Unees v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 845
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Unees v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 845
File number(s): SYG 2425 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 18 September 2024 Catchwords: MIGRATION – Judicial Review – student visa – Direction No. 69 – whether applicant was a genuine temporary entrant – failure to respond to s 359(2) invitation within prescribed time limit due to agent error – infelicities of expression by Tribunal – jurisdictional error not established – application dismissed Legislation: Migration Act 1958 (Cth) ss 359, 359C, 360, 363A, 474, 476
Migration Regulations 1994 (Cth) cl 500.212 in Part 500 of Schedule 2
Cases cited: Hasran v MIAC [2010] FCAFC 40
M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333; [2006] FCA 1247; 91 ALD 629
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration and Citizenship v SZMDS (2020) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510; HCA 35
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 9 September 2024 Place: Sydney The Applicants: First Applicant on behalf of all Applicants Solicitor for the Respondents: Ms S. Russo of HWL Ebsworth Lawyers ORDERS
SYG 2425 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROMA UNEES
First Applicant
MUHAMMAD UNEES KHAN
Second Applicant
MUHAMMAD EBRAHIM KHAN
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application be dismissed.
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 PAPADOPOULOS
INTRODUCTION
The first applicant (applicant) and the second applicant, wife and husband respectively, are citizens of Pakistan who first arrived in Australia on 20 August 2016. The third applicant is their son, a citizen of Pakistan, who was born in Australia on 26 February 2017.
On 3 April 2019, the applicants lodged an application with the Department of Home Affairs (Department) for the grant of a Subclass 500 Student (Temporary) (Class TU) visa (visa).
On 1 August 2019, a delegate of the first respondent (delegate) refused the application on the basis that the criteria for the grant of the visa had not been met because the applicant did not genuinely intend to stay in Australia temporarily.
On 14 August 2019, the applicants sought review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal). On 24 September 2020, the Tribunal affirmed the delegate’s decision.
The applicants have applied to this Court for judicial review of the Tribunal’s decision pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act).
BACKGROUND AND RELEVANT FACTS
The applicant first entered Australia on 20 August 2016 as holder of a Subclass 573 Higher Education Sector (Class TU) visa (first visa). Her first visa ceased on 18 January 2017.[1]
[1] Court Book (CB) 134 [18].
Between 9 October 2017 and 3 April 2019, the applicant held a Subclass 500 Student (Temporary) (Class TU) visa (second visa).
As stated at [2] – [5] above, on 3 April 2019, the applicant applied for the visa, in which the second and third applicants were included as members of her family unit.[2] It was the delegate’s refusal of this visa application, and subsequent decision of the Tribunal affirming that delegate’s decision, which gave rise to the proceedings before this Court.
[2] CB 134 [18].
The visa application
The applicant stated that she applied for the visa to study a Bachelor of Business to update her management skills. In a document entitled ‘Statement of Purpose’,[3] which was attached to the visa application, the applicant stated that she previously studied childcare and was working part-time as a childcare worker. She further stated she wanted to open a childcare centre in Pakistan in the future, and that a Bachelor of Business would equip her with the tools required to run a successful business.
[3] CB 31 to 32.
On 11 June 2019, the Department sent a letter to the applicant requesting more information to help assess her application.[4] On the same date, the Department sent a separate letter inviting comment upon adverse information including the applicant’s Provider Registration and International Student System (PRISMS) record which revealed that her enrolment in a Bachelor of Business relating to her first visa was cancelled after she failed to meet English entry requirements.[5] Other adverse information included, that following the cancellation of the applicant’s enrolment in the Bachelor of Business, she had been enrolled in five other different courses. The applicant’s PRISMS record revealed several enrolment cancellations indicating lack of course progression, along with significant gaps in courses of study between 27 May 2015 and 9 October 2017.[6]
[4] CB 33 to 51.
[5] CB 53.
[6] CB 54.
On 1 August 2019, the delegate refused to grant the visa on the basis that the applicant did not meet the genuine temporary entrant criteria of cl 500.212 in Part 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily. [7]
[7] CB 80 to 93.
The review application
On 14 August 2019, the applicants lodged an application for review of the delegate’s decision with the Tribunal.[8]
[8] CB 94 to 96.
