3. On 5 August 1991 the applicant submitted an application for a student (category A) visa to the Australian High Commission in Colombo, Sri Lanka. The application discloses that she is a 27 year old, unmarried, Sri Lankan citizen without dependants. At the date of the application the applicant was unemployed but was able to support herself from the income from certain fixed deposits. The courses of study which she wishes to undertake are conducted by or in conjunction with the Royal Melbourne Institute of Technology. The applicant had received conditional approval to enrol in an 18 week intensive preparatory course in English and computer scheduled to commence on 23 September 1991 to be followed by a two-year Associate Diploma of Business in Office Administration commencing on 10 February 1992. The visa application indicates that the applicant's closest relative in Sri Lanka is her sister and that she has an immediate relative in Australia, an aunt, with whom it is intended she stay whilst in Australia. The application gives details of the applicant's educational and employment history and in response to the question "Do you have a job to return to at the completion of your course?" the applicant replied in the negative. In this context 2 further questions are posed in the application form and I set out below the questions and the applicant's responses:

Q. What kind of study/employment will you be seeking on

your return to your home country?

A. To be employed in a firm to advance my studies and

later have my own business in Sri Lanka.

Q. How will your course in Australia assist you?

A. This course in Australia will enable me to advance in

new technology in computer that I will study to

implement in my envisaged business in Sri Lanka.

4. In a section of the application relating to previous visa application the following information appears:

1988, application for migration refused

1990 August, application for holiday visa refused.

5. The final question asked in the application form is "Is there any other information or documentation you would like to be taken into consideration?" This question is followed immediately by the following - "Remember that a decision will be based on the information you provide in this application". The applicant's response to the question was to tick the box marked "No".

6. In response to her visa application, the applicant was requested to attend at the Australian High Commission for interview which she did on 13 August 1991. The interview was conducted by Margaret Anne Carseldine (now known as Margaret Anne Rustam), whose designation was Second Secretary (Immigration). During the course of the interview Mrs Rustam made notes of the conversation but did not record details of all questions and answers. The notes are on the High Commission's file which is available to the Court.

7. Following the interview, Mrs Rustam wrote an assessment of the application, which is also available to the Court on the High Commission file.

8. On the same day she forwarded to the applicant a letter in standard form advising her that her application had not been approved. The letter sets out the various criteria which must be satisfied before a visa can be issued including the requirement that:

(c) an applicant seeks the visa in order to obtain

temporary entry and does not intend to become a

permanent resident of Australia;

(e) an applicant is a genuine applicant for entry to

Australia as a student or trainee;

In assessing your application, it was concluded that you did

not meet the requirements at (c), (e) because you could not

demonstrate at interview any knowledge of the course

syllabus or how the course will be of direct relevance and

benefit on your return. Previous migration application

indicates interest in permanent stay. Few family members

remaining in Sri Lanka and expressed concerns at interview

about security situation in Colombo.

9. In her affidavit in support of the application the applicant says that immediately following the interview she wrote down her recollection of the questions asked and her answers. A typed copy of the record so made is exhibited to her affidavit. Whilst not agreeing that every detail is an exact transcript of the interview, Mrs Rustam, who gave evidence, accepted it to be a fair representation of the thrust of what was said. This document is hereafter referred to as the record of interview.

10. The statutory context in which the application arises is found in the Migration Act 1958 and the Migration Regulations. The term visa is defined in section 4(1) to mean permission to travel to Australia. The power of the Minister to grant visas is contained in section 24. Pursuant to section 23 regulations may be made in relation to the granting and refusal of visas and for different classes of visas. Regulations 10 and 41 make provision for classes of visas and the prescribed criteria applicable to each class. Regulation 41(1) provides that (subject to an irrelevant exception) a person is entitled to be granted a visa of a class specified in Schedule 2 if the person satisfies the prescribed criteria in relation to that class of visa. The schedule provides that the prescribed criteria for a "student (category A)" visa (the code number for which is 560) are the criteria specified in regulation 98B as well as certain other criteria set out in Schedule 1 to the Regulations. So far as they are relevant to the present case the prescribed criteria applicable to a student (category A) visa include the requirement that when a decision on the application for the visa is made the Minister is satisfied that the applicant is a genuine applicant for entry as a student (Regulation 98B(1)(c)(i)), and that the applicant seeks the visa in order to obtain temporary entry and does not intend to become a permanent resident of Australia (Schedule 1, symbol K). The requirements (c) and (e) referred to in the letter of 13 August 1991 obviously reflect the above two prescribed criteria.

