years, and in that time had earned his Master of Science (Information Technology). He may be taken to have had a very good knowledge of living and studying in Australia by reason of that previous experience. It does not, therefore, assist the Tribunal in making its decision to consider the nature and extent of the applicant's research into those matters at that time. The applicant was asked by the Tribunal prior to hearing to give details of how and why he chose the education provider for his current courses. Although he stated in his personal statement that he took great care in researching and selecting his course provider, he has not at any stage given any specific answer to that question. The Tribunal finds no assistance in this factor.
26.There is no evidence that the applicant has entered into a relationship of concern in Australia, in the sense of a relationship contrived to obtain a better immigration outcome than would otherwise be possible or likely. The applicant's relationship with his girlfriend, who is on his evidence only a temporary resident of Australia, does not fall into that category. There is no evidence before the Tribunal that, standing on its own, shows that the applicant is using the student visa programme to maintain residence, or otherwise circumvent the intentions of the Australian migration programme. However, the Tribunal has already indicated certain aspects of the applicant’s circumstances that could lead to such a conclusion taken together.
On balance, the Tribunal determined that the applicant’s “circumstances in Australia” were a strong reason why he might wish to remain in Australia and, as such, detracted from his claim to be a genuine temporary entrant (at [27]).
Noting that the applicant (having already earned a Masters degree) had “regressed” in his level of studies (to a diploma course), the Tribunal noted that the applicant had changed his study path and that some allowance had to be made in this regard (at [28]).
The Tribunal then noted that when asked about his intentions when he returns to India, the applicant’s responses were “vague”. It appeared, however, that the applicant’s aim was to be find an executive position in an information technology firm and “to align information technology with business”. On that basis, the Tribunal determined that the applicant’s current studies had some relevance in relation to the applicant’s overall aim as stated (at [29]).
The Tribunal continued:
30. The applicant gave evidence that he could earn a salary of INR[omitted] per month with his Australian qualifications in India, and stated that this would be considered a very good income in that country. At current exchange rates, that would equate to approximately AUD[omitted] per year. However, in his response to the Tribunal’s request for information, the applicant stated that he could earn AUD[omitted] per year. The Tribunal considers that this inconsistency is evidence that the applicant has not seriously investigated his prospects in India, a circumstance which in itself tends to suggest that he does not intend to return there at the end of his studies. Be that as it may, there is no doubt that the applicant could, if he were able to find employment, earn considerably more in IT in Australia.
31. The Tribunal finds that the applicant’s current courses are of some value to his future, but is not satisfied on the evidence before it that they add appreciably to the value his master’s degree will have for him. On the whole, the Tribunal finds that these consideration have only very slight weight in favour of the applicant’s contention that he is a genuine temporary entrant
On the basis of the findings made above, the Tribunal was not satisfied that the applicant was “a genuine temporary entrant” (at [32]-[34]). Accordingly, the Tribunal affirmed the delegate’s decision to refuse the applicant the visa (at [35]).
PROCEEDINGS IN THIS COURT
The applicant filed an application for judicial review on 9 July 2020. The “grounds of review” are lengthy and are, in effect, split into three sections as follows:
·the first section is headed “Review of decision made in Case number 1905854 of Gurinder Singh”. Beneath this heading is a table wherein the applicant provides a response to certain parts of the Tribunal’s decision. The Court will refer to this section as “Ground 1”. It is provided in full below;
·the second section is headed “Summary of Funds available with Mr Gurinder Singh in accounts in Punjab National Bank in India. Bank branches”. Beneath this heading is a table of bank accounts held by the applicant (and their current balance). The Court will refer to this section as “Ground 2”; and,
·the third section is headed “Review Points for Visa to The Administrative Appeals Tribunal”. Underneath this heading are 12 paragraphs, provided in full below. The Court will refer to this section as “Ground 3”.
The applicant was given an opportunity to file any amended application, supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review dated 9 July 2020, a Court Book numbering 162 pages (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 18 May 2021.
At the hearing, 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 the Minister’s written submissions (Exhibit 1).
Noting that the applicant was unrepresented, the Court gave the applicant an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that the Tribunal had not adequately addressed the issue of financial capacity. He also explained that he did not think that the “Tribunal did something fair to me” and stressed that he was of the view that the Tribunal could “have granted [him] the visa”. These issues are considered below.
