Federal Court of Australia

Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J

Introduction

1    The appellants appeal from a decision of the Federal Circuit Court (FCC) delivered on 3 November 2020. In his Reasons, the primary judge dismissed Mrs Kandel’s application, dated 31 January 2020, for judicial review of a decision of the Administrative Appeals Tribunal made on 8 January 2020. The Tribunal was not satisfied that Mrs Kandel intends genuinely to stay in Australia temporarily and so did not meet the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth).

2    That decision affirmed a decision of a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant Mrs Kandel a temporary Class TU Subclass 500 Student visa (TU500 visa), for which she had applied on 29 January 2018, together with her husband and daughter as members of her family unit. The purpose of that application was to study a Certificate IV in Marketing and Communication, which she subsequently completed prior to the Tribunal hearing.

3    By her Notice of Appeal filed on 27 November 2020, Mrs Kandel contended the primary judge erred “in failing to hold that the Tribunal made a jurisdictional error by reason of a failure to consider cl 500.212 of Schedule 2 to the Regulations”. Ultimately, the only ground relied on in support of that contention, albeit not expressed as such in the Notice of Appeal, was that the Delegate misconstrued cl 500.212 in failing to find that Mrs Kandel was a genuine applicant for entry and stay as a student.

4    The gravamen of Mrs Kandel’s submission was that, in the absence of any finding that she intended to apply for a permanent visa, did not intend to complete the course, or that she was a “fake student”, there was nothing impermissible about her “moulding” her circumstances to obtain multiple student visas thereby positioning herself to stay longer in Australia.

5    For the reasons that follow, the appeal should be dismissed.

Background

6    The appellants are nationals of Nepal. Mrs Kandel arrived in Australia on 13 May 2007. She had completed nursing studies in Nepal to the equivalent of a registered nurse before coming to Australia.

7    Mrs Kandel’s enrolment history, as at the date of the Tribunal’s hearing, can be summarised as follows:

(a)    on 7 May 2007, Mrs Kandel enrolled in a General English course. On 21 September 2007, Mrs Kandel completed that course;

(b)    on 11 February 2008, Mrs Kandel first enrolled in a Diploma of Nursing. On 30 June 2009, Mrs Kandel completed that course;

(c)    on 23 February 2010, Mrs Kandel first enrolled in a Bachelor of Nursing. On 31 December 2013, Mrs Kandel completed that course;

(d)    on 3 March 2014, Mrs Kandel enrolled in a Diploma of Business. On 30 January 2015, Mrs Kandel completed that course;

(e)    on 30 March 2015, Mrs Kandel first enrolled in an Advanced Diploma of Business. On 12 February 2016, Mrs Kandel completed that course;

(f)    on 11 April 2016, Mrs Kandel enrolled in an Advanced Diploma of Management (Human Resources). Mrs Kandel failed to complete that course;

(g)    on 24 April 2017, Mrs Kandel enrolled in an Advanced Diploma of Accounting. Mrs Kandel failed to complete that course;

(h)    on 26 February 2018, Mrs Kandel enrolled in a Certificate IV in Marketing and Communication. On 31 May 2019, Mrs Kandel completed that course; and

(i)    on 5 August 2019, Mrs Kandel enrolled in a Diploma of Marketing and Communication. Mrs Kandel was enrolled in this course at the time of the Tribunal hearing and was due to complete that course in March 2020.

8    These records reveal a pattern of enrolling in numerous similar and overlapping courses.

9    On 4 June 2018, the Delegate refused to grant the TU500 visa on the basis that he was not satisfied that Mrs Kandel intended genuinely to stay temporarily in Australia. Prior to this refusal, Mrs Kandel had been granted eight student visas. Subsequently, she applied to the Tribunal for review of that decision and a hearing before the Tribunal was held on 3 October 2019. As already observed, by the time of the Tribunal hearing, Mrs Kandel had completed the Certificate IV in Marketing and Communication but indicated to the Tribunal that she intended to study a further course in which she was enrolled, being a Diploma in Marketing and Communication.

10    In its Decision Record (DR) at [22], the Tribunal recorded that, “Having regard to all matters, including the Direction No.69 requirements”, it was not satisfied that Mrs Kandel intends genuinely to stay in Australia temporarily. Those matters were canvassed in some detail (DR at [20(a)-(cc)]).

Statutory and legal framework

11    Section 29(1) of the Migration Act 1958 (Cth) gives the Minister power to grant a non-citizen a visa to travel to and enter, or to remain in, Australia. Classes of visas and regulations may prescribe the criteria for visas of a specified class: s 31(1) and (3).

