Federal Court of Australia

Rasaili v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 195

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    These proceedings concern an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) pronounced on 2 September 2022. The primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (Tribunal) made on 9 July 2018 by which the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Student (Temporary) (Class TU Subclass 500 – Student) visa.

2    The visa the delegate refused to grant to the appellant is a class of visa that the Minister is able to grant to a non-citizen under the provisions of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth). The Tribunal had power to review the delegate’s decision under Pt 5 of the Act. The appellant contended before the primary judge that the Tribunal fell into jurisdictional error by misapplying or misunderstanding the test in cl 500.212(a) of Sch 2 of the Regulations concerning whether the appellant genuinely intended to stay in Australia temporarily.

3    The appellant contends that the primary judge erred in not concluding that the Tribunal fell into jurisdictional error on two grounds. First, in failing to determine that the Tribunal misapplied and misunderstood the required test for reasons that amount, in substance, to failures to accept the appellant’s submissions made to the primary judge. Second, for undertaking impermissible merits review by, in substance, accepting the correctness of the Tribunal’s findings of fact to the effect that the appellant’s intention to stay in Australia temporarily was not genuine.

4    At the conclusion of the hearing, I made orders dismissing the appeal and for the appellant to pay the Minister’s costs fixed in the sum of $5,000. These are my reasons for those orders.

Preliminary matters

5    The notice of appeal was filed on 3 October 2022. The appellant filed the notice himself and gave a personal address and an email address as his address for service. On 10 October 2022 a Registrar of the Court made relatively standard case management orders for an appeal of this nature. Amongst other things, the orders made provision for the appellant to file and serve a written outline of submissions no later than ten business days before the hearing date.

6    The hearing of the appeal was listed for 20 February 2024 at 2.15pm (AWST). In accordance with the usual practice of the Court, on 13 December 2023 the parties were provided with notice of the listing sent to their nominated email addresses. The appellant filed no written submissions on 6 February 2024 or at all. By email dated 15 February 2024 the appellant was provided with details of a Microsoft Teams link to facilitate his appearance remotely and was notified that the Court had arranged for a Nepali interpreter to be present and assist him at the hearing. On 16 February 2024 (and the morning of the hearing) my chambers staff made attempts to contact the appellant by email and telephone to ascertain if he intended appearing at the hearing using the Microsoft Teams link provided on 15 February 2024. The appellant made no response to these communications from the Court.

7    The appellant did not appear on 20 February 2024. The Minister applied orally for an order that the Court dismiss the appeal under r 36.75(1)(a) of the Federal Court Rules 2011 (Cth). I refused that application and determined to hear the appeal in the appellant’s absence.

Legislative framework

8    Division 3 of Pt 2 of the Act contains provisions conferring power on the Minister to grant a non-citizen a visa that permits the visa holder to do either or both of travelling to and entering Australia, or remaining in Australia.

9    Section 29 confers power on the Minister to grant a non-citizen a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. Regulation 2.01(1)(a) provides that for the purposes of s 31 the prescribed classes of visa include the classes of visa set out in the items to Sch 1 of the Regulations. Item 1222 of Sch 1 makes provision for a Student (Temporary) (Class TU) visa. Regulation 2.02 and Sch 2 of the Regulations make provision for sub-classes of visa. Part 500 of Sch 2 makes provision for a Subclass 500 – Student visa.

10    Section 31(3) provides that the Regulations may prescribe criteria for a visa or visas of a specified class. Regulation 2.03 and Sch 2 of the Regulations make provision for the criteria for the grant of visas including a Student (Temporary) (Class TU Subclass 500 – Student) visa. Clause 500.2 of Sch 2 provides:

500.2—Primary criteria

Note:    The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

500.211

One of the following applies:

(a)    the applicant is enrolled in a course of study;

(b)    if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

(c)    if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

(d)    if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a)    the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)    the applicant’s circumstances; and

(ii)    the applicant’s immigration history; and

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

(iv)    any other relevant matter; and

(b)    the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)    the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)    the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)    of any other relevant matter.

11    Section 45 provides that a non-citizen who wants a visa must apply for a visa of a particular class. The Regulations deal with the manner in which a non-citizen is to apply for visas.

12    Section 65 of the Act provides that if satisfied of all the relevant criteria for the grant of a visa, the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa. The Minister’s power to grant a visa under s 29 and s 65 the Act may be (and usually is) exercised by a delegate of the Minister under s 496 of the Act.

13    Relevantly for the circumstances of this appeal, a decision of a delegate to refuse an application for a Subclass 500 – Student visa is a Pt 5-reviewable decision within the meaning of that expression in s 338(2) of the Act. As a consequence, a visa applicant whose application has been refused is able to apply to the Tribunal for review of a delegate’s decision to refuse to grant a visa under s 347 of the Act. Part 5 of the Act sets out the procedure for review of a Pt 5-reviewable decision. The review is conducted by the Tribunal in its Migration and Refugee Division.

