Upadhyayula v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 630
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Upadhyayula v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 630
File number(s): CAG 30 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 7 May 2025 Catchwords: MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – unreasonableness – failure to consider – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 357A; 359A; 359AA; 360; 476
Migration Regulations 1994 (Cth) cl 502.212
Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submission/s: 23 April 2025 Date of hearing: 23 April 2025 Place: Brisbane Solicitor for the Applicant: The applicant appeared self represented Solicitor for the First Respondent: Ms Crawley - HWL Ebsworth Solicitor for the Second Respondent: Second Respondent filed a submitting appearance save as to costs ORDERS
CAG 30 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NAGA ADITYA UPADHYAYULA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
ADMINISTRATIVE REVIEW TRIBUNALFirst Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRSSecond Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs, fixed in the amount of $5,600.
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).
THE COURT NOTES THAT:
A. These Orders have been amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for the Department of Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Student (Temporary) (class TU) Student (subclass 500) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of India. The applicant arrived in Australia on 7 February 2017 as the holder of a student visa to commence study of a Master of Information Technology at Central Queensland University with a course start date in March 2017. The applicant held further visas thereafter. Then, on 22 October 2021, the applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa to undertake a Diploma of Leadership and Management and then an Advanced Diploma of Leadership and Management at Greenwich Management College (“the visa”) (Court Book (“CB”) 1-18).
On 1 December 2021, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant met the genuine temporary entrant requirement criterion in cl 502.212 of Schedule 2 of the Migration Regulation 1994 (Cth) (“the Regulations”) (CB 48-56) (“delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 21 December 2021, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 57-64). The applicant appointed a registered migration agent to act as his representative and authorised recipient (CB 61-62).
On 1 August 2022, the Tribunal wrote to the applicant advising him that he would need to provide sufficient information to satisfy the Tribunal that he met the requirements for the visa, that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The Tribunal invited the applicant to provide, in writing, all relevant information about the course(s) of study he was undertaking and his entry and stay as a student (CB 76-83). The Tribunal requested the applicant to complete the Request for Student Visa Information form (“RSVI form”) and provided the applicant with a link to that form. The Tribunal also told the applicant that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (“Direction No. 69”). A copy of Direction No. 69 was attached.
The applicant completed the RSVI form and sent it to the Tribunal together with documents and a statement in support of the application for review (CB 84-99). In the completed RSVI form, the applicant set out his travel and visa history; his study history in Australia; his work experience in Australia; and information about his family’s assets in India. The applicant also uploaded two Certificates of Enrolment (“COE”) for a Diploma of Leadership and Management at Greenwich Management College with a course commencement date of 1 November 2021 and course completion date of 28 October 2022 and an Advanced Diploma of Leadership and Management, also at Greenwich Management College, with a course commencement date of 31 October 2022 and a course end date of 27 October 2023.
On 1 December 2022, the Tribunal invited the applicant to attend a hearing on 20 December 2022 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone and asked him to complete the Response to hearing invitation form (CB 102-109).
On 13 December 2022 the applicant submitted the completed Response to hearing invitation form in which he requested that the hearing be held by telephone or video (CB 117-118).
On 19 December 2022 the Tribunal granted the applicant’s request for the hearing to be conducted by teleconference and reissued the Tribunal’s invitation to attend a hearing on 20 December 2022 (CB 123-127). The applicant completed the new Response to hearing invitation (CB 131-134).
Also prior to the hearing, the applicant provided current COEs for a Diploma of Leadership and Management at Medicus College with a course start date of 12 December 2022 and end date of 11 December 2023 and an Advanced Diploma of Leadership and Management, also at Medicus College, with a course start date of 22 January 2024 and end date of 21 February 2025 (CB 120-121).
On 20 December 2022, the applicant attended the hearing. The applicant was assisted by his migration agent (CB 135-137).