The Court notes that, for the most part, the applicant’s concerns constitute no more than a request for impermissible merits review. The Court understands that the applicant (who is self-represented) does not be fully appreciate that the Court’s jurisdiction is limited - hence the lengthy “grounds of review”. In the circumstances, in addition to adopting an arguably more forensic analysis of the applicant’s stated “grounds of review” the Court will also assess for itself whether jurisdictional error arises in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
Ground 1
In full, “Ground 1” provides:
Regarding : Review of decision made in Case number 1905854 of Gurinder Singh
SNo
Observations by MRD
My submission to observations
1
Point (3) refusal to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration
My humble submission is that I am a genuine migrant, genuinely studied and successfully completed MS in IT from Murdoch University. After that I was granted Skilled Graduation (Temp) visa for three years. I tried my best for a job in IT line but I could not get job due my temporary visa and lack of experience in the IT line as I was fresher. Then I took job in Super market for my livelihood. Now I have experience in Super Market job so I wanted to get theoretical knowledge in business line and applied for student visa to study Diploma in Business because it would help in my job in the super market.
Keeping in view of above I submit that I comply all the conditions of a Genuine applicant as stated in cl500.212.
2
Point (9) Does the applicant intend genuinely to stay in Australia temporarily?
a. The applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
b. Any other relevant information provided by the applicant, or information
a. In this case I submit there is no liability on my part in my home country. My father is retired from a Bank and is a pensioner. He has agricultural land as well a good house.
Regarding circumstances in Australia for the intended course I again submit that I have experience in business job in Super Market that is why I wanted to get theoretical knowledge in this line.Again Australia is a wonderful and peaceful country and there are very good chances to get a job in business line.
I am genuinely following all rules and regulations of Australian Govt.b. I submit that the decision of MRD was pending and to avoid wasting of time I joined the study of the Diploma in Business in Perth College of Business and Technology, deposited full fee for the diploma course. I further submit that I have successfully completed first Semester and second semester is in progress which will be over in August 2020.
3
Point (10) regarding genuine
temporary entrant
Again I submit that due to demanding circumstances to learn Business Techniques I joined Diploma in Business course as I have experience in this.
4
Point (11)
I submit that I did my Bachelor in Technology from DAV Institute of Technology in India and MS in IT from Murdoch University in Australia on a genuine student visa.
5
Point (12)
I submit and agree to the information provided regarding enrolment to diploma in Business, funds in Punjab National bank in India, land and plot on the name of my parents is true.
6
Point (13)
Nothing to review
6
Point (14) regarding journey of events of my stay in Australia
Information given in this point (14) regarding my journey of events during my stay in Australia is true but I submit my reply to point 14 (n) regarding refusal of class TU sub class 500 visas; I submit that due to this refusal of visa I had to leave the study course. But as per circumstances not to waste time I joined diploma course to augment my knowledge in Business line.
3
(15) One feature of this history, the applicant's withdrawal from his first Diploma of Business enrolment and subsequent re-enrolment in that course, requires further consideration
In this case I can only submit that due to lack of awareness I withdrew from the course due to refusal of visa. But in due course as per circumstances that Diploma in business is must to augment the knowledge and it will benefit me in my future plans.
4
Point (16) Regarding my stay in Australia
Thanks Tribunal for favoring. In this regard I further humbly submit that I all my stay in Australia is a legal one and followed all Australian rules and regulations and will not be defaulter in future too.
5
Point (17) On balance, the Tribunal finds that the applicant's immigration history, including his study history, weights against his claim to be a genuine tempora1y entrant.
I humbly submit your good self that all my stay in Australia is legal one. I genuinely completed my MS in IT. During my Skilled Graduation visa I tried for a job with many employers but could not succeed because employers simply refused that I was on temporary visa. However I completed one year professional course to augment my skill in IT field and tried luck to get a job but was successful.
This is true that to meet both ends meet or to earn my livelihood I worked in Super Markets.
That is why I am studying diploma in Business to try my luck in business line.
6
Point (18) regarding ties in India, family.
I have good ties in India.
I have bank deposits in Bank.
Self-dependent parents in India. Father retired from a bank as senior manager and getting pension. He has landed property as well good house also. I have one sister who is Deputy Manager in a bank and is married to Judicial Magistrate.
7
Point (l 9) Regarding my funds in India
In this regard I would like to submit that all these funds belong to me. Father name was added to make some transactions on my behalf.
In all joint accounts my name appears first and I have submitted my Tax File number (In India it is PAN Number) to all accounts and I am showing all my interest income in my tax returns.
I further submit that out of 9 deposits in 6 accounts I am single holder and balance 3 accounts are joint holder accounts.
As on 30.10.2019
Out of total Rs [omitted] Rs [omitted] was on joint name with father and Rs [omitted] were on my single name. Here I would like to submit that all these funds belong to me.
Present position:
As on 01.07.2020 out of total Rs. [omitted] Rs. [omitted] are on single name accounts and Rs [omitted] are on joint name with father.
