Vidiyala v Minister for Home Affairs

2.1 The decision of the delegate 4 The appellant is a citizen of India who first entered Australia on 26 July 2014. At that stage he held a subclass TU-573 student visa granted offshore which ceased on 30 August 2016. 5 The appellant applied for the visa on 29 August 2016. A delegate of the Minister refused to grant the visa on 8 November 2016 on the ground that he was not satisfied that the appellant satisfied the genuine temporary entrant criterion. As a consequence, the delegate found that the appellant did not meet the criteria in clause 500.212 and refused the application.

2.2 The Tribunal's decision 6 On 22 November 2016, the appellant applied for review of the delegate's decision by the Tribunal. The Tribunal wrote to the appellant on 19 December 2007 inviting him to attend a hearing. On 30 January 2018, after holding a hearing at which the appellant appeared to give evidence and present arguments, the Tribunal affirmed the decision under review. 7 The criteria for a Subclass 500 (Student) visa (which include Student (Temporary) (Class TU) visa) are set out in Part 500 of Schedule 2 to the Regulations. As the Tribunal found, the issue was whether the appellant satisfied the primary criteria for the grant of the visa in clauses 500.211 to 500.218. The Tribunal was satisfied that the appellant was enrolled in a course of study at the time of its decision, namely, a Diploma of Business and Advanced Diploma of Business, and therefore that clause 500.211 was met (Tribunal reasons at [13]). The decision turned on whether the criterion in clause 500.212 was met which is set out above at [2]. In this regard the Tribunal acknowledged at [15] that Direction Number 69 - Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction 69) required the Tribunal to have regard to a number of specified factors including: • the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future; • the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries; • … • any other relevant information provided by the applicant, or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the applicant. 8 The Tribunal explained that the Direction indicates that the factors specified should not be used as a checklist but rather are intended to guide decision-makers when considering an applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion (Tribunal reasons at [16]). 9 The Tribunal implicitly accepted the applicant's claim in his visa application that he holds a Bachelor of Information Technology from a university in India which he said was awarded before he came to Australia. The applicant claimed that he came to Australia wanting to study an MBA so that he could improve his career prospects in India. While the appellant said that he would still like to study for an MBA, he said that it was too expensive and he could not afford it and that this was the reason why he was enrolled in a diploma level course (Tribunal reasons at [18]). 10 The Tribunal found with respect to the appellant's academic progress that: 21. The applicant is not made any academic progress since arriving in Australia in 2014. He started a Master of Information Systems into 2014 which was a logical progression from the Bachelor of Information Technology he had been awarded in India. The Masters course was, however, cancelled due to non-payment of fees, in 2015. The applicant said he then commenced a Diploma of Management in July 2015, but did not finish this course either, because of failure to commence the first term in 2016 due to financial problems. He said he did not study from November 2015 to July 2016, which the Tribunal notes is a significant eight month gap in his studies, because he said he was depressed due to his financial situation. He then applied for a Masters of Business Administration in 2016, but the offer of enrolment for that course lapsed. 22. The applicant has provided the tribunal with current CEO's indicating he is intending to study a package of Diploma/Advanced Diploma of Business from January 2018 to January 2020 and that classes commenced the week before the Tribunal hearing. 23. In the applicant's visa application, he states that he has "… gained substantial knowledge through my unfortunate failures from 2014 till date (29 August 2016) and in spite of all these failures I am determined to fight back again from scratch to repair my academics…" The applicant has not, on the evidence, repaired his academics. From August 2016 to the time of this decision, the applicant has not achieved any academic success. For part of the time he did not study at all, and then did not commence a Masters degree he was enrolled in in [sic] 2016. In addition, he had previously been enrolled in a Diploma of Management in 2015, which he did not finish, and is now enrolled in a Diploma of Business, which he says he commenced the week before the hearing. 11 The Tribunal accepted that the appellant has had financial problems but considered that the fact that he was studying the Diploma/Advanced Diploma primarily because it is less expensive "does not strongly indicate he is a genuine temporary entrant as it is extending his time onshore to study a course that the Tribunal cannot see will add much value to his future employment prospects" (Tribunal reasons at [24]). Nor, given that the appellant had not completed any courses since arriving as a student in 2014, was the Tribunal confident that he would complete the Diploma of Business in which he was then enrolled (Tribunal reasons at [25]). 12 In reaching the view that the appellant did not satisfy the genuine temporary entrant criterion, the Tribunal placed "significant weight" on the appellant's lack of academic progress in more than three and a half years, including "a significant eight month gap where he was not studying at all." (Tribunal reasons at [26]). It also found that if the appellant completed the courses in which he was currently enrolled, he would have been in Australia for five and a half years but gained only qualifications at the Diploma and Advanced Diploma level within a period of two years, being qualifications at a lower academic level than those gained earlier in India (Tribunal reasons at [26]). 13 The Tribunal noted that the appellant had provided no documentary evidence about his circumstances in his home country although he had returned to India twice for periods of a month and three weeks respectively. The Tribunal found that it was not satisfied that the appellant has sufficient ties to his home country which would motivate him to return there having regard among other things to the fact that he has no dependent relatives, is unmarried and has no children. The Tribunal found that "[t]his, together with his poor academic record over a period of three and a half years, causes the Tribunal to have significant concern about whether the applicant is a genuine temporary entrant, as he claims to be, or whether he is enrolling in courses to maintain residence in Australia" (Tribunal reasons at [29]). The Tribunal also took into account that the appellant, who had worked previously in India as an assistant developer in web designing, had not provided any information indicating that his current courses of study would increase his career or salary prospects in India and the Tribunal was not satisfied that they will (Tribunal reasons at [29]). 14 Given these matters, the Tribunal was not satisfied that the appellant genuinely intended to stay in Australia temporarily and considered that he is continuing to enrol in lower level courses in Australia for the primary purpose of maintaining residence. As such, the Tribunal found that the appellant does not meet clause 500.212(a) and was not therefore satisfied that he is a genuine applicant for entry and stay as a student as required by clause 500.212.

