Thadaka v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 912
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thadaka v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 912
File number(s): BRG 121 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 18 September 2024 Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – Administrative Appeals Tribunal – judicial review –jurisdictional error – failure to take into account relevant considerations – whether the Tribunal demonstrated bias –no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 65
Migration Regulations 1994 (Cth) cl 500.212 in Schedule 2
Cases cited: BKS15 v Minister for Immigration & Anor [2019] FCCA 359
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration v SZMDS (2010) 240 CLR 611
MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506
MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
QYFM v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419
WZATI v Minister for Immigration & Border Protection [2015] FCA 923
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 6 September 2024 Date of hearing: 6 September 2024 Place: Brisbane Counsel for the Applicant: The applicant appeared in person. Solicitor for the Respondents: Mr Piggott-McKellar - Clayton Utz ORDERS
BRG 121 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SANJAY THADAKA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $8371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), by which the Tribunal affirmed a decision of a delegate of the Minister of Home Affairs (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Student (Temporary) (Class TU) visa.
BACKGROUND
Application for a Student (Temporary) (Class TU) visa
The applicant is a citizen of India. The applicant arrived in Australia on 18 February 2018 on a Student visa which expired on 15 March 2020.
On 13 March 2020, the applicant applied for a Student (Temporary) (Class TU) visa (“the visa”) (Court Book (“CB”) 1-31). At the time of his visa application, the applicant was enrolled in a Master of Professional Accounting and Master of Business Administration at the Holmes Institute (CB 9). The applicant later notified the Department of Home Affairs that he was enrolled in a Diploma of Hospitality Management and Certificate IV in Commercial Cookery with the Davies Institute (trading as Bella College) (CB 137-138).
On 22 October 2021, the delegate refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the genuine temporary entry criterion in cl 500.212 of the Migration Regulations 1994 (Cth) (“the Regulations”). That criterion provides:
The applicant is a genuine applicant for entry and stay as a student because:
a.the applicant intends genuinely to stay in Australia temporarily, having regard to:
i.the applicant’s circumstances; and
ii.the applicant’s immigration history; and
iii.if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
iv.any other relevant matter; and
b.the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
i.the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
ii.the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
c. of any other relevant matter.
The delegate gave written reasons for the decision (CB 143-146).
Application for review in the Administrative Appeals Tribunal
On 8 November 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 148-155). The applicant was represented by a Migration Agent.
On 10 November 2021, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments for consideration that he should do so as soon as possible (CB 157-158).
On 9 June 2022, the Tribunal sent the applicant an invitation to provide information to satisfy it that the applicant met the visa requirements that the applicant is enrolled in a course of study and was a genuine applicant for entry and stay as a student. The Tribunal provided to the applicant a link to the online Request for Student Visa Information. A copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“Direction No. 69”) was also attached (CB 183 -185).
On 21 June 2022, the applicant completed the Request for Student Visa Information and provided a written submission together with a substantial number of documents to the Tribunal (CB 182-318).
On 28 July 2022, the Tribunal sent a letter inviting the applicant to attend a hearing by telephone on 15 August 2022 (CB 319-334). The invitation requested the applicant to provide all documents he intended to rely upon to support his case and referred the applicant to the reasons for the decision made by the delegate.
On 15 August 2022, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was assisted at the hearing by his Migration Agent. The hearing was conducted with the assistance of an Interpreter in the Telugu and English languages. During the hearing, the applicant’s Migration Agent sought and was granted an extension of time to provide submissions to the Tribunal about the applicant’s course of studies. After the hearing, the applicant’s Migration Agent and the applicant each provided a further written submission to the Tribunal about the applicant’s intended course of studies (CB 339-340).
On 15 February 2023, the Tribunal affirmed the delegate's decision not to grant the visa
(CB 381-397). The Tribunal provided written reasons for its decision (“Tribunal Decision”).THE TRIBUNAL’S DECISION
The Tribunal identified that the issue in the matter is whether the applicant is a genuine applicant for entry and stay as a student ([8]).
The Tribunal stated that in considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to the specified factors in Direction No. 69 ( [10]) and identified those factors as:
•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.
The Tribunal went on to note that the factors should not be used as checklist but as a guide to 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 ([11]).