On 21 May 2020, the Tribunal sent an ‘Invitation to Provide Information’ letter to the applicants pursuant to s 359(2) of the Act (s 359(2) invitation). The requirements for the applicant to be ‘enrolled in a registered course of study’ and be a ‘genuine applicant for entry and stay as a student’ were specified within the s 359(2) invitation.[9] The applicant was invited to provide information, in writing, to satisfy the Tribunal that she met both of these requirements by way of completing and returning a form entitled ‘Request for Student Visa Information’. Attached to the s 359(2) invitation was a copy of ‘Ministerial Direction No. 69 ‑ Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction No. 69). Further, the s 359(2) invitation relevantly read (emphasis in original):
[9] CB 107 to 108.
The written information requested in the Request for Student Visa Information form should be received by 4 June 2020.
…
If you cannot provide the information by 4 June 2020, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 4 June 2020 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.[10]
[10] CB 108.
The applicants did not request an extension of time to respond to the s 359(2) invitation and the response provided on 6 June 2020 was outside the prescribed period.[11]
[11] CB 114.
By way of response to the s 359(2) invitation, on 6 June 2020, the applicants provided the Tribunal with:
(a)a completed but undated ‘Request for Student Visa Information’ form, in which the applicant inter alia reiterated her claims to the delegate set out above at [9]; and
(b)an ‘Overseas Student Confirmation of Enrolment’, which indicated that the applicant was enrolled in a Bachelor of Business at the Universal Business School Sydney from 13 May 2019 until 22 April 2022.[12]
[12] CB 115 to 127.
On 24 September 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants’ visas, and on 25 September 2020 the Tribunal notified the applicants of its decision.[13]
[13] CB 128 to 137.
THE TRIBUNAL’S DECISION
In relation to its determination to proceed to a decision without a hearing, the Tribunal found that the applicants had been sent a s 359(2) invitation but had failed to respond to that invitation within the prescribed period.[14] In those circumstances, the Tribunal found that s 359C of the Act applied, and pursuant to s 360(3) of the Act, the applicants were thereby not entitled to appear before it.[15] The Tribunal also noted that the effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear, citing Hasran v MIAC [2010] FCAFC 40. On this basis, the Tribunal decided to proceed to consider the evidence before it and make a decision without taking further steps to obtain information.[16]
[14] CB 132 [5] to [6].
[15] CB 132 [6].
[16] CB 132 [6].
In relation to its consideration of the claims and evidence before it to determine whether the applicant met cl 500.212(a), the Tribunal considered:
(a)the applicant’s immigration history, including her visa and travel history, and ultimately placed ‘neutral weight on the applicant’s travel movements’ and specified that it did not make any adverse findings in relation to any of the factors specified in clause 14 of Direction No. 69.
(b)the applicant’s circumstances in their home country, whereby it:
(i)noted the applicant’s evidence that business courses were available in Pakistan that were more theoretically orientated whereas the Australian courses have a strong practical approach.[17] The Tribunal accepted that a Bachelor of Business, or similar courses, were available in Pakistan but found for the purposes of its consideration of the factor specified in clause 9a. of Direction No. 69 that it ‘is not satisfied that the applicant has not provided reasonable reasons for not undertaking the courses in her home country or region’.[18]
[17] CB 134 [21].
[18] CB 134 [21].
(ii)noted the applicant’s personal ties back home in Pakistan were her parents and brother whom she contacted ‘daily through call & text’. The Tribunal also noted that the applicant’s husband and son were with her in Australia. In these circumstances, for the purpose of its consideration of the factor specified in clause 9b. of Direction No. 69, the Tribunal did not consider that the applicant's personal ties in Pakistan would serve as a significant incentive to return to her home country.[19]
[19] CB 134 to 135 [22].
(iii)noted the applicant’s economic circumstances in Pakistan which consisted of a house in Karachi valued at approximately AUD80,000. In her response to the Tribunal’s s 359(2) invitation, the applicant stated she was employed as a childcare worker in Australia since November 2018, and was paid an annual salary of AUD24,000. The applicant’s annual living expenses were AUD2,200 per month. The Tribunal observed that as the applicant had been able to support herself, her husband and her son during her time in Australia, for the purpose of its consideration of the factor specified in clause 9c. of Direction No. 69, it found that the economic circumstances within Australia for the applicant would present a strong incentive for her not to return to Pakistan.[20]
[20] CB 135 [23].
(iv)observed that there was no evidence before the Tribunal in relation to the applicant’s military service commitments, the political and security situation in Pakistan or the applicant’s circumstances in Pakistan relative to the circumstances of others in that country, thereby leading to conclude that it made no adverse findings for the purpose of its consideration against the factors specified in clauses 9d., 9e. and 10 of Direction No. 69.[21]
[21] CB 135 [24] to [25].