2.3 The decision of the FCC 15 The appellant sought judicial review of the Tribunal's decision in the FCC by an application filed on 13 February 2018. By the application, the applicant alleged that the Tribunal erred in failing to consider clause 500.212(c) of the Regulations, in failing to find that the delegate made a decision on the basis of no evidence, in failing to consider "that the delegate was imparting its own observation and knowledge without any basis in law and fact", and in failing to consider Aulakh v Minister for Immigration and Border Protection [2017] FCCA 544 which supported the proposition that "inconsistencies in the evidence of the applicant before it does not go to the core of the applicants [sic] claim for the student visa." The Minister filed a response alleging that the application did not establish any jurisdictional error in the Tribunal's decision. 16 The FCC held that no jurisdictional error had been demonstrated. First, the FCC held that the appellant's oral submissions in substance invited the Court to determine his application on compassionate or discretionary grounds which the Court did not have the power to do (FCC reasons at [13]). Secondly in relation to ground one, the FCC held that there was no need for the Tribunal to consider clause 500.212(c) of the Regulations because the Tribunal found that the appellant did not meet clause 500.212(a). As the requirements of clause 500.212 were "cumulative", it followed no error was made in this respect (FCC reasons at [15]). The FCC also found that there was no basis to support the proposition that the Tribunal had misconstrued clause 500.212(a), the Tribunal having taken into account the applicant's evidence and made findings open on the material before it (ibid). Thirdly, in relation to grounds two and three, the FCC held that it did not have power to review the delegate's decision and that the existence of error in the delegate's decision does not give rise to an error in the Tribunal's decision (FCC reasons at [16-17]). Finally as to ground four, the FCC held that this was not a case where the Tribunal determined the matter based on inconsistencies but rather had taken into account other factors in deciding that the applicant did not meet the criteria under clause 500.212(a).

3.1 The issues 17 Ground one of the notice of appeal contends that the FCC fell into error in failing to hold that the Tribunal made a jurisdictional error by reason of a failure to consider clause 500.212 of Schedule 2 to the Regulations. Various particulars are given as follows: (a) the Tribunal erred in not considering clause 500.212(a)(iv) any other relevant matter when the appellant's circumstances demanded that the clause be invoked in his favour; (b) the delegate misconstrued clause 500.212 in failing to find that the appellant was not a genuine applicant; (c) the Tribunal erred in not applying the facts when considering clause 500.212; (d) the Minister wrongly submitted at paragraph 11of his submission dated 16 June 2018 that the Tribunal was not required to consider subclauses 500.212(b) and (c)…. 18 Particulars (e) to (g) of ground one allege that the Tribunal erred in not acting reasonably in determining whether "the applicant satisfied the requirements of clause 500.212", and that in so doing it committed a jurisdictional error. Particular (h) of ground one alleges that "the Tribunal failed to have regard to the mandatory criteria when applying clause 500.212." 19 Ground two alleges that "[t]he appellant's application clearly raises an arguable case." 20 As the Minister submits, the eight particulars to ground one can be construed as separate grounds of appeal, albeit that they overlap to some extent. The Minister accepted that grounds 1(a)-(d) and (h) are broadly consistent with the grounds of review pleaded before the primary judge. However the Minister contended that grounds 1(e)-(g) were not raised in the FCC and therefore the appellant requires leave to raise them for the first time on appeal: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51.