The Tribunal, in summary, considered the following matters:
(a)the applicant is a 29-year-old Indian National who entered Australia after obtaining an initial student visa Subclass 500 which expired on 15 March 2002. The applicant came to Australia for the purpose of undertaking a Master of Professional Accounting ([12]);
(b)the applicant made a further application for a student (Class TU Subclass 500) visa on 13 March 2021. At the time of applying for that visa, the applicant was proposing to undertake a Master of Business Administration. Since applying for the visa, the applicant enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management ([13]);
(c)the applicant confirmed that he was seeking a student visa to study a Certificate IV in Commercial Cookery and a Diploma in Hospitality Management only and that he would not be pursuing studies in the Master of Professional Accounting and Master of Business Administration ([15] and 25]);
(d)the applicant’s education and employment in India ([17]);
(e)the applicant stated that he had financial issues in relations to the costs of the course of Master of Professional Accounting at Griffith University and that accordingly he had transferred his studies to a Master of Professional Accounting and Master of Business Administration at Holmes Institute which was more affordable ([19];
(f)during 2000, his enrolment (at Holmes Institute) was cancelled due to non-payment of fees but also because of the criminal charges of money laundering laid against him ([20]);
(g)his parents in India were unable to financially support him for his Master of Professional Accounting for 2021 and that the funds he had received from them had been used in defending the criminal charges ([20]);
(h)the applicant did not study in the period from the end of 2020 and did not enrol in a further course until September 2021 when he enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at Bella College ([21]). He enrolled in that course because it was more affordable and he said he would be able to utilise those courses for the purposes of opening a restaurant back in India ([22]);
(i)the applicant had been in Australia for a period of nearly five years but had not yet completed a course although was near to completion of the Certificate IV in Commercial Cookery ((23]);
(j)the applicant had received a written offer of employment as an accountant back in India to commence in October 2023. This offer was made because the applicant had told his prospective employer that he was a studying a Master of Professional Accounting and Master of Business Administration at the time he applied for the position which was misleading. The applicant was not enrolled in those courses at the time of the Tribunal hearing and confirmed after the hearing that he did not intend to complete those courses ([24]-[25]);
(k)the applicant pleaded guilty to the charge of money laundering. The applicant had been sentenced. Notwithstanding the sentence was suspended, this was indicative of the seriousness of the offence ([26]);
(l)the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management would provide the applicant with greater employment prospects back in India but would only have a marginal impact on his level of remuneration in India ([27]);
(m)the applicant’s employment in Australia as an Uber driver and then as a cook at Burrito Bar since 2018 and his income in those roles ([30] and [33]);
(n)that the income in those jobs was higher than the income offered by the employer in India in the role of accountant ([33]);
(o)the applicant stated that the income he would earn in India as a chef or restaurant manager would be higher than he would earn in Australia but provided no evidence in support of that. Based on current exchange rates the income he would earn in India would be less ([34] – [35]);
(p)the more favourable economic conditions in Australia ([36]);
(q)the applicant had returned to India only once over the last 5 years for a stay of nearly two months but that there were travel restrictions from March 2020 until the commencement of 2022 because of the COVID-19 pandemic and during that period the applicant was facing criminal charges [37]);
(r)the applicant did not have any assets back in India ([38]);
(s)the applicant did not have any concerns about returning to India and had no concerns about military service commitments or political or civil unrest in India at [39];
(t)the applicant did not have a relationship in Australia ([41]);
(u)the applicant’s contact with his family in India ([42]);
(v)the applicant has substantial ties in Australia ([43]);
(w)the applicant could take appropriate training and relevant courses in India to enable him to commence his own franchise business in India ([45]).
The Tribunal also stated that it had regard to the applicant’s response to the request for information pursuant to s 359(2) of the Migration Act 1958 (Cth) (“the Act”) and the substantial material that he had filed with that response together with the applicant’s evidence and the submission provided by the applicant’s representative ([16]).