11. The application in these proceedings alleges breaches of the rules of natural justice, improper exercise of power and errors of law. It will be necessary to examine the particulars pleaded in respect of each of these assertions.

12. The breaches of the rules of natural justice are said to be:

(ai) The evidence relied upon by the decision-maker

is not reasonably capable of sustaining each of

the decisions that have been made;

(aii) The decision-maker did not properly consider all of

the material submitted by the applicant in support of

her application;

(aiii) The decision-maker did not give the applicant an

opportunity to deal with the findings that she

was not a genuine student or that she did not

seek the visa to obtain temporary entry;

(aiv) The decision-maker did not give the applicant an

opportunity to deal with the finding that there were

few family members remaining in Sri Lanka;

(av) There was a failure to inquire into the question

as to how many family members remained in Sri Lanka.

13. The alleged improper exercise of power is pleaded in three ways. First it is said that there was a failure to take into account all relevant considerations, second, that there was an exercise of power that was so unreasonable that no reasonable decision-maker could have exercised the power in the way it was exercised, and third that the decision-maker took into account irrelevant considerations. The relevant considerations said not to have been taken into account are:

(bi) The courses sought to be studied by the

applicant in Australia do have a direct benefit

and relevance to the applicant contrary to the

respondent's claim by virtue of her previous

employment history, her personal history and her

plans for the future.

(bii) The applicant had applied for permanent residence and

a visitor's visa and had been refused. However, the

respondent did not take into account the fact that the

applicant had inherited substantial property in Sri

Lanka after the permanent residence application was

rejected.

(biii) The applicant and members of the family of the

applicant and Jayasinhage Harichandran her aunt

have travelled to Australia in the past and have

never overstayed their visas.

(biv) All of the family members of the applicant reside in

Sri Lanka with the exception of the aunt Jayasinhage

Harichandran who resides in Australia and is a

citizen.

(bv) The applicant has paid to the RMIT the sum of

$7500.00 in relation to fees for the above

courses.

(bvi) The applicant did demonstrate an overall understanding

of the courses she intended to take.

(bvii) The applicant's general character and record as

a student.

14. The irrelevant considerations said to have been taken into account are particularised as:

(ci) The decision-maker unreasonably expected

detailed knowledge of the course to be studied

regardless of the fact that the applicant had an

overall understanding of the courses she

intended to undertake.

(cii) The concerns expressed in relation to security in

Colombo by the applicant related only to her concern

that if she studied in Sri Lanka her studies might be

disrupted and not to her general safety in Sri Lanka.

15. The particulars referred to above are collectively relied upon to support the assertion that no reasonable decision-maker could have reached the decision arrived at.

16. The errors of law pleaded in the application are that there was not sufficient or no probative evidence before the decision-maker to enable the making of several material findings in the decision-maker's decision. This assertion is followed by a series of particulars, some of which seem to have little or no relevance to grounds sought to be relied upon and some of which were not pursued at the trial. The claims which were pursued are:

(di) The courses set out above that the applicant

desires to undertake are directly relevant to

her past experience and future plans.

(dii) The applicant has paid $7500.00 to undertake the

nominated course of studies.

(diii) All of the family reside in Sri Lanka with the

exception of the aunt.

(div) The applicant does have an understanding of the

courses to be studied but not in the detail demanded

unreasonably by the respondent.

17. Upon the evidence adduced at trial, it is obvious that some of the particulars pleaded are misleading and others contain factual inaccuracies which ought to be put to rest before proceeding further.

1. The assertion that the applicant had inherited substantial

property in Sri Lanka after the permanent residence application

was rejected (particular (bii)) is false. The fact is that the

applicant has property in Sri Lanka comprising a house and money

which represents the proceeds of the sale of land inherited from

her parents prior to the 1988 application for permanent residence.