3.2 The appellant's oral submissions 21 The appellant's oral submissions at the hearing of the appeal were directed towards establishing that he had a genuine intention to remain temporarily in Australia in order to pursue his studies. He emphasised that his father is supporting him due to his financial problems and that he requires a visa in order to pursue his Masters degree. 22 In its reasons under the heading "Background", the Tribunal records the appellant's contentions that he would still like to study for an MBA and as to his financial problems (at [18]). Further, in considering his academic progress, the Tribunal also took into account the appellant's submissions as to the impact of his financial problems upon his capacity in the past to pursue his studies. In those circumstances, it cannot be said that the Tribunal failed to take into account or overlooked the appellant's evidence with respect to these matters. In those circumstances, the appellant's submissions ultimately take issue with the Tribunal's decision on the basis that he disagrees strongly with the conclusions reached by the Tribunal and seeks to reargue the reasons why he should be granted the visa. 23 However, as I explained at the hearing, the FCC on judicial review has a limited capacity to interfere with a decision of the Tribunal. The jurisdiction of the FCC is confined to deciding whether the Tribunal's decision was made lawfully under the Migration Act 1958 (Cth) (the Act), that is, whether the Tribunal's decision is invalid by reason of a jurisdictional error. This Court in turn is confined to deciding whether the FCC wrongly held that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant's visa application must be assessed under the Act or Regulations, or if it failed to hear and determine his application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, neither this Court nor the FCC has jurisdiction to grant the appellant a visa, to consider whether he satisfies the criteria for the grant of a student visa, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). 24 The question of whether the appellant, this Court or the FCC disagrees with the Tribunal's findings about the genuineness of the appellant's intentions to study in Australia and return to India is not, therefore, a basis for finding that the Tribunal's decision is invalid and requiring the Tribunal to make the decision afresh. As the appellant's oral submissions were directed to these matters, it follows that those submissions did not demonstrate the existence of any error in the FCC's decision.

3.3 Grounds 1(a)-(d) and 1(h) of the notice of appeal 25 Grounds 1(b) of the notice of appeal challenges the delegate's decision on the ground that the delegate misconstrued clause 500.212. However, as the FCC Judge held, any jurisdictional errors in the delegate's decision would not prevent the Tribunal on review from exercising the powers and discretions vested in the delegate and the subsequent decision by the Tribunal would "cure" any such errors by the delegate: Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 at 298-299 (Wilcox J); Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344 at [27]-[28] and [32] (the Court); SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 at [25] (Black CJ and Allsop J). It follows that the FCC correctly found that any error in the delegate's decision was incapable of establishing error in the Tribunal's decision and therefore in dismissing grounds two and three of the application for judicial review. 26 Secondly, the criterion specified in clause 500.212 was a mandatory criterion for the grant of the student visa. In this regard subs 31(3) of the Act provides that the Regulations may prescribe criteria for a class of visas, and subs 65(1) of the Act provides that, after considering a valid application for a visa, the Minister "is to grant the visa" if satisfied that the criteria prescribed by the Act and the Regulations are satisfied and, if not so satisfied, "is to refuse to grant the visa". Regulation 2.03 of the Regulations prescribes the criteria for the grant of a visa for the purposes of s 31(3) and provides that: (1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Schedule 2; or (b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. (emphasis added) 27 By s 349 of the Act, on a review the Tribunal may exercise all of the powers and discretions conferred by the Act on the person who made the original decision and therefore "stands in the shoes" of the Minister's delegate to make the correct or preferable decision: Shi v Migration Agents Registration Authority [2013] HCA 31; (2008) 235 CLR 286 at [96]-[98] (Hayne and Heydon JJ) (by analogy); SZURL v Minister for Immigration and Border Protection [2015] FCA 864 at [5] (Katzmann J) (by analogy). As such, it is for the Tribunal on review to be satisfied that the relevant criteria have been met. 28 At the time that the visa application was made, Class TU contained two subclasses: subclass 500 (Student) and subclass 590 (Student Guardian). As the appellant did not claim to meet the criteria for the subclass 590 visa, the primary criteria to be satisfied were those applicable to the subclass 500 (Student) visa (as the Tribunal found at [2]). One of the primary criteria for a Subclass 500 (Student visa) was clause 500.212 which is quoted at [2] above. It is apparent from the use of the word "and" at the end of subclauses (a) and (b) of clause 500.212 that the appellant had to satisfy the Tribunal that each of the criteria in (a), (b) and (c) were met. It follows that once the Tribunal found that the criterion in subclause (a) was not met, the Tribunal was required to dismiss the visa application irrespective of whether the criteria in subclauses (b) and (c) were met. It follows that the FCC correctly held that the Tribunal was not required to consider the criteria in clause 500.212(b) and (c) before it could lawfully decide to affirm the delegate's decision to refuse the application. 29 Thirdly, it is apparent that the Tribunal placed significant weight on the appellant's lack of academic progress in finding that it was not satisfied that that the appellant was a genuine temporary entrant for study purposes. The Tribunal's finding that the appellant had not progressed academically was based, as the Minister submitted, upon documentary evidence regarding the cancellation of, and withdrawal from, courses by the appellant and his failure to provide an explanation that the Tribunal considered to be convincing. In this regard, it is for the Tribunal, and not the court, to assess the strength of the evidence and determine what weight to afford to the evidence and what inferences may be drawn from it. As for example, the Full Court held in Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] (RD Nicholson, Kiefel and Downes JJ agreeing): 5. There was no error in the primary judge's conclusion that the weight to be accorded to factors to be considered by the Tribunal was a matter for it. It was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight. I agree with the respondent that this is even more particularly the case when the Tribunal is considering and applying a Ministerial Direction. Such direction is to be used as a 'guide' and itself states that the decision-maker is to balance matters before it and the discretion under the Act is unfettered…. The matter of the weight to be given to the evidence was in the domain of the Tribunal and not the primary judge on judicial review. Even less so is it the domain of this Court on appeal from the primary judge. 30 It follows that the primary judge correctly found at [15] that there was no basis to support an allegation that the Tribunal misconstrued clause 500.212(a) of the Regulations. It also follows that the primary judge correctly found that the Tribunal's reasons reveal that it took into account the appellant's evidence and made findings open on the evidence, subject to a consideration of the legal unreasonableness ground raised by proposed grounds 1(e) to (g) of the notice of appeal.

