Federal Court of Australia

Imani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1505

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs. 

2.    The appeal be dismissed. 

3.    The appellant pay the first respondent’s costs. 

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

HORAN J:

Introduction

1    This is an appeal from orders made on 13 May 2021 by a judge of the Federal Circuit Court of Australia, which has since become Division 2 of the Federal Circuit and Family Court of Australia. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal dated 4 December 2020, by which the Tribunal affirmed a decision of a delegate of the (then) Minister for Immigration and Border Protection to refuse to grant the appellant a Student (Temporary) (Class TU) visa.

2    For the reasons that follow, the appeal must be dismissed.

Background

3    The appellant, Mr Abdul Rahman Bin Abdullah Imani, is a citizen of India. He first arrived in Australia on 27 February 2007 as the holder of a Student (Class TU) (subclass 572) visa.

4    After his arrival in Australia, the appellant completed a Diploma of Business Management at the Sydney College of Business and Information Technology in 2007. The appellant subsequently completed other courses of study, including a Diploma of Community Welfare Work (at Lamart College of Technology) in 2010 and a Diploma of Accounting (at Australis Institute of Technology) in 2011. In 2016, the appellant completed a Bachelor of Accounting at the Universal Business School Sydney. It appears that the appellant was also enrolled in some other courses that were not completed. For instance, an enrolment in a Master of Business Administration was cancelled in 2016 as a result of non-commencement of studies.

5    Over this period, the appellant held a succession of further student visas, as well as a Skilled (Provisional) (Class VC) Temporary Graduate (subclass 485) visa, and associated bridging visas.

6    On 19 April 2018, the appellant applied for a further Student (Temporary) (Class TU) visa in order to undertake an Advanced Diploma of Leadership and Management and a Graduate Diploma of Management (Learning) at the Crown Institute of Business and Technology.

7    On 30 May 2018, a delegate of the Minister refused to grant the visa. The delegate was not satisfied that the appellant intended genuinely to stay temporarily in Australia as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) as then in force. Clause 500.212 at the relevant time required that, at the time of decision:

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.

8    In considering this criterion, the delegate had regard to a written direction given by the Minister under s 499 of the Migration Act 1958 (Cth), “Direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications”, which provided guidance to decision makers on what factors require consideration when assessing genuine temporary entrant criteria such as cl 500.212(a) in order to determine whether the visa applicant genuinely intends to stay in Australia temporarily. These factors include the applicant’s circumstances both in their home country and in Australia, particularly in relation to incentives for the applicant to return to their home country or to remain in Australia, the value and relevance of the proposed course of study to the applicant’s future, and the applicant’s immigration history.

9    After consideration of each of the relevant factors, the delegate was not satisfied that the information provided by the appellant was sufficient to demonstrate that he was a genuine temporary entrant. The delegate found that the factors indicated that the appellant “appears to have enrolled in this new course for the purpose of securing a further student visa rather than due to a genuine interest in study and overall academic progress” and that the appellant “appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and does not seem to have a genuine intention to stay in Australia temporarily”.

10    On 15 June 2018, the appellant applied to the Tribunal for merits review of the delegate’s decision.

11    By letter dated 25 August 2020, the Tribunal invited the appellant to attend a hearing on 15 September 2020. The hearing invitation requested that the appellant provide to the Tribunal a range of information, including his current confirmation of enrolment, documents showing his past studies in Australia, and documents evidencing any work related to past or intended studies in Australia. The hearing invitation also attached a copy of Direction No 69, noting that the Tribunal would assess whether the appellant was a genuine applicant for entry and stay as a student (being the reason for the delegate’s decision), and asked the appellant to provide a written statement addressing that issue by referring to Direction No 69.

12    On 9 September 2020, the appellant provided a number of documents to the Tribunal, including a written statement that addressed his personal circumstances, his present and past studies, and his future plans. Among the documents that were provided to the Tribunal were Confirmation of Enrolment documents in relation to two courses of study at the Crown Institute of Business and Technology: an Advanced Diploma of Leadership and Management from 28 September 2020 to 28 November 2021, and a Graduate Diploma of Management from 10 January 2022 to 4 December 2022. As discussed below, it is clear that the Tribunal had regard to those enrolments, which were referred to in the Tribunal’s reasons at paragraphs [4] and [7].

