The application for judicial review is brought pursuant to s 476 of the Act. To succeed before this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
The Tribunal's decision is seven pages long and spans 37 paragraphs (CB 205-211).
The Tribunal began by outlining the applicants' migration history, noting that they had applied for the visas on 15 December 2016 and that a delegate of the Minister had refused to grant the applicants those visas on 23 January 2017. The Tribunal acknowledged that the applicants had sought review of that decision on 2 February 2017 and confirmed that a copy of the delegate's decision had been provided with that review application. The Tribunal further confirmed that the applicants had been invited to attend a hearing before it scheduled for 5 June 2018 and that the first applicant had contacted the Tribunal on 29 May 2018 seeking a postponement of that hearing because her mother was unwell. The Tribunal explained that because there was no suggestion that the first applicant was intending to travel offshore to be with her mother and because the hearing was scheduled to take place by telephone, the postponement request was refused. The Tribunal confirmed that the first applicant provided a copy of a current COE to the Tribunal on 4 June 2018 and appeared at the Tribunal hearing on 5 June 2018 (with the assistance of an interpreter) to give evidence and present arguments (at [1]-[10]).
The Tribunal identified that the question before it was whether the first applicant was a genuine applicant for entry and stay as a student, having regard to "all relevant facts and matters" and using Ministerial Direction No. 69 (the "Direction") as a guideline. The Tribunal confirmed that "weight [had] been given to various and relevant factors" in that regard (at [11]-[13]).
The Tribunal explained that there was evidence before it that the first applicant had applied for a Regional Migration (Permanent Resident) (Subclass 187) visa (the "permanent visa") on 30 June 2017 and that her husband and two sons were included in that permanent visa application. The Tribunal considered that the lodging of the permanent visa application was "incompatible with a concurrent claim, under the student visa programme, to be a genuine temporary entrant" (at [14]).
The Tribunal did not consider the first applicant "to be a witness of credit", noting that she had given "vague and non-responsive answers to questions" at the Tribunal hearing which, the Tribunal considered, was a result of her being evasive (rather than due to any misunderstanding) (at [15]).
The Tribunal explained that the first applicant had been "untruthful" by answering "no" when asked if she had applied for any other visas. The Tribunal recorded that she had then changed her answer to imply that she had only "thought about" applying for the permanent visa. The Tribunal noted that it had put the permanent visa application to the first applicant, as adverse information, in line with its statutory obligations, indicating that her answers were "inconsistent with the Department's records". The Tribunal recorded that the first applicant had elected to respond to the adverse information at the hearing and stated that she had applied for the permanent visa when she was offshore (in June 2017) but that she had since been notified that the permanent visa application was unsuccessful because she did not meet the age requirement for the grant of that visa. The Tribunal considered that the first applicant's response was "internally inconsistent" with her earlier evidence and gave negative weight to that fact (at [16]-[17]).
The Tribunal then outlined the factors set out in the Direction, noting that those factors were not to be used as a checklist by decision-makers but were instead intended to be used as a guide when considering the applicants' circumstances as a whole (at [18]-[19]).
The Tribunal considered that the first applicant had "made limited and slow academic progress" and noted that, since arriving onshore in 2008, she had only completed low cost VET courses, including English, Certificates and Diplomas in Business Management and a Certificate in Hairdressing (from 2008 to 2016). The Tribunal also noted that since then, the first applicant had not completed any studies, despite there being no restriction her bridging visa in relation to study. The Tribunal explained that, at the time of application, the first applicant was enrolled in an Advanced Diploma of Marketing and Communication, however, that enrolment was cancelled because of her mother's illness which had caused her stress. However, the Tribunal also noted that no medical evidence had been provided that the first applicant was unfit for study. The Tribunal confirmed that the first applicant had provided a COE issued the day before the hearing which indicated that she was enrolled in a Diploma of Marketing and Communication (a lower level course than that which she was enrolled in at the time of application). The Tribunal formed the view that the first applicant had provided the COE in support of her application and not because she was a genuine temporary entrant, because she genuinely intended to complete the course or because it would add value to her future employment or economic prospects in India (at [21]-[22]).