It appears that the sale of the property may have occurred after

the 1988 application. However, it has not been made apparent how

this circumstance was relevant to the consideration of the visa

application and in any event it was not a matter which was ever

raised by the applicant.

2. The assertion that the applicant and members of her family and her

aunt had travelled to Australia in the past and have never

overstayed their visas (particular (biii)) is partly false, and

generally misleading. The fact is that the applicant has never

travelled to Australia but her sister has and did return to Sri

Lanka as required. The only evidence about her aunt is that she

went to Australia in 1973 to marry and became an Australian

citizen. There is some evidence that a second aunt is also an

Australian citizen. The father of the applicant's aunt's husband

is said to have travelled to Australia on 3 occasions, namely in

1974, 1975 and 1985 and on each occasion returned to Sri Lanka as

required. The decision-maker was aware of the visit of the

applicant's sister and of the two aunts having become Australian

citizens. In my opinion the previous history of due compliance by

family members is no more relevant to the consideration of a

particular application than would be a history of non-compliance

by family members.

3. The assertion that the applicant has paid $7500 to undertake the

proposed course of study (particulars (bv), (dii)) is false. The

fact is that whatever money has been paid to RMIT has been paid by

the applicant's aunt. (The sum paid appears to be $7100). The

applicant apparently has an arrangement to repay her aunt at some

future time but this cannot be done unless and until the aunt

visits Sri Lanka. Further, as the money is refundable in the

event that a visa is not obtained, the relevance of the payment is

not apparent.

4. The assertion that all members of the applicant's family reside in

Sri Lanka with the exception of her aunt Jayasinhage Harichandran

(particulars (biv), (diii)) is false. The fact is that the

parents and a brother of the applicant are deceased. She has one

surviving sister who lives in Sri Lanka and 4 maternal aunts, of

whom 2 are Australian citizens and 2 reside in Sri Lanka. The

applicant has cousins who reside in Australia, Sri Lanka and

Canada.

18. It is clear that the decision-maker came to the conclusion that the applicant had little or no knowledge of the course she proposed to undertake and drew the inference from that conclusion that the applicant was not a genuine applicant for entry to Australia as a student. In my opinion that inference was open upon the evidence in relation to this issue as it appears in the record of interview.

Q. Can you tell me something about the course syllabus

you are hoping to do in Australia?

A. ... very difficult to follow this course.

Q. Without knowing the syllabus how do know whether you

will be able to follow this course?

A. I found out from my aunt and other sources that it is

not a very difficult course.

Q. Just because your aunt is telling it is easy to

follow, how do you know whether you will be able to do

it?

A. Since it includes economics, accounts and commerce

subjects, I feel I will be able to do this course, as

I have done economics for my advanced level exam also.

19. Mrs Rustam's note is that the applicant could only remember the name of the course, that she did not know anything about the term "office administration" and that the applicant's aunt had selected it. However, she did agree in cross-examination that the applicant had said the course included economics, accounts and commerce.

20. Another matter that clearly exercised Mrs Rustam's mind had to do with the security situation in Colombo. According to the record of interview the issue came up in the context of questions as to whether a similar course would be available in Sri Lanka:

Q. Can't you get yourself qualified here?

A. Yes I can, but I like to go there and get myself

qualified because if there are any riots or any

disruption the institutions will close and I won't be

able to finish the course quickly. Also my aunt is

ready to give me all the help I need. Here, I don't

have anyone to help me. Only my sister is here and

she is also hoping to get married.

21. Mrs Rustam's note indicates that the reference to the security situation came up in the context of questions relating to the applicant's employment on her return to Sri Lanka.

22. The reasons expressed in the letter of 13 August 1991 refer to the applicant's expressed concern about the security situation in Colombo, but I do not understand from reading the reasons as a whole that this was a matter that was central to the reasoning which led to the conclusion reached.