A Table is attached to show the joint as well single holder accounts showing the then and present position
8
Point (20) Purpose of study course
I humbly submit that purpose of this study was to learn business techniques as I am at present engaged with a business concern. Business techniques which are studied are more or less
same for same type of locations. So doing study here in Australia is useful anywhere in this world.9
Point (21) Military commitment or political unrest in India.
Thanks The Tribunal for accepting my views. Further I submit that I have not at all concern with any of these be it military or political unrest. Moreover I am peace loving person.
10
Point (22)
I submit that I have sufficient funds in India and can start business anywhere. Further I don't have any family liability. Moreover all my family members are self-dependent.
11
Point (23) family/ friends ties in Australia
I submit that my uncle came to Australia about 25 years back. He is Citizen of this country now. I came to know from him that Australia is wonderful country and very good for study purposes. It is he who advised me to study further in Australia. No doubt he is a great help to me here in Australia as he is the only blood relation here. He always looks after me, advised me in my plans.
Regarding girlfriend in Australia I submit that she is on student visa and not a permanent resident. She is from Mauritius. We can learn a lot from friends of different regions. One can make friends anywhere but that is not necessary that I will not leave this country because of her.
12
Point (24) Assets Australia
I submit that I came to Australia for study and I worked here to gain some experience and make my both ends meet. Regarding less assets in Australia I submit that whatever I earned was sufficient to my needs. If there is emergent need I can get from India.
13
Point (25) Study course selection.
My submission is that due to my present job experience in Business I chose to augment my theoretical knowledge by studying Diploma in business I may get good job in some business concern or I may be able to start my own business.
As I already stated that I could not get a job in IT sector I shifted to business job. I may also submit that my IT knowledge will be great help in Business line also.
14
Point (26) relationship of concern.
I agree with The Tribunal that the relationship concern with a girlfriend who is also on temporary visa is a weak. I am not claiming on this point to grant student visa.
My only strong relationship concern in Australia is that of my uncle who is always been my guide and helping hand.15
Point (27)
I submit that whatever time I get in Australia should be a legal one.
16
Point (28) About regress of study level
I humbly submit that I have not regressed in the level of my study. As I have already done MS in IT line and now the course I intend to do is a business management line which is totally different from IT line. There is no relation between lower level or higher level as both are different line of study. In fact Business management study is great help in eve1y field. If both these lines IT and Business meet together there will be an additional benefit.
17
Point (29) Aim
My submission is I wish I could get good job in IT which could not. So I thought of study business techniques and got myself enrolled in Business diploma. I hope these both qualifications will help me getting good job in IT relevant business.
18
Point (30) Employment in India
I submit that unemployment is everywhere in this world. If you have good experience you can get good job anywhere. In India one has to try and find a job. Regarding salary miscalculations I submit that whenever you apply for a job in some private concern there is always some negotiation from both the side candidate as well as employer side. So it is not a matter of only fixed pay, one can get better salary also.
19
Point (31) Value of intended course.
My submission is that most of the jobs are found in business concerns and the business concerns prefer additional qualification of business managements which is much needed now a day.
So studying Diploma in Business will be great help to me to find job.
20
Point (32,33,34, 35)
I humbly submit following that
1. That I am already enrolled in my Diploma in business in Perth College of business and Technology.
2. That I have already paid full fee for this diploma course.
3. That I have already successfully completed first semester of this diploma course.
4. That second and the final semester is going on and I am attending to the classes. It will be finished in August 2020.
5. That due to COVID-19 Pandemic all flights are suspended for the time being.
6. That if given chance I assure you to abide by all conditions while stay in Australia.
Keep in in view all my above submissions I request your good Administrative Appeals Tribunal reconsider your decision and grant me the required visa and oblige.
In assessing the applicant’s concerns as articulated above, the Court notes as follows.
The applicant first refers to [3] of the Tribunal’s decision and states:
My humble submission is that I am a genuine migrant, genuinely studied and successfully completed MS in IT from Murdoch University. After that I was granted Skilled Graduation (Temp) visa for three years. I tried my best for a job in IT line but I could not get job due my temporary visa and lack of experience in the IT line as I was fresher. Then I took job in Super market for my livelihood. Now I have experience in Super Market job so I wanted to get theoretical knowledge in business line and applied for student visa to study Diploma in Business because it would help in my job in the super market. Keeping in view of above I submit that I comply all the conditions of a Genuine applicant as stated in cl500.212.
At [3] of the Tribunal’s decision, the Tribunal summarises the delegate’s decision. Accordingly, to the extent the applicant takes issue with the delegate’s finding, this Court does not have jurisdiction to review that decision: the Act, s 476(2) and (4). In any event, the applicant’s submissions constitute no more than disagreement with the finding that he was not a genuine temporary entrant. This represents no more than a request for an impermissible merits review.