13    The appellant appeared at a hearing before the Tribunal on 15 September 2020, at which he gave evidence and presented arguments.

14    On 4 December 2020, the Tribunal affirmed the delegate’s decision not to grant a Student (Temporary) visa to the appellant.

15    The Tribunal was not satisfied that the appellant was a genuine applicant for entry and stay as a student as required by cl 500.212. The Tribunal concluded that, “[h]aving weighed the evidence individually and cumulatively, the Tribunal is not satisfied that [the appellant] intends genuinely to stay in Australia temporarily”, and that accordingly the appellant did not meet cl 500.212. In reaching this conclusion, the Tribunal considered in particular the appellant’s circumstances in India, the reasons for the appellant’s continued study in Australia, the value of the courses to the appellant’s future, and the appellant’s immigration history (that is, his visa and travel history).

(a)    In relation to the appellant’s circumstances in India, the Tribunal accepted that he had ongoing personal ties to his home country but was not satisfied those circumstances would serve as a significant incentive for him to return to India (at paragraph [14]).

(b)    In relation to the reasons for the appellant’s study in Australia, having regard to the courses already completed by the appellant, the Tribunal was not satisfied the appellant needed to continue studying in order to pursue a career in India, and found that this weighed against him in considering whether he met the criterion of a genuine temporary entrant for study (at paragraph [15]).

(c)    The Tribunal considered the appellant’s evidence in relation to the value and relevance of the courses to his future, but found that it was unable to adequately assess the relevance of these courses to the appellant’s proposed future employment because “he did not demonstrate through reliable evidence what he will be able to achieve using the qualifications gained in Australia”, and further that he had “had ample opportunity to complete his study goals in Australia since 2007” (at paragraph [18]).

(d)    The Tribunal found that the appellant’s immigration history in Australia weighed against him in assessing whether he continued to be a genuine student and a genuine temporary entrant. The Tribunal noted that, although the appellant had returned to India a number of times since his arrival in Australia on 27 February 2007, the two further courses would take his temporary residency in Australia to 15 years and nine months (at paragraph [19]).

The application to the Federal Circuit Court

16    On 24 December 2020, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision under s 476 of the Migration Act. In order to succeed on that application, it was necessary for the appellant to demonstrate jurisdictional error in the Tribunal’s decision: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23]-[24] (French CJ, Bell, Keane and Gordon JJ).

17    The appellant relied on seven grounds of review before the primary judge:

1. The Tribunal decision is infected by error of law and the decision made contrary to the provided information and is not based on probative evidence from the part of the Tribunal.

2. I provided confirmation of enrolment for an advanced Diploma of Leadership and Management from 28 September 2020 to 28 November 2021. Also CoE for a Graduate Diploma of Management from 10 January to 4 December 2022. That should lead that I am genuine student and I have honoured my student visa at all times.

3. Contrary to the finding of the Tribunal I provided evidence which should satisfy the genuine temporary entrant criterion.

4. I agree that since my arrival on 27 February 2007 I completed courses of study that would allow me to pursue a career in India and I continue to complete courses of study which I believe are relevant to my future in India. The Tribunal must accept my claims and explanation as adequate and that the Tribunal failed to accept that I have strong ties with India. It was the Tribunal’s problem being unable to adequately assess the relevance of the courses and I provided reliable evidence as to what I will be able to achieve in India using the qualifications gained in Australia.

5. My many visits to India (6 times) between 2010 and 2017 is an indication of my strong ties with India which was not understood by the Tribunal.

6. The Tribunal finding that my immigration history in Australia weighs against me is not supported by logical evidence.

7. The decision of the Tribunal is not reasonable.

18    The application was heard before the primary judge on 13 May 2021. The appellant attended the hearing in person and without legal representation. At the conclusion of the hearing, the primary judge dismissed the application and delivered oral reasons ex tempore. On 23 June 2021, the primary judge published written reasons for judgment: Imani v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1410 (Reasons).

19    The primary judge considered and rejected each of the appellant’s grounds of review: Reasons at [26]-[38]. The primary judge recognised that the Tribunal is not required to accept uncritically the appellant’s claims, and that disagreement with the Tribunal’s factual findings without more does not amount to jurisdictional error.

