Federal Court of Australia

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 852

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal fixed in the amount of $6,747.00.

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

REASONS FOR JUDGMENT

DOWNES J:

Synopsis

1    By a notice of appeal which was accepted for filing on 18 November 2020, the appellant appeals from the decision of the Federal Circuit Court of Australia dated 3 November 2020: Singh v Minister for Immigration [2020] FCCA 2963.

2    By that decision, the primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (the Tribunal) dated 16 December 2019 which had affirmed a decision of the delegate of the first respondent (the Minister) not to grant the appellant a Student (Temporary) (Class TU) (subclass 500) visa (student visa).

3    The appellant raises five grounds of appeal in this Court. A number of these grounds raise matters which were not raised before the primary judge. The appellant therefore requires leave of the Court to advance these grounds: CHZ19 v Minister for Home Affairs [2019] FCA 914 at [31]–[39] (Colvin J). As no objection was raised by the Minister to these new matters being raised, and as the appeal proceeded on the basis that the appellant could rely upon these grounds, leave is granted to the appellant to the extent that any is required.

4    The primary basis upon which the appellant challenges the decision of the primary judge is through attempted reliance upon further evidence which was not before the Tribunal. Almost all of this evidence relates to events which post-date the Tribunal’s decision and, in some instances, the primary judge’s decision. Based on that evidence, the appellant makes submissions about and seeks findings from this Court.

5    This approach is misconceived.

6    That is because, having regard to the grounds of appeal, the approach which the appellant asks the Court to take is beyond the scope of this Court’s jurisdiction, which is to review the judgment of the Court below to determine whether there is any appealable error in that judgment (which, itself, turns on whether the Court below was correct to find that there was no jurisdictional error in the Tribunal decision).

7    The appellant’s submissions otherwise do not establish any error in the primary judgment.

8    For these reasons, the appeal will be dismissed.

Background

9    The appellant is a male citizen of India who applied for the student visa on 18 August 2017.

10    On 10 October 2017, a delegate of the Minister refused to grant the appellant the student visa on the basis that it was not satisfied that the appellant genuinely intended to stay temporarily in Australia and, therefore, did not satisfy subclause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth).

11    On 19 October 2017, the appellant sought review of the delegate’s decision before the Tribunal.

12    On 2 April 2019, the Tribunal invited the appellant to provide information pursuant to s 359 of the Migration Act 1958 (Cth). That invitation relevantly:

(a)    put the appellant on notice that it was a requirement for the grant of the visa to be a genuine applicant;

(b)    invited the appellant to provide information with respect to his entry and stay in Australia as a student; and

(c)    notified the appellant that the Tribunal would have regard to Ministerial Direction No. 69 (Direction No. 69) in considering the genuine temporary entry requirement, a copy of which was attached to the letter.

Tribunal’s decision

13    On 16 December 2019, the Tribunal affirmed the decision not to grant the appellant a student visa.

14    The Tribunal noted the evidence before it, which included a detailed response to the Tribunal’s invitation under s 359 of the Act, 14 supporting documents and an eight-page written submission addressing various matters for the Tribunal’s consideration. The Tribunal recorded the appellant’s study history in Australia, noting that the appellant’s expected time living and studying in Australia is just over five years.

15    The Tribunal proceeded to consider the factors set out in Direction No. 69, and made the following findings:

(a)    the appellant’s family and financial circumstances in India did not provide an incentive for him to return to India, so as to outweigh the incentive for the appellant to remain living in Australia: [26];

(b)    the appellant’s failure to return to visit family in India for nearly five years, while continuing to work in Australia, was indicative that family ties did not provide a significant incentive for the appellant to return to live and work in India: [30];

(c)    the appellant’s circumstances in Australia did not provide an incentive for the appellant to return to work and live in India, so as to outweigh the incentive for the appellant to remain living in Australia: [31];

(d)    the appellant’s plan to open a restaurant in India at some point in the future was a “loose conceptual format” and “aspirational”: [34];

(e)    it was not satisfied with respect to the reasons given by the appellant concerning the value of studying a Diploma of Hospitality Management in Australia to the appellant’s future plans to open a restaurant in India: [35];

(f)    it was not persuaded by the appellant’s evidence as to his difficulties in undertaking a Diploma of Hospitality Management in India: [37]; and

(g)    the appellant breached visa condition 8516 in changing his bachelor degree studies to Vocational Education and Training (VET) courses, and did not inform the Department to that effect due to a concern that the Department would not permit him to stay in Australia and study the VET courses: [44].

