FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Home Affairs [2019] FCA 2026

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWARD J:

1    The first appellant is an Indian citizen who came to Australia in March 2009 as the holder of a Higher Education (Class TU) (Subclass 573) visa. The second appellant is married to the first appellant. The third and fourth appellants are their children. Before arriving in Australia, the first appellant had already been awarded a Bachelor of Arts and a Master of Political Science. Here, she completed a Bachelor of Accounting as well as a Graduate Diploma in Business and a Diploma in Human Resource Management. During this time the first appellant held a further two student visas. In 2016, she applied for another student visa. She wished to undertake a Diploma of Marketing (subsequently changed to Human Resources). A delegate of the first respondent (the “Minister”) declined to grant that visa; the delegate also refused to grant visas to the dependent visa applicants, being the second to fourth appellants. The appellants sought merits review of that decision before the second respondent (the “Tribunal”). In 2018, following a hearing at which the first appellant was assisted by an authorised representative, the delegate’s decision was affirmed. The appellants then sought judicial review of the Tribunal’s decision. The Federal Circuit Court dismissed that application in 2019. The appellants now appeal that decision to this Court.

Legislative Provisions

2    Both the delegate and the Tribunal were not satisfied that the first appellant was intending genuinely to stay in Australia temporarily in order to study for the purposes of cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (the “Regulations”). That clause provides:

500.212 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:

    (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

(c)    of any other relevant matter.

Proceeding before the Tribunal

3    The Tribunal applied Direction No. 69 entitled “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” in considering cl 500.212. It did so pursuant to s 499 of the Migration Act 1958 (Cth) (the “Act”).

4    Amongst other things, Direction No. 69 sets out in more detail the matters which a decision-maker should consider in applying the four items set out in cl 500.212(a) above. Before me, the first appellant contended that the Direction had been misapplied.

5    After considering each of those four items with the assistance of Direction No. 69, the Tribunal found that the first appellant did not genuinely intend to study in Australia, but was pursuing an Advanced Diploma of Management (Human Resources) to maintain residency in this country. On the first appellant’s case, she had been (and still was) a genuine student for over 10 years. The Tribunal rejected that case. It was also not satisfied that the Advanced Diploma would add value to the first appellant’s future which was said to be the establishment of an accounting practice in India. It observed at [19]:

The Tribunal is not satisfied the course the applicant is currently studying will add value to her future over and above the qualification and work experience she already has. After obtaining tertiary qualifications the applicant has regressed to vocational courses which it was claimed, are necessary to run a business. The Tribunal does not accept the applicant requires qualifications in various aspects of business management such as Marketing and Human Resources in order to work as an Accountant, either as an employee or a sole practitioner.

6    The Tribunal concluded at [22] as follows:

The Tribunal considers the applicant is continuing to study in order to maintain residency in Australia, rather than for a genuine purpose. As stated, the Tribunal does not consider further studies in Australia will assist the applicant in her own country over and above the qualifications she already holds. It also appears the applicant is seeking to continue studying in the event she is not successful in obtaining work sponsorship. This is not the purpose of the student visa program and the Tribunal is not satisfied the applicant is a genuine student.

The Federal Circuit Court

7    The appellants were not represented in the Federal Circuit Court. Contrary to the orders of the Circuit Court, they filed no particulars of the grounds of review and filed no submissions. The first appellant had, however, filed an affidavit in support of her application. This was summarised by the learned primary judge at [7] as follows:

  (a)    She worked as a “retail manager”;

(b)    She had no assistance in the preparation of her Application. She said that she had used her “old application” as the basis for the documents filed in this Court, which I take to mean the Application to either the Delegate and/or to the Tribunal;

  (c)    The same comment was made in relation to the preparation of her Affidavit;

(d)    The Applicant confirmed that she was seeking a review of the decision of the Administrative Appeals Tribunal.

8    At the hearing before the learned primary judge, no information was provided setting out details to support or otherwise explain the grounds of review pursued by the appellants. Understandably, in those circumstances, the application for review was dismissed. Noting the opportunities afforded to the appellants to put their case, the primary judge said:

31.    Procedurally, the Applicants have had three opportunities to set out what the Grounds of Review are. Those three opportunities are: (a) the original Application; (b) under the orders from September 2018 for any amended Application; and (c) to provide an Outline of Submissions pursuant to Order 5 of the Orders of September 2018. The Applicants have provided no relevant details of their Grounds of Review.

