Tham v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 261
•3 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tham v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 261
File number(s): SYG 390 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 3 February 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – whether applicant satisfied genuine temporary entrant criterion in cl 500.212 of Schedule 2 – no jurisdictional error established – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) s 65, s 348, s 476, s 501CA(4)
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 508
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89; 291 FCR 568
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398
Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601
Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 3 December 2024 Place: Parramatta Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Ray Turner Immigration Lawyers Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 390 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TIAN SIN THAM
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
3 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $8,371.30.
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 ZIPSER
INTRODUCTION
On 12 March 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 February 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In April 2016, the applicant, a citizen of Malaysia, first arrived in Australia as the holder of a visitor visa. She was subsequently granted a student visa which remained valid until March 2019.
On 8 March 2019, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa for the purpose of studying a Diploma of Leadership and Management (Diploma), a course that commenced on 11 February 2019 and ended in August 2020.
On 28 May 2019, a delegate of the first respondent refused to grant the visa. The delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily, as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2).
On 11 June 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 30 April 2020, the Tribunal invited the applicant to provide further information by completing a form titled ‘Request for Student Visa Information’. Shortly afterwards, the applicant provided a completed copy of the form to the Tribunal. In that form, the applicant indicated she was still completing the Diploma, but had also enrolled in a Certificate III in Patisserie (Patisserie Course), which was to commence in October 2020 and finish in September 2021.
On 14 October 2020, the Tribunal invited the applicant to attend a hearing before it by telephone on 29 October 2020.
On 20 October 2020, the applicant provided further material to the Tribunal, including a completion certificate for the Diploma, a Confirmation of Enrolment (COE) for the Patisserie Course, a statement of the applicant dated 20 October 2020, and a submission by the applicant’s representative which addressed the genuine temporary entrant criterion in cl 500.212 of Schedule 2.
On 29 October 2020, the applicant attended a hearing by telephone before the Tribunal.
On 17 February 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant the visa.
TRIBUNAL’S DECISION
The Tribunal identified that the issue before it was whether the applicant satisfied the criterion in cl 500.212(a) of Schedule 2 which required a decision-maker to be satisfied that the “applicant intends genuinely to stay in Australia temporarily”. The Tribunal had regard to Direction No. 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (Direction 69) in considering this criterion.
With reference to paragraph 9(a) of Direction 69, the Tribunal was not satisfied that the applicant had sound reasons for not undertaking the Patisserie Course when there were similar courses available in Malaysia.
With reference to paragraph 9(b) of Direction 69, the Tribunal found that the applicant’s personal ties to Malaysia would not be a significant incentive to return to Malaysia.
With reference to paragraph 9(c) of Direction 69, the Tribunal found that the applicant’s economic circumstances would be a significant inventive to not return to Malaysia.
With reference to paragraph 12 of Direction 69, the Tribunal made a number of findings to the effect that the Patisserie Course was of little value to the applicant.
With reference to paragraph 11(a) of Direction 69, the Tribunal found that the applicant had little ties to Australia that would represent an incentive to remain in Australia.
With reference to paragraphs 11(b) and (c) of Direction 69, the Tribunal found that the applicant was using the student visa to maintain ongoing residence in Australia and she was attempting to circumvent the intentions of the migration program.
With reference to paragraphs 13 and 14 of Direction 69, the Tribunal considered that the applicant’s immigration history suggested she was using the student visa to maintain ongoing residency in Australia.
On the basis of the above, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and therefore did not meet cl 500.212(a) of Schedule 2. Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as required by cl 500.212 of Schedule 2 and affirmed the decision under review.
PROCEEDINGS IN THIS COURT
Judicial review application and amended application
On 12 March 2021, the applicant lodged in this Court an application for judicial review of the Tribunal’s decision.
Following a period of inactivity, on 9 August 2024, a registrar of the Court made orders for the applicant to file and serve further materials by 19 August 2024. On 20 August 2024, the applicant filed an amended application which advanced the following grounds (as written):
1.The Tribunal failed to give proper, genuine and realistic consideration to the Applicant’s arguments, failed to reason in a legally reasonable, rational and logical way, and based its conclusions on unwarranted assumptions in the absence of evidence. This constituted jurisdictional error.