16    Having weighed the above matters, the Tribunal considered that the appellant was using the student visa program primarily to maintain ongoing residence in Australia: [45].

17    The Tribunal was therefore not satisfied that the appellant intended genuinely to stay in Australia temporarily so as to meet subclause 500.212(a) of Schedule 2 to the Regulations: [46].

18    Consequently, the Tribunal found that the appellant did not meet the criteria for the grant of the student visa and affirmed the decision under review: [47]–[48].

Federal Circuit Court’s decision

19    On 3 November 2020, the primary judge dismissed the application for judicial review.

20    The primary judge made the following findings:

(a)    the appellant’s argument that the Tribunal has misconstrued or misapplied clause 500.212 of Schedule 2 to the Regulations has no merit: [32];

(b)    the appellant’s argument that the Tribunal’s decision was unreasonable in the legal sense, or that the Tribunal engaged in irrational or illogical fact finding, has no merit: at [33]; and

(c)    the appellant’s grounds of review, as amplified by him in his oral argument, expresses discontent with the Tribunal’s decision, but do not disclose jurisdictional error: [34].

Appeal to Federal Court

Submissions and evidence on the appeal

21    Along with the notice of appeal, the appellant filed an affidavit made on 11 November 2020. That affidavit contained an Annexure A which is described as a “written explanation”.

22    The appellant filed a further affidavit on 27 November 2020, which was made on 24 November 2020, and which annexed a “written submission” and other documents, including documents relating to events which occurred after the Tribunal decision or which were not in evidence before the Tribunal.

23    The Minister filed written submissions which were accepted for filing on 15 June 2022.

24    After the Minister’s submissions were filed, the appellant filed an affidavit on 22 June 2022 which annexed written submissions and:

(a)    documents relating to a Bachelor of Business course at the Holmes Institute which is being undertaken by the appellant at present, including:

(i)    an Overseas Student Confirmation-of-Enrolment;

(ii)    offer and acceptance agreement dated 7 August 2020;

(iii)    letter confirming enrolment dated 14 June 2022;

(iv)    payment receipts for payments processed between 10 August 2020 and 3 May 2022;

(v)    interim transcript dated 16 June 2022;

(vi)    assignments with due dates of 25 May 2022, 27 May 2022 and 3 June 2022;

(b)    an affidavit of Jaswinder Singh (father of the appellant) dated 17 June 2022; and

(c)    a document titled ‘Business Plan’.

25    The appellant also filed a further affidavit on 27 June 2022 which annexed a number of documents, being translated (Punjabi to English) and untranslated versions of documents relating to a transfer of property dated 8 July 2020, translated on 25 June 2022, and an internet banking receipt dated 16 June 2022.

26    Apart from the written submissions, the documents annexed to the two most recent affidavits filed by the appellant post-date the Tribunal decision and relate to alleged events which occurred after the Tribunal decision.

27    The Minister filed submissions in reply to the additional submissions and affidavits filed by the appellant. These submissions were accepted for filing on 4 July 2022.

Grounds of appeal

Ground 1

28    Ground 1 contends that the primary judge 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.

29    Particulars of the ground are then provided. For the following reasons, ground 1 fails.

Particular (a)

30    This states that the Tribunal erred in not considering clause 500.212(a)(iv), being “any other relevant matter” when “my circumstances demanded that the clause be invoked in my favour”.