After the hearing, the applicant submitted an Affidavit of Inheritance by his father dated 16 December 2022 setting out a description of three properties in Hyderabad, their value in Indian Rupees and stating that the properties “would be inherited to our Son [the applicant] in the future” (CB 138).
On 5 June 2023, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 142-159).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review is whether the applicant is a genuine applicant for entry and stay as a student and whether he intends genuinely to stay in Australia temporarily [19]. The Tribunal set out clause cl 500.212(a) of the Regulations and stated that the Tribunal must have regard to the factors in Direction No 69 [21]. The Tribunal stated that those factors are not to be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion [22].
The Tribunal listed the documents the applicant had submitted to the Tribunal and the evidence he had submitted to the Department in support of the visa application [6]-[7]. The Tribunal then set out the applicant’s evidence at the hearing with respect to:
(a)his study history and employment history in India before coming to Australia ([8]-[9]);
(b)his reasons for choosing to study a Master of Information Technology in Australia ([8]);
(c)the reasons why he had not completed the Master of Information Technology ([8]-[11]);
(d)the reasons why he had decided to change his career path from information technology and study hospitality by enrolling in a certificate in commercial cookery ([9]; [11]);
(e)the reasons why he had not completed the course in commercial cookery ([11]);
(f)his current enrolment in a diploma of leadership and management and why he had changed course provider for that course ([12]; [16]);
(g)his reasons for changing from commercial cookery to leadership and management ([13]);
(h)his employment history in Australia ([14]);
(i)his reasons for not completing any course since arriving in Australia in 2017 and had only just started a new course;
(j)why he is not able to use the qualifications he gained in India for his career ([15]);
(k)his employment in Australia including whether he had any experience working in hospitality ([14]);
(l)his family and ties in India and that his family are giving him the assets to start a business and he will be inheriting property in India ([14]).
The Tribunal granted time to the applicant after the hearing to provide inheritance documents from India [17]. The applicant provided to the Tribunal the affidavit by his father referred to above (CB 138).
The Tribunal then considered whether the applicant met the genuine temporary entrant criterion and made the following findings having regard to the factors in Direction No. 69:
(a)as to the applicant’s circumstances, the Tribunal considered the extent of the applicant’s personal ties to India. The Tribunal referred to the applicant’s evidence that his parents and extended family continue to live in India while his married sister is in the United States and that as the only son, he will be responsible for taking care of his parents. The Tribunal referred to the applicant’s documentary evidence indicating he will inherit property from them in the future. The Tribunal said it accepted the applicant has ongoing personal ties to India but said that the applicant has been living independently of his family for more than six years and has been able to return to visit them as required. The Tribunal said that the applicant stressed at the hearing that he comes from a large extended family. The Tribunal was not persuaded that any future care of his parents is a reason for him to return to India. In addition, the Tribunal said that any inheritance of property the applicant may receive in future can be transferred, sold, or managed by others in the absence of the owner. The Tribunal also said that the applicant has no employment history in India and by his own admission, would have difficulty pursuing a career using the qualifications he had obtained in India due to the amount of time that has passed since he graduated. For these reasons, the Tribunal said that it was not satisfied the applicant’s circumstances in his home country would serve as a significant incentive to return [23];
(b)as to the applicant’s circumstances in Australia, the Tribunal listed the several courses the applicant had enrolled in without completing and the multiple cancelled course enrolments. The Tribunal referred to the evidence the applicant had given in response to the Tribunal’s questions regarding the PRISM records including that his enrolment in the master’s course was cancelled for non-payment of fees and the enrolment in the commercial cookery courses was cancelled for non-commencement of studies and non-payment. The Tribunal also referred to the applicant’s evidence that his funds for his master’s course were delayed but also that he did not continue because he was unaccustomed to the teaching style, and he became demotivated. The Tribunal referred to the reasons given by the applicant in his written statement for why he chose to study in Australia, which the Tribunal noted related to vocational studies rather than post graduate education [24]-[25]. The Tribunal concluded that it was not satisfied that the applicant had adequately explained why he abandoned post graduate studies having already achieved, an undergraduate degree or why he has not continued to completion any of the enrolments he has had while living in Australia ([26]);
