Pratap v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 357

1. The name of the first respondent be changed to "Minister for Immigration and Multicultural Affairs".
2. The name of the second respondent be changed to "Administrative Review Tribunal".
3. The application is dismissed.
4. The applicant is to pay the first respondent's costs, fixed in the amount of $6,500.00.

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).

1. 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 Immigration, (as the Minister was then called), ("the delegate") to refuse to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa.

Application for a visa and the delegate's decision

1. The applicant is a citizen of Fiji. The applicant arrived in Australia on 17 July 2011 on a Student (Temporary) (Class TU) (subclass 500) visa and subsequently held a Temporary Graduate visa along with three further Student visas. On 28 August 2018, the applicant made an application for a Student (Temporary) (Class TU) (subclass 500) visa ("the visa") to undertake an Advanced Diploma of Banking Services Management (Court Book ("CB") 1-19).
2. On 19 October 2018, 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 36-40).

Application for review to the Administrative Appeals Tribunal

1. On 23 October 2018, the applicant applied to the Tribunal for a review of the delegate's decision (CB 45-46). The applicant appointed a registered migration agent to act as her representative (CB 46).
2. On 23 October 2018, the Tribunal acknowledged receipt of the application and advised the applicant that should she wish to provide material or written arguments for consideration that she should do so as soon as possible (CB 43-44).
3. On 19 March 2020, the Tribunal wrote to the applicant advising her that she would need to provide sufficient information to satisfy the Tribunal that she meets the requirements for the visa, that she 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 she was undertaking and her entry and stay as a student (CB 47-55). The Tribunal said that specific details about the information requested are set out in the Request for Student Visa Information form ("RSVI form") and provided the applicant a link to that form. The Tribunal said that the information requested in the RSVI form should be received by 2 April 2020 (CB 49). 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 (CB 51-55).
4. On 26 March 2020, the applicant completed the RSVI form and provided it to the Tribunal and provided a copy of her current Confirmation of Enrolment for an Advanced Diploma of Leadership Management at Pacific Training Group to commence on 6 April 2020 and conclude on 26 September 2021 (CB 56-69).
5. On 14 April 2020, the Tribunal invited the applicant to attend a hearing on 30 April 2020, to give evidence and present arguments relating to the issues arising in her case, stating that it was unable to make a favourable decision based on the information before it alone (CB 71-74).
6. On 30 April 2020, the applicant attended the hearing (CB 78-81). At the hearing the Tribunal affirmed the delegate's decision and gave an oral statement of reasons for the decision

(CB 81). On 27 May 2020, the Tribunal gave written reasons for its decision ("Decision") (CB 87-92) and provided the applicant with a copy of its reasons (CB 85-86).

1. The Tribunal identified that the issue on review was whether the applicant met the requirements of cl 500.212(a) of Schedule 2 of the Regulations which required that the applicant is a genuine temporary entrant for entry and stay in Australia as a student ([7]).
2. The Tribunal stated that in considering whether the applicant satisfies cl 500.212(a) of Schedule 2 of the Regulations, the Tribunal is to have regard to Direction No. 69 which requires the Tribunal to have regard to a number of factors including the applicant's circumstances in their home country, circumstances in Australia, the value of the course to the applicant's future, the applicant's immigration history, and any other relevant matter ([8]). The Tribunal went on to state that the factors should not be used as a checklist but as a guide when considering the applicant's circumstance as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion ([9]).
3. The Tribunal considered the applicant's evidence by reference to the completed RSVI form and the applicant's evidence at the hearing and summarised the evidence as follows:

(a) The applicant arrived in Australia on 17 July 2011 ([10]);

(b) The applicant lodged the visa application (the subject of the review) three days before the expiry of her TU 500 Higher Education Sector visa ([11]);

(c) At the time of the visa application, the applicant proposed to study an Advanced Diploma of Banking Services Management but gave evidence at the hearing that she did not complete this course ([13]);