31    In the appellant’s written explanation in Annexure A of his first affidavit, he refers to ‘exceptional circumstances’, which he contends were not considered as follows:

The applicant wants to seek the attention of the Federal Court of Australia to consider his exceptional circumstances caused by the fault of the administration department of the applicant’s university and Covid-19 restrictions. These circumstances were not considered by the Federal Circuit Court of Australia. The evidence which could be collected even in the situation of Covid-19, were submitted prior to the Federal Circuit Court’s hearing and rest of the documents or evidence have been attached in order to prove the applicant’s genuineness.

32    The appellant submits that the Tribunal “neglected [his] explanation for the change of his course”. The appellant also submits that he enrolled in the “Diploma of Business leading to Bachelor of Business at Queensland University of Technology, but due to the fault of the university’s administration department, his certificate of enrolment got cancelled and he could not enrol again in the same course. Since it was a Diploma leading to a Bachelor, the certificate of enrolment of the Diploma of Business got cancelled due to which the certificate of enrolment of the Bachelor of Business was also cancelled”.

33    However, the Tribunal referred to (and did consider) the cancellation by the university of the appellant’s enrolment in the Bachelor of Business course when it stated at [14]–[15] that:

The applicant arrived in Australia on 17 June 2014 holding a TU573 student visa that was granted offshore on the basis of the applicant’s enrolment in a Bachelor of Business at Queensland University of Technology.

The delegate’s decision record notes that the applicant only studied three months of his English Language Intensive Course for Overseas Students before changing to lower Vocational Education and Training (VET) courses in business and management. As a consequence the applicant’s enrolment in a Bachelor of Business was cancelled by the Queensland University of Technology on 1 October 2014.

34    As to whether the cancellation was the ‘fault’ of the university, the appellant accepts by his submissions on this appeal that, although he had been enrolled in the Bachelor of Business course, he downgraded his studies “but was negligent in informing the authorities” and “apologises for the mistake”. This is consistent with the evidence which the appellant gave to the Tribunal. It is therefore not apparent what the appellant means by the university being at ‘fault’ and how this means that there has been a jurisdictional error by the Tribunal.

35    Based on the evidence before it, the Tribunal made the following findings at [39]–[42]:

The delegate’s decision record reflects that the applicant did not contact the Department to seek permission to change his Bachelor course to VET courses, which in the delegate’s view was a breach of visa condition 8516 (maintain eligibility).

During the course of his evidence, the applicant accepted that he did not inform the Department of his proposed course change from studying for a Bachelor of Business to studying VET courses. He also accepted that he had breached a condition of his visa in changing his study to VET courses.

The applicant came to Australia to study a Bachelor of Business. The applicant told the Tribunal that he changed his study to VET courses as he found studying for a Bachelor of Business was very hard and so he changed courses. When asked why he didn’t inform the Department about changing his study to VET courses, the applicant initially gave evidence that he didn’t tell the Department because he forgot to do so.

In response to a question from the Tribunal as to whether he was worried that if he told the Department about changing from a Bachelor of Business to VET courses, he would lose his student visa, the applicant said ‘yes’.

36    None of these facts are challenged by the appellant. Nor is it submitted by him that he gave other evidence, or made a submission, about anything being the ‘fault’ of the administration department of the appellant’s university, which evidence or submission was then not considered by the Tribunal. It therefore does not appear to be something which was raised by the appellant with the Tribunal.

37    It follows that the ‘exceptional circumstances’ now relied upon by the appellant were either considered by the Tribunal (being the fact of the cancellation by the university of the appellant’s enrolment in the Bachelor of Business course) or relate to evidence and submissions which were not before the Tribunal.

38    The other ‘exceptional circumstances’ are said to be the COVID-19 restrictions in India but, according to the appellant, these restrictions did not commence until March 2020. This means that these restrictions post-date the Tribunal decision and so are irrelevant.

39    For these reasons, the appellant has not demonstrated an error on the part of the Tribunal or, in turn, the primary judge.