(c)the applicant’s potential circumstances in Australia, whereby:
(i)for the purpose of its consideration of the factor specified in clause 11a. of Direction No. 69, it considered the location of the applicant’s family members in Australia and Pakistan and found that the applicant has significant family ties within Australia, primarily her husband and her son, which presented a strong incentive for her to remain in Australia.[22]
[22] CB 135 [26].
(ii)for the purpose of its consideration of the factors specified in clauses 11b. and 11c. of Direction No. 69, it considered the applicant’s academic history but observed an absence of evidence relating to her academic performance, course progression, course fee payments and demonstrated insight and knowledge into the subject matter of her Bachelor of Business course other than indicating that she planned to open an early childhood centre in the future. On the basis of the limited information before it, the Tribunal formed the view that the student visa program was ‘being used to circumvent the intentions of the migration program and to maintain ongoing residence.’[23]
(d)the value of the course to the applicant’s future, whereby for the purpose of its consideration of the factors specified in clause 12 of Direction No. 69, it:
(i)did not accept that the Bachelor of Business course was relevant to the applicant’s future given she had ‘been working as a casual early childhood teacher / assistant since November 2018.’[24]
(ii)observed that, prior to coming to Australia, the applicant had completed part 1 of a Bachelor of Commerce in 2013 and had commenced but did not complete part 2 of the same course in 2014. The Tribunal was of the view that the applicant had acquired the relevant skills to return to Pakistan and start her early childhood business given that she had acquired a Diploma of Early Childhood and completed a portion of a Bachelor of Commerce before coming to Australia.[25]
(iii)found that the applicant’s future plans did not lie outside Australia given the vague and speculative answers that had been provided about such plans, along with the absence of detailed information and evidence such as business plan details and business revenue research, to demonstrate her genuine commitment towards commencing her own early childhood education business in Pakistan.[26]
(iv)found that the applicant only enrolled in the Bachelor of Business course to delay her departure from Australia, and that she was only remaining enrolled in courses of study to meet the requirements of being granted further student visas so that she could ‘maintain ongoing residence in Australia for herself and her husband and son.’[27]
(e)any other relevant matter, and specified that it did not make any adverse findings in relation to the factors specified in clause 15 of Direction No. 69.
[23] CB 135 to 136 [27].
[24] CB 136 [28].
[25] CB 136 [28].
[26] CB 136 [28].
[27] CB 137 [31].
On the basis of the above, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the applicant did not meet cl 500.212(a). Therefore, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 and could not be granted the visa.[28] As the applicant was not the holder of the visa at the time of the Tribunal’s decision, it followed that the second and third applicants did not satisfy cl 500.311.[29]
[28] CB 137 [33] to [34].
[29] CB 137 [36] to [37].
PROCEEDINGS BEFORE THIS COURT
By way of an application to show cause filed in this Court on 15 October 2020, the applicants seek judicial review of the Tribunal's decision and raised the following five unparticularised grounds:
1.The Tribunal’s decision is infected by error of law because in Point 17 of the AAT decision we said “we do not consent to the Tribunal deciding the review without a hearing”. Yet the Tribunal made a decision without inviting me to a hearing.
2.Contrary to the decision of the Tribunal I am a genuine student and provided evidence of Bachelor of Business that commenced on 13 May 2019 and due to be completed by 22 April 2022.
3.The Tribunal’s decision is not based on probative evidence rather speculation and such decision is not reasonable nor logical.
4.The Tribunal deprived me from attending a hearing and this is not my fault not to reply on time. This is a matter between the Tribunal and PR Information Services for Migration.
5.I ask that my matter be remitted to the Tribunal to be considered according to law.
In this judicial review proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
RELEVANT LEGISLATION
Section 359 of the Act relevantly provided that:
359 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
Section 359C of the Act relevantly provided:
359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
Section 360 of the Act relevantly provided:
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 363A of the Act relevantly provided:
363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
Clause 500.212 in Part 500 of Schedule 2 to the Regulations relevantly provided:
500.212
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.
CONSIDERATION
At the hearing before me on 9 September 2024, the applicant pressed each of their five grounds of review set out above at [20].
Having had the benefit of reviewing the Minister’s written submissions prior to the hearing and the opportunity to explore the nature and scope of the applicant’s grounds by way of her further oral submissions at hearing, I agree with the Minister that ground 5 cannot be construed or properly understood as a ground of review as it does not articulate jurisdictional error. Despite having been given an opportunity to do so, the applicant was unable to further articulate this ground at hearing beyond a plea for relief. On that basis, jurisdictional error is not made out in ground 5.