20    In relation to ground one, the primary judge noted that no particulars had been provided in relation to the alleged error of law, and concluded that the ground (which also alleged that the Tribunal’s decision was “made contrary to the provided information” and was “[n]ot based on probative evidence”) had no merit.

21    By grounds two and three, the appellant alleged that the confirmation of enrolment documents provided to the Tribunal should have led to the finding that he was a genuine student and that, contrary to the Tribunal’s finding, he satisfied the genuine temporary entrant criterion. The primary judge characterised each of grounds two and three as amounting to no more than an expression of the appellant’s disagreement with the Tribunal’s factual findings, and an invitation to the Court to engage in or undertake impermissible merits review.

22    By ground four, the appellant sought to challenge the Tribunal’s findings in relation to the relevance of his courses of study to his future in India, and in relation to the significance of his ties with India. However, the primary judge concluded that the Tribunal had properly considered and rejected the appellant’s claims in this regard, and that the Tribunal’s conclusion that the appellant was using study as a means of maintaining his residency in Australia was reasonably open on the evidence before the Tribunal, and was not subject to any legal unreasonableness, illogicality or irrationality.

23    By ground five, the appellant contended that the fact that he had returned to India on a number of occasions between 2010 and 2017 was an indication of his strong ties to India, and that this was “not understood by the Tribunal”. The primary judge concluded that this was no more than an expression of the appellant’s disagreement with the Tribunal’s factual findings, and had no merit.

24    By ground six, the appellant alleged that the Tribunal’s finding that his immigration history weighed against him was “not supported by logical evidence”. However, the primary judge concluded that it was open on the evidence, and not illogical or unreasonable, for the Tribunal to find that the appellant “was using the study program to maintain residency in Australia, given the time period the [appellant] had been in Australia and the further time that was being sought”.

25    By ground seven, the appellant alleged that the Tribunal’s decision was “not reasonable”. The primary judge regarded this ground as “simply an expression of disagreement” with the Tribunal’s decision which did not establish jurisdictional error, in circumstances where the decision was open on the evidence and for the reasons given by the Tribunal.

26    Finally, in circumstances where the appellant was unrepresented, the primary judge stated that she had considered the Tribunal decision but was “unable to detect any jurisdictional error that has not been articulated by the [appellant]”.

Notice of appeal

27    By Notice of Appeal lodged on 3 June 2021, the appellant appeals from the decision of the primary judge to uphold the Tribunal’s decision. The appellant raises the following grounds of appeal:

1. Judge Humphreys gave me an Order on 13 May 2021 dismissing my application yet no judgment is available at this stage.

2. I argued my case before Judge Humphreys and I continue to believe that I have an arguable case and that the Tribunal decision is infected by error of law and the Tribunal failed to consider the confirmation of enrolment and the true fact that I have a genuine temporary intention to stay in Australia and I am and continue to be a genuine student.

3. I have strong ties with India contrary to the finding of the Tribunal and since my arrival to Australia I never failed to study and I do meet clause 500.212(a) which appears in Court Book p.134.

4. I continue to believe that the Tribunal decision, as well as the Judge’s decision, are not based on probative evidence rather on assumption.

28    The appellant did not file any written submissions in support of his appeal before this Court. However, he appeared in person and made oral submissions at the hearing of the appeal. In those oral submissions, the appellant reiterated his contention that the Tribunal’s decision was contrary to the evidence, and was not logically or rationally open on the evidence. In particular, the appellant took issue with the Tribunal’s findings regarding his ties to India and whether he had a significant incentive to return to India. He submitted that these findings involved an error of law and were based on assumptions rather than probative evidence. The appellant also submitted that he had provided the Tribunal with confirmation of his enrolment in relevant courses which demonstrated his commitment to study and his genuine intention to stay temporarily in Australia as a genuine student.

29    The appellant also informed the Court that, further to the Diploma of Community Welfare that he completed in 2010, he had recently completed a Diploma of Community Services (in October 2023) and had a confirmation of enrolment for a Bachelor of Community Services commencing in February 2024. He submitted that he now planned to work in the community sector and that, particularly in the light of the impacts of the COVID-19 pandemic, he wanted to do something in that field in order to support the community in the financial sector. As the was explained to the appellant in the course of the hearing, this appeal is concerned with whether there is any reviewable error in the decision of the Tribunal by reference to the circumstances as they existed at the time that its decision was made, and the Court cannot have regard to evidence of circumstances arising after the Tribunal’s decision: see e.g. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164 at [28] (Beach, Thawley and Cheeseman JJ).