(c)in further assessing the applicant’s circumstances in Australia, the Tribunal considered the applicant’s employment in Australia. The Tribunal said that the applicant had been casually employed since February 2019 and was now employed at 7-Eleven in customer service. The Tribunal said that despite claiming he wants to establish a restaurant on his return to India, the applicant has no work experience in the field, does not appear to have sought any such experience and has not completed any cookery or hospitality studies. The Tribunal said it was concerned that the applicant had not completed any courses of study since his arrival in Australia in February 2017 but has been able to maintain employment for most of that time. The Tribunal said that those issues weigh against the applicant in assessing whether he is a genuine applicant for entry and stay in Australia as a student and whether he genuinely intends to stay in Australia temporarily [27];
(d)as to the value of the course the applicant is studying to his future, the Tribunal said the applicant is undertaking courses that are not consistent with his current level of education since he had completed a Bachelor of Technology – Electronics and Communications in 2016. Regarding whether the course will assist the applicant to obtain employment or improve his employment prospects in his home country, the Tribunal said it was not satisfied leadership and management is relevant or appropriate to the applicant’s stated aims. The Tribunal referred to the applicant’s evidence that he plans to establish “a multicuisine restaurant business with couple of my friends… and they do have good experience as they are currently working as chefs with other restaurants” and that his parents will support him. The Tribunal referred to the applicant’s lack of experience working in restaurants, hospitality or business and leadership and said that management is a very generalised field of study. The Tribunal considered that the courses the applicant had enrolled in in commercial cookery and hospitality management but discontinued, would have been more suitable for plans for a restaurant. The Tribunal said the applicant demonstrated a propensity for continual enrolment without continuing or completing his studies. The Tribunal found those issues weighed against him [28];
(e)as to the applicant’s visa and travel history, the Tribunal noted that the applicant arrived in Australia on 7 February 2017 and had returned to India at least four times since then to visit family and for family events. The Tribunal considered the amount of time the applicant has spent in Australia and whether the student visa is being used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification. The Tribunal said that apart from time spent in visits to India, the applicant has been residing temporarily in Australia for six years and three months and that his current enrolment to 21 February 2025 would take his time in Australia to eight years if a further student visa were granted. The Tribunal considered it unlikely, based on past conduct, the applicant would complete any courses of study. The Tribunal said that the applicant has been enrolling in short, inexpensive courses, especially as compared to a master’s degree and had been onshore since February 2017 without obtaining any qualification [29].
The Tribunal concluded that after assessing all the evidence, it found the applicant is using the student visa process to maintain residency. The Tribunal said this weighed against him in its assessment of whether the applicant is a genuine applicant for entry and stay as a student [29].
The Tribunal concluded that whilst there are some aspects of the applicant’s case that weigh somewhat in his favour such as his current enrolment, on balance the weight of evidence is strongly against the applicant in assessing whether he is a genuine temporary entrant for study. The Tribunal concluded that it is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal found that the applicant does not meet cl 500.212(a) ([30] - [31]) and affirmed the delegate’s decision not to grant the applicant a Student (Temporary) (Class TU) visa ([33]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by an application filed on 26 June 2023. The applicant also filed an affidavit sworn on 26 June 2023. The affidavit attaches a statutory declaration by the applicant in which he states that the Tribunal failed to consider the procedural error made by the student visa officer and gave more weightage to what the officer said rather than considering his current documents and his future and that of his family. The affidavit also annexes a copy of the Tribunal’s Decision.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application; the applicant’s affidavit; the first respondent’s response; the applicant’s written submissions; the applicant’s further written submissions; the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents with him.