I now turn to address each of grounds 1 through 4 (reproduced without alteration below) in the following manner:
(a)Grounds 1 and 4
(i)The Tribunal’s decision is infected by error of law because in Point 17 of the AAT decision we said “we do not consent to the Tribunal deciding the review without a hearing”. Yet the Tribunal made a decision without inviting me to a hearing.
(ii)The Tribunal deprived me from attending a hearing and this is not my fault not to reply on time. This is a matter between the Tribunal and PR Information Services for Migration.
(b)Grounds 2 and 3
(i)Contrary to the decision of the Tribunal I am a genuine student and provided evidence of Bachelor of Business that commenced on 13 May 2019 and due to be completed by 22 April 2022.
(ii)The Tribunal’s decision is not based on probative evidence rather speculation and such decision is not reasonable nor logical.
Grounds 1 and 4
I have proceeded to consider grounds 1 and 4 together as the contentions therein overlap to the extent that they relate to the denial of the applicant’s entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision.
By ground 1, the applicants contend that they did not consent to the Tribunal proceeding to a decision without inviting them to a hearing, and are aggrieved by the Tribunal having done so.
The difficulty with this ground, as the Minister clearly pointed out in both written submissions and at hearing, is that the provisions of the Act mandated such an outcome. The applicants were requested to provide information pursuant to the issue of the s 359(2) invitation sent to their authorised recipient, a registered migration agent, on 21 May 2020. The applicants’ failure to provide a response to that invitation, or to seek an extension of time to do so, within the prescribed time limit had the effect of attracting the cascading operation of ss 359C, 360(2)(c), and s 360(3) of the Act, which in turn enlivened the operation of s 363A of the Act.[30] Further, the operation of ss 359C(1), 360(3) and 363A of the Act has no temporal restriction and can take effect at any time before or after a hearing invitation has been issued and before a hearing takes place.[31]
[30] See e.g., Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [27]-[29].
[31] Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110 at [53]-[57].
Section 363A of the Act operates so as to remove any discretion which the Tribunal may have had to allow the applicants to do something where a provision of Part 5 of the Act states that they are not entitled to do it.[32] Put simply, having lost their entitlement to appear before the Tribunal due to their failure to provide a response to the s 359(2) invitation, or to seek an extension of time to do so, within the prescribed time limit, the Tribunal had no residual discretion to invite the applicants to hearing despite their express desire to attend.
[32] See Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 and M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 at [25]-[31].
At hearing before me, the applicant stated that she understood the Minister’s oral submissions on this point but nevertheless felt aggrieved because she felt that she and the other applicants ‘did not get a chance to have [their] say’. The applicant submitted that their registered migration agent had not responded to the s 359(2) invitation, or requested an extension to do so, within the prescribed time limit. Putting aside the absence of any probative evidence to support that claim, and while I would ordinarily have sympathy for the applicants where such a claim is properly substantiated, this submission does not persuade me that jurisdictional error has arisen on the basis contended in ground 1. Nevertheless, the submission will be addressed further below in relation to my consideration of ground 4.
On this basis, jurisdictional error in relation to ground 1 is not made out.
By ground 4, the applicants assert the Tribunal deprived them of their right to attend a hearing, and that it was not their fault that their response to the s 359(2) invitation was received by the Tribunal outside the prescribed time limit. The applicants contend that their registered migration agent failed to meet the necessary deadline and had admitted to them that it was ‘human error’ on her part. If indeed that were the case, the Court has considerable sympathy for the applicants but nevertheless adopts the Minister’s submissions whereby bare negligence or inadvertence on the part of the applicants’ registered migration agent does not give rise to a finding of jurisdictional error.
It is well established that a registered migration agent’s failure to inform an applicant, or bare negligence or inadvertence in the carriage of an applicant’s case, will not necessarily be sufficient to give rise to fraud on the part of the Tribunal. Rather, the agent in question must act in a fraudulent way that directly impacts the Tribunal’s decision-making process.[33]
[33]Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 at [33]; see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510; HCA 35.
Therefore, this claim cannot succeed as it fails to rise above a claim of bare negligence and is not supported by any probative evidence. That is, the claim does not amount to anything more than a claim that the applicants were ill-advised or received poor representation.
On this basis, jurisdictional error in relation to ground 4 is not made out.
Grounds 2 and 3
I have proceeded to consider grounds 2 and 3 together as the contentions therein overlap to the extent that the applicants essentially take issue with the Tribunal’s decision-making approach and reasoning.