Ground one

30    At the time that the appellant filed his Notice of Appeal, a copy of the written reasons for judgment had not yet been provided. This was in circumstances where the appellant had been advised that he could request a copy of the reasons in writing by contacting the chambers of the primary judge: see Reasons at [1]. While no such request had been made by any of the parties as at 22 June 2021, the written reasons for judgment were published and provided to the parties on 23 June 2021. In the meantime, the appellant had filed the Notice of Appeal.

31    As the Minister correctly submits, ground one has been effectively superseded by the subsequent provision of written reasons for judgment. Any failure to provide written reasons for judgment at an earlier time does not of itself amount to a denial of procedural fairness: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329 at [22], [37], [38] (Steward J, with whom Kiefel CJ, Keane, Gordon and Edelman JJ agreed). The appellant has subsequently been provided with the written reasons, and there is no suggestion that he has not had sufficient time to review those reasons and to formulate his argument, including by making any consequential amendments to his grounds of appeal.

Ground two

32    Ground two of the Notice of Appeal relevantly contends that the Tribunal’s decision is affected by an error of law, in that it failed to consider the appellant’s confirmation of enrolments and the “true fact” that he had a genuine intention to stay temporarily in Australia and was a genuine student.

33    As set out above, it is clear that the material before the Tribunal included “Confirmation of Enrolment” documents evidencing the appellant’s enrolment in the Advanced Diploma of Leadership and Management and the Graduate Diploma of Management (Learning) at the Crown Institute of Business and Technology in 2020-21 and 2022 respectively. It is equally clear that the Tribunal had regard to that evidence: see paragraphs [4] and [7] of the Tribunal’s reasons for decision. The Tribunal also later referred in its reasons to the fact that the appellant was enrolled in those two courses at the time of the Tribunal hearing (at paragraph [19]).

34    However, notwithstanding the appellant’s then current enrolments in the Advanced Diploma of Leadership and Management and Graduate Diploma of Management (Learning), the Tribunal was not satisfied he met the genuine temporary entrant criterion, including on the basis that it did not accept that the appellant had adequately explained why he needed to continue studying or to undertake the two courses in question in order to pursue or advance a career in India (see paragraphs [15]-[18]).

35    Accordingly, the Tribunal did not fail to consider the appellant’s confirmed enrolments in the Advanced Diploma of Leadership and Management and the Graduate Diploma of Management (Learning). Rather, the Tribunal did not regard those enrolments as demonstrating that the appellant had a genuine intention to stay in Australia temporarily, having considered the evidence and weighed the relevant factors under Direction No 69. Ultimately, this was a question of fact for the Tribunal, involving an evaluative judgment based on all of the evidence. It cannot be said that such a finding was not open to the Tribunal, nor that it was irrational or illogical, nor that it was not based on any probative material or logical grounds. While the conclusion might be one on which reasonable minds may differ, it was nevertheless a finding which a reasonable decision-maker could reach on the evidence before the Tribunal: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] (Crennan and Bell JJ); Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45]-[46] (Perram, Murphy and Lee JJ).

36    In so far as the appellant contends as a matter of “true fact” that he is a genuine student and has a genuine intention to stay in Australia temporarily, that was a question for determination by the Tribunal, and this Court cannot review the factual merits of the Tribunal’s finding on that question.

37    Accordingly, ground two is not made out.

Ground three

38    Ground three asserts that the appellant has strong ties with India, that he has “never failed to study” since his arrival in Australia, and that he meets the genuine temporary entrant criterion in cl 500.212(a).

39    As mentioned above, the Tribunal directly considered the appellant’s circumstances in his home country, as one of the factors to which it is required to have regard under Direction No 69. Paragraph 9(b) of Direction No 69 requires decision-makers to have regard to “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”.