The Tribunal noted that, whilst the first applicant had stated multiple times at the Tribunal hearing that she simply wanted to finish her course and return to India, she had not started the course she referred to (either in 2016 or 2018). The Tribunal also noted that the COE provided indicated that the first applicant's course was scheduled to commence in June 2018 in Melbourne, however, she was living in Griffith and had "provided no reliable evidence" to indicate that she had made plans to move to Melbourne. She also had not provided any evidence to corroborate her claim to have paid course fees (at [23]-[24]).
The Tribunal noted that the first applicant had advised that she had returned to India in mid-2017 because her mother was ill and sought to have the Tribunal hearing postponed the week prior because her mother was ill. The Tribunal asked the first applicant why she did not return to India to start her hairdressing business with the qualifications she already had, noting that her two sons and ill mother were there. The Tribunal noted that the first applicant did not give a response that indicated that she considered it a priority or that she had a genuine intention to return to India to care for her mother and sons as she had claimed (at [25]-[26]).
The Tribunal recorded that while having an ill mother and two dependent children living in another country would ordinarily suggest that an applicant had significant ties to their home country that would serve as a strong incentive to return, in the first applicant's circumstances, the Tribunal was not convinced that this was the case. The Tribunal noted that the first applicant had lived in Australia with her husband for ten consecutive years while her children remained in India with her mother. Further, the Tribunal noted that while the first applicant claimed her mother was unwell, this had not prompted the first applicant to finish her study quickly and return home (at [27]).
The Tribunal was not satisfied that the first applicant genuinely intended to return to India or that her ties to India were stronger than her ties to Australia. The Tribunal considered that there was no reasonable explanation as to why the first applicant had not returned to India if she was keen to do so. The Tribunal further noted that she had enrolled in a lower-level course than she was enrolled in at the time of application, which the Tribunal considered "regressive". The Tribunal was also not persuaded that the Diploma in Marketing would enhance the first applicant' s employment prospects or earning potential in India (at [28]).
The Tribunal also noted that the first applicant had included her sons in the permanent visa application, indicating to the Tribunal that she preferred for them to migrate to Australia than for her to return to India. The Tribunal considered that the permanent visa application was a relevant and significant matter that was unfavourable to the first applicant's current visa application. The Tribunal was of the view that the first applicant could not "simultaneously consider her time onshore to be temporary for the purpose of being granted a student visa while she [was] pursuing permanent residency through a different visa application". Whilst the first applicant had given evidence that the permanent visa application was refused, the Tribunal was not satisfied that the first applicant considered her time in Australia to be temporary or that she did not intend to pursue that migration outcome in the future (at [29]-[32]).
On the evidence before it and, having considered all of the facts and matters relevant to the Direction, the Tribunal was not satisfied that the first applicant genuinely intended to stay in Australia temporarily and accordingly did not meet clause 500.212(a) in Schedule 2 of the Regulations (at [34]-[35]).
The Tribunal affirmed the delegate's decision refusing to grant the applicants the visas (at [37]).
[2]
The application for judicial review filed by the applicants on 14 June 2018 contained three "grounds of review", as follows (without alteration):
I clearly satisfy the Migration regulation under cl.500.212 as per which my documentation was not considered for evaluation as genuine entrant; the medical documentation of my dad sickness was not considered duly by the Review Member.
I wish to get judicial review done as the documentation for satisfying the Ministerial direction under the number 69 was not condered by the member and I was confused by interpreting questions in repeated manner frequently.
I would like the judicial review on the basis of current enrolment held by me with COE indicating that I have proof of enrolment to commence a Diploma in Marketing and Communication on 23 June 2018.
On 18 September 2019, procedural orders were made by Registrar Hird of the then FCCA giving the applicants an opportunity to file an amended application, any supplementary court book and written submissions.
On 19 December 2023, a callover was held by Registrar Cummings of this Court. At that callover, Registrar Cummings made orders programming the matter to a final hearing before a Judge of this Court on a date to be advised. The first applicant confirmed that she had retained a copy of the CB and would require an interpreter to for the final hearing.