By ground 2, it was contended that the applicant is a genuine student and had provided evidence of her enrolment in a Bachelor of Business course that commenced on 13 May 2019 and was due to be completed by 22 April 2022. When pressed at hearing before me to explain and particularise this ground further, the applicant submitted that she had been a genuine student but deferred her studies because she had suffered from depression and anxiety. She further submitted that she would like another chance to pursue her case because she was now recovering from depression and anxiety. Putting aside the absence of any evidence to support these claims and noting that information pertaining to the applicant’s mental health was not before the Tribunal, and while I would ordinarily have sympathy for the applicants where such a claim is properly substantiated, these submissions go no way towards demonstrating the presence of jurisdictional error.
At its highest, ground 2 contains a suggestion that the Tribunal failed to take into account the applicant’s enrolment in the Bachelor of Business course. In my view, this contention cannot be sustained and the applicant is merely seeking to invite impermissible merits review by this Court. The Tribunal’s reasons clearly demonstrate its awareness of the applicant’s enrolment in the Bachelor of Business course, having noted its receipt of her electronic confirmation of enrolment and considered the applicant’s engagement in that course along with the potential impact of her studies in that course upon her future career plans.[34] Based upon its review of the limited evidence before it in relation to this course, and noting the absence of detailed contemporaneous information relating to the applicant’s ongoing enrolment, academic progress and how the knowledge the applicant had acquired from this course since enrolment would assist her realise her business goals in Pakistan, the Tribunal formed the view that the student visa program was being used to circumvent the intentions of the migration program and to maintain ongoing residence.[35] The Tribunal’s reasoning in this regard does not disclose error as it was reasonably open to the Tribunal, on the information before it, to reach this conclusion.
[34] CB 134 [16], 136 [28].
[35] CB 135 to 136 [27].
By ground 3, it was contended that the Tribunal’s decision was ‘not based on probative evidence rather speculation and such decision is not reasonable nor logical.’ When pressed at hearing to explain and particularise this ground further, the applicant submitted that she believed the Tribunal had unfairly speculated that the she would not return to Pakistan and took issue with the Tribunal’s assessment of her circumstances against the factors in Direction No. 69 as they related to her family ties in Australia and Pakistan, her reasons why she wanted to study a Bachelor or Business in Australia and how she felt that this further study was relevant to her proposed business plans in Pakistan.
Again, the contentions raised by ground 3 do not disclose jurisdictional error and the applicant is seeking to invite impermissible merits review by this Court. The Tribunal’s reasons clearly demonstrate that it took into account the applicants’ evidence before it and assessed that evidence in terms of addressing the applicants’ circumstances against various factors within Direction No. 69. On balance, the Tribunal was not satisfied that the applicant was a genuine applicant for temporary entry and stay as a student as required by cl 500.212(a). The Tribunal’s reasoning in this regard does not disclose error as it was reasonably open to the Tribunal, on the information before it, to reach its conclusion. There is nothing in the Tribunal’s reasoning which suggests illogicality, irrationality or unreasonableness. The conclusions reached by the Tribunal were open on the evidence and there was a logical connection between the evidence before the Tribunal and inferences and conclusions drawn from that evidence.[36]
[36] Minister for Immigration & Citizenship v SZMDS (2020) 240 CLR 611 at [132]-[135].
Mindful of the Court’s obligations towards unrepresented litigants as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58]-[77], [100] and [112] - [113], I have scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. In doing so, while I ultimately agree with the Minister’s written submissions that ‘there was nothing unreasonable or illogical in the pathway to the Tribunal’s ultimate finding which was based on the evidence before it, as provided by the applicant[s]’, two aspects of the Tribunal’s reasons warrant mention.
At [21] of its decision, which I summarised at paragraph 18(b)(i) above, the Tribunal noted the applicant’s evidence that business courses were available in Pakistan but they were more theoretically orientated and that she preferred the Australian course which had a strong practical approach.[37] The Tribunal accepted that a Bachelor of Business, or similar courses, were available in Pakistan but stated that it ‘is not satisfied that the applicant has not provided reasonable reasons for not undertaking the courses in her home country or region’ (emphasis added in bold).[38] The Tribunal’s expression of its finding is somewhat confusing, particularly given the use of the double-negative which I have emphasised above.
[37] CB 134 [21].
[38] CB 134 [21].
In order to give clarity to this finding, recourse is had to the terms of clause 9a. of Direction No. 69:
9. When considering the applicant circumstances in their home country, decision-makers should have regard to the following factors:
a. 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. Decision-makers should allow for any reasonable motives established by the applicant.