Particulars
a) The Tribunal concluded at Decision, [16] that the applicant did not have sounds reasons for not undertaking the proposed course in her home country. This was based on the Tribunal’s rejection of the applicant’s contention that she wanted to study in Australia (and not Malaysia) because she wanted to obtain a wider network, improve her English and communication skills, gain more independence, and broaden her horizon before she was required (as she saw it) to become a wife and mother. The Tribunal’s approach was legally unreasonable, irrational and based on unwarranted assumptions.
b) The Tribunal reasoned at Decision, [17] that because the applicant had been able to maintain her relationship with her family in Malaysia during her time in Australia this meant that her “personal ties [to her family] would not be a significant incentive to return to Malaysia”. This reasoning was legally unreasonable and irrational.
c) The applicant contended that she wanted to undertake her course – a Certificate III in Patisserie because she did not think she could open a café without it in circumstances where she “wants to do something unique with [the café]”: Decision, [21]. In rejecting this evidence, the Tribunal fundamentally misunderstood the applicant’s case.
d) The Tribunal rejected the applicant’s case at Decision, [23] on the basis that “[t]here is a lot more to running a café than making cakes and pastries”. However, at no point had the applicant denied this. Indeed, the applicant had – and relied on – a Certificate III in Business and a Diploma of Leadership and Management (see Decision, [11]). The learning acquired during these courses would obviously be applicable to running a café. The applicant had never contended that all she needed for running a café was a Certificate III in Patisserie. The Tribunal’s approach was legally unreasonable, irrational and demonstrates a misunderstanding of the applicant’s case.
e) At Decision, [28] the Tribunal rejected the applicant’s contention that, as she saw it, there were limited opportunities for foreigners with limited to connections to set up and run a café. The Tribunal contended that “[t]he Australian hospitality industry is littered with examples of migrants with little to no qualifications or connections starting their own restaurants and cafes”. This was an unwarranted assumption not based on any evidence.
Applicant’s submissions
On 20 August 2024, the applicant filed a written submission (AS). At the hearing in this Court on 3 December 2024, Oliver R Jones of counsel appeared for the applicant and made oral submissions. The submissions are summarised below.
First respondent’s submissions
On 11 September 2024, the first respondent filed a written submission (RS). At the hearing on 3 December 2024, Greg Johnson of counsel appeared for the first respondent and made oral submissions. The first respondent’s submissions, where relevant, are referred to below.
CONSIDERATION
Each particular in ground 1 of the amended application raises discrete issues. It appears appropriate to consider each particular separately, and then consider ground 1 as a whole.
Particular (a)
Paragraph 9(a) of Direction 69 stated that decision-makers should have regard to “whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there”. The applicant acknowledged to the Tribunal that there were similar courses to the Patisserie Course in her home country. She provided reasons for why she wanted to undertake the course in Australia rather than her home country. With reference to paragraph 9(a), the Tribunal, after summarising the applicant’s reasons at [13]-[14], stated at [15]-[16]:
[15] The Tribunal understands the applicant’s evidence to be that whilst there are similar courses she could be studying in her home country, she wants to study overseas to learn to become more independent before she has a family of her own. She also thinks the courses taught in Malaysia are too theoretical and not practical enough and that she will be able to improve her English skills in Australia.
[16] The applicant has already had the opportunity to live, study and improve her English skills whilst residing in Australia for a number of years prior to making this application for a second student visa. She has already been able to learn about independence and the importance of her family after being away from them for years. She has already experienced a “broadening of her horizons” after living in Australia for the last four and a half years. A generalised statement that patisserie courses in Malaysia are more theoretical than practical is a very vague and generalised statement about all the education providers that might provide such a course and the applicant did not go into specifics about this. Taking these matters into account, the Tribunal is not satisfied that the applicant has sound reasons for not undertaking the proposed course when there are similar courses available in her home country.
The applicant contends that the Tribunal’s reasoning at [16] is legally unreasonable, irrational and based on unwarranted assumptions. The nub of the applicant’s argument in her written submission is: (see AS [12])
“It does not logically follow from the fact that a young person has been overseas for four and a half years that the person has now completed her learning about independence, obtained perfect English, and finished the process (presumably for life) of “broadening her horizons”. Moreover, the Tribunal’s approach is based on an unwarranted assumption, unsupported by the evidence, about the independence, life experiences and language skills sought by a young Malaysian woman when travelling, of which the Tribunal knew nothing.