The matter came before this Court for a first hearing on 24 January 2025. The first applicant appeared at that hearing by video link. Mr Rogan O'Shannessy ("Mr O'Shannessy") from Mills Oakley (solicitors for the Minister) also appeared at that hearing by video link on behalf of the Minister.
The Court asked the first applicant to confirm that she had received copies of the Court Book and the Minister's written submissions. The Court also asked the first applicant to confirm that she would be speaking on behalf of her husband.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 14 June 2018 (the first applicant's affidavit being taken as read and in evidence at the first hearing on 24 January 2025), a Court Book numbering 230 pages (marked as Exhibit 1 at the first hearing of this matter) and written submissions filed on behalf of the Minister on 10 January 2025.
The Court noted that the applicants' judicial review application only sought relief by way of an order quashing the Tribunal's decision. It did not seek a writ of mandamus. As such, this Court's jurisdiction under s 476 of the Act was not properly invoked. The Court explained this issue to the first applicant and, with her agreement, made an order amending the application for judicial review to include a request for a writ of mandamus. Mr O'Shannessy (for the Minister) did not object to that course of action.
Unfortunately, shortly after the commencement of the first hearing, the first applicant indicated that she was "unable to properly hear the Court". After multiple short adjournments, the Court was unable to rectify what appeared to connectivity issues and determined that it was in the interests of justice that the matter be adjourned to a later date and did so.
The matter came before the Court for a second hearing on 18 February 2025. The first applicant appeared at that second hearing by video link. Mr O'Shannessy again appeared by video link on behalf of the Minister.
The Court again confirmed with the first applicant that she would speak at the second hearing on behalf of her husband (the second applicant).
Noting that the first applicant was unrepresented, the Court gave her the opportunity to explain orally what he thought the Tribunal "did wrong". This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection[2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2023] FCA 384.
To assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
[3]
(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia[1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;
(b) where the decision-maker ignores relevant material: Craig at 198;
(c) where the decision-maker relies on irrelevant material: Craig at 198;
(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor[2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];
(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship[2013] FCAFC 80 at [2]; and
It was also explained that this Court cannot review the merits of the Tribunal's decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that she wanted to complete her studies and, when she had done so, would return to her home country. She further explained that her "English was not good" before but now she "wants to finish" her studies.
Unfortunately, the first applicant's comments do not raise any issue of error of the sort that this Court can address.
This leaves the Court to assess the applicants' grounds of review without further assistance from the applicant. Noting that the applicants do not have legal assistance, the Court will, in its duty to the applicants as unrepresented litigants, review the Tribunal's decision itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal's decision: MZAIB v Minister for Immigration & Border Protection[2015] FCA 1392.
[5]
As outlined above, ground one relevantly provided as follows:
I clearly satisfy the Migration regulation under cl.500.212 as per which my documentation was not considered for evaluation as genuine entrant; the medical documentation of my dad sickness was not considered duly by the Review Member.
By ground one, the applicants claimed that the Tribunal failed to consider evidence provided to it. In particular, reference was made to medical documentation relating to the first applicant's father. The Court considers that the applicants are actually referencing medical information provided in relation to the first applicant's mother (who, when requesting that the Tribunal postpone the hearing before it, she claimed was unwell).
The Court notes that the Tribunal expressly referenced the first applicant's adjournment request (and the supporting documentation provided in support of that request) in its written reasons, as follows:
The applicant responded to the hearing invitation on 29 May 2018 and requested a postponement for the reasons that her mother is sick in India with a heart condition and the applicant herself is stressed. The request and supporting evidence was considered. The applicant is in Griffith, New South Wales. The applicant's mother is in India. There was no supporting or medical evidence provided about the applicant's stress. There was no suggestion that the applicant was intending to travel offshore to be with her mother. In any event, the hearing is a phone hearing. The Tribunal did not consider it was reasonable or necessary to postpone the hearing, in the circumstances. The applicant was informed of this in writing. She returned the response to the hearing invitation on 30 May 2018 indicating she would attend by phone and that she would require a Hindi interpreter.