The hearing proceeded by Microsoft Teams. The applicant was self-represented.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite the procedural order permitting him to do so, the applicant did not file an amended application. The grounds of review set out in the application are (without alteration):
1. That I am a Genuine student and I genuinely intend to complete my study
2.That my student visa officer did not consider the material information on my student visa application and all other documents which were more relevant to my application. That my visa officer failed to consider my family's situation. That the member has committee error by failing to consider the material facts
3.That the Hon. Member has given the decision on my file without any evidence on my file and has committed error in law by not providing another opportunity of hearing despite of request made to the registry
That the Hon. Member has given the decision on my file without considering my future time and money invested in Australia
That the Hon. Member would have given me another oppurtunity to provide further information and documents
I always carried genuine intentions to stay here to study, I am submitting this application hoping that you will consider my situation.
Request for an oppurtunity to prove myself.
The applicant filed written submissions on 22 April 2024 and on 15 April 2025. At the hearing, the applicant confirmed that he sought only to rely on the written submissions filed on 15 April 2025. In those written submissions, the applicant stated that “in light of the fact that the applicant was granted his requested mode of hearing (teleconference) and did not seek an adjournment or additional time, no separate ground of procedural fairness is pressed”. The applicant had raised procedural fairness in ground three of the application and in the earlier written submissions filed on 22 April 2024. The Court asked the applicant to confirm whether he still contended that he had not been afforded procedural fairness. He said that he did not. However, as the applicant was self-represented, the Court has nevertheless considered whether the applicant was afforded procedural fairness. Otherwise, the applicant said that he did not press grounds one and three in his application.
As to ground two the Court asked the applicant who he was referring to as the ‘student visa officer’. The applicant said that this was a reference to the Tribunal. As to the ‘material information’ and ‘family situation’ in ground two, the Court asked the applicant if he could particularise what he was referring to. The applicant said that it was the evidence he had submitted to the Tribunal about his future inheritance of land in India. The Court understands this to be the affidavit by the applicant’s father as to the applicant’s inheritance of property in Hyderabad (CB 138).
The applicant’s written submissions raised two grounds of review. The applicant contended in those submissions that the Tribunal’s decision was legally unreasonable, and that the Tribunal had failed to meaningfully engage with critical evidence amounting to a failure to consider relevant considerations (Applicant’s written submissions of 15 April 2025 (“AS”) [2]). The Court understands the latter ground to be, in effect, what is pleaded in ground two of the application.
Failure to consider evidence about inheritance
At the hearing before the Tribunal, the applicant gave evidence about his family in India, his plans to return to India to open a restaurant on his inherited land in India, that his family were giving the assets to him to start a business, and his responsibilities to his parents as the only male heir. The Tribunal summarised that evidence in its reasons for decision ([13]-[14]). The Tribunal’s reasons also record that the applicant’s representative told the Tribunal that the applicant was waiting on inheritance documents and that the Tribunal granted time after the hearing to make further submissions. The applicant did not make any further submissions but provided to the Tribunal the affidavit by the applicant’s father referred to earlier in these reasons (CB 138). As set out above, the affidavit identified three properties in Hyderabad, their value in Indian rupees and stated that the properties ‘would be inherited to our Son [the applicant] in the future’.
The applicant submitted to the Court that the Tribunal had failed to consider his family ties to India and his inheritance to property in India which the applicant said was key evidence. That was the extent of the applicant’s oral submissions.
In his written submissions, the applicant submitted that the Tribunal “failed to meaningfully engage with critical evidence and relevant considerations” (AS [10]). The submission was that the Tribunal “nominally averted” to the applicant’s circumstances in his home country but that its reasons indicate that it had not given genuine consideration to the substance of the evidence and so misconstrued or ignored material (AS [10]). The submission particularised that this evidence was the “affidavit of inheritance” and contended that “aside from a cursory reference, the Tribunal’s reasons do not substantively engage with why that evidence did not ally concerns about the applicant’s intentions” (AS [11]).