3.4 Should leave be granted to raise grounds 1(e)-(g) of the notice of appeal?

3.4.1 Relevant principles for the grant of leave 31 The principles on which this Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal in migration matters are those identified in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588, namely: 46. In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so… 47. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 48. The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. (select citations omitted) 32 I note that the Minister accepted that the appellant was not represented before the FCC and lacks legal qualifications. The Minister also accepted that there was no prejudice to the Minister. I also note the appellant's submission as to the importance of being permitted to pursue his studies in Australia. As the Minister accepted, the critical question in this case is whether there is any substantial merit in the proposed grounds 1(e) to (g) of the appeal such that it is in the interests of justice to grant leave to raise the new grounds on appeal.

3.4.2 Leave to raise the new proposed grounds should be refused 33 Notwithstanding the above observations, ultimately I agree with the Minister's submission that this is not a case where there is merit to the argument that the Tribunal's decision was legally unreasonable. 34 In determining whether an administrative decision is unreasonable at law, it is essential first to bear in mind that the Court's jurisdiction is strictly supervisory: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [66] (Hayne, Kiefel and Bell JJ). In other words, it is not the Court's task to remake the Tribunal's decision according to its own view of what is a reasonable decision: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [59] (the Court). Rather, in assessing whether a particular outcome is unreasonable, the Court held in Eden at [62] that: …it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion… Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness… Such a decision falls within the range of possible lawful outcomes of the exercise of the power… (citations omitted). 35 Further, an evaluation of whether an administrative decision is legally unreasonable, and therefore outside the range of possible lawful possible outcomes, must be made having regard to the terms, scope and policy of the statutory source of the decision maker's power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] (Allsop CJ, with whose reasons Wigney J agreed at [90])). In this regard, s 499(2A) of the Act in particular, which required the Tribunal to have regard to Direction 69, is relevant as I explain below. 36 It is apparent from the reasons which I have set out earlier that the Tribunal reached its decision by reasoning in a logical, rational and intelligible fashion. It considered the appellant's evidence as to his intentions against the lack of academic progress that he had in fact made since arriving in Australia in 2014, including a significant gap in his studies. Demonstrated academic progress is a matter that was logically relevant to a consideration of the genuineness of the appellant's intentions, as were the explanations given by the appellant for that lack of progress by reference to financial problems and which the Tribunal also considered. Furthermore, it was not only logically relevant for the Tribunal to consider, as it did, that the courses which the appellant intended at that time to pursue would result in lower academic qualifications than those gained by him in India: the Tribunal was required to consider the value of the courses to the appellant's future under Direction 69. The appellant's ties to his home country could also logically bear upon the question of whether he genuinely intends to stay temporarily in order to pursue his studies and are required to be taken into account under Direction 69. Nor are there any other matters indicating that the decision was legally unreasonable. In this regard even strong disagreement with the decision would not be sufficient to establish that the decision was unreasonable in the sense required to establish a jurisdictional error. 37 It follows that proposed grounds 1(e)-(g) alleging that the Tribunal's decision was unreasonable are not reasonably arguable and therefore leave to raise them should be refused. 38 Finally, ground two of the appellant's appeal could not establish that the FCC fell into appealable error. The question before the FCC was whether the appellant had established jurisdictional error by the Tribunal, not whether he had established an arguable case of error by the Tribunal.

4. CONCLUSION 39 For these reasons, the appeal is dismissed. 'The appellant is to pay the first respondent's costs set in the amount of $4,363.00 I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.