Having considered the evidence and the applicant’s submissions, the Tribunal made the following findings:
(a)the gap in studies was inconsistent with the purpose of a student visa and more consistent with an applicant who intends to remain here permanently ([23]);
(b)the applicant’s failure to successfully complete any courses during his stay in Australia is inconsistent with the purpose of a Student visa, but more consistent with an applicant who intends to remain here permanently ([23]);
(c)the expectation that the applicant would conclude the Certificate IV in Commercial Cookery and a Diploma of Hospital Management which is expected to conclude in September 2023 would extend the applicant’s stay in Australia to beyond 5 years and 7 months which is a long period of time to complete 2 vocational education training (VET) courses ([25])
(d)those courses, once completed, would provide the applicant with greater employment prospects back in India but ultimately only have marginal impact on his level of remuneration back home ([27]);
(e)the change of career path from accounting to hospitality through undertaking short VET courses does not reveal any progression in the applicant’s course of study having regard to the fact he has already completed a Bachelor’s Degree back in India and are inconsistent with his level of education and accordingly the change in study plans is not reasonable ([29]);
(f)the value of studying these courses is limited especially having regard to the fact that the applicant has previously been employed at Burrito Bar since 2018 as a cook indicating substantial practical experience which he could take back to India ([30]);
(g)working for a period in excess of 4 years indicates a strong tie to Australia ([30]);
(h)the applicant could undertake studies back in India to obtain the necessary qualifications for opening his own restaurant in India and so he does not have a reasonable motive to undertake these studies in Australia ([31]);
(i)the applicant has a substantial degree of knowledge about the courses and the provider ([32]);
(j)the applicant had earned a high level of income in Australia which would provide him with a substantial financial incentive to remain here ([33]);
(k)the level of income the applicant would earn back in India would be less than that he has currently been earning in Australia which would provide him with a significant financial incentive to remain in Australia ([35]);
(l)his asset position would provide the applicant a strong incentive to remain in Australia rather than return to India ([38]);
(m)military service commitments, political or civil unrest in India do not present as a significant incentive for the application not to return home ([39]);
(n)support from his family would not provide as a significant incentive for the applicant not to return home ([40]);
(o)he is not in a relationship of concern for a successful visa outcome ([41]);
(p)his ties back in India when considered alongside his circumstances in Australia do not provide a strong incentive for him to return home ([42]);
(q)the duration and stability of his arrangements in Australia demonstrate that he has a strong incentive to remain in Australia rather than return home ([43]);
(r)the value of the courses was questionable considering that the applicant could undertake relevant courses in India and considering the applicant’s practical experience in Australia ([45]);
(s)the change in courses appears to have been born out of a need to continue studies here to undertake cheaper courses in order that he may maintain residency here ([45]).
The Tribunal concluded that it was ultimately not satisfied that the applicant intended to genuinely stay in Australia temporarily and that the primary objective of the application was to maintain an ongoing residency in Australia with a view to remaining in Australia permanently ([46] – [47]). The Tribunal accordingly concluded the applicant did not meet
cl 500.212(a) of the Regulations ([47]).
The Tribunal affirmed the delegate’s decision ([48]).
APPLICATION TO THIS COURT
These proceedings were commenced by Application pursuant to s 476(1) of the Act on 20 March 2023.
The grounds of review set out in the Application are (without alteration):
1.The decision of the Tribunal dated 15 February 2023 is to be reviewed by the Federal Circuit and Family Court of Australia.
2.I did have some evidence which wasn’t submitted to the Tribunal member, I have failed to submit, new evidence lit in me where Tribunal decision could affect with jurisdiction error. That I do meet the requirements of cl. 500.212 of the schedule 2 to the Migration Regulations 1994.
3.The fact that the my money laundering case and court order itself is proof enough that I am in trouble in Australia during my studies is meant to be.
4.I was first enrolled for Masters If there is some thought given to the period, the time aligns with the peak pandemic period, and I haven’t mentioned in my AAT response that the College was closed for substantial part but college was collecting the tuition fee.
5.Therefore, the delay in course completion is a given as the situation is not in my control. So, I have felt the tribunal decision is harsh on me.
6.During the time of AAT hearing, I was studying and have paid fees to vocational studies and Paid fee for Master’s program. No consideration was made to this fact and I felt the decision was very biased towards the decision of Home Affairs which itself is a wrong decision.
7.I don’t have anyone in Australia to support me in hard times, I have faced court case and refusal of Student fee. On top, there is COVID pandemic. I had spent parents hard earned money for lawyer fee. I could not focus on my higher education, Thus I took the option to study Vocational studies instead of Masters. I hope Court will consider my situation and kindly remit the tribunal decision for further review.
Despite an order of the Court, the applicant did not file an Amended Application.
The applicant also filed an Affidavit sworn or affirmed (it is not clear which) on 20 March 2023. The Affidavit sets out some background matters and annexes a copy of the Tribunal decision and the delegate’s decision.
The applicant filed a further Affidavit sworn on 26 July 2024 (“the applicant’s second Affidavit”). The applicant’s second Affidavit recites background matters and attaches some documents. It also attaches the applicant’s written submissions.
The applicant appeared before the Court in person unrepresented. The applicant was assisted by an Interpreter in the Telugu and English languages.
The material before the Court included the Application for judicial review, the applicant’s two Affidavits the second of which annexed the applicant’s written submissions, the first respondent’s written submissions and a Court Book.
The applicant did not have with him in Court the application, his Affidavits or the first respondent’s written submissions or the Court Book with which he had been served. Accordingly, the Court ensured that the applicant had a copy of the materials. Before the hearing commenced, the applicant was given time with the Interpreter to review the materials. At the commencement of the hearing, the applicant confirmed to the Court that he understood the first respondent’s written submissions. The Court also ensured that the first applicant had access to a pen and paper.