40    Accordingly, this aspect of ground 1 fails.

Particular (b)

41    This particular states that the delegate misconstrued clause 500.212 in “failing to find that [the appellant was] a genuine applicant”. However, having regard to the context in which this appeal is brought and the appellant’s submissions (which do not refer to any error by the delegate), the reference to delegate is presumably intended to be a reference to the Tribunal.

42    In circumstances where this ground lacks further particulars, it fails to establish any error. If it is a repetition of the substance of the complaint in particular (a), then it fails for the same reason that particular (a) fails. To the extent that the appellant seeks to rely upon evidence about or assertions of facts which post-date the Tribunal’s decision, this does not establish a jurisdictional error.

43    Therefore, this aspect of ground 1 fails.

Particular (c)

44    Particular (c) contends that the Tribunal erred in not applying the facts when considering clause 500.212.

45    In circumstances where this ground lacks further particulars, it fails to establish any error. If it is a repetition of the substance of the complaint in particular (a), then it fails for the same reason that particular (a) fails. To the extent that the appellant seeks to rely upon evidence about or assertions of facts which post-date the Tribunal’s decision, this does not establish a jurisdictional error.

46    This aspect of ground 1 fails.

Particular (d)

47    For particular (d), it is stated that the Minister made an incorrect submission in its written submissions when it knew that the appellant was studying a Bachelor of Business. This would appear to be a reference to the appellant’s enrolment in a Bachelor of Business degree at the Holmes Institute.

48    However, this was information that was not before the Tribunal. As to this, the primary judge stated at [15]:

The applicant filed an affidavit on 17 August, 2020 annexing evidence of his recent enrolment in a Bachelor of Business degree at the Holmes Institute. However, this evidence was not before the second respondent, was not considered by it at the time it conducted its review, and I accept the first respondent’s submission that this evidence is irrelevant in the present proceedings. Moreover, the evidence contained within the affidavit postdates the second respondent’s decision, so, as the first respondent submits, there can be no possible jurisdictional error in the second respondent not having considered it.

49    The appellant has not established any error in relation to this part of the primary judge’s reasons. This aspect of ground 1 fails.

Ground 2

50    Ground 2 states that the decision of the Tribunal “was unjust to me as I had explained to the tribunal that I wish to Bachelors of business and was not able to get the admission in Bachelors of Business at the time of the Tribunal decision”.

51    To the extent that this overlaps with particular (a) to Ground 1, it fails for the same reasons.

52    The Tribunal’s decision to affirm the delegate’s decision was based upon its finding that the appellant did not meet subclause 500.212(a) of Schedule 2 to the Regulations. This finding was based upon its weighing up of its considerations made pursuant to Direction No. 69. Relevantly to ground 2, the Tribunal made the following observations:

14.    The applicant is a 26-year-old Indian national. The applicant arrived in Australia on 17 June 2014 holding a TU573 student visa that was granted offshore on the basis of the applicant’s enrolment in a Bachelor of Business at Queensland University of Technology.

15.    The delegate’s decision record notes that the applicant only studied three months of his English Language Intensive Course for Overseas Students before changing to lower Vocational Education and Training (VET) courses in business and management. As a consequence the applicant’s enrolment in a Bachelor of Business was cancelled by the Queensland University of Technology on 1 October 2014.

16.    During the period June 2014 to August 2017, the applicant’s enrolments, including courses completed or cancelled were as follows:

•    English for Academic Purposes Two (finished September 2014);

•    University Diploma of Business (cancelled October 2014);

•    University Bachelor of Business (cancelled October 2014);

•    Certificate IV in Business (started October 2014 and finished April 2015);

•    Diploma of Management (started May 2015 and finished November 2015);

•    Advanced Diploma of Management (cancelled March 2016);

•    Advanced Diploma of Leadership and Management (started March 2016 and finished June 2017); and

•    Certificate IV in Commercial Cookery (started June 2017).

17.    On 18 August 2017, the applicant applied for a Student (Temporary) (Class TU) Student (Subclass 500) visa to study the following:

•    Certificate IV in Commercial Cookery (June 2017 to November 2018); and

•    Diploma of Hospitality Management (January 2019 to July 2019).