23. Reference has already been made to the applicant's family connections both in Australia and Sri Lanka, but it is appropriate to look closer at the evidence on this issue. In her visa application the applicant nominated her sister as her closest relative in Sri Lanka, and reference has already been made above both to her Australian aunt and to her sister. In the record of interview the following exchange appears subsequent to the passage last quoted above:

Q. How did you aunt go to Australia?

A. She went there to get married. Uncle sponsored her.

Q. Was he a resident in Australia at that time?

A. Yes, he was.

Q. How many relative have you got in Australia?

A. I have this aunty who is sponsoring me, her husband,

their two children and another aunty.

Q. When did your aunty, uncle and family get their

citizenships?

A. I think they got it in 1988.

Q. Have you got your parents?

A. No.

Q. Have you got any brothers?

A. No, only this sister.

Q. Doesn't she have any intention of applying for a

student visa or to migrate again?

A. No, she wants to settle down in Sri Lanka.

Q. Is this the same aunt who is sponsoring you now, who

sponsored you for the holiday and migration?

A. Yes.

24. Mrs Rustam's note records that the applicant and her sister are the only family in Sri Lanka and that she has no (sic, other) siblings or parents. When cross-examined she said that her recollection was that she asked the applicant what family she had in Sri Lanka and what family she had in Australia but conceded that her questions may have been restricted to inquiries concerning the applicant's parents and siblings.

25. The statement in the decision-maker's reasons that the applicant had few family members remaining in Sri Lanka has to be understood in the context of the material put to her and in that context it was not only a conclusion that was open to her but was the only reasonable conclusion that could have been arrived at.

26. The reasons for not approving the visa application as expressed in the letter of 13 August 1991 indicate that the decision-maker reached two basic but interrelated conclusions. First, that the applicant had not demonstrated that she was a genuine student applicant and second, that she was not satisfied that the applicant did not intend to become a permanent resident of Australia.

27. As to the first conclusion Mrs Rustam was clearly influenced by what she perceived to be the applicant's lack of any real knowledge about the proposed course and the absence of any firm plans for her future after completing the course. It is said that Mrs Rustam was unreasonable in expecting both detailed knowledge of the course and some plan for future relevant employment. Although in the visa application reference is made to the applicant setting up her own business in the future, nothing of this sort was referred to in the interview. There seems to be no doubt that the applicant's aunt selected the course and is the prime mover behind the proposal. All of these matters were before the decision-maker and in my opinion the conclusion that she reached as to the applicant's bona fides as a potential student was open to her on the material put to her by the applicant.

28. The conclusion that the applicant was not seeking a visa merely to obtain temporary entry was also open on the evidence. There was the history first of the aunt having gone to Australia in 1973 and become a citizen, then of two unsuccessful applications to go to Australia first as a migrant, then as a visitor, both sponsored by the same aunt, and now the suggestion that the applicant go to Australia as a student to undertake a course selected, and to this stage paid for, by the aunt. In 1988 the applicant clearly had an interest in permanent residence in Australia and nothing has been said as to why that interest no longer persists. It was open on what the applicant told Mrs Rustam at the interview for her to conclude that the applicant has few family members remaining in Sri Lanka. An interesting aside which arises from the applicant's affidavit evidence, and which has no relevance except to the extent that it may throw some light on how credible her assurances are that she intends to return to Sri Lanka to work, is that in paragraph 12 of her affidavit she says that if she successfully completes the intensive preparatory course and the Associate Diploma of Business in Office Administration she intends to undertake a Bachelor of Business in Business Administration and has exhibited to her affidavit a copy of the course information in relation to a course at RMIT consisting of 3 years of full-time study.

29. In my opinion the evidence relied upon by the decision-maker was reasonably capable of sustaining the decision made (particular (ai)). Further the decision-maker did properly consider all of the material submitted by the applicant in support of her visa application (particular (aii)). The applicant has not sought to identify any material that was submitted in support of the visa application which was not considered.