The applicant then refers to [9] of the Tribunal’s decision, wherein the Tribunal summarises the matters set out in Direction 69. No substantive reasoning is provided here. Nonetheless, the applicant states:
a. In this case I submit there is no liability on my part in my home country. My father is retired from a Bank and is a pensioner. He has agricultural land as well a good house. Regarding circumstances in Australia for the intended course I again submit that I have experience in business job in Super Market that is why I wanted to get theoretical knowledge in this line. Again Australia is a wonderful and peaceful country and there are very good chances to get a job in business line. I am genuinely following all rules and regulations of Australian Govt.
b. I submit that the decision of MRD was pending and to avoid wasting of time I joined the study of the Diploma in Business in Perth College of Business and Technology, deposited full fee for the diploma course. I further submit that I have successfully completed first Semester and second semester is in progress which will be over in August 2020.
The applicant is, again, making submissions that go to the merits of the Tribunal’s decision. He has identified the relevant criterion (as set out in the Tribunal’s decision) and details why he meets those criterion. Unfortunately, the time to do so was when he appeared before the Tribunal - not before this Court.
No jurisdictional error arises in this regard.
The applicant then refers to [10] of the Tribunal’s decision. The Court notes that [10] of the Tribunal’s decision is an entirely uncontroversial paragraph that merely sets out how the Tribunal approaches the matters in Direction 69 and identifies that Direction 69 is “a guide”.
The applicant states:
Again I submit that due to demanding circumstances to learn Business Techniques I joined Diploma in Business course as I have experience in this.
It is not clear what the applicant is seeking to address here. It appears he is saying that he chose to do the Diploma in Business so that he could learn business techniques. The Tribunal expressly acknowledged this later in its decision at [20].
No error arises in this regard.
The applicant also states that what is said at [14] in the Tribunal’s decision “is true”, except for [14(n)]. He says:
my reply to point l4 (n) regarding refusal of class TU sub class 500 visas; I submit that due to this refusal of visa I had to leave the study course. But as per circumstances not to waste time I joined diploma course to augment my knowledge in Business line.
Paragraph [14(n)] provides:
The applicant’s application for a Class TU Subclass 500 Student visa was refused on 5 March 2019.
Here, the Tribunal is simply setting out the applicant’s immigration and study history at [14]. It was quite correct to state that the applicant’s student visa was refused on 5 March 2019 as that is when the visa was refused by the delegate. The Tribunal was simply setting out purely factual milestones in the applicant’s migration and study history. The applicant’s explanations (i.e., because of the refusal he had to drop a course) and other subjective matters were not relevant here as paragraph [14] merely provides context to the paragraphs which follow. That context accurately accords with the materials in the Court Book.
In relation to [15] of the Tribunal’s decision, the applicant then states:
In this case I can only submit that due to lack of awareness I withdrew from the course due to refusal of visa. But in due course as per circumstances that Diploma in business is must to augment the knowledge and it will benefit me in my future plans.
At [15], the Tribunal expressly acknowledges that the applicant had claimed that he withdrew from the Diploma of Business as he was unaware that he had study rights after the visa was refused. The Tribunal rejected this explanation as follows:
…The Tribunal has some difficulty with this evidence, because the applicant’s bridging visa grant notice stated plainly on its face that there were no conditions on it, and the applicant evidently did not think he had to cease working as well as studying. The Tribunal notes that the applicant re-enrolled in the course very shortly before the hearing of his review application. It is open in these circumstances for the Tribunal to infer that he did so in order to avoid having the delegate’s decision affirmed on the ground that he was not enrolled in a course of study and so did not meet the requirements of cl.500.211 of Schedule 2 to the Regulations, rather than out of any real desire to study.
There is nothing erroneous in the Tribunal’s reasoning here. The Tribunal has, in effect, found that the applicant’s explanation was implausible in light of the information before it and the applicant’s own conduct to continue working following the refusal. That determination was entirely open to the Tribunal – particularly in light of the close proximity of the applicant’s reenrolment to the Tribunal hearing.
Insofar as the applicant also claims that he re-enrolled because it was a “must” for his future plans, it does not appear that this was ever put to the Tribunal. Hence, it was open to the Tribunal to infer, for the reasons stated above and in the absence of any other explanation, that the applicant re-enrolled to avoid a refusal on the basis of cl 500.211 of the Regulations.
Ground 1 then refers to [16] in the Tribunal’s decision and “thanks” the Tribunal for finding in his favour. The applicant further says that he will not be a “defaulter” in relation to Australia’s “rules and Regulations” in the future. This is irrelevant to the identification of jurisdictional error in the Tribunal’s decision.