Before proceeding to hear the applicant’s oral submissions, the first respondent made an application (foreshadowed in the first respondent’s written submissions) to exclude certain of the documents annexed to the applicant’s second Affidavit.
The following documents post-dated the Tribunal’s decision:
(a)an Overseas Student Confirmation of Enrolment issued by the Department of Education on 25 July 2024 for the applicant for an Advanced Diploma of Hospitality management with a course start date of 29 July 2024;
(b)various certificates of achievement, satisfaction and completion issued by Bella College Australia all of which post-date the Tribunal’s decision.
The first respondent submitted in written submissions (FRS [8]) and orally that the documents which post-dated the Tribunal’s decision could not be admitted into evidence. The Court agreed.
They are documents which could not have been before the Tribunal and accordingly can have no bearing on establishing jurisdictional error (BKS15 v Minister for Immigration & Anor [2019] FCCA 359 at [18] per Lucev J citing WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J).
There were other documents annexed to the applicant’s second Affidavit which predated the Tribunal’s decision, but which were not before the Tribunal. These documents were:
(a)Provisional Certificate issued by Osmania University dated 27 December 2016 certifying that the applicant had passed a Bachelor of Commerce in October/November 2006;
(b)The second page of the applicant’s passport;
(c)A letter from the Emergency Department of the Queen Elizabeth II Jubilee Hospital dated 2 May 2020 stating that the applicant had presented with hypertension;
(d)A one-page document headed Bupa Medical Visa Services concerning the applicant’s visa medical examination dated 5 August 2020.
The first respondent objected to the admission of these documents except the second page of the applicant’s passport (the first page having been included in the Court Book) on the basis that the Court should generally resist receiving new evidence in judicial review proceedings (FRS [8] –[10] and BKS15 v Minister for Immigration & Anor [2019] FCCA 359 at [18] per Lucev J citing MZXLDv Minister for Immigration & Citizenship [2007] FCA 1012 at [10] per Gordon J). In oral submissions, the first respondent did not press the objection. The documents are of little probative value.
CONSIDERATION
For the applicant to be successful, he must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; MZPAC v Minister or Immigration and Border Protection (2021) 273 CLR 506 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [13] - [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (“LPDT”)).
As the applicant was unrepresented, the Court explained that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly the Court cannot make a decision on the merits of the applicant’s visa application. It was explained that the Court’s task is instead to determine whether the Tribunal made a legal or procedural error. In the event of such an error, it was explained that the Court would set aside the decision of the Tribunal and send the matter back to the Tribunal for a decision to be made according to law.
The applicant’s application does not particularise how it is said that the Tribunal fell into jurisdictional error. The first respondent submitted that failure to particularise a ground of review can be a sufficient basis for it to be dismissed (FRS [5] referring to WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, [35] per Gilmour J). That may be so, however, as the first respondent correctly identifies, is also the position that the Court should be reluctant to dismiss a ground of review in circumstances where an applicant is self-represented (FRS [6] citing DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, [8]-[10] per Colvin J). The Court has proceeded on that basis.
As the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought was wrong with the Tribunal’s decision or procedure. The applicant told the Court that the Tribunal had failed to grasp his financial circumstances and his health issues. The Court took this as a complaint that the Tribunal had failed to consider these issues and their relevance to his ability to complete his studies and his decision to change his enrolment from a Master of Professional Accounting and Master of Business Administration at the Holmes Institute to a Diploma of Hospitality Management and Certificate IV in Commercial Cookery with the Davies Institute (trading as Bella College).
The Court has considered the application, the applicant’s Affidavits, the applicant’s written submissions (annexed to the applicant’s second Affidavit) and the applicant’s oral submissions and endeavoured to interpret the applicant’s complaints as generously as possible. It appears to the Court that the applicant’s application can be discerned as agitating the following grounds of judicial review:
(a)The applicant has material which was not before the Tribunal but which he considers relevant;
(b)The Tribunal’s decision was affected by bias;
(c)The Tribunal failed to take into account relevant considerations.
The Court was assisted by the written submissions of the first respondent which took the same approach to identifying potential grounds of review and approached identifying the applicant’s grounds of review as set out above (FRS [4]).
Material that was not before the Tribunal
At paragraphs 2 and 4 of the application, the applicant states (without alteration):
2.I did have some evidence which wasn't submitted to the Tribunal member, I have failed to submit , new evidence lit in me where tribunal decision could affect with jurisdiction error. that I do meet the requirements of cl.500.212 of the schedule 2 to the Migration Regulations 1994.