12    A non-citizen who wants a visa must apply for a visa of a particular class: s 45.

13    After considering a valid application for a visa, the Minister must grant the visa “if satisfied” of the various matters identified in s 65(1)(a) of the Migration Act. One of the matters of which the Minister or his delegate must be satisfied is that the criteria prescribed by the Migration Act or Regulations for the visa have been met: s 65(1)(a)(ii). If the Minister is not satisfied of the matters identified in s 65(1)(a), the Minister is to refuse to grant the visa: s 65(1)(b). Section 65 provides (notes omitted):

65 Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

14    The power to grant the visa is non-discretionary in that the Minister is under an obligation to grant the visa “if satisfied” of the various matters identified in s 65(1)(a). The satisfaction of the Minister (or the delegate or Tribunal on review) that the prescribed criteria have been met is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa and is a “jurisdictional fact”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [37] (Gummow and Hayne JJ).

Clause 500.212 of Schedule 2 to the Regulations

15    Regulation 2.01(1)(a) of the Regulations provides the prescribed classes of visas include the classes set out in Schedule 1 to the Regulations. Clause 1222 of Schedule 1 prescribes the Student (Temporary) (Class TU) visa.

16    The criteria for the prescribed classes of visa are located in Schedule 2 to the Regulations: reg 2.03(1). The criteria for the Subclass 500 visa for which the appellants applied included “primary criteria” (cl 500.2) and “secondary criteria” (cl 500.3).

17    A “primary criterion” to be satisfied at the time of decision, and that which is relevant in the present matter, is that provided by cl 500.212 of Schedule 2 which is in the following terms:

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.

18    The critical state of satisfaction for the purposes of this appeal is “that the applicant intends genuinely to stay in Australia temporarily”. The Tribunal did not reach that state of satisfaction (DR at [23]) which meant that it could not be satisfied under s 65(1)(a)(ii) that the prescribed criteria had been met.

19    The construction of cl 500.212 has been considered recently by the Full Court in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 per Jagot, Bromwich and Lee JJ. The Court was concerned with alleged error by a Tribunal in failing to consider subcll (b) and (c) after finding that the applicant had not satisfied subcl (a) and so was not a genuine temporary entrant as required by cl 500.212. In rejecting any error on the part of the Tribunal, the Court reviewed the prior authorities which were alleged to be inconsistent with one another: Vidiyala v Minister for Home Affairs [2018] FCA 1973; Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217; 272 FCR 528; Sanjel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966; and Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061.

20    In Dait, the Full Court distilled those authorities into what it described as “four mutually inclusive propositions” (at [35]):

(1)    An Applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of “any other relevant matter” pursuant to subcl (c): Inderjit (at 535 [31]); Eros (at [8]–[9]); Sanjel (at [18]).

(2)    Subclauses (a), (b) and (c) address separate matters and require separate analyses: Eros (at [14]–[15]); Vidiyala (at [28]).

(3)    It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly: Eros (at [22], [30]–[33]).

(4)    An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa: Sanjel (at [18]); Vidiyala (at [28]). If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need proceed no further. The decision-making process is complete because the applicant has failed to establish an essential element of the “whole idea or conception” contained in cl 500.212: Eros (at [8]).

21    Clause 500.212(a) provides the state of satisfaction “that the applicant intends genuinely to stay in Australia temporarily” must be reached “having regard to” the four matters identified in paras (i) to (iv) of subcl (a). Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction 69) provides guidance to decision makers on the factors that “require consideration” in weighing those four matters – see: Preamble to Direction 69.

Direction 69

22    The Minister may give written directions to a person or body having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers: s 499(1). Those directions must not be inconsistent with the Migration Act or Regulations: s 499(2).

23    The delegate and Tribunal must comply with a valid ministerial direction: s 499(2A); Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [19] (French CJ, Kiefel, Bell and Keane JJ).

24    Direction 69 is a written direction made pursuant to s 499 and applies from 1 July 2016. It concerns the state of satisfaction in cl 500.212(a) about whether “the applicant intends genuinely to stay in Australia temporarily”.