32.    In the light of these omissions, and contrary to the Court’s Orders and directions, the Applicants have provided no (a) Grounds of Review, (b) relevant particulars of their claims, and/or (c) argument(s) in support of their Application via written submissions or otherwise.

33.    In the absence of any particularised Ground of Review, the Court may reasonably infer also that the Application amounts to a generalised complaint about the Tribunal’s decision. If this be so, such a course would amount to impermissible merits review.

34.    In the circumstances outlined, otherwise I agree with and accept the submissions of the First Respondent.

35.    Accordingly, the Application must be dismissed with costs as per the Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.

(Footnote omitted.)

Grounds of Appeal

9    The grounds of appeal were entirely new. They were as follows:

1.    The Federal Circuit Court erred by failing to find that, in various respects, the Tribunal failed to comply with section 499(2A) of the Act, including by failing to have regard to:

(a)    whether the first appellant’s (the primary applicant) personal ties to her home country of India “would serve as a significant incentive to return [there]”, as required by clause 9(b) of Direction No [69] – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction [69]);

(b)    whether the primary applicant’s intended course of study would assist her to obtain employment or improve employment prospects in India, as required by clause 12(a) of Direction [69];

(c)    whether the primary applicant complied with the conditions of her visa, as required by clause 14(b)(i) of Direction [69]; and

(d)    whether the primary applicant previously held a visa that was cancelled or considered for cancellation, as required by clause 14(b)(ii) of Direction [69].

2.    Further or in the alternative to ground 1(b), the Federal Circuit Court erred by failing to find that the primary applicant’s course of study would not “add value to her future”, on the basis that she does “require” an [Advanced] Diploma of Management (Human Resources) in order to work as an accountant.

10    The second proposed ground of appeal (“Proposed Ground Two”) was not pressed before me.

11    The appellants needed leave to rely on the proposed grounds of appeal. The Minister opposed this. It was not disputed that leave will be granted where it is in the interests of justice to do so. However, it is not ordinarily appropriate for this Court, when exercising its appellate jurisdiction, to rehear judicial review applications on a completely fresh basis. As Reeves J. observed in AYJ15 v. Minister for Immigration and Border Protection [2016] FCA 863 at [17]:

The only explanation the appellant has offered for his failure to raise before the Federal Circuit Court any of his three proposed new grounds of appeal was that he had changed his lawyer and his new lawyer had taken a different view of the matter. For obvious reasons, this is not an adequate explanation. It moves the arena for judicial review of the Tribunal’s decisions from the Federal Circuit Court to this Court: see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. It perverts the role of this Court as an appellate court reviewing error in the Federal Circuit Court: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [14] per Gleeson CJ, Gaudron and Hayne JJ. It subverts the deliberate intention of the Legislature expressed in the Migration Litigation Reform Act 2005 (Cth) to remove this Court’s original judicial review jurisdiction in migration matters and confer that role on the Federal Magistrates Court (now Federal Circuit Court) confining the role of this Court, in such matters, to that of an appellate court (ss 476 and 476A of the Act). It is therefore inimical to the due administration of justice in migration appeals.

See also SZWCO v. Minister for Immigration and Border Protection [2016] FCA 51 at [28]-[39] per Wigney J. and EBO17 v. Minister for Immigration and Border Protection [2018] FCA 1227 at [53] per Robertson J.

12    Obviously, the fact that the appellants were not represented below is a material factor that supports the grant of leave. So too is reliance upon new grounds which have merit. Contrastingly, a factor, raised by the Minister, which militates against the grant of leave is the public interest in the timely and effective disposal of litigation. He relied upon the following passage from the judgment of Gyles J. in Iyer v. Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 192 ALR 71 at [62]:

In my opinion, it is wrong to analyse the question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible. In the present case, there was no bona fide ground of appeal from the primary decision and the litigation should have ended at that point more than seven months ago. It is unnecessary, for present purposes, to go beyond the authorities cited by Mansfield J on the issue. Leave to argue the points sought to be raised should be refused. The appeal should be dismissed and the appellant ordered to pay the costs of the respondent. In coming to this view, I have had regard to the nature of the points sought to be argued, but not to the ultimate merits of those points.

13    Any explanation given as to why the new grounds had not been relied upon below is also relevant. Here, the first appellant affirmed an affidavit in which she stated that following the loss in the Tribunal her Registered Migration Agent had said to her:

You don’t need a lawyer. You can simply go along and explain the situation.