14    Section 65 imposes on the Minister an obligation to grant or refuse a visa rather than a power to be exercised as a discretion. Satisfaction of the Minister (formation of a state of mind) that the prescribed criteria have been met is a condition precedent to the exercise of the power to grant or refuse a visa and is a jurisdictional fact. A delegate of the Minister is in the same position as would have been the Minister (s 496) and the Tribunal upon review exercises all the powers and discretions conferred on the decision-maker (s 349): see e.g., Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37] (Gummow and Hayne JJ) (although that decision concerned Pt 7 and s 415 of the Act there is no relevant difference in its application to Pt 5 and s 349).

15    In assessing an application for a Subclass 500 – Student visa a delegate of the Minister and the Tribunal were bound by s 499(2A), to comply with any direction given by the Minister under s 499(1) of the Act. In this case, the Tribunal was bound to comply with Direction No. 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications.

16    Direction 69 provides guidance to decision-makers on what factors require consideration when assessing the criteria in cl 500.212 of Sch 2 of the Regulations. The Direction provides general guidance on assessing the genuine temporary entrant criterion: Pt 2 [1]-[5]. That guidance includes that an application for a student 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: Pt 2 [5]. The Direction provides that decision-makers should have regard to the applicant’s circumstances in their home country, the applicant’s potential circumstances in Australia and the value of the course to the applicant’s future. Weight should be placed on an applicant’s circumstances that indicate that the student visa is intended primarily for maintaining residence in Australia: Pt 2 [6]-[8]. The Direction then provides for certain factors to which decision-makers should (or may) have regard when considering the applicant’s circumstances in their home country: Pt 2 [9]-[10], the applicant’s potential circumstances in Australia: Pt 2 [11] and the value of the course to the applicant’s future: Pt 2 [12] and the applicant’s immigration history: Pt 2 [13]-[14]. The Direction concludes with a statement that decision-makers should also have regard to any other relevant information both beneficial or unfavourable to the applicant: Pt 2 [16].

17    If there is a sufficiently material failure to comply with Direction 69 in reaching an adverse state of satisfaction under cl 500.212(a) then, depending on the nature of the non-compliance, jurisdictional error may be established with respect to the purported exercise of the power to refuse a visa under s 65(1): Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [29] (Derrington and Thawley JJ, Logan agreeing). However, it may be accepted that Direction 69, read as a whole, does not limit the decision-maker to a consideration only of the factors mentioned in Direction 69: Kumar at [79].

Tribunal’s reasons

18    The Tribunal set out the nature of the application for review of the delegate’s decision, the legislative framework and evidence, the issues for consideration and background. It identified the main issue as the question of whether the appellant satisfied cl 500.212(a) of Sch 2 of the Regulations and that it was bound to apply Direction 69 (T [1]-[15]). The Tribunal indicated (T [9]) that Direction 69 required it to have regard to a number of specified factors in relation to:

(a)    the appellant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to the appellant’s future;

(b)    the appellant’s migration history, including previous applications for an Australian visa or for visas to other countries and previous travel to Australia or other countries;

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

(d)    any other relevant information provided by the appellant, or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the appellant.

The Tribunal then addressed such of those factors as were considered relevant to the appellant under the headings: ‘Circumstances in home country’ (T [16]-[18]); and ‘Circumstances and study in Australia and the value of the proposed course to the applicant’s future’ (T [19]-[27]).

19    The Tribunal recorded that the appellant had first entered Australia on 12 March 2012 on a student (class TU subclass 573) visa and was later granted a student (class TU subclass 572) visa. At the time of the Tribunal’s decision, the appellant was enrolled to study a Certificate IV in Commercial Cookery, a Diploma of Hospitality and an Advanced Diploma of Hospitality. After arriving in Australia he had completed a Certificate III and Certificate IV in Work Health and Safety, an Advanced Diploma of Business and Diploma of Dental Technology. He had been enrolled in but cancelled courses for a Diploma of Work Health and Safety, a Diploma of Business, a Diploma of Computing, a Diploma of Electronics and Communications Engineering and a Bachelor of Information Technology (T [12]-[14]). The Tribunal observed that ‘despite being granted a student (class TU subclass 573) visa with the expectation he would complete a bachelor degree, the [appellant] ceased his higher education and has only studied successfully at VET level’ (T [15]).

20    In the context of considering the appellant’s circumstances in his home country, the Tribunal said:

16.    The applicant stated that he finished high school back in his home country and decided to come to Australia because it was a good place to study. Originally, according to the applicant, he came here to study a Diploma of Computing and a Bachelor of Information Technology but found the study was too difficult and was unable to continue these studies. The Tribunal is concerned by this evidence as the applicant was granted a visa with the expectation that he would ·study at higher education level. The applicant acknowledged to the Tribunal that he has only been able to study at VET level.

21    The Tribunal then considered his connections with family members in his home country and Australia and said: ‘The Tribunal is concerned by this evidence and finds that the [appellant’s] circumstances here are not a significant incentive for him to return home’ (T [17]). The Tribunal made no findings on other factors referred to in Direction 69 regarding the appellant’s circumstances in his home country (T [18]).