The Court disagrees. The Tribunal referred to the applicant’s evidence about his intentions to open a restaurant in India on land that he said that he would inherit from his family ([13]-[14]). The Tribunal understood this to be the land identified in the applicant’s father’s affidavit provided after the hearing ([17]; [23]). The Tribunal engaged with the applicant’s evidence in this regard in its reasons at [23]. It is useful to set out that paragraph:
[23]In assessing the applicant’s circumstances, the Tribunal considered the extent of the applicant’s personal ties to his home country. The applicant advised his parents and extended family continue to live in India while his married sister is in the United States. The applicant claimed that as the only son of his parents, he will be responsible for taking care of them. He also submitted documentary evidence indicating he will inherit property from them in future. The Tribunal accepts the applicant has ongoing personal ties to India. However, the applicant has been living independently of his family for more than six years and has been able to return to visit them as required. Since the applicant stressed at the hearing that he comes from a large extended family, the Tribunal is not persuaded any future care of his parents is a reason for him to return to India. In addition, any inheritance of property the applicant may receive in future can be transferred, sold, or managed by others in the absence of the owner. The applicant has no employment history in India and by his own admission, he would have difficulty pursuing a career using the qualifications he obtained when he completed a degree in his home country due to the amount of time that has passed since he graduated. For these reasons, the Tribunal is not satisfied the applicant’s circumstances in his home country would serve as a significant incentive to return.
It is evident from those reasons that the Tribunal substantively engaged with the applicant’s evidence about his personal ties to India. The Tribunal weighed that evidence against the fact that the applicant had lived independently in Australia from his family for more than six years; had been able to return to India as required during that time; that he has a large extended family; that any inheritance of property could be transferred, sold or managed by others in his absence; and that he had no employment history in India. The Tribunal concluded that it was not satisfied that the applicant’s circumstances in India would serve as a significant incentive to return.
Contrary to the applicant’ submissions (AS [11]-[12]), the Tribunal’s reasoning demonstrates that it considered and weighed the applicant’s evidence about his ties to India. What weight it gave to each piece of evidence was a matter for the Tribunal Minister for Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [41] per Mason J. In the end, the applicant’s submission is really one of disagreement with the outcome of the Tribunal’s reasoning and invites the Court to engage in impermissible merits review.
No jurisdictional error is established.
Failure to consider evidence about course enrolment and compliance record
The applicant also contended (AS [13]) that the Tribunal’s treatment of his course enrolment history and compliance record evidences “a mischaracterisation of the material before it.” It was not clear to the Court what was intended by the expression “mischaracterisation”. Nevertheless, the submission goes on to state that the Tribunal recited the applicant’s history of changing courses and not having attained any qualification in Australia but failed to address the applicant’s explanations for the course changes or the fact that he remained enrolled and was actively pursuing qualifications at the time of the hearing.
The Court disagrees. It is evident that the Tribunal gave the applicant a real and meaningful opportunity to explain why he had changed courses multiple times and had yet to successfully complete a course. The Tribunal set out that evidence in its reasons including the applicant’s responses to the information the Tribunal put to the applicant that the PRISM records indicated that the reasons why the applicant had not completed the master’s course was because of non-payment of fees and had not completed the cookery courses because of non-payment of fees and non-attendance ([8]-[13]; [15]). The Tribunal also gave the applicant an opportunity to explain why he had recently changed education providers from Greenwich Management College to Medicus College in respect to the course in leadership and management and recorded the applicant’s evidence about that in its reasons ([16]). The Tribunal also recorded the applicant’s evidence that he had commenced the course [with Medicus College] one month prior to the hearing ([12]).