14    When she appeared before the learned primary judge, she said that his Honour tried to explain to her what she needed to do but she did not understand the terminology and was a “bit confused”. She said that she asked her Registered Migration Agent if she needed to complete her paper work or provide evidence. That Agent apparently said to her:

No, you don’t need to do anything. Just explain to Judge Neville what your story is.

15    The first appellant deposed that at the hearing she was “lost” and did not understand what was happening. She thought she just had to tell her story.

16    No affidavit from the Registered Migration Agent was filed on behalf of the appellants confirming what had been said to the first appellant. In the absence of such corroborating evidence, in my view it is highly unlikely that the Agent would have told the appellants that they did not need a lawyer and did not need to respond to the orders made by the learned primary judge. I therefore reject this explanation. However, I otherwise accept the first appellant’s evidence that she was lost and confused at the hearing below.

The Issue of Leave

17    In my view, in the circumstances of this case, leave to rely upon the new grounds should be refused. That is because:

(a)    the proposed grounds lack sufficient merit;

(b)    the explanation given by the appellants as to why they had not retained lawyers before the Federal Circuit Court is deficient; and

(c)    I am satisfied that the appellants have had a sufficient opportunity to put their case. It is now desirable for this litigation to come to an end.

18    I shall deal first with the merits of each proposed ground of appeal (which are really grounds of review).

The merit of the first proposed ground of appeal

19    The first proposed ground of appeal (“Proposed Ground One”) is premised on the proposition that each of the matters set out in Direction No. 69 are mandatory considerations. In their written submissions, the appellants mistakenly refer to Direction No. 53 (a predecessor of Direction No. 69) and to a decision of Judge Riley in Singh v Minister for Immigration & Anor [2018] FCCA 3423. In that case her Honour decided that the listed factors in Direction No. 53 were mandatory considerations. Each was required to be taken into account.

20    I do not need to determine whether Singh was correctly decided. That is because the language used in Direction No. 53 is decisively different from the language used in Direction No. 69. Critically, whilst Direction No. 53 states factors which “must” be considered, Direction No. 69 only refers to factors which “should” be considered. This can be illustrated by comparing the language used under the heading “The applicant’s circumstances” in each Direction. The first factor under that heading in Direction No. 53 states:

Decision makers must have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

(Emphasis added.)

21    In Direction No. 69, the same factor is expressed as follows:

Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

(Emphasis added.)

22    Direction No. 69 is a “guide” concerning relevantly the application of the four matters identified in cl 500.212(a). It states:

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

23    It then states:

Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

24    The classic statement of how to determine whether a particular factor or matter must be taken into account was expressed by Mason J. (as his Honour then was) in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 as follows:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [(1979) 144 CLR 45, at pp 49-50], adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury [(1937) 56 CLR 746, at pp 757-758], and Water Conservation and Irrigation Commission (N.S.W.) v. Browning [(1947) 74 CLR 492, at p 505]. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

25    Clause 500.212, by its terms, makes the following factors mandatory considerations in assessing whether an applicant genuinely intends to stay in Australia temporarily:

(a)    the applicant’s circumstances; and

(b)    the applicant’s immigration history; and

(c)    if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(d)    any other relevant matter.

It was not suggested that each of these matters had not been considered.

26    Before me, Mr Aleksov who appeared for the appellants, acknowledged the differences in the language between Directions No. 53 and No. 69. He nonetheless submitted that the word “should” connoted the presence of an obligation, and in the context of a formal direction from the Minister which must be complied with in accordance with s 499, ought to be construed as “must”. He contrasted the use of the word “may” in cl 10 of Direction No. 69 with the word “should”. He emphasised that if the matters identified in the Direction were not intended to be mandatory considerations, the Minister would have used the word “may” instead of “should”. He also submitted that the express disavowal of Direction No. 69 being a “checklist” did not assist the Minister’s case. It was said that the first sentence of cl 1 of Direction No. 69 did not lead to the consequence that the Tribunal need not consider every factor mentioned in the Direction. Rather, that statement was and is intended to impress on the Tribunal that it ought not apply Direction No. 69 in a “slavish” fashion.

27    Mr Aleksov also relied upon the decision of the Full Federal Court in He v. Minister for Immigration and Border Protection (2017) 255 FCR 41. That case concerned reg 1.15A of the Regulations which sets out factors for determining whether two persons are in a “married relationship” for the purposes of s 5F of the Act. Regulation 1.15A(2) provides that the Minister “must consider all of the circumstances of the relationship, including the matters set out in subregulation (3)”. Sub-regulation (3) sets out four matters for consideration. The Full Court decided that the Tribunal was required to make findings about each of those four matters. At 57-58 [78] the Full Court said:

The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages. Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.