(d) The applicant is currently enrolled in an Advanced Diploma of Leadership and Management which commenced in April of 2020 and was proposed to conclude in September 2021 and that this would extend her stay in Australia until September 2021 bringing her stay onshore to approximately 12 years ([12]; [17]);

(e) The applicant stated in the RSVI form that she had chosen this particular course in Australia because of the quality of education and global recognition ([25]);

(f) That whilst onshore the applicant had several student and other associated visas, including a post-study work visa, and had completed a Bachelor of Accounting, a Master of Professional Accounting and a Masters of Business Administration ([14]-[17]; [20]);

(g) Before arriving in Australia, the applicant had obtained a Diploma of Business Studies and a Certificate in Advanced Business Accounting ([19]);

(h) The applicant has family members in Fiji who are not dependent family members and a cousin in Australia whom the applicant had looked after during a serious illness in 2019 which had caused a gap in the applicant's studies ([21]; [32]);

(i) The applicant stated in the RSVI form that she owns land in Fiji to the value of $37,000.00 but provided no objective evidence about that ([21]);

(j) Since arriving in Australia, the applicant has returned to her home country five times for a total of approximately three months to visit her family ([10]; [21]);

(k) The applicant has worked in Australia part-time as an accountant between September 2013 and March 2019 earning a salary of $20,000.00 per annum and from April 2019 to the hearing part-time as an accountant earning a salary of $30,000.00 per annum ([23]).

1. As to the applicant's circumstances in Fiji and her incentive to return to Fiji, the Tribunal said that although the applicant's family members reside in Fiji they are not dependent family members, she had returned to visit family only a handful of times and had not provided objective evidence of her financial ties in Fiji ([22]; [27]). The Tribunal considered those ties against the applicant's potential economic circumstances in Australia demonstrated by her work history and that she had been in Australia since 2011 ([27]). The Tribunal concluded that the applicant's strong employment history and current employment present as a strong incentive to remain in Australia on a more permanent basis ([28]).
2. The Tribunal said that it placed significant weight on the fact that the applicant has been in Australia since 2011 and has undertaken a significant number of courses in accounting and administration at the Bachelor and Master degree level and that she now proposed to regress academically to undertake an Advanced Diploma of Leadership and Management. The Tribunal said that this behaviour was not consistent with that of a genuine student ([29]). The Tribunal raised this with the applicant at the hearing and told the applicant that her regression in course studies might be a reason or part of the reason for affirming the delegate's decision and invited the applicant to respond ([30]). In response, the applicant told the Tribunal that she did not consider the course to be a downgrading in her studies and that many students these days graduate from school and undertake Masters degrees and that it was important to her to have a qualification that demonstrates that she had management skills for the purpose of increasing her employment prospects in the future ([30]).
3. The Tribunal said that it accepts that students may choose different areas of study on the basis of a change of decision as to career course, but was not satisfied in the particular circumstances that the current course in which the applicant was enrolled will further assist her career development or earning potential in view of the high level Bachelor and Master degree qualifications the applicant already holds particularly when coupled with the applicant's extensive work experience in Australia as an accountant. The Tribunal said that on that basis it could not be satisfied that a further vocational level degree will improve the applicant's employment prospects or remuneration prospects ([31]).
4. As to the applicant's reasons for choosing the education provider, the Tribunal had regard to the information provided by the applicant in the RSVI form ([24]) and the applicant's evidence that the university was chosen on the basis of reviews and recommendations by friends ([34]) and said that it was unable to conclude that the applicant had undertaken any significant research into her proposed course, course contents, education provider or education objectives ([25]; [35]). The Tribunal said that this was not behaviour consistent with that of a genuine student ([35]).
5. The Tribunal concluded that the applicant was enrolling in a lower-level course with the primary intention of seeking to circumvent the intention of the student migration program and remain in Australia on a more permanent basis ([36]). In so concluding, the Tribunal said the following ([37]):

(a) It gave significant weight to the applicant's ongoing successful work history in Australia;

(b) Whilst it is not uncommon for applicants to re-educate themselves or make a change in study plans or work pathways, the applicant's behaviour was not consistent with that of a genuine student to seek to change pathways to the extent that the applicant has by her chosen course in leadership and management, which is a substantial regression academically from the qualification she already holds;

(c) The applicant had not objectively demonstrated how the downgrading in the applicant's course will be beneficial to her in the future to the extent that would outweigh the financial commitment in doing further study.