As can be seen from the passages above, the Tribunal considered the evidence provided by the applicants in relation to the first applicant's mother's illness when considering whether to adjourn the Tribunal hearing. The Tribunal also referenced the first applicant's mother's illness later in its reasons (see, for example, paragraphs [21] & [25]-[27]).
Ground one also referenced "documentation" not being considered by the Tribunal when assessing whether or not the first applicant was a genuine temporary entrant.
The Court notes that the only other evidence or documentation provided by the applicants was the COE provided by the applicant on 4 June 2018.
The Tribunal confirmed receipt of that COE in its written reasons. The Tribunal also noted that no other additional documents had been provided in support of the review application (at [8] & [21]).
The Tribunal then expressly considered the COE in detail, as follows:
The Tribunal has considered all relevant matters, including an updated COE that was issued the day before the Tribunal hearing and evidence provided at the time of application. The current COE indicates the applicant has enrolled in a Diploma of Marketing and Communication. This is at a lower level than the course she was enrolled in at the time of application, and which was cancelled. The view the Tribunal has formed is that the applicant has provided this current COE evidence in support of the application, not because she is a genuine temporary entrant or that she genuinely intends to do the course or that it will add any value to her future employment or economic prospects in her home country.
The applicant, on several occasions at the hearing, stated that she just wishes to finish her course and return to India. The applicant has not started the marketing and communication course she referred to. She did not start it in 2016 and she has not started it again in 2018. The COE for the course indicates that the course commences on 23 June 2018 in Melbourne. The applicant lives in Griffith and provided no reliable evidence that indicates she has made plans to move to Melbourne to study and live with a friend, which is what she says she is planning to do.
As can be seen from the passages above, the Tribunal considered all of the evidence provided to it by the applicants in this matter (including medical information in relation to the first applicant's mother and the first applicant's COE).
No jurisdictional error arises in relation to ground one.
[6]
Ground two stated:
I wish to get judicial review done as the documentation for satisfying the Ministerial direction under the number 69 was not considered by the member and I was confused by interpreting questions in repeated manner frequently.
To the extent that ground two referenced the Tribunal's failure to consider documentation, the Court notes that this has been addressed above (in relation to ground one) and the Court is satisfied that the Tribunal considered all of the evidence before it.
Insofar as the applicants raised concerns with the way in which the Tribunal questioned the first applicant at the Tribunal hearing or the way in which the questions were interpreted, the Court notes as follows.
As outlined by this Court in Tshering v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FedCFamC2G 95 (and other similar matters), whether there is "inadequate interpretation" of the sort that results in an unfair hearing depends on the particular circumstances of the case: SZRMQ v Minister for Immigration and Border Protection[2013] FCAFC 142; (2013) 219 FCR 212 ("SZRMQ") at [5]. Importantly, where interpretation services are relied on, those services must be adequate to "convey the substance of what is said" to an applicant so that he or she can "communicate the substance or his or her case and to respond to issues raised": Singh v Minister for Immigration and Multicultural Affairs[2001] FCA 1376; (2001) 115 FCR 1 at [28]. Further, it is crucial that the essential elements conveyed by an applicant are ultimately received by the Tribunal: SZRMQ at [90].
Here, the first applicant must establish (as per SZJBD v Minister for Immigration and Citizenship[2009] FCAFC 106; (2009) 179 FCR 109) that she was "effectively prevented from giving [her] evidence" or that "errors had occurred in translation which were so material as to cause the decision-making process to miscarry": WALN v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCAFC 131 at [29].
Unfortunately, there is no transcript before the Court of the Tribunal hearing and there is no evidence that the first applicant raised any concerns during or after the Tribunal hearing with the quality of the interpretation or her ability to participate in the Tribunal hearing. The applicants have not provided a transcript of the Tribunal hearing to demonstrate to the Court that the first applicant experienced any difficulties understanding the interpreter. There is also nothing on the face of the Tribunal's decision to suggest that the applicant had any issues understanding any of the Tribunal's questions. Indeed, the Tribunal noted that it had put questions to the applicant and that she had responded to those questions.