30. Whether or not the courses sought to be studied by the applicant would have a direct benefit and relevance to the applicant (particulars (bi) and (di)) is a matter of judgment. There can be no doubt that the decision-maker did have regard to this issue including the applicant's past work history of only casual employment and the real complaint is that she reached a different conclusion from that asserted by the applicant. The same general comment is equally applicable in answer to particulars (bvi) and (div). The relevance of the applicant's general character and record as a student (particular (bvii)) (as to the former of which no specific evidence was offered) escapes me in the context of the matters being considered by the decision-maker but assuming them to be relevant there is no basis upon which to assert that they were not taken into account and indeed, however spotless her character and meritorious her record, it cannot be the case that these considerations must necessarily outweigh all other relevant factors.

31. It was not, in my view, unreasonable and therefore it was relevant to expect that the applicant have a detailed knowledge of the course she proposed to study (particular (ci)). It is not altogether certain on the evidence that the concern expressed by the applicant at interview in relation to security in Colombo related only to her concern that her studies might be disrupted and not to her general safety in Sri Lanka (particular (cii)). The notes made by the decision-maker during the course of the interview and her written assessment made immediately thereafter are consistent with the comment made in her letter of 13 August 1991.

32. All of the issues raised by particulars (di) to (div) have been dealt with elsewhere in these reasons and whether taken individually or collectively, do not support the assertion of an error of law on the part of the decision-maker.

33. The only grounds which have not been specifically addressed are those expressed in particulars (aiii), (aiv) and (av), all of which were added by amendment at the commencement of the trial of the application.

34. In support of the applicant's case based upon these claimed instances of denial of natural justice, counsel relied upon a number of authorities including the recent decisions of the Full Court in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; 102 ALR 339 and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 387; 102 ALR 367. Both of these cases were heard and decided by the same bench and judgment was given on the same day.

35. The facts in Somaghi and Heshmati were closely related and in each case appeals were upheld by a majority decision (Jenkinson and Gummow JJ; Keely J dissenting) upon the limited ground that the decision-maker had not accorded the appellants procedural fairness in reaching decisions relating to their applications for refugee status. However, the judges comprising the majority reached similar conclusions by different reasoning, and no single principle can be extracted from their Honours' judgments. The facts of the case were quite extraordinary in that the decision-maker drew an inference of lack of bona fides from facts which were not relied upon by the applicants in support of their applications. In these circumstances the majority view was that the applicants should have been given an opportunity to address the proposed finding as to their lack of bona fides. In both cases the ultimate consequence of an unfavourable decision was deportation.

36. The decisions in Somaghi and Heshmati are not authority for a general proposition that in cases where a decision-maker proposes to reach a decision based upon a finding that a party has not acted bona fide, the party must first be given the opportunity to address that issue. In the two cases cited the issue of bona fides was not one which so obviously arose from the circumstances that the applicants should be treated as having knowledge of what the decision-maker's judgment of the particular conduct would be. As indicated above, the decision-maker had made an assumption as to the basis upon which the applicants sought to support their applications which did not accord with the cases as presented.

37. The facts in the present case are essentially different from the facts in Somaghi and Heshmati. Here the applicant sought a visa to travel to Australia as a student. She had previously in 1988 unsuccessfully sought to migrate to Australia and in 1990, just a year before the instant application, had been refused a visa to travel to Australia as a visitor. The reason for the refusal was well known and understood by the applicant. In the interview with Mrs Rustam reference was made in the initial exchange of questions and answers to an Australian High Commission stamp on the applicant's passport. Mrs Rustam's note is simply "PPT seen stamp 7/8/90", which I interpret to mean that Mrs Rustam had seen the applicant's passport and that it had been stamped on 7 August 1990. The record of interview discloses more details:

Q. Why did the Australian High Commission stamp on your

passport?

A. Because I applied for a holiday visa and it was

rejected.

Q. Why was it rejected?

A. They had stated that I might not come back to Sri Lanka.

38. Indeed, in her affidavit the applicant refers to a letter written at the time in which she sought to have the refusal reconsidered. The letter, dated 20 August 1990, refers to the High Commission's letter of 7 August 1990 and contains, inter alia, the following statement in support of her request for reconsideration:

I will definitely return to Sri Lanka after visiting my aunt

as my income from my savings deposits in Sri Lanka is more

than enough for me to lead a comfortable life in Sri Lanka

even without employment. I intend working purely to keep

myself occupied.