1. The Tribunal regarded the applicant as more than qualified to return to Fiji and seek out employment in her chosen field ([38]). The Tribunal said that it had regard to the value of the course to the applicant's future and acknowledged the applicant's statement that she wishes to obtain managerial skills in the current course for the purpose of obtaining a better job in her home country and her statement that she would like to look for work as an accountant in a corporate firm in a senior or top level role and that she contends she needs leadership and management skills to obtain that employment in which she believes she would earn $50,000.00 as a result ([40]). However, the Tribunal said that it was not objectively satisfied that the applicant had demonstrated the value of the proposed course to her future and that the applicant had not provided objective evidence as how the completion of the proposed course would add value to her earning capacity given the high level degrees she already holds in accounting and business ([40]-[43]).
2. The Tribunal said that having regard to the applicant's immigration history, the length of time she has been in Australia, her extensive work history in Australia as an accountant led it to conclude that the applicant is motivated to remain in Australia for purposes other than study and that the applicant was not a genuine temporary entrant and accordingly was not satisfied that the applicant meets clause 500.212(a) ([44]-[47]).

1. These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 2 June 2020. The applicant also filed an affidavit affirmed on 2 June 2020. The affidavit annexes the Tribunal's decision.
2. Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which she 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.
3. The material before the Court was the application, the applicant's affidavit, the first respondent's response, the first respondent's written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that she had these documents. The Court Book was made an exhibit in the proceedings.
4. The applicant appeared via Microsoft Teams. She was unrepresented. The applicant was given the opportunity to make oral submissions in support of her application for judicial review and in reply to the first respondent's submissions.

1. For the applicant to be successful the Court must be satisfied that the Tribunal's decision is affected by material jurisdictional error.
2. 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.
3. Despite the procedural order permitting her to do so, the applicant did not file an amended application. The grounds of review set out in the application are (without alteration):

Ground One:

The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.

Ground Two:

1. The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice.

2. In considering whether the visa applicant met the visa grant criteria required by the regulations, the tribunal member failed to fully consider the fully consider the fact that the circumstances of the case were beyond the applicant's control.

The visa applicant was not at fault and yet was affected by exceptional circumstances

1. Ground one is an unparticularised claim that the Tribunal made a jurisdictional error. The applicant has not particularised how the Tribunal fell into jurisdictional error when making its decision. The applicant did not file an amended application or written submissions in which particulars of this ground might have been provided.
2. The first respondent submits that this ground is a general allegation that the Tribunal made a jurisdictional error and is insufficiently particularised to make it the subject of meaningful response. The first respondent submits that the ground should be dismissed on this basis alone (first respondent's written submissions ("FRS") [22] citing WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; SZRKG v Minister for Immigration [2020] FCA 1389 at [22] and CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20]- [22]).
3. Whilst the Court tends to agree, it is also of the view that it should be reluctant to dismiss a ground of review in circumstances where an applicant is unrepresented (DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]- [10] per Colvin J).
4. The Court invited the applicant to explain where she said the Tribunal fell into jurisdictional error when making its decision. The applicant said that the Tribunal made an assumption that because she was enrolled in a Diploma when she already had a Masters she did not really want to study when in fact she was interested in doing the course for career opportunities.
5. As set out above, the Tribunal did consider the applicant's evidence as why she now wanted to study an Advanced Diploma of Leadership and Management. The Tribunal expressly referred to the applicant's evidence that she did not consider the course to be a downgrading in her studies ([30]) and her evidence that she wanted to obtain management skills to improve her employment prospects and what the applicant identified as those prospects ([30];[40]).
6. The Tribunal considered that evidence and concluded that it was not satisfied that, having regard to the applicant's high level Bachelor and Master degree qualifications particularly when coupled with the applicant's extensive work experience in Australia as an accountant, a further vocational level degree would improve the applicant's employment prospects or remuneration prospects ([31]; [37]). The Tribunal said that it was not objectively satisfied that the applicant had demonstrated the value of the proposed course to her future and that the applicant had not provided objective evidence as how the completion of the proposed course would add value to her earning capacity given the high level degrees she already holds in accounting and business ([40]-[43]).
7. As the first respondent submitted in oral submissions, this was one of the factors that the Tribunal was required to consider pursuant to Direction No. 69. The Tribunal was required to consider other factors in determining whether it was satisfied that the applicant met the genuine temporary entrant criterion. As set out above in the Court's summary of the Tribunal's Decision, the Tribunal considered and balanced those other factors in reaching its conclusion that it was not satisfied that the applicant was a genuine temporary entrant for stay as a student.
8. The Court, having carefully read the Tribunal's Decision, cannot discern any jurisdictional error by the Tribunal in its consideration and balancing of the factors in Direction No. 69 on the evidence before it. The Tribunal reached a decision that was logical, rational and open to it on the evidence.
9. No jurisdictional error is established on ground one.