4.I was first enrolled for Masters If there is some thought given to the period, the time aligns with the peak pandemic period, and I haven't mentioned in my AAT response that the Co1lege was closed for substantial part but college was collecting the tuition fee .
It is not clear from these paragraphs what evidence the applicant says he did not put before the Tribunal, and which would have been relevant to its review of the delegate’s decision. in his oral submissions, the applicant did not identify the evidence which he says he did not put before the Tribunal and how that evidence would be relevant to establishing that the Tribunal made a legal or procedural error.
In any event, the Court agrees with the first respondent’s submissions that a failure by an applicant to put evidence to the Tribunal is not a legitimate ground for judicial review (FRS [25]). The applicant cannot complain that he was not given a reasonable opportunity to provide evidence in support of his review application. This is evident from the opportunities given to the applicant prior to and after the hearing, namely:
(a)the applicant was invited pursuant to s 359(2) of the Act to provide information to satisfy the Tribunal that he met the visa requirements including that he was a genuine applicant for entry and stay as a student (CB 183-185);
(b)the applicant was invited to attend a hearing before the Tribunal (CB 319-334);
(c)the applicant was given a further opportunity after the hearing to provide a submission about his course of studies.
The applicant availed himself of those opportunities.
No jurisdictional error is established on this ground.
Decision affected by bias
At paragraph 6 of the application, the applicant states (without alteration)
During the time of AAT hearing, I was studying and have paid fees to vocational studies and Paid fee for Master's program. No consideration was made to this fact and I felt the decision was very biased towards the decision of Home Affairs which itself is a wrong decision.
The applicant did not otherwise articulate in oral submissions how it was that he thought the Tribunal was biased.
The Court agrees with the first respondent’s submission that there is nothing in the Tribunal’s reasoning that would satisfy the test for bias, that is, that a ‘fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (FRS [28] citing QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 at [37] per Kiefel CJ and Gageler J; [67] per Gordon J, [162] per Edelman J, [193] per Steward J, [221] per Gleeson J, [274] per Jagot J).
No jurisdictional error is established on this ground.
Failure to take into account relevant considerations
In paragraphs 9 to 16 of the submissions annexed to applicant’s second Affidavit, the applicant sets out the following matters which he says the Tribunal failed to consider or fully comprehend (in summary):
a. The applicant’s study intentions were sincere, but he was unable to succeed (with his studies) due to the substantial difficulty levels, immense pressure, health issues, and other compelling and exceptional circumstances ([9]);
b. While the applicant was pursuing a Master of Professional Accounting at Griffith University, he began to experience severe health issues specifically elevated blood pressure which necessitated frequent visits to a general practitioner. These health issues made it difficult for him to cope with the academic demands ([10] – [11]);
c. The applicant made a renewed effort to pursue a Master of Professional Accounting at Holmes Institute but was unable to continue because his enrolment was cancelled due to non-commencement of studies as a consequence of his involvement in a charge of money laundering for which he was convicted and given a suspended sentence ([12]);
d. The Tribunal failed to understand that he was blackmailed and coerced into participating in the crime ([13]);
e. The Tribunal erred in understanding and considering the applicant experienced back-to-back failures which led him to downgrade his studies from a Masters degree to vocational education training courses ([14] - [15]).
Relatedly, in paragraph 7 of the Application the applicant states (without alteration):
I don't have any one in Australia to support me in hard times, I have faced court case and refusal of Student fee. On top, there is COVID pandemic. I had spent parents hard-earned money for lawyer fee. I could not focus on my higher education, Thus I took the option to study Vocational studies instead of Masters. I hope Court will consider my situation and kindly remit the tribunal decision for further review.
Further, as noted, the Applicant in oral submissions said that the Tribunal did not grasp his financial circumstances and health issues.
The Tribunal’s decision demonstrates it understood the relevant task before it. It considered all the evidence and submissions made by the applicant in support of his claims. All the matters considered by the Tribunal were relevant to the task before it. The Tribunal did not fail to consider the applicant’s financial circumstances or health issues and there is, otherwise, no evidence that the Tribunal failed to consider relevant material. The Tribunal’s findings were based on rational reasons arrived at on a consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [5] per McKerracher, Griffiths and Rangiah JJ). The Court agrees with the first respondent’s submission that the Tribunal arrived at its conclusion by reference to the totality of the evidence before it and by a logical pathway (FRS [35]). The Tribunal made an evaluative judgment that was logical and rational and clearly open to it on all the material before it including the applicant’s own evidence. It cannot be said the no other rational or logical decision maker could have made the same decision (Minister for Immigration v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ).
No jurisdictional error arises.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 18 September 2024
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