25    As was explained by the Full Court in Kumar v Minister of Immigration and Border Protection [2020] FCAFC 16; 274 FCR 646, in relation to the precursor to cl 500.212(a) and Direction 69, at [29]

If there is a failure to comply with Direction 53 in reaching an adverse state of satisfaction under cl 572.223(1)(a) which is sufficiently material to the formation of that state of satisfaction, and consequently upon the state of satisfaction in s 65(1) of the Act then, depending on the nature of the non-compliance, jurisdictional error may be established. An example of such jurisdictional error is as follows. If Direction 53 required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated if the applicant established that he or she was thereby deprived of the possibility of the repository of power forming a favourable state of satisfaction: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]–[31] (Keifel CJ, Gageler and Keane JJ) and [72] (Edelman J); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]–[48] (Bell, Gageler and Keane JJ) and [84]–[95] (Nettle and Gordon JJ). Although the decision-maker was, in fact, not satisfied that the visa applicant had met the relevant criteria, that actual state of mind was reached through a “material” non-compliance with statutory requirements prescribed for that decisional process. Accordingly, the state of non-satisfaction was not of the kind upon which the legislature conditioned the exercise of power under s 65(1)(b).

26    Direction 69 is divided into two parts: “Part 1 Preliminary” and “Part 2 Directions”. Part 1 includes:

Preamble

The Australian Government operates a student visa programme that enables people who are not Australian citizens or permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.

(emphasis added)

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

(emphasis added)

The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that 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.

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.

Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily.

27    Part 2 includes:

Assessing the genuine temporary entry criterion

1.    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.

2.    Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

a.    considering the applicant against all factors specified in this Direction; and

b.    considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

3.    Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant’s circumstances is considered appropriate.

4.    Circumstances where further scrutiny may be appropriate include but are not limited to:

a.    information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

b.    the applicant or a relative of the applicant has an immigration history of reasonable concern;

c.    the applicant intends to study in a field unrelated to their previous studies or employment;

d.    apparent inconsistencies in information provided by the applicant in their Student visa application.

5.    An application for a Student visa or Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

The applicant’s circumstances

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

7.    For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

8.    Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

The applicant’s circumstances in their home country

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;

b.    the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

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.

10.    Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

The applicant’s potential circumstances in Australia

11.    In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

a.    the applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

b.    evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

c.    whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

d.    whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

e.    the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future

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

a.    whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

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.

The applicant’s immigration history

13.    An applicant’s immigration history refers both to their visa and travel history.

14.    When considering the applicant’s immigration history, decision makers should have regard to the following factors:

a.    Previous visa applications for Australia or other countries, including:

i.    if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

ii.    if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

b.    Previous travels to Australia or other countries, including:

i.    if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

ii.    whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

iii.    the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

iv.    if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.

If the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant

15.    If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

Any other relevant matters

16.    Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

The Ground of Appeal

28    As has already been observed, the gravamen of Mrs Kandel’s complaint is that in the absence of any finding that she intended to apply for permanent residence, and in the absence of any finding that she was a “fake student”, the primary judge ought to have found that the Tribunal committed a jurisdictional error in reaching its state of satisfaction that Mrs Kandel was not a genuine applicant for entry and stay as a student. That error is said to arise from the Tribunal’s reasoning surrounding the interpretation and application of cl 500.212.

29    It must be observed that the ground of appeal as developed before this Court was not one that was before the primary judge. Before the primary judge, Mrs Kandel contended that the Tribunal “made the jurisdictional errors … misinterpreting Directions 69”. No point was taken by the Minister.

30    Before this Court, the errors in the Tribunal’s reasoning in relation to cl 500.212 were said to arise in the context of the following matters:

    The Tribunal “missed the obvious point, the appellants like Australia and wish to stay longer, they have been meticulous in complying with the regulations, if the regulations and law permit their further stay in Australia, then if that is something wrong, the law needs amendment”;

    As revealed in the Strategic Review of the Student Visa Program 2011 and the Australian Strategy for International Education 2021-2030, “unequivocally the international student sector is as much about the Australian economy as it is about the individual international student. This explains what is set out below, the regulatory regime permits students to stay in Australia and is not aimed at kicking students out!”;

I interpolate that neither of these documents appears to have been before the Tribunal.

    There is no limit on the number of consecutive visas for which a student may apply, nor on the length of time a person may spend in Australia on a student visa;

    A student visa is a temporary visa;

    There was no finding by the Tribunal that the appellants had applied for a permanent visa or had an intention to apply for a permanent visa;

    The Tribunal’s finding (DR at [20(aa)]), that “the use of the applicant’s student visa is primarily for the maintenance of ongoing residence in Australia” (emphasis added), is “problematic because [the use of the word residence] is meaningless to either of the only 2 visa types which exist, ie permanent visa or a temporary visa … Every person who has ever held a sequential temporary visa maintains ‘ongoing residence in Australia’. That’s just a fact”;

    A student visa holder cannot for all practical purposes stay in Australia permanently because they are not eligible for a variety of social security supports, nor can they vote, work in excess of 40 hours per fortnight, nor obtain a mortgage. Therefore, the Tribunal was incorrect to find “the applicant has made a life for herself and her husband and daughter in Australia” (DR at [20(b)]);

    It is “an impossible task to divine what ‘the intentions of the migration program’ [are] when one cannot point to a regulation or regulatory or legislative provision which prevents the behaviour complained of”. Consequently, the Tribunal erred in finding (DR at [20(p)]) that “the applicant’s conduct is designed to help her remain in Australia and the continuation of her studies is designed to circumvent the intentions of the migration program”.