40    The Tribunal accepted that the appellant had ongoing personal ties to India, referring in particular to his family members living in India (and elsewhere overseas), his family’s businesses in India, and his plans to use his qualifications in those businesses in the future. In the context of economic ties, he was asked in the course of the Tribunal hearing about ownership of property and assets in India. The appellant referred to properties owned by his family, but the Tribunal observed that he did not provide evidence of any personally owned assets that may act as an incentive for him to return to India. Taking all of these circumstances into account, the Tribunal was not satisfied that the appellant’s ongoing personal ties to India would serve as a significant incentive for him to return to India.

41    It appears from paragraph [14] of the Tribunal’s reasons that these issues were specifically raised with the appellant during the hearing. In so far as the Tribunal noted in its reasons that the appellant had not provided “independent evidence” to support his claims that one of his brothers was setting up a business, and had not provided any evidence of his family-owned properties or personally owned assets in India, it is not clear from the Tribunal’s reasons whether or not these evidentiary deficiencies were specifically raised with the appellant at the hearing. The Court does not have a transcript of the hearing before the Tribunal. Nevertheless, it remained a matter for the appellant to put forward evidence in support of his claims, and the hearing invitation had specifically requested the appellant to address the factors set out in Direction No 69. In the circumstances, procedural fairness did not require the Tribunal to point out to the appellant any absence of evidence or shortcomings in the evidence in support of his claims.

42    No legal error is revealed in the Tribunal’s factual findings on this issue. It was a matter for the Tribunal to assess the nature and strength of the appellant’s ties to India, and to evaluate the competing incentives for the appellant to return to India or, conversely, to remain in Australia. The Tribunal’s findings were open on the evidence, and are not illogical or irrational. Ultimately, the critical point was that Tribunal was not satisfied that the appellant’s ongoing personal ties to India, which were accepted by the Tribunal, would serve as a significant incentive for him to return to India. That finding was then weighed with the Tribunal’s other findings in assessing the genuine temporary entrant criterion.

43    In respect of the appellant’s assertion that he has never failed to study since his arrival in Australia, the Tribunal clearly took into account the appellant’s study history in Australia, together with the appellant’s evidence regarding his planned study and its relevance to his future. The Tribunal’s decision was not based on any finding that the appellant had failed to remain enrolled in courses of study in Australia or that he had failed to comply with the conditions of his student visas. Rather, the Tribunal concluded that, having regard to the factors set out in Direction No 69, the appellant was using the student visa programme to maintain ongoing residence in Australia. The fact that the appellant had “never failed to study” did not itself demonstrate that he met the genuine temporary entrant criterion in cl 500.212(a).

44    Accordingly, ground three of the Notice of Appeal amounts to an expression of disagreement with the Tribunal’s findings of fact, and does not identify, let alone establish, any legal or jurisdictional error.

Ground four

45    In ground four of the Notice of Appeal, the appellant states that he continues to believe that the Tribunal’s decision and the decision of the primary judge are “not based on probative evidence [but] rather on assumption”. This ground is not supported by any particulars to identify the assumptions made by the Tribunal, or by the primary judge, that are said not to have been supported by any probative evidence. As the primary judge noted (in relation to ground one of the application for review), a failure to particularise a ground of review is sufficient basis for it to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J), cited with approval by the Full Court in NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] (Perram, Derrington and Stewart JJ). In any event, the Tribunal’s reasons disclose the evidence and material on which its findings were based. The Tribunal’s ultimate conclusion that it was not satisfied that the appellant intends genuinely to stay in Australia temporarily within the meaning of cl 500.212(a) was an evaluative finding based on the Tribunal’s assessment of the range of relevant factors set out in Direction No 69. For the reasons set out above, that was a question of fact for the Tribunal.

46    Ground four must be dismissed.

47    For completeness, I do not consider that there was any error in the reasons given by the primary judge for rejecting each of the seven grounds of review contained in the originating application for review. Nor have I been able to detect any other arguable jurisdictional error in the Tribunal’s reasons for decision.

Conclusion

48    It follows that there was no jurisdictional error in the decision of the Tribunal, nor is there any appealable error in the decision of the primary judge.

49    The orders of the Court are as follows.

(1)    The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

(2)    The appeal be dismissed.

(3)    The appellant pay the first respondent’s costs.

Associate:

Dated:    4 December 2023