The applicant then refers to [17] wherein the Tribunal determined that, “on balance”, the applicant’s study and immigration history weighed against him being considered a genuine temporary entrant. The applicant says:
I humbly submit your good self that all my stay in Australia is legal one. I genuinely completed my MS in IT. During my Skilled Graduation visa I tried for a job with many employers but could not succeed because employers simply refused that I was on temporary visa. However I completed one year professional course to augment my skill in IT field and tried luck to get a job but was successful. This is true that to meet both ends meet or to earn my livelihood I worked in Super Markets. That is why I am studying diploma in Business to try my luck in business line
The applicant is again simply appealing to the merits of the Tribunal’s decision. He disagrees with the Tribunal’s finding that his immigration and study history “weighed against him being considered a genuine temporary entrant”. There was no error in the Tribunal’s reasoning in this regard. The weight the Tribunal gives to the evidence and the matters it considers is entirely a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
The applicant then refers to [18] of the Tribunal’s decision and states:
I have good ties in India.
I have bank deposits in Bank.
Self-dependent parents in India. Father retired from a bank as senior manager and getting pension. He has landed property as well good house also. I have one sister who is Deputy Manager in a bank and is married to Judicial Magistrate.
Paragraph [18] of the Tribunal’s decision discusses the applicant’s evidence in relation to his family. The Tribunal determined that the applicant did have ties to India but those ties did not provide a significant incentive to return to India.
Again, the matters that the applicant refers to go to the merits. Further, the Tribunal accepted that the applicant had family and economic ties to India. It accepted that the applicant had bank deposits in India. These matters were not, however, considered to be a significant incentive for the applicant to return to India. They did not outweigh the applicant’s ties to Australia.
In relation to the evidence that the applicant presents about his father’s occupation and his sister, it does not appear that these matters were put to the Tribunal. Accordingly, no error arises in that regard.
The applicant then refers to [19] of the Tribunal’s decision, wherein the Tribunal discusses the applicant’s financial and economic ties to India. This is the subject of ground 2 and will be discussed below.
The applicant then refers to [20] of the Tribunal’s decision and says:
I humbly submit that purpose of this study was to learn business techniques as I am at present engaged with a business concern. Business techniques which are studied are more or less same for same type of locations. So doing study here in Australia is useful anywhere in this world.
At [20], the Tribunal states:
20. The applicant was asked at hearing to explain why he chose to pursue his current studies in Australia rather than in India. His response was that he wanted to know how business worked in Australia, particularly policy and procedures. The applicant has addressed the same issue in the written evidence and materials before the Tribunal. In his response (see paragraph 12(b) above) he wrote “The reason to do this course here to understand the techniques and strategies which is implemented from Australian perspective to do business”, and similarly in answer to a different question “The purpose of this course is to learn the management that how to manage business. What are the strategies required to manage the business in Australia.” The Tribunal asked the applicant at hearing whether this knowledge would be of any use in India. The applicant answered, in a manner rather lacking in conviction, that it could help. Whilst this motive would make perfect sense for a person wishing to engage or work in business in Australia, the Tribunal does not find it an adequate reason for a person who, as the applicant says he does, intends to return to India and work in business there. The Tribunal finds that the applicant’s evidence on this point weighs against his claim to be a genuine temporary entrant.
Again, the applicant is making submissions that go to the merits of the Tribunal’s decision. He is trying to explain how the knowledge he obtains in Australia will be relevant in India. The applicant’s time to do so was when he was before the Tribunal. He gave his answers and explanations at that time. The Tribunal did not consider the evidence to be adequate. The applicant cannot now attempt to supplement his answers to remedy any deficiencies in the evidence before the Tribunal.
The applicant than refers to [22] of the Tribunal’s decision and states:
I submit that I have sufficient funds in India and can start business anywhere. Further I don't have any family liability. Moreover all my family members are self-dependent.
At [22], the Tribunal finds, on balance, that while the applicant had some incentive to return to India it was not a strong incentive and had only minimal weight in his favour. The applicant’s submission relates to factual matters that should have been put to the Tribunal.
The applicant then submits (in relation to [23] of the Tribunal’s decision):
I submit that my uncle came to Australia about 25 years back. He is Citizen of this country now. I came to know from him that Australia is wonderful country and very good for study purposes. It is he who advised me to study further in Australia. No doubt he is a great help to me here in Australia as he is the only blood relation here. He always looks after me, advised me in my plans. Regarding girlfriend in Australia I submit that she is on student visa and not a permanent resident. She is from Mauritius. We can learn a lot from friends of different regions. One can make friends anywhere but that is not necessary that I will not leave this country because of her.