After identifying the multiple courses the applicant had enrolled in but not completed ([24]), the PRISMS record as to cancellation of courses for non-payment of fees ([25]), and the applicant’s statement of purpose as to why he chose to study in Australia ([25]), the Tribunal concluded that it was not satisfied that the applicant had adequately explained why he abandoned post graduate studies, having already achieved an undergraduate course, or why he had not continued to complete any of the enrolments he has had while living in Australia ([26]). Reading the Tribunal’s reasons as a whole, the Court is satisfied that the Tribunal did consider the explanations the applicant gave at the hearing as to why he had changed courses several times. In the end, the Tribunal was not satisfied with the explanations given by the applicant. The Tribunal considered that the non-completion of the several courses weighed against the applicant in assessing whether he is a genuine applicant for entry and stay as a student and whether he genuinely intends to stay in Australia temporarily ([27]). In coming to that conclusion, the Tribunal did say that weighing in the applicant’s favour was the fact of his current enrolment ([30]). However, the Tribunal concluded that assessing the evidence individually and cumulatively on the balance the weight of the evidence is strongly against the applicant in assessing whether he is a genuine temporary entrant for study ([30]).
Accordingly, the Court does not accept the applicant’s submission that the Tribunal did not give consideration to the applicant’s explanations as to the reasons for changing courses in assessing whether the applicant met the genuine temporary entrant criterion. The Tribunal’s reasons for decision demonstrate that it clearly did so.
Finally, the Court notes that the applicant’s written submissions (AS [14]) rely upon the decision of the full court of the Federal Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151 (“Buadromo”) as illustrating that “overlooking an applicant’s personal circumstances and positive evidence can render a GTE decision unlawful”. This decision was not concerned with judicial review of a Tribunal decision concerning a student visa. The applicant was unable to explain why reliance was placed on this decision save to say that he had had some help in preparing the submissions. The decision is of no relevance or assistance to the Court.
No jurisdictional error is established.
Unreasonableness
The applicant contends in his written submissions that the Tribunal’s decision is legally unreasonable in the “Minister for Immigration v Li sense” (AS [7] referring to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332). The applicant submits that this is because the conclusion that the applicant failed to meet the GTE criterion lacks an evident and intelligible justification, the reasoning process was manifestly uneven and did not logically reconcile the evidence with the outcome, gave weight almost exclusively to factors adverse to the applicant while disregarding or dismissing countervailing evidence without explaining why that evidence was not significant and that the decision appears arbitrary or irrational (AS [8]).
In making that general submission, the applicant took issue with three aspects of the Tribunal’s decision as follows:
(a)Failure to explain rejection of home country ties;
(b)Selective consideration of immigration history and compliance;
(c)Unreasonable inference from part-time work.
Dealing with each in turn, the Court finds, for the reasons below, that the Tribunal’s decision was not legally unreasonable. The Tribunal’s decision was rational, logical and had a probative basis.
Rejection of home country ties
The applicant submitted that he presented uncontroverted evidence of substantial ties to India being close family members and an inheritance of real property in his hometown. The applicant submitted that the Tribunal’s reasons nonetheless assert that the applicant’s circumstances in India would not serve as an incentive to return (AS [8]]).
The submission misstates the Tribunal’s conclusion. At [23] (which is set out in full earlier in these reasons), the Tribunal said that it was not satisfied the applicant’s circumstances in his home country – which included his family ties and his inheritance of property – would serve as a significant incentive to return. (emphasis added)
As already stated earlier in these reasons, the Tribunal engaged with the applicant’s evidence and accepted that he had personal ties to India including the inheritance of property. Overall, however, the Tribunal weighed those ties against the applicant’s circumstances in Australia and was not persuaded that his ties to India would serve as a significant incentive to return. That conclusion was one which was open to the Tribunal on the evidence. The conclusion is not one which was legally unreasonable.
Immigration history and visa compliance
The applicant submitted that the Tribunal “placed great emphasis on the fact that the applicant had been in Australia for over six years without obtaining a new qualification, interpreting his multiple course changes and extensions as indicative of non-genuine intent” (AS [8]). The submission went on to state that the Tribunal did not acknowledge that the applicant had complied with all visa requirements, maintained continuous study and took steps to remain lawful such as obtaining successive COEs and health insurance. It was submitted that the Tribunal focused only on the duration of the stay and lack of a completed degree and ignored the context that the applicant was nonetheless pursuing studies and staying within the rules.