Clause 9a. requires the Tribunal to turn its mind to whether the applicant has provided reasonable reasons for not undertaking a business or similar course in Pakistan if such a course was available there. Having articulated the applicant’s evidence, the Tribunal clearly indicated its view that a Bachelor of Business course, or similar courses, was available in Pakistan. It is less clear whether the Tribunal had formed the view that the applicant:
(a)had reasonable reasons for not undertaking the course in Pakistan; or
(b)did not have reasonable reasons for not undertaking the course in Pakistan.
Asked at hearing to construe this aspect of the Tribunal’s reasons, the Minister submitted that there appeared to be a ‘slip’ of the Tribunal’s language at [21] but that it could be understood from a fair reading of the decision as a whole that the Tribunal had formed the view that the applicant did not have reasonable reasons for not undertaking the course in Pakistan because it had stated in its reasons elsewhere at [27] and [28] that the applicant had already acquired the skills to run her business in Pakistan and therefore did not need to undertake further study.
I reject that submission as a basis upon which to rest an argument that the Tribunal had turned its mind to the requisite fact-finding task required by clause 9a. of Direction No. 69. Once it had been established by the Tribunal that a course similar to the one offered in Australia was available in Pakistan, the question to be answered by the Tribunal was whether the reasons provided by the applicant for not doing the course in Pakistan were reasonable. In answering that question, the Tribunal was required to assess any ‘reasonable motives established by the applicant.’ That inquiry required the Tribunal to engage with the reasons put forward by the applicant, if any, and make a finding as to whether they were reasonable in the circumstances having considered the applicant’s motives. In the absence of any substantive or meaningful consideration, let alone rejection, of the applicant’s reasons for preferring the Australian course over the Pakistani equivalent as the basis for not undertaking her further study in Pakistan, I am unprepared to accept the Minister’s submission. That submission does not address the distinct absence of any meaningful consideration of the applicant’s reasons for not wishing to undertake an equivalent course in Pakistan. Instead, the submission proceeds upon a need to draw an inference that, because when assessing the value of the Australian Bachelor of Business degree to her future plans the Tribunal had formed a view that the applicant had already acquired the relevant skills to run her proposed business in Pakistan,[39] any further study in Pakistan was somehow also otiose and therefore no reasonable reasons could be given by the applicant in relation to why any further study was needed. I am unpersuaded that, on a fair reading of the decision as a whole, such an inference can logically be drawn. While such reasoning gave logical support to a finding in relation to the limited value of the proposed Australian study to the applicant’s future, it did not involve any genuine and realistic consideration of the applicant’s reasons for not undertaking the course in Pakistan and her motives in that regard as required by clause 9a. of Direction No. 69.
[39] CB 134 [28].
In my view, a fair reading of the Tribunal’s decision at [21] indicates that it clearly acknowledged the applicant’s reasons for not wishing to undertake the course in Pakistan and accepted those reasons as being reasonable. The relevant sentence at [21] read:
The Tribunal is not satisfied that the applicant has not provided reasonable reasons for not undertaking the courses in her home country or region.
I am of the view that the Tribunal’s use of the double-negative in the first part of that sentence, while infelicitous, should be construed in a manner whereby it was satisfied that the applicant had provided reasonable reasons for not undertaking the course in Pakistan. In support of that construction, I note no adverse finding was made by the Tribunal in relation to its assessment of the applicant against the factors specified in clause 9a. of Direction No. 69. It followed that no unfavourable weighting was given to this factor in the Tribunal’s analysis of the applicant’s ability to meet the criteria in cl 500.212(a). Accordingly, while the Tribunal’s finding on this issue may have been poorly drafted and somewhat difficult to discern, no jurisdictional error is made out in this regard.
Finally, at [32] of its decision, which I summarised at paragraph 18(e) above, the Tribunal incorrectly referred to clause 15 of Direction No. 69. It is apparent from the Tribunal’s adoption of the language in clause 16 of Direction No. 69 that its assessment was directed towards the factors specified within that clause, rather than clause 15, and there is nothing to suggest that the assessment was conducted improperly or that its reasoning was irrational, illogical or unreasonable. In my view, this minor typographical error does not give rise to jurisdictional error.
For the above reasons, grounds 2 and 3 do not disclose jurisdictional error.
CONCLUSION
For the above reasons, the application is dismissed.
I will hear the parties in relation to costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 18 September 2024
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