31    Mrs Kandel submitted that the ultimate question the Tribunal failed to determine was whether or not she would undertake the Certificate IV in Marketing and Communication. Furthermore, so Mrs Kandel submitted, in the absence of an adverse finding on that question, there is nothing illegal about her seeking to undertake the course and nothing to prevent her from “moulding” her situation to obtain another student visa.

32    There are at least four difficulties with the way Mrs Kandel puts her case.

33    First, by the time of the Tribunal hearing, Mrs Kandel had in fact completed the Certificate IV in Marketing and Communication. The “ultimate question”, as it has been characterised, was therefore irrelevant to the Tribunal’s determination about whether or not Mrs Kandel was a genuine applicant for entry and stay as a student.

34    Secondly, cl 500.212 requires an applicant to be both a genuine temporary entrant and a genuine student. So much is apparent from the chapeau which contains the “whole idea or conception: ‘a genuine applicant for entry and stay as a student’”: Eros (at [8] per Allsop CJ). On the assumption that the Tribunal had been required to answer the “ultimate question”, and had done so in Mrs Kandel’s favour, the construction for which Mrs Kandel contends holds that (absent any finding of an intention to apply for a permanent visa) she was necessarily a genuine temporary entrant because a student visa can only be temporary. Such an approach would render cl 500.212(a) nugatory.

35    Thirdly, it ignores the statutory text, read in its statutory context and having regard to its apparent purpose as derived from its legislative history and extrinsic materials (Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ) and as explained by the Full Court in Dait (at [32]):

Accordingly, satisfaction of cl 500.212 requires the cumulative satisfaction of discrete elements. Each of subcll (a), (b) and (c) are integral elements of the criterion. These elements are bookended by conjunctive devices, which reflect the need for the decision-maker to undertake a piecemeal analysis, and for the applicant to satisfy each step in that analysis in order to qualify as “a genuine applicant for entry and stay as a student”. If a decision-maker is not satisfied that an applicant meets subcl (a) or (b) alone, the decision-maker need not continue their inquiry. This is because an adverse finding in relation to either subcl (a) or (b) forecloses any possibility of a favourable outcome.

36    Fourthly, it ignores the imperative in cl 500.212(a) that regard is to be had to the factors in paras (i)-(iv). In Mrs Kandel’s submission, the Tribunal was not required to have regard to the factors listed in 500.212(a)(i)-(iv) because unless and until the Tribunal found that she had some intention to apply for a permanent visa, she necessarily satisfied the criteria of intending to genuinely stay in Australia temporarily. This submission cannot be accepted. As the Chief Justice observed in Eros (at [9]), “a plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise”.

37    In assessing the matters to which the Tribunal was required to have regard under subcl (a), the Tribunal made findings, inter alia, in accordance with the guidance provided in para 11(b) and (c) of Direction 69. Those findings included that Mrs Kandel’s conduct is designed to help her remain in Australia, in that the continuation of her studies is designed to circumvent the intentions of the migration program (DR at [20(p)]) with the primary objective of maintaining ongoing residence (DR at [20(aa)]. It was not submitted that there was no evidence to support such a finding. The complaint was framed as an error in making such a finding in the absence of “a regulation or regulatory or legislative provision which prevents the behaviour complained of”. Support was placed on the second paragraph of the Preamble to Direction 69 which recognises the potential for an applicant’s genuine intention to temporarily enter and remain in Australia to change over time “to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently”. This submission cannot be accepted. It ignores the work done by the words “genuine” and “genuinely” in cl 500.212, read in its statutory context and having regard to its apparent purpose. No doubt, a genuine temporary entrant may change that intention to seek to remain for an extended period of time, or permanently, in Australia. But that intention cannot be met by continuing to apply for student visas if one is not a “genuine applicant for entry and stay as a student”. That could not be considered an intention to “utilise lawful means” to remain in Australia.

38    Mrs Kandel has not established error in the primary judge’s finding that no jurisdictional error on the part of the Tribunal was demonstrated.

Disposition

39    For the above reasons, the appeal must be dismissed with costs.

Associate:

Dated:    23 November 2022