Overall, the submission ignores that Direction No. 69 requires a decision maker to assess whether, on balance, the genuine temporary entrant criterion is satisfied by considering all factors specified in the Direction and considering any other relevant information. The factors operate as a guide and not as a check list. The decision maker is required to weigh up the factors in coming to a decision as to whether it is satisfied that the applicant meets the genuine temporary entrant criterion.
The Court is satisfied that the Tribunal undertook the task assigned to it. In accordance with the Direction, the Tribunal’s reasons, read as a whole, demonstrate that it considered the applicant’s circumstances; the applicant’s circumstances in his home country; the applicant’s circumstances in Australia; the value of the course to the applicant’s future; and the applicant’s immigration history. The Tribunal’s reasons summarise the relevant evidence in relation to each of those factors and demonstrate how the Tribunal weighed those factors in coming to its overall conclusion. The conclusion the Tribunal reached was not legally unreasonable. The decision was logical, rational and had a probative basis.
As to the specific complaints that the applicant makes in his written submissions the Court makes the following comments:
(a)the Tribunal referred to the fact that the applicant had current COEs and that shortly before the hearing he had commenced study with a new education provider. The Tribunal stated that the applicant’s current enrolment was a factor which weighed somewhat in his favour ([30]). It is evident though, for the reasons the Tribunal gave, that this was outweighed by other factors which did not weigh in the applicant’s favour ([30]);
(b)the Tribunal did not describe the applicant as having “maintained continuous study”. The Court is not certain what is intended by that expression. Nevertheless, the Tribunal’s decision, on its face, accurately sets out the various courses that the applicant had enrolled in and referred to the PRISMS records regarding why the applicant had not completed the master’s course and the cookery courses. Accordingly, the Tribunal understood that the applicant had enrolled in successive courses. The Tribunal, however, was clearly concerned with the fact that the applicant had not completed any course in which he had enrolled in the six years that he had been in Australia and with the value of the proposed course to his future in India. That was something which the Direction required the Tribunal to consider and weigh up and the Court has already considered how the Tribunal engaged in that task in a manner which does not disclose any jurisdictional error;
(c)the Tribunal also referred to the applicant’s evidence that he had health insurance until 2025 ([12]). The Tribunal did not explain in its reasons what weight, if any, it had given to this evidence. However, it is not necessary for the Tribunal to refer to every piece of evidence. The fact that the Tribunal did not refer to the evidence again suggests that the Tribunal did not consider that it was evidence that was relevant to determining the genuine temporary entrant criterion or that it should be afforded any particular weight;
(d)the Tribunal referred to the applicant’s immigration history ([29]) and set out some of that history: the applicant’s arrival in Australia on 7 February 2017 and his return visits to India. The Tribunal did not expressly refer to the applicant’s compliance with all visa requirements, but it is implicit in [29] of its reasons that the Tribunal did not consider that the applicant was in breach of any visa requirement. The fact that that the Tribunal did not refer expressly to that fact does not constitute jurisdictional error but suggests that the Tribunal did not consider that it was evidence which was overall significant to weighing up whether the applicant was a genuine temporary entrant.
Otherwise, the weight the Tribunal placed on the fact that the applicant had enrolled in several courses but had not completed any of them in the six years the applicant had been in Australia, was a matter for the Tribunal.
Part-time work
The applicant also submitted that the Tribunal relied on the fact that the applicant had engaged in casual employment at 7-Eleven and had not worked in his “chosen field” [hospitality] in Australia and considered this weighed against his genuineness as a student (AS [8]). The submission was also that the applicant’s choice of part-time work in a convenience store while studying full-time does not logically suggest an intention to overstay or misuse a visa and that the Tribunal had not articulated how working to support oneself is inconsistent with a genuine temporary stay (AS [8]).