In considering whether a reasoning process is irrational or legally unreasonable, in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [135] Crennan and Bell JJ stated:
…A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
In Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 (Singh) at [61] the Full Court stated (citations omitted):
The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power. Such a conclusion might be drawn, for example, if it:
1. is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational;
2. “lacks an evident and intelligible justification”;
3. is plainly unjust, arbitrary, capricious or lacking in common-sense.
Whether or not an applicant has sound or reasonable reasons for not undertaking a course of study in their home country is a question of fact for the Tribunal. The first respondent contends at RS [22] and [24] that the Tribunal simply did not accept and was not satisfied that the reasons advanced by the applicant, as to why she did not undertake the course in Malaysia, were sound, and “there is nothing illogical or irrational in the Tribunal not being satisfied of the applicant’s claims”. The Court agrees. It was open to the Tribunal to not be satisfied that the applicant’s reasons were sound. The Tribunal at [16] provided reasons in support of its finding that it was not satisfied that the applicant’s reasons were sound. Those reasons provided “an evident and intelligible justification” (Singh at [61]) for its finding.
In relation to that part of the applicant’s contentions concerning “unwarranted assumptions”, in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [7]-[8] Perram J, after stating that “there is no freestanding ground of unwarranted assumptions [and] the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds”, continued (citations omitted):
[8] Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis … In this case, therefore, this means that the question for decision is whether the Tribunal’s impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.
The first respondent contends at RS [24] that the Tribunal’s reasoning process did not involve any form of “assumption” about anything. The Court agrees. That the Tribunal was not persuaded that the applicant had sound reasons for not undertaking the course of study in Malaysia did not involve an assumption about the applicant. Alternatively, to the extent that the Tribunal’s reasoning process involved an assumption, the Tribunal’s reasons at [16] contains “an evident and intelligible basis” (BOH17 at [8]) for the finding of non-satisfaction in the last sentence of [16].
Particular (a) does not identify a jurisdictional error in the Tribunal’s decision.
Particular (b)
Paragraph 9(b) of Direction 69 stated that decision-makers should have regard to “the extent of the applicant’s personal ties to their home country … and whether those circumstances would serve as a significant incentive to return to their home country”. With reference to paragraph 9(b), the Tribunal found at [17]:
The applicant’s parents and brother all reside in Malaysia and she said she often messages them and calls them at least twice a week. After her initial visitor visa, she returned to Malaysia for one month. Since then, she returned in March 2018 for 10 days and again in December 2019 for 8 days to visit family. The Tribunal accepts that the applicant has personal ties to her home country because of her family living there. However, the Tribunal considers that the applicant has been able to maintain her relationship with family members whilst living in Australia for the last four and a half years, having only returned to Malaysia during that time for less than two months, and such these personal ties would not be a significant incentive to return to Malaysia.
The applicant contends that the Tribunal’s reasoning at [17] is legally unreasonable and irrational. The nub of the applicant’s argument in her written submission is: (see AS [13])
“The fact that a person has been overseas for a period of time, and communicated with their family while doing so, does not mean they have no incentive to return to live in their home country to be with their family in the future. Not only is the Tribunal’s approach illogical, but it denies the realities of ordinary human experience.
Whether or not an applicant’s personal ties to their home country would serve as a significant incentive to return to their home country is a question of fact for the Tribunal. The first respondent contends in RS [26] that, on account of the matters set out by the Tribunal at [17], it was open to the Tribunal to not accept that the applicant’s personal ties were a “significant” incentive (in comparison to an incentive which was less than “significant”) to return to Malaysia permanently, and this is a conclusion that a reasonable and rational Tribunal could have reached on the available materials. The Court agrees. It was open to the Tribunal to find that the applicant’s personal ties to Malaysia would not serve as a “significant” incentive for her to return to Malaysia. The Tribunal at [17] provided reasons in support of its finding in the last sentence of [17] that the applicant’s personal ties to Malaysia “would not be a significant incentive to return to Malaysia”. These reasons provided “an evident and intelligible justification” (Singh at [61]) for this finding.
The Court does not dispute the proposition at AS [13] that “the fact that a person has been overseas for a period of time … does not mean that they have no incentive to return to live in their home country to be with their family in the future”. But the Tribunal did not make a finding contrary to this proposition.