Further, the Tribunal references the first applicant being vague in responding to questions but stresses this was due to the first applicant being evasive and not because of want of understanding. The Tribunal's comments in this regard are reproduced below (emphasis added):
The applicant was not considered to be a witness of credit. She gave vague and nonresponsive answers to questions frequently throughout the hearing. In these instances, the Tribunal's view is that she was being evasive, not that there was any misunderstanding. Although, that said, occasionally questions and answers were clarified, which is not unusual in a hearing where an applicant does not have English as their first language and an interpreter is being used.
In the absence of a transcript or any evidence to the contrary, the Court "is entitled to accept the [Tribunal's] decision record as accurately reflecting the matters to which it refers at taking place at the hearing": SZVUP v Minister For Immigration & Border Protection & Anor[2015] FCCA 1287 at [13]- [14] (citing Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs[2004] HCA 62) and Singh v Minister for Immigration, Citizenship and Multicultural Affairs[2022] FedCFamC2G 771 at [44].
On that basis, the Court is satisfied that the first applicant was able to properly participate in the Tribunal hearing and that there was no issue with the method of questioning or interpretation in this case.
No jurisdictional error arises in relation to ground two.
[7]
Ground three provided as follows:
I would like the judicial review on the basis of current enrolment held by me with COE indicating that I have proof of enrolment to commence a Diploma in Marketing and Communication on 23 June 2018.
To the extent that ground three referenced the COE provided by the first applicant or otherwise suggests that the Tribunal failed to have regard to that document, this has already been addressed by the Court above (in relation to ground one).
Insofar as the applicants suggested that the first applicant met the criteria for the grant of the visa and should have been granted the visa, the Court disagrees for the reasons that follow.
As outlined above, the first applicant in this matter applied for a Subclass 500 visa. The eligibility criteria for the grant of that visa were set out in cl 500.2 in Schedule 2 of the Regulations, which (at the time of the Tribunal's decision in this matter) relevantly provided as follows:
[8]
Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
[9]
All criteria must be satisfied at the time a decision is made on the application.
[10]
The criteria that the first applicant was required to satisfy for the grant of the visa in this case were set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations.
As can be seen from the extract above, the first applicant was required to satisfy all of the criteria for the grant of the visa at the time of the Tribunal's decision in this matter.
Of particular relevance in this matter are cll 500.211 to 500.212 in Schedule 2 of the Regulations which (at the time of the Tribunal's decision in this matter) relevantly provided as follows:
[11]
One of the following applies:
(a) the applicant is enrolled in a course of study;
...
[12]
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:
[13]
(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
[14]
As outlined above, the Tribunal acknowledged that the first applicant was enrolled in a course of study. As such, she satisfied cl 500.211 in Schedule 2 of the Regulations.
However, the first applicant was also required to satisfy the requirements set out in cl 500.212 in Schedule 2 of the Regulations. That is, the first applicant was also required to be a genuine applicant for entry and stay as a student.
The Tribunal considered all of the evidence before it and was ultimately not satisfied that the first applicant genuinely intended to stay in Australia temporarily and thus did not satisfy the requirements set out in cl 500.212(a) in Schedule 2 of the Regulations (at [35] in its written reasons).
On that basis, the Tribunal was correct to conclude that the first applicant did not satisfy all of the requirements for the grant of the visa. The Tribunal was also correct to affirm the delegate's decision refusing to grant the applicants the visas (at [37]).
No jurisdictional error arises in relation to ground three.
[15]
The application for judicial review (filed by the applicants on 14 June 2018) has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
[16]
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Parties
Applicant/Plaintiff:
Patel
Respondent/Defendant:
Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 806
Legislation Cited (2)
Review Tribunal (Consequential and Transitional Provisions No. [1) Act 2024
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Cases Cited (24)
Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs[2004] HCA 62
Bala v Minister for Immigration & Border Protection[2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2023] FCA 384