The applicant is repeating what is stated in [23] of the Tribunal’s decision. The Tribunal noted that the applicant had a strong relationship with his uncle and that he had a girlfriend in Australia. The Tribunal concluded that the applicant had strong ties in Australia. There was no error in that finding. It was not adverse to the applicant. It was simply an observation of fact made by the Tribunal.
With reference to [24] of the Tribunal’s decision, the applicant then states:
I submit that I came to Australia for study and I worked here to gain some experience and make my both ends meet. Regarding less assets in Australia I submit that whatever I earned was sufficient to my needs. If there is emergent need I can get from India.
The Tribunal’s findings at [24] are favourable for the applicant. The Tribunal found that the applicant had only weak financial ties to Australia. To the extent the applicant is suggesting that the Tribunal’s finding that he had weak economic ties weighed against him, it did not. It weighed in his favour. Accordingly, no error arises.
In relation to [25] of the Tribunal’s decision, the applicant then states:
My submission is that due to my present job experience in Business I chose to augment my theoretical knowledge by studying Diploma in business I may get good job in some business concern or I may be able to start my own business.
As I already stated that I could not get a job in IT sector I shifted to business job. I may also submit that my IT knowledge will be great help in Business line also.
Paragraph [25] of the Tribunal’s decision assesses whether the applicant has “a good knowledge of living and study in Australia”. The Tribunal notes that the applicant had not explained why he chose a particular education provider.
The applicant’s submissions are not relevant to anything discussed in [25]. They do not add anything to the Tribunal’s finding that he had a very good knowledge of living and studying in Australia. Nor does the applicant explain what research he undertook when picking his course provider. The applicant’s submission rises no higher than a request for impermissible merits review.
At [27] of the Tribunal’s decision, the Tribunal states that the applicant had strong reasons to stay in Australia. To this, the applicant states that whatever time he gets in Australia should be “legal”. It is unclear what the applicant is suggesting here. In order to be granted the visa, the applicant must meet the genuine temporary entrant criterion. Accordingly, for his time to be “legal” he must meet that criterion. The Tribunal’s finding at [27] was a matter that was directly relevant to that question.
No jurisdictional error is identified in this regard.
The applicant then references [28] of the Tribunal’s decision and states:
I humbly submit that I have not regressed in the level of my study. As I have already done MS in IT line and now the course I intend to is a business management line which is totally different from IT line. There is no relation between lower level or higher level as both are different line of study. In fact Business management study is great help in every field. If both these lines IT and Business meet together there will be an additional benefit.
At [28], the Tribunal states:
28. The applicant has regressed in the level of his study, given that he has already earned a master’s degree and is now studying at advanced diploma level. However, the applicant has changed study path to some extent, so an allowance must be made in this regard
The Tribunal has, in effect, reasoned just as the applicant submits. It notes that the applicant has changed study path and, therefore, an allowance has been made for any regression. When read with [29]-[31], it is apparent that the Tribunal did not place any adverse weight on the applicant’s regression and had, ultimately, accepted that there was a change of pathway.
In relation to [29] of the Tribunal’s decision, the applicant then says:
My submission is I wish I could get good job in IT which could not. So I thought of study business techniques and got myself enrolled in Business diploma. I hope these both qualifications will help me getting good job in IT relevant business
At [29], the Tribunal states that, while the applicant’s evidence about his intentions on return is vague, the courses the applicant was studying did have some relevance in this regard. As such, the applicant’s submission to this Court is misguided. The Tribunal accepted that his course was relevant to his aim “to align business with IT and to obtain an executive position”.
The applicant continues by making the following submission in relation to [30] of the Tribunal’s decision:
I submit that unemployment is everywhere in this world. If you have good experience you can get good job anywhere. In India one has to try and find a job. Regarding salary miscalculations I submit that whenever you apply for a job in some private concern there is always some negotiation from both the side candidate as well as employer side. So it is not a matter of only fixed pay, one can get better salary also.
At [30], the Tribunal states:
30. The applicant gave evidence that he could earn a salary of INR[omitted] per month with his Australian qualifications in India, and stated that this would be considered a very good income in that country. At current exchange rates, that would equate to approximately AUD[omitted] per year. However, in his response to the Tribunal’s request for information, the applicant stated that he could earn AUD[omitted] per year. The Tribunal considers that this inconsistency is evidence that the applicant has not seriously investigated his prospects in India, a circumstance which in itself tends to suggest that he does not intend to return there at the end of his studies. Be that as it may, there is no doubt that the applicant could, if he were able to find employment, earn considerably more in IT in Australia
The applicant appears to be disagreeing with the Tribunal’s comparison of earnings in India and Australia. The applicant himself provided the information that the Tribunal relied upon. If there were other matters or other evidence relevant to those figures (such as what the applicant appears to be providing to the Court now) that evidence should have been presented to the Tribunal.