Mr Jones added in oral submissions that the Tribunal did not properly take into account a submission by the applicant at CB 102 that “it is impossible for me to stay abroad for too long”. The Court does not accept that the Tribunal overlooked this submission, or failed to give genuine consideration to the submission in a manner which would involve jurisdictional error. That the Tribunal did not expressly refer to the submission in its decision, or accept the decision, does not mean that the Tribunal failed to consider the submission.
Particular (b) does not identify a jurisdictional error in the Tribunal’s decision.
Particulars (c) and (d)
Paragraph 12 of Direction 69 stated that decision-makers should have regard to “the value of the course to the applicant’s future”, including “whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country” and “relevance of the course to the student’s past or proposed future employment either in their home country or a third country”.
The Tribunal considered this factor at [20]-[25]. The Tribunal at [20] made a finding that it was “not convinced that the proposed course is consistent with [the applicant’s] current level of education”. The Tribunal at [21] recorded the following evidence from the applicant:
She told the Tribunal at the hearing that she wants to start her own café and that the proposed course will help her with this because she will then have the “necessary skills to create products”. She said that the café will be open from 11.00 am to 8:00 pm, she will have staff and her own role will be to make the patisseries, serve customers and make coffee. She said that she does not think she will be able to open the café if she does not complete the Certificate III because she wants to be able to do something unique with it. She said that she would be making the cakes/pastries every day and gave the example of a strawberry and watermelon cake and an “egg yolk” cheesecake. She said she was thinking about “east/west” products.
The Tribunal at [22] recorded additional evidence from the applicant concerning her interest in the Patisserie Course and in opening a café. The Tribunal then stated at [23]:
The Tribunal does not accept the applicant’s evidence that she would not be able to open a café without this course. Thousands of cafes are operated around Australia and vast majority would have little to no experience in patisserie. Furthermore, it does not appear that the applicant has ever even worked in a café. It appears the extent of her food and beverage experience is limited to her work the Plaza Premium Lounge, which is a bar located at the Sydney International Airport. If the applicant was as interested in learning about the Australian café then it would be a logical step to work for one to gain first-hand experience rather than simply visiting them as a customer. The Tribunal does not accept that a Certificate III in Patisserie is going to be of great assistance to the applicant in opening and running her own café. There is a lot more to running a café than making cakes and pastries.
In considering the value of the course to the applicant, the Tribunal made additional findings at [24] that the Tribunal “is not convinced that the proposed course will assist the applicant in her plans for employment in her home country” and the Tribunal “is not satisfied that the proposed course will have much bearing on the applicant’s remuneration in her home country or a third country”.
The applicant’s complaint in particular (c) focuses on the finding by the Tribunal in the first sentence of [23] that “the Tribunal does not accept the applicant’s evidence that she would not be able to open a café without this course”, and the reasons provided by the Tribunal in the remaining sentences of [23]. The nub of the applicant’s argument in her written submission is: (AS [16])
In approaching the matter in this way, the Tribunal fundamentally misunderstood the applicant’s case and thus failed adequately to consider her submissions and evidence. The applicant’s case was not that it was objectively impossible for people to operate cafes without training in patisserie, considered in the abstract. Such a submission would have been absurd. Rather, the applicant’s case was that her own desire to start a café was premised on her having these skills, because she wanted to do “something unique” with what the café was. The Tribunal’s did not grapple with the applicant’s case in this regard in any adequate way.
The Court does not accept that the Tribunal misunderstood the applicant’s case, or failed adequately to consider her submissions and evidence, in a manner which involved jurisdictional error. The applicant provided evidence and made submissions to address the factor in paragraph 12 of Direction 69 concerning “the value of the [Patisserie Course] to the applicant’s future”. One submission of the applicant recorded by the Tribunal at [21] was that “she does not think she will be able to open the café if she does not complete the Certificate III because she wants to be able to do something unique with it”, including making “east/west products”. The Tribunal, after considering this submission, rejected the submission by finding in the first sentence of [23] that “the Tribunal does not accept the applicant’s evidence that she would not be able to open a café without this course”. The Tribunal gave reasons for that finding in the balance of [23].
It is clear from the Tribunal’s reasons at [21]-[23] that the Tribunal, in the context of considering paragraph 12 of Direction 69 concerning the value of the Patisserie Course to the applicant’s future, considered, understood and did not accept a submission made by the applicant, recorded by the Tribunal at [21], that “she does not think she will be able to open the café if she does not complete the Certificate III”.