And having commenced the interview on 13 August 1991 with a reference to the previous unsuccessful visa application, Mrs Rustam returned to the same theme in her final question. Although the record of the question and answer is obviously not an accurate transcription of the words used by Mrs Rustam at the time, the general sense of what is recorded seems to be accurate:

Q. After finishing this course, if you get a chance of

staying in Australia, don't you like to stay?

A. No I want to get back, because I have my house here.

39. Mrs Rustam said in cross-examination that her question was probably:

"What reasons would you have for wanting to return to Sri

Lanka? Isn't it likely that you would want to stay in

Australia?"

40. There can be no doubt that the applicant was well aware that the whole purpose of the interview was to establish whether she was a bona fide applicant for a student visa. She had the opportunity to say in her final response that she would return to Sri Lanka because that is where her family is, or words to that effect, but in her response made no reference to family.

41. The facts in Waniewska v Minister for Immigration and Ethnic Affairs 70 ALR 284 were also relevantly different from the present case. There the applicant (who was facing deportation) was held to have been denied natural justice by the failure of the decision-maker to give her the opportunity to respond to adverse inferences drawn by him. The substance of the judge's decision on the natural justice issue is found at p 296 where Keely J said:

In the present case it was accepted by the respondent that

it was never put to the applicant that she was not, or that

she might not have been, a bona fide visitor. As I have

said, there was nothing in the circumstances of the case to

lead the applicant to anticipate that the respondent was

likely to infer that she was not a bona fide visitor.

42. Similar observations to these would be altogether inappropriate in the facts of the present case.

43. In my opinion there is no basis to support the claim that the applicant was denied natural justice on grounds (aiii) and (aiv).

44. Nor is there any basis for the claim that the decision-maker erred by failing to inquire further as to how many family members remained in Sri Lanka. As indicated above, the applicant did not rely upon any claim to strong family ties as evidence of her intention and desire to return to Sri Lanka. When given the chance she referred only to her house. But when she did refer to her family in Sri Lanka, in the context of an answer that was intended to identify what family support she could call upon in Sri Lanka, she mentioned only her sister. The finding that the applicant had few family members remaining in Sri Lanka is factually correct, and reflects the circumstance that the applicant's parents and her only brother are deceased and that the one family member in Sri Lanka to whom she referred was her sister.

45. In Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; 8 FCR 167 Toohey J at p 178 said in relation to section 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977:

As a broad proposition, I do not think that the Act imposes

an obligation on a decision-maker to initiate inquiries.

...

But much will depend upon the nature of the material before

the decision-maker, the importance of the decision to be

made and its consequences for the person to whom the

decision relates.

46. His Honour then expressly confined his comments to a decision that a non-citizen be deported. But that case is not this case. Here the non-citizen is not facing deportation, nor is her liberty in jeopardy. She is merely seeking permission to travel from her own country to Australia to undertake a course of study. The refusal of the application will mean to her only that if she genuinely wishes to pursue further studies she will not be able to do so in Australia. Similar courses are open to her in Sri Lanka and the only reason advanced for wanting to study in Australia rather than Sri Lanka was the possibility that riots may cause the temporary closure of colleges and thus extend her period of study. There is however evidence before me which I accept (and which was known to both the applicant and the decision-maker at the time of the interview) that there is not currently a problem with security in Colombo and that there has been none since at least October 1989.

47. It should not be overlooked that the visa application form contained an invitation to provide any further information the applicant desired to put in support of her application and drew attention to the fact that a decision would be based upon the information provided by the applicant.

48. Nor does this case bear any relevant similarity to the facts in Luu v Renevier [1989] FCA 518; 91 ALR 39 where there was material before the decision-maker that suggested that there was readily available other factual material which would be likely to be of critical importance in relation to a critical issue for determination, and which was not obtained.

49. In the particular circumstances of this case there was no obligation on the decision-maker to institute further inquiries concerning the applicant's family ties in Sri Lanka, or indeed in any other respect.

50. The applicant has failed to establish any basis for review of the decision made on 13 August 1991 to refuse her a student visa. The application will be dismissed with costs.