28    Here, it was said that the Tribunal was required to give actual consideration to each of the factors set out in Direction No. 69. Mr Aleksov nonetheless conceded that where a given factor was irrelevant to the circumstances of an applicant, the Tribunal did not need to state expressly in its reasons that this factor had been considered. For example, cl 14(a)(i) of Direction No. 69 is relevant where an applicant has previously applied for an Australian temporary or permanent visa. If this had never happened, thereby rendering cl 14(a)(i) irrelevant or unengaged, the Tribunal was not obliged to say so in its reasons for decision.

29    I respectfully disagree with Mr Aleksov’s submission. In my view, He is distinguishable because the language and context considered in that case is different from that used in Direction No. 69. What the Tribunal must ultimately do in a case concerning an application of cl 500.212(a) is make a finding of fact about whether an applicant does or does not intend genuinely to stay in Australia temporarily. For that purpose, it must apply the four factors prescribed in cl 500.212(a) of the Regulations (set out above).

30    Then, for the purpose of applying those factors, the Minister has made a Direction which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a “guide” in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a “checklist”; rather they are to guide a decision-maker “when considering the applicant’s circumstances as a whole”. In other words, a decision-maker is not required to check each identified factor in the Direction. In my view, this language is inconsistent with the first appellant’s contention that every factor must be considered as a mandatory consideration. It is also inconsistent with the function and purpose of Direction No. 69 as a guide to assist in applying cl 500.212.

31    In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v. Minister for Home Affairs [2019] FCAFC 135; SZSSC v. Minister for Immigration and Border Protection (2014) 142 ALD 150 at 172-176 [75]-[81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v. Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v. Minister for Immigration and Border Protection (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ.

32    There was some confusion as to what claims had or had not been made by the first appellant. Moreover, before me Mr Aleksov also appeared to rely on different factors in Direction No. 69. Instead of relying on cll 9(b), 12(a), 14(b)(i) and 14(b)(ii) as set out in the new proposed grounds of appeal, he relied upon cl 9(a), (c), (d) and (e) and cl 12(b) and (c) of Direction No. 69. The Minister did not seem to object to the first appellant’s reliance on these different clauses. They are in the following terms:

9.    When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

a.    whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

…

c.    economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

d.    military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

e.    political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

…

12.    Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

…

b.    relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

c.    remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

33    In my view, the first appellant either made no substantial claims which engaged these factors, or claims concerning these factors did not clearly emerge from the material before the Tribunal, or they were otherwise taken into account by the Tribunal.

34    As for the first appellant’s claims, I was referred to the following passage from her visa application:

The applicant has completed Bachelor of Professional Accounting and also completed Professional Year program and Graduate Diploma in Business. The applicant intends to set up her own Accounting Business in her home city of Qadian, Gurdaspur, Punjab, India on her return after finishing her studies in Australia. The applicant also wishes to acquire knowledge and qualification to market the services intended to be provided and to promote the business that will be new and thus will give the business a good start.

35    I was also referred to the following from her post-hearing submission presented to the Tribunal:

We submit again that starting own business needs some skills and business acumen on top of desired qualification for the occupation. The applicant holds the qualification of an Accountant but it is not necessary that this qualification will enable her to successfully establish her business too. Accordingly, the applicant wanted to equip herself with some skills of marketing and human resource development, so to enable herself to establish her Business as an Accountant.

Therefore, we humbly submit to refer to the evidences provided along with the comments in favor of the applicant thus she can fulfil her dreams of a bright future. If the visa would be granted she would abide by the visa conditions and would keep doing so. We strongly believe that comments provided in the decision record are not correct and the applicant have never provided any wrong information.

The applicant has always intended to complied by the visa condition and be a law abiding non-citizen. She respects the integrity, Law and values of the country and will always keep trying to do so. I hope you will consider the documents and situation and use your discretionary power to grant the visa and save me and my family.

(Errors in original.)

36    In my view, the Tribunal addressed these claims when it decided that the proposed course of study would not add value to the first appellant’s future. With respect to cl 9(a), (d) and (e), it was not shown that the first appellant had made any claims that engaged these factors. Nor was it demonstrated that claims concerning these factors clearly emerged from the material before the Tribunal. For example, cl 9(d) deals with military service commitments. The first appellant never suggested she had such commitments. In my view, the Tribunal was thus not obliged to address that factor.