Particular (c) does not identify a jurisdictional error in the Tribunal’s decision.
Ground (d) seeks to challenge another aspect of the Tribunal’s reasoning process at [23]. It is stated in AS [17]:
Fourth, the Tribunal rejected the applicant’s case at Decision, [23] on the (somewhat disparaging) basis that “[t]here is a lot more to running a café than making cakes and pastries”. However, at no point had the applicant denied this. Indeed, the applicant had – and relied on – a Certificate III in Business and a Diploma of Leadership and Management (see Decision, [11]). The learning acquired during these courses would obviously be applicable to running a café. The applicant had never contended that all she needed for running a café was a Certificate III in Patisserie. The Tribunal’s approach was legally unreasonable, irrational, and evinces a misunderstanding of the applicant’s submission.
This submission does not clearly articulate the alleged jurisdictional error in the Tribunal’s reasoning process at [23]. The Court does not accept that the Tribunal’s reasons at [23] were legally unreasonable, irrational, or indicate a misunderstanding of the applicant’s submissions.
Particular (d) does not identify a jurisdictional error in the Tribunal’s decision.
Particular (e)
Particular (e) seeks to impugn a finding by the Tribunal at [28]. It is appropriate to consider the surrounding structure of the Tribunal’s decision. Specifically:
(a)The Tribunal at [16]-[19] considered the factors in paragraphs 9(a) to (d) of Direction 69.
(b)The Tribunal at [20]-[25] considered the factor in paragraph 12 of Direction 69, being the value of the Patisserie Course to the applicant’s future. As indicated in paragraphs 40 - 43 above, the Tribunal made a number of findings concerning the lack of value that the Patisserie Course had to the applicant’s future.
(c)The Tribunal at [26] considered the factor in paragraph 11(a) of Direction 69, being “the applicant’s ties with Australia which would present as a strong incentive to remain in Australia”. The Tribunal found that “it would appear she has little ties to Australia that would represent an incentive to remain here”. This finding was somewhat favourable to the applicant.
(d)The Tribunal at [27] addressed a matter which concerned the Tribunal, being the applicant’s sudden interest in studying patisserie in a context where she stated in her visa application in support of studying the Diploma that her dream was “working in management level in a large company in my country”. The Tribunal found that “the applicant’s interest in studying patisserie seems to have come on suddenly and from “left field” and “it seems extraordinary that having completed the [Diploma] that would bring her one step closer to her dreams of working in management in a large company after years and years of studying business, that this dream suddenly disappeared and instead she would want to study pastry and run a café”. The applicant did not challenge this finding in this Court.
(e)The Tribunal at [28] responded to a submission from the applicant concerning whether or not the applicant would be able to set up and run a business in Australia. The Tribunal made a finding that it did not accept the applicant’s assertion that it would be hard for her to set up and run a business in Australia. As explained below, this matter addresses a factor in paragraph 9(c) of Direction 69.
(f)The Tribunal at [29] found, with reference to the factors in paragraphs 11(b) and (c) of Direction 69:
Taking these matters into consideration, the Tribunal considers that there is a strong indication based on the lack of value that the proposed course has to her future and her unsatisfactory explanation for the change in her career plans, that the applicant is using the student visa to maintain ongoing residence in Australia, and that in doing so, she is attempting to circumvent the intentions of the migration program.
The Tribunal stated at [28]:
Another aspect that troubles the Tribunal is the applicant’s claim that there are limited opportunities for foreigners with limited connections here in Australia and that because of this, it would be hard for her to set up and run a business here. The Tribunal does not accept this assertion. The Australian hospitality is littered with examples of migrants with little to no qualifications or connections starting their own restaurants and cafes.
The applicant complains in particular (e) that the Tribunal’s statement that “the Australian hospitality [industry] is littered with examples of migrants with little to no qualifications or connections starting their own restaurants and cafes” (Unqualified Migrants Finding) was an unwarranted assumption not based on any evidence, and that this is a jurisdictional error. The applicant does not contend that the Unqualified Migrants Finding was wrong or incorrect, but only that it was a jurisdictional error for the Tribunal to make the finding without obtaining or identifying evidence in support of the finding.