18.    In the period between the delegate’s decision and the hearing before the Tribunal, the applicant was enrolled in, or had successfully completed, the following courses.

•    Certificate IV in Commercial Cookery (completed November 2018); and

•    Diploma of Hospitality Management (studying).

…

41.    The applicant came to Australia to study a Bachelor of Business. The applicant told the Tribunal that he changed his study to VET courses as he found studying for a Bachelor of Business was very hard and so he changed courses. …

(emphasis added)

53    There was no reference by the Tribunal to any evidence that the appellant was not able to be admitted into a Bachelor of Business course at the time of the hearing before the Tribunal. To the contrary, the appellant informed the Tribunal that he chose to change courses because he found the Bachelor of Business course to be too hard. In particular, this information appears in the appellant’s application to the Tribunal.

54    The appellant has failed to demonstrate that the Tribunal’s consideration of the relevant matters was made otherwise than with respect to the evidence provided to it by the appellant. Nor has the appellant demonstrated any error by the primary judge.

55    Accordingly, ground 2 fails.

Ground 3

56    Ground 3 states as follows:

The primary judge has been misled by other parties as solicitors behalf of respondents did not take my present education in to consideration and they have wrongly submitted to primary judge; therefore the Tribunal misconstrued clause 500.212(a) of the Regulations. It also follows that the primary judge incorrectly found that the Tribunal’s reasons reveal that it hasn’t taken into account my evidence and made findings open on the evidence, it is subject to a consideration of the legal unreasonableness. Written explanation has been enclosed with Affidavit in Annexure "A".

(footnote omitted)

57    In Annexure A to his first affidavit, the appellant stated that:

The second respondent considered the factors set out in Direction No. 69 but did not consider the exceptional circumstances of the applicant. It was not considered that the applicant could not provide an incentive to go back to India as it was difficult for him to present evidence due to Covid-19 restrictions. The applicant has now purchased a land of 3267 square feet in Amritsar, Punjab, India to set up his restaurant in future. This is an incentive for him to return to his home country after finishing his bachelor’s degree.

(footnote omitted)

58    The reference to COVID-19 restrictions and to the acquisition of land in India post-date the Tribunal decision, such that these events are irrelevant and do not demonstrate an error on the part of the Tribunal, or in turn the primary judge.

59    Annexure A continues:

It was not considered by the second respondent that the Diploma of Hospitality Management is closely related to the applicant’s future business idea of opening a restaurant in India. The job prospects after the completion of this course clearly indicates that Diploma of Hospitality Management is closely related to the applicant’s future business idea of opening a restaurant in India.

(footnote omitted)

60    However, the Tribunal did consider and address the matters referred to in this paragraph to the extent that they were raised with it by the appellant as follows:

33.    The applicant gave evidence that when he finishes his study he will go back to India.

34.    The applicant gave evidence that he plans to return to India and open a restaurant near an airport. The applicant estimates earning AU$10,000 per month running his restaurant. There is no evidence before the Tribunal to support the applicant’s income estimation. There is no evidence before the Tribunal setting out the details of the applicant’s plan to open a restaurant. The Tribunal considers the applicant’s plan to open a restaurant at some point in the future is in a loose conceptual format and is aspirational.

35.    Having regard to the evidence, the Tribunal was not satisfied by the applicant’s reasons as to the value of studying a Diploma of Hospitality Management in Australia in respect of the applicant’s future plans to open a restaurant.

36.    The applicant’s response to the Tribunal’s ‘Request for Student Visa Information’ form, and in particular the applicant’s statement, reflects that his reasons for not studying in India centred on challenges in being accepted into courses in India and a desire to study in Australia. When asked why he was not able to do a Diploma of Hospitality Management in India, the applicant told the Tribunal to the effect that in India a Diploma of Hospitality Management would be very hard to do, and so the applicant chose to do a Diploma of Hospitality Management in Australia.