The submission misconstrues the Tribunal’s reasons with respect to the applicant’s employment in Australia which was relevant to the factor of the applicant’s circumstances in Australia. It is useful to set out what the Tribunal actually said about the applicant’s employment in Australia:
[27]While in Australia, the applicant has been casually employed since February 2019, first with British Petroleum from February 2019 to February 2021 followed by 7-Eleven. At the Tribunal hearing the applicant stated he was still employed in customer service at 7-Eleven. Despite claiming he wants to establish a restaurant on his return to India, the applicant has no work experience in the field, does not appear to have sought any such experience and has not completed any cookery or hospitality studies. The Tribunal is concerned that the applicant has not completed any courses of study since his arrival in Australia in February 2017 but has been able to maintain employment for most of that time. These issues weigh against the applicant in assessing whether he is a genuine applicant for entry and stay in Australia as a student and whether he genuinely intends to stay in Australia temporarily.
The Tribunal was concerned with the fact that – despite wanting to pursue a career in hospitality in India – the applicant had not sought work experience in Australia in that field. The Tribunal was also concerned that the applicant had been able to maintain employment whilst in Australia but had not completed any course of study in that time. The Tribunal considered that those issues weighed against the applicant in assessing the genuine temporary entrant criterion. The Tribunal’s reasoning was neither irrational nor illogical.
Finally, the applicant’s submission (AS [9]) as to unreasonableness also relied, by way of analogy, upon Buadromo stating that the full court of the Federal Court set aside a decision to refuse a student visa in circumstances where the decision maker had focused only on the risk of the applicant not returning, without properly considering the applicant’s personal circumstances indicating a genuine temporary intention (AS [9]). As noted above, this case did not concern review of a decision concerning an application for a student visa. It is of no relevance and does not assist the Court.
The Court is satisfied that the Tribunal’s decision was not legally unreasonable. The reasons for Decision, read as a whole, demonstrate that the Tribunal’s decision was rational, logical and had a probative basis.
No jurisdictional error is established.
Procedural fairness
In his written submissions, the applicant stated that “in light of the fact that the applicant was granted his requested mode of hearing (teleconference) and did not seek an adjournment or additional time, no separate ground of procedural fairness is pressed”.
As noted earlier in these reasons, the applicant told the Court that he no longer relied upon the ground of procedural fairness which was pleaded in the application for judicial review. Specifically, the applicant confirmed to the Court that he had not requested the Tribunal to grant him a further hearing or had denied him an opportunity to provide further information or documents.
Nevertheless, given that the applicant was self-represented, the Court has also considered whether he was afforded procedural fairness.
The Court is satisfied that the Tribunal complied with its procedural obligations in Division 5 of Part 5 of the Act (as it then applied) and which is an exhaustive statement of those obligations (s 357A). The Court is so satisfied because:
(a)Pursuant to s 359A, the Tribunal invited the applicant to provide information in relation to his application for review (CB 77-78). The applicant provided information to the Tribunal in response to that request (CB 84-99);
(b)Pursuant to s 360, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in the application for review (CB 102-104). The Tribunal notified the applicant as to those issues which were the same as the issues considered by the delegate, that is, whether the applicant met the genuine temporary entrant criterion;
(c)The hearing proceeded by Microsoft Teams at the request of the applicant (CB 117);
(d)It is apparent from the Tribunal’s reasons for Decision that the applicant was afforded a real and meaningful opportunity to give evidence and present arguments in support of his application for review;
(e)The Tribunal complied with its obligations under s 359AA in putting to the applicant information in the PRISMS record. The Tribunal put the information in the PRISMS record to the applicant and explained to him why the information would be the reason or part of the reason for affirming the decision under review and advised the applicant that he could seek additional time to comment or respond ([10]). The applicant did not seek additional time and responded to the information in the hearing ([11]);
(f)The applicant was afforded the opportunity to provide additional material after the hearing and took up that opportunity (CB 138).
CONCLUSION
Accordingly, for the reasons given above, the application is dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 7 May 2025
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