Ground two: failure to consider the circumstances and failure to provide procedural fairness

1. In ground two, the applicant makes three contentions:

(a) That the Tribunal failed to observe the principles of natural justice;

(b) That the Tribunal did not fully consider the fact that the circumstances of the case were beyond the applicant's control;

(c) The applicant was affected by exceptional circumstances.

1. The application does not particularise in what way it is the applicant contends that the Tribunal did not observe the principles of natural justice (procedural fairness). The Court invited the applicant to explain how it was she said the Tribunal had not adopted a fair process noting that the applicant had been invited to and had participated at the hearing. The applicant again referred to the assumption she said that the Tribunal had made as to why she wanted to study the course she had enrolled in. It was clear to the Court that the applicant was not complaining that the Tribunal had failed to afford her procedural fairness but that her complaint is concerned with the outcome of the Tribunal's decision. In any event, the Court is satisfied that the Tribunal discharged the procedural fairness obligations required by Division 5 of Part 5 of the Act:

(a) The Tribunal invited the applicant to provide information in relation to her application for review (CB 48-50). The applicant provided information to the Tribunal in response to that request (CB 56-69);

(b) 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 that issue being whether the applicant was a genuine temporary entrant requirement (CB 72-74);

(c) At the hearing, the Tribunal told the applicant that the regression in course studies might be the reason, or part of the reason, for affirming the decision under review and invited the applicant to comment on or respond to the information which the applicant did (Decision at [30]).

1. 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 her application for review.
2. The Court asked the applicant to identify the circumstances she said the Tribunal did not fully consider and which she said were beyond her control and the circumstances which she said were exceptional. Again, the applicant referred to the assumption she contended the Tribunal had made regarding her reason for studying the course she had chosen and which the Tribunal considered was a regression academically. The applicant said that the circumstances beyond her control were that being an accountant was her dream role but then she realised that she wanted to be in a management position and that the Tribunal did not consider this. As to the exceptional circumstances, the application said that she was not given an opportunity to pursue a management role and that the Tribunal's assumption that she was not a genuine student was the exceptional circumstance.
3. As already discussed above, the Tribunal took into consideration the applicant's evidence and argument as to why she wanted to study the chosen course and the Tribunal was not satisfied that the applicant had demonstrated the value of the proposed course to her future or provided objective evidence as how the completion of the proposed course would add value to her earning capacity given the high level degrees she already held in accounting and business ([40]-[43]). As already stated, the Tribunal's conclusion was one which was rational and logical and open to it on the evidence before it.
4. No jurisdictional error is established on ground two.

1. For the reasons given above no jurisdictional error is established and the application is, accordingly, dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.