In relation to the Tribunal’s conclusion (at [31]) about the value of the applicant’s course, the applicant says:
My submission is that most of the jobs are found· in business concerns and the business concerns prefer additional qualification of business managements which is much needed now a day.
So studying Diploma in Business will be great help to me to find job.
The Tribunal found that the value of the applicant’s course to his future weighed in favour of him being considered a genuine temporary entrant. The applicant’s submissions in this regard are thus unnecessary.
At [32]-[35], the Tribunal concludes that it is not satisfied that the applicant is a genuine temporary entrant. The applicant states:
I humbly submit following that
1. That I am already enrolled in my Diploma in business in Perth College of business and Technology.
2. That I have already paid full fee for this diploma course.
3. That I have already successfully completed first semester of this diploma course.
4. That second and the final semester is going on and I am attending to the classes. It will be finished in August 2020.
5. That due to COVID-19 Pandemic all flights are suspended for the time being.
6. That if given chance I assure you to abide by all conditions while stay in Australia.
Keeping in view all my above submissions I request your good self (The Administrative Appeals Tribunal) to reconsider your decision and grant me the visa and oblige.
The Court notes as follows:
(a)being enrolled in a course of study was only one part of the criteria for the visa. The fact that the applicant was already enrolled did not assist him in regard to the genuine temporary entrant criterion;
(b)whether the applicant has paid the course fees or not is irrelevant here. Nor can the Court assess whether the applicant will “lose money”;
(c)the fact that the applicant successfully completed one semester does not go to the issue of jurisdictional error;
(d)the implications of COVID-19 on future travel plans, while of concern, is not relevant to the Court on review; and
(e)the Court does not doubt that the applicant would abide by all relevant conditions. That would be relevant if the Tribunal was considering cl 500.212(b) of the Regulations. However, as the applicant did not meet cl 500.212(a), it was unnecessary to consider the conditions on the applicant’s visa.
The applicant pleads with the Court to grant him the visa. The Court is unable to do so. The power to grant visas lies with the Tribunal and the Minister.
Ground 1 does not identify jurisdictional error. Rather, it resembles a lengthy request for an impermissible merits review. The applicant is purporting to make submissions that answer the Tribunal’s concerns. Unfortunately, in so doing he has misunderstood the Court’s role on review.
Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides a detailed table wherein the applicant lists the various bank accounts held by him. He details the funds available in each account as at the date of the Tribunal hearing and on 1 July 2020.
The applicant then states:
As on 30.10.2019
Out of total Rs[omitted] Rs. [omitted] was on joint name with father and Rs [omitted] were on my single name. Here I would like to submit that all these funds belong to me. Father name was added to make some transactions on my behalf. In all joint accounts my name appears first and I am submitting all the interest income in my tax returns.
Present position:
As on 01.07.2020 out of total Rs. [omitted] Rs.[omitted] are on single name accounts and Rs.[omitted] are on joint name with father.
Underneath this table, the applicant states:
As on 30.10.2019
Out of total Rs[omitted] Rs. [omitted] was on joint name with father and Rs [omitted] were on my single name. Here I would like to submit that all these funds belong to me. Father name was added to make some transactions on my behalf. In all joint accounts my name appears first and I am submitting all the interest income in my tax returns.
Present position:
As on 01.07.2020 out of total Rs.[omitted] Rs.[omitted] are on single name accounts and Rs.[omitted] are on joint name with father.
The applicant also refers to “his economic ties” and says:
In this regard I would like to submit that all these funds belong to me. Father name was added to make some transactions on my behalf.
In all joint accounts my name appears first and I have submitted my Tax File number (In India it is PAN Number) to all accounts and I am showing all my interest income in my tax returns.
I further submit that out of 9 deposits in 6 accounts I am single holder and balance 3 accounts are joint holder accounts.
As on 30.10.2019
Out of total Rs[omitted] Rs.[omitted] was on joint name with father and Rs[omitted] were on my single name. Here I would like to submit that all these funds belong to me.
Present position:
As on 01.07.2020 out of total Rs.[omitted] Rs.[omitted] are on single name accounts and Rs .[omitted] are on joint name with father.
A Table is attached to show the joint as well single holder accounts showing the then and resent position
It is noted that the Tribunal asked the applicant to provide further information about his financial assets in India. The applicant did so on 31 October 2019. A similar table to that set out in Ground 2 was provided to the Tribunal (CB 136). The table that is set out in ground 2 is almost identical to the table given to the Tribunal except that the applicant now provides two additional columns – one provides the total funds as at I July 2020; the other provides an details whether the applicant is the single holder of the account or the joint holder.