37    With respect to cl 9(c), in my view the economic circumstances of the first appellant were addressed at [13] of the Tribunal’s reasons when it said the following:

The Tribunal has considered the applicant’s circumstances in her own country. She has extended family members in India and she declared she has property and assets …

38    As for cl 12(b) of Direction No. 69, I am also satisfied that it was considered when the Tribunal decided that the proposed course was of no value to her future accounting practice. As for cl 12(c), again it had not been demonstrated that any claim had been made about remuneration or that this issue should have clearly emerged from the material before the Tribunal.

39    As for the clauses in Direction No. 69 referred to in the first appellant’s proposed new grounds, for completeness, I am satisfied that the Tribunal:

(a)    considered the first appellant’s personal ties to India in its reasons sufficiently for the purpose of cl 9(b) of Direction No. 69. It said at [13]:

The Tribunal has considered the applicant’s circumstances in her own country. She has extended family members in India … however, her husband and children reside in Australia, as does one sibling. The applicant denied she had withheld information from the Department about a brother residing in Australia and provided a copy of her application form that contains the correct information. The Tribunal accepts the applicant did disclose the presence of a brother residing in Australia as she claimed and that this finding by the Department was not correct.

(b)    considered whether the first appellant’s intended course of study would assist her to obtain employment or improve her employment prospects in India for the purposes of cl 12(a) of Direction No. 69. It did so at [19] when it decided that the proposed course would not add value to her future in India;

(c)    considered whether the first appellant had complied with the conditions of her first student visa for the purposes of cl 14(b)(i) of Direction No. 69. It considered her migration history at [20] as follows:

The Tribunal has considered the immigration history of the applicants. The primary applicant and her husband came to Australia on 20 March 2009 and have been residing in Australia for 9 years and 3 months at the time of decision in this case. The primary applicant has visited her home country periodically but at the time of application, the secondary applicant had not returned to India since his arrival in Australia. It was claimed the secondary applicant is not on good terms with his family which is why he has not visited. This is indicative of a lack of ongoing ties to his country of origin by the secondary applicant. Although the primary applicant has returned to India since her arrival, the length of time since she left and the presence of her immediate family in Australia suggest her ongoing ties have diminished.

(d)    considered whether the first appellant had previously held a visa that had been cancelled for the purposes of cl 14(b)(ii) of the Direction No. 69 by reason of expressly considering the appellants’ applicable immigration history.

40    It follows that Proposed Ground One has no prospects of success.

The merit of Proposed Ground Two

41    As previously mentioned, Proposed Ground Two was not pressed before me. In any event, it has no prospects of success. It alleges error in the factual finding at [19] set out above that the Advanced Diploma of Management (Human Resources) would add “no value” to the first appellant’s prospects in India. The error was said to be that because the first appellant proposed to establish her own accounting firm in India, this would require the acquisition of skills in managing staff. That contention is a self-evident attack on the merits of the finding reached by the Tribunal.

42    I do not otherwise consider that the Tribunal misdirected itself in applying cl 12 of Direction No. 69. Its observation that it did not accept that the first appellant required a qualification in Human Resources in order to work as an accountant was, I find, a broad rejection of the utility of such a course for the purposes of cl 12.

Explanation as to why the new grounds had not been raised before the primary judge

43    I am also not satisfied with the explanation given by the first appellant for her conduct before the Federal Circuit Court for the reasons already given.

The public interest in the timely and effective disposal of litigation

44    Finally, as the primary judge highlighted, the appellants had three opportunities to put their case and identify their grounds of review in the Federal Circuit Court. The first opportunity was the filing of the originating application; the second and third opportunities were accorded through orders made by the primary judge in September 2018 which allowed for the filing of “any amended application giving complete particulars of each ground of review relied upon” and “an outline of submissions … prior to the hearing date”. The appellants did not seize those opportunities. The appellants have now spent over 10 years in Australia on student visas, and more recently in seeking such a visa. They have been fighting that issue since 2016. Given the lack of merit in the two proposed grounds of appeal, finality of litigation assumes greater prominence here. In my view, there is a clear public interest in bringing this matter to an end.

Conclusion

45    For the foregoing reasons, leave is not granted to rely on the proposed new grounds. This appeal should be dismissed with costs.

Associate:

Dated:    4 December 2019

SCHEDULE OF PARTIES