37.    There was no other evidence before the Tribunal to support the applicant’s assertions about the difficulty in being accepted into courses in India. There was no evidence before the Tribunal that the applicant had attempted and been unsuccessful in enrolling in a Diploma of Hospitality Management or equivalent in India. In the circumstances the Tribunal is not persuaded by the applicant’s evidence as to his difficulties in undertaking a Diploma of Hospitality in India.

61    Annexure A continues:

The applicant did not undertake Diploma of Hospitality in India as he wanted to study Bachelor of Business, for which he came to Australia but due to the exceptional circumstances he could not get himself enrolled in Bachelor of Business and studied Diploma courses at that time. Now the applicant is studying Bachelor of Business.

(footnote omitted)

62    This submission is contradicted by the express findings of the Tribunal (which the appellant has not shown were not open on the evidence before it) or refer to events which post-date the Tribunal decision. Either way, no error has been demonstrated.

63    Annexure A continues:

The applicant breached visa condition 8516 by changing his bachelor’s degree studies to vocational education and training courses because of the lack of knowledge. The applicant was not aware of the visa condition 8516 and because of that he did not inform the department of home affairs. He did not intend to breach the visa condition but due to exceptional circumstances he had to change to VET courses which were closely related to the applicant’s future business idea of opening a restaurant in India.

The federal circuit court did not consider the applicant’s exceptional circumstances and gave weight to the findings made by the second respondent based on which the grant of the applicant’s visa was refused.

64    As to this aspect of the appellant’s complaint, the Tribunal’s decision stated as follows:

41.    The applicant came to Australia to study a Bachelor of Business. The applicant told the Tribunal that he changed his study to VET courses as he found studying for a Bachelor of Business was very hard and so he changed courses. When asked why he didn’t inform the Department about changing his study to VET courses, the applicant initially gave evidence that he didn’t tell the Department because he forgot to do so.

42.    In response to a question from the Tribunal as to whether he was worried that if he told the Department about changing from a Bachelor of Business to VET courses, he would lose his student visa, the applicant said ‘yes’.

43.    The Tribunal recognises the importance of allowing for reasonable changes to career and study pathways. However, the applicant’s decision to not inform the Department about changing his study to VET courses is a cause of concern to the Tribunal.

44.    Having regard to the evidence, the Tribunal finds that the applicant breached visa condition 8516 in changing his study to VET courses. The Tribunal finds that the applicant did not inform the Department to the effect that he had changed his study to VET courses because the applicant was worried the Department would not permit the applicant to stay in Australia and study the VET courses.

65    Any legal unreasonableness is to be judged at the time the power is exercised: Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 385 ALR 212; [2020] HCA 46 at [26].

66    The Tribunal’s findings and decision could not be described as illogical, irrational or without a probative basis, let alone to the extent that no logical or rational person could reach the same decision on the material as was before it, such as would be required for a finding of legal unreasonableness: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] per Crennan and Bell JJ.

67    It follows that there was no unreasonableness in the Tribunal’s decision. Nor is there any basis to conclude that the Tribunal failed to take into account the appellant’s evidence, as stated in ground 3. Nor has any error been shown in the decision of the primary judge.

68    The appellant has failed to establish any error, and ground 3 must therefore fail.

Ground 4

69    Ground 4 states that the Court “does have discretion to exercise its power to grant the leave as 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”.

70    This ground does not allege, or establish, any error in the primary judgment. Further, leave has been granted to the appellant to advance further grounds not advanced before the primary judge.

71    This ground does not establish any error, and it must fail.

Ground 5

72    Ground 5 states, “Tribunal (second respondent) did not consider my education history and value of the course, further relevancy between the past and current studies. Decision has been affected by jurisdictional error and caused me to waste of parents hard-earned money [sic]. Further I had to pay lot of money for court appeals”.

73    However, the Tribunal had regard to the appellant’s education history in Australia (as set out above at [15]–[18] of its reasons) and the value of the course to the appellant’s future plans of opening a restaurant in India (as set out above at [34]–[35] of its reasons).