Insofar as this table provides the “present position”, this is not relevant to the Court’s task on judicial review. This is new evidence and information that was not before the Tribunal. It cannot be used to identify jurisdictional error.
It appears the applicant is now outlining his “present position” to demonstrate his financial status. The Court is not concerned with the applicant’s financial status at the time of the hearing before the Court. That was a matter for the Tribunal. The only issue before the Court is whether the Tribunal fell into jurisdictional error.
The second additional column provides information as to whether the applicant is the single holder of the account or the joint holder of the account. It appears that the second additional column and the information provided beneath the table in ground 2 are a response to the Tribunal’s statements at [19], as follows:
…The first of those documents does support his claim to own funds on deposit, in the total amount of INR[omitted] (at current exchange rates the equivalent of approximately AUD[omitted]). That is a very substantial amount. The applicant stated at hearing that some of these deposits are jointly owned, and in his response gave AUD[omitted] as the value of his share. It is not clear on the evidence before the Tribunal whether that joint ownership creates any impediment to the transfer of the applicant’s share of the amounts on deposit to him wherever in the world he is.
In effect, the explanation the applicant provides in ground 2 (ie, that all of the accounts are his and that his father was added to some accounts just to make transactions on his behalf) is a response to the Tribunal’s statements as above. The applicant did not explain this or provide this information to the Tribunal. Providing it now does not assist the applicant on review.
Ground 2, and what is reflected in the relevant table, does not identify any error in the Tribunal’s decision. The Tribunal considered the information before it and clearly engaged with the financial evidence before it. The Tribunal assessed this evidence when determining that there was evidence of some economic ties to India.
Ground 2, the applicant’s pleadings in relation to [19] of the Tribunal’s decision in ground 1 and the applicant’s oral submissions about the Tribunal’s “failure” to assess the financial evidence before it are dismissed. No error arises in this regard.
Ground 3
Ground 3 provides as follows:
Review Points for Visa to the Administrative Appeals Tribunal
1. I came to Australia on Study visa 2012.
2.Completed MS in IT successfully from Murdoch University in 2015 and was granted Skilled Graduate (Temp.) visa for three years.
3.I tried my best to get a job in relevant IT field but could not succeed. The main reason for not getting a job in IT field that I was a fresh candidate and without any experience. Secondly the most important that I was on a Temporary visa as I may not get further visa.
4. Then I did one year ACS Professional year course from NA VIT AS in 2016.
5.In the meantime I worked in Super Markets to meet both ends meet.
6. As I was working in Super Markets I wanted to improve my Business Management skills and took admission in one year Diploma in Business Management in Perth College of Management and Technology in 2019.
7. I have successfully completed first Semester and hopefully second semester will be completed in August 2020.
8. I have deposited full fee for the entire diploma course with the college authorities.
9. I have been abiding all tax of rules Australia and regularly filing my income tax returns.
10. As per my recent Diploma in Business Management and my good experience in Super Markets I am applying in Business management jobs which I hopefully will get a job in this field.
11. As there is COVID-19 Pandemic all over the world, flights are suspended, it is difficult to move at the moment.
12. As I had been in Australia for long period and know all Australian rules and I assure you to abide by all these and keeping in view above points I request your good self to please grant me visa so that I may get good experience in Business management which is needed for better earner.
Critically, none of the paragraphs in ground 3 relate to the Tribunal’s decision. Specifically:
·at [1]-[6], the applicant repeats factual matters. These matters are clear from the materials in the Court Book and do not seem to be in dispute;
·at [7]-[10], the applicant refers to matters which the Court does not query. The Court accepts everything the applicant says in these paragraphs. However, none of what is detailed is relevant to the issue of jurisdictional error. When the applicant intends to complete his course, whether he has paid his fees, whether he has paid his tax returns and what jobs he has applied for are irrelevant on review. At their highest they relate to the merits of the applicant’s claim to be a genuine temporary entrant;
·at [11], the applicant refers to issues that have arisen after the Tribunal hearing and the Tribunal’s decision – specifically, COVID-19 and its impact on travel. The pandemic was not a relevant consideration for the Tribunal. Further, the current difficulties with flights and travel arrangements are not matters the Court can consider on review. To the extent that the applicant now considers them to be an issue of concern, he should raise this with the Minister’s Department; and
·at [12], the applicant pleads with the Court to grant him the visa and states that he is, in effect, a good person and wants to be a “better earner”. The Court cannot grant the applicant the visa he seeks. The Court’s power is limited to determining whether there is jurisdictional error in the Tribunal’s decision. The fact that the applicant is a “good person” and wants to be a “better earner” does not relate to any error of the sort this Court can address on review.
Ground 3 is, accordingly, dismissed.
CONCLUSION
The application for judicial review has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 May 2021
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