The “applicant’s claim” referred to by the Tribunal in the first sentence of [28] initially appears, in partial form, in a written submission provided to the Tribunal on 20 October 2020 where the applicant stated that “to open a business in Australia is quite challenging and … the opportunities are quite limited and thinking that I have more connections in Malaysia”: see CB 100.7. This submission appears to have been made by the applicant to the Tribunal to address the factors in:
(a)paragraph 9(c) of Direction 69 which states that decision-makers should have regard to “economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country”; and
(b)paragraph 11(a) of Direction 69 which states that decision-makers should have regard to “the applicant’s ties with Australia which would present as a strong incentive to remain in Australia”.
It appears from the Tribunal’s decision at [18] that there was a discussion about this claim at the hearing on 29 October 2020. The Tribunal, in the context of considering at [18] the factor in paragraph 9(c) of Direction 69, recorded the applicant’s claim that “it will be much easier for her to open a café in Malaysia than in Australia”, although ultimately found that “the applicant’s economic circumstances would be a significant incentive not to return to Malaysia”.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89; 291 FCR 568 (Mukiza) the Full Court of the Federal Court considered the circumstances in which the Tribunal could make a finding concerning a matter without express evidence in support of the finding before the Tribunal. The Federal Court carefully considered the High Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398. In that case, the High Court stated at [18] that there was “nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is ‘another reason’ for revocation”. In Mukiza at [49] the Federal Court found that the Tribunal, like the Minister acting personally, and the Minister’s delegate, “may act on its personal or specialised knowledge and on matters which are commonly known”. While this finding concerned the Tribunal’s task during a review of a decision under s 501CA(4), no provision of the Act suggests that the Tribunal may not also use personal or specialised knowledge, or commonly accepted knowledge, for the purpose of making findings during a review under s 348 of the Act. The applicant, in written and oral submissions to this Court, did not contend otherwise. Also, this conclusion is consistent with propositions in Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 at [7], [112] and [300] and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 508 at [180].
For the following reasons, the Unqualified Migrants Finding did not involve a jurisdictional error:
(a)First, the phrase “littered with examples” is an idiomatic expression. The literal meaning of the Unqualified Migrants Finding is to the effect that the Australian hospitality industry contains many examples of migrants with little to no qualifications or connections starting their own restaurants and cafes.
(b)Second, the context in which the Tribunal made the Unqualified Migrants Finding was in considering whether or not to accept a claim by the applicant, recorded by the Tribunal in the first sentence of [28], “that there are limited opportunities for foreigners with limited connections … in Australia and … because of this it would be hard for her to set up and run a business” in Australia.
(c)Third, the Unqualified Migrants Finding was a “generalised conclusion” rather than “specific to the circumstances of the applicant”, as was the finding the subject of consideration in Mukiza: see Mukiza at [39]. Similarly, the Unqualified Migrants Finding was expressed at a high level of generality: see Mukiza at [39].
(d)Fourth, the applicant neither contended to the Court that the Unqualified Migrants Finding was incorrect, nor pointed to evidence which suggested or indicated that the finding was incorrect.
(e)Fifth, paragraph 9(c) of Direction 69 states that decision-makers should have regard to the “economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country”. Whether or not student visa applicants might want to start their own businesses in Australia is a matter decision-makers, in addressing paragraph 9(c), are likely to often have to consider. Decision-makers will develop or accumulate personal or specialised knowledge over time relating to this factor.
(f)Sixth, the Tribunal stated at [23] that “thousands of cafes are operated around Australia and vast majority would have little to no experience in patisserie”. The applicant did not complain about this finding in this proceeding. This finding indicates that the Tribunal member has some personal or specialised knowledge about café businesses in Australia.
(g)Taking into account the matters in sub-paragraphs (a) to (f) above, the Court considers that, as in Mukiza at [40] and [44] “it can be assumed that the [Unqualified Migrants Finding] proceeded from the Tribunal’s personal or specialised knowledge” and “the proper inference … is that the Tribunal acted on its personal or specialised knowledge”.
Particular (e) does not identify a jurisdictional error in the Tribunal’s decision.
Ground 1 as a whole
The applicant did not expressly contend that, even if none of particulars (a) to (e) individually involve jurisdictional error, the combination of particulars involve jurisdictional error. In any event, the Court is not persuaded that the combination of particulars involve jurisdictional error.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. The first respondent sought costs in the scale amount of $8,371.30. The applicant did not oppose this amount. The Court will make this order.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 3 February 2025
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