74    The Tribunal did not misunderstand the appellant’s evidence, and this ground fails to reveal any jurisdictional error by the Tribunal or error in the primary judgment.

75    This ground does not establish any error, and it must fail.

Balance of matters raised by appellant’s submissions

76    The appellant raises further matters by his most recent submissions which, as submitted by the Minister, do not appear to be closely connected to the grounds of appeal. As the appellant is self-represented, these further matters will be considered.

77    By his latest submissions, the appellant is inviting the Court to take into account unsubstantiated assertions of fact and further evidence that post-dates the Tribunal’s decision, and to make findings as to whether the appellant is genuine temporary entrant.

78    The appellant’s outline of submissions raise the following contentions, which are rejected for the following reasons:

(1)    that the Tribunal erred in taking into account that the appellant did not travel to India for five years after entering Australia, on the basis of an explanation in the appellant’s submissions which are not supported by evidence and which includes reference to events which post-date the Tribunal decision. Before the Tribunal, the appellant said that he did not return to India to visit his family because of his studies: [24] which explanation was not accepted by the Tribunal: [25]. In any event, that the appellant did not travel to India for five years after entering Australia is relevant to a consideration of the appellant’s personal ties to his home country, being a matter referred to expressly in Direction No. 69;

(2)    that the Tribunal erred in taking into account that the appellant did not own property in India. However, this was a matter which was addressed by the appellant in his evidence before the Tribunal: [20]. Further, the consideration of whether the appellant owned any property in India was relevant to whether the appellant intended to stay in Australia temporarily and, having regard to Direction No. 69, the appellant’s circumstances in his home country;

(3)    that the Tribunal stated that the appellant had not provided corroborative evidence from his parents that he would inherit their estate. The appellant submitted that this was because his parents do not have a will and that he will provide an affidavit stating that he will inherit their estate. In other words, the appellant asserts an error based upon new evidence which was not before the Tribunal, which is misconceived and fails to show a jurisdictional error;

(4)    that the Tribunal erred in failing to find that the appellant has a strong relationship with his family, as it should have found that he did have a good relationship with them taking into account their support for him and that he is providing documents to the Court relating to property in India. This either does not demonstrate a jurisdictional error or asserts an error based upon new evidence which was not before the Tribunal, which is misconceived;

(5)    that the Tribunal erred in stating that the appellant had not provided evidence regarding plans to open a restaurant, as while the appellant did not provide such documents to the Tribunal, he now has done so (presumably being a reference to the ‘Business Plan’), and he has provided other documents relating to land acquired in India which acquisition post-dates the Tribunal’s decision. In other words, the appellant asserts an error based upon new evidence which was not before the Tribunal, which is misconceived and fails to show a jurisdictional error;

(6)    that the Tribunal erred in its consideration of the appellant’s potential breach of visa condition 8516, and requests that the Court consider that the appellant has apologised for his mistake and is willing to rectify and provide documents to prove his innocence. However, there was no error by the Tribunal in considering the appellant’s compliance with any conditions subject to which his visa was granted, as this is a factor referred to expressly in clause 500.212 of Schedule 2 to the Regulations. The appellant’s proffered apology and offer to provide further evidence are matters which post-date the Tribunal’s decision and, in any event, do not demonstrate jurisdictional error by the Tribunal; and

(7)    that the Tribunal did not consider that the appellant had completed diploma courses and ‘exceptional circumstances’ as to why he changed his course. This has been addressed in relation to ground 1 of the Notice of Appeal.

79    For these reasons, these submissions do not establish a jurisdictional error by the Tribunal or any error in the decision of the primary judge.

Conclusion

80    The appellant has failed to establish any error in the decision of the primary judge, and the appeal will be dismissed with costs. The appellant accepted that he would pay the Minister’s costs of the appeal, even if he succeeded, and it is appropriate that such costs be paid in a fixed sum. Having regard to the affidavit evidence of Mr David McLaren, solicitor, which evidence I accept, the costs will be fixed in the sum of $6,747.00.

Associate:

Dated:    22 July 2022