22    In the context of considering the appellant’s circumstances and study in Australia and the value of the proposed courses to his future, the Tribunal had regard to the number and nature of the courses in which the appellant had enrolled and that he had not completed most of those courses:

22.    When asked by the Tribunal to outline why he has had such a large number of disparate and completely unrelated enrolments, most of which were never brought to completion, the applicant stated that he failed in his original enrolments because he became demoralised by the study and found it difficult to continue. He then went on to say that he decided that he wanted to study workplace health and safety because he thought it might assist him in a cooking career back in his home country. He then stated that he decided he wanted to study a business-related qualification because it might assist him working with his father in his gold and silver business or, alternatively, starting a new business. The applicant then explained that he thought that he wanted to start some form of tourist business because he was well situated in his home country geographically to be able to work in such a field. The Tribunal is concerned by this evidence as no real explanation was given for the significant changes that the applicant made to his study particularly in the fields of dental. technology and also communications engineering. When asked by the Tribunal why he didn't actually do anything with his successfully completed dental technology qualification the applicant could not respond adequately other than to say he decided he now wanted to study in the hospitality area. The Tribunal finds that the applicant has been using the student visa system here in Australia to maintain residency in Australia and that the applicant does not genuinely intend to reside in Australia temporarily.

23.    The applicant's representative, on behalf of the applicant, stated in his GTE statement dated 14 June 2018 to the Tribunal (AAT file folio 45 to 46) that the applicant wished to pursue his cooking qualification which would provide the applicant with the skills to operate his own business. The Tribunal is concerned by this evidence as this statement did not address the multiple changes that the applicant has made in his study and discipline choices since his arrival here in 2012. This has included dental studies, business studies, work health and safety studies, and other studies. No rationale or explanation was given as to why, and for what reasons, the applicant has made such dramatic changes to his entire study trajectory. The Tribunal finds that this is further evidence that the applicant is seeking to use the student visa system to retain residency in Australia.

24.    The applicant, in his GTE statement to the delegate (delegates file folio 47) stated that although he has only completed vocational courses up until that point, all of them helped him to gain knowledge in different fields. The applicant also acknowledged that he could not undertake high studies at that time and could not pass the units necessary even after repeating those units. The Tribunal is concerned by this evidence as it further indicates that the applicant has been unable to conform to any stated study plan or career orientation. The Tribunal finds that the applicant is using the student visa system to retain residency in Australia. The applicant in his Statement of Purpose in the Delegates fife (Delegate's file folio 19) stated that "I can advance my skills in business along with an expertise of diverse cuisines; I can learn dealing with the world of uncertainty coupled with human emotions." The Tribunal is concerned by this evidence as no real attempt has been made by the applicant to actually tie together the disparate skills he claims he is acquiring to further his objectives in his stated future career plan.

25.    On the basis of the above, the Tribunal finds that the applicant is not undertaking a course, namely his current enrolment in commercial cookery, which is consistent with his current level of education and will not necessarily assist the applicant to obtain employment or improve employment prospects in his home country. It is understood that students can make reasonable changes to study pathways, however in this case the applicant has made multiple changes over a significant period of time in areas that do not link together in any coherent manner. The Tribunal finds that the current course being studied by the applicant is not relevant to the student's proposed future employment in his home country.

26.    The Tribunal finds that the applicant does not have a coherent study plan and is using the student visa system to retain residency in Australia, further, that the applicant does not genuinely intend to stay in Australia temporarily.

27.    On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

23    The Tribunal concluded that it was not satisfied that the appellant was a genuine applicant for entry and stay as a student and affirmed the delegate’s decision to refuse to grant the appellant a Subclass 500 - Student visa (T [28]-[30]).

Primary judge’s reasons

24    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision to affirm the delegate’s decision under s 576 of the Act. The appellant advanced one ground of review by which he asserted that the Tribunal made a jurisdictional error by misapplying or misunderstanding the test in cl 500.212(a) of Sch 2 of the Regulations. The appellant contended that at para [16] of the Tribunal’s reasons it took into account the appellant’s inability to complete a higher education degree in determining whether he intended to genuinely stay in Australia temporarily and that was an irrelevant consideration (PJ [2], [14]).

25    The primary judge observed that the Tribunal was bound to apply Direction 69 and that there was nothing in the terms of the relevant legislation or in the subject matter, scope and purpose of the legislation that expressly or by implication restricted the Tribunal from taking into account the appellant’s inability to complete his tertiary studies as a consideration relevant to the question of whether the appellant genuinely intended to stay in Australia temporarily. On the contrary, the legislation allows the Tribunal to have regard to any matter it considers relevant (PJ [19]). The primary judge also accepted the respondent’s submission that the appellant’s past history (including his inability to complete tertiary studies) was relevant to a number of the factors referred to in Direction 69 (PJ [20]).

26    The primary judge rejected a submission of the appellant to the effect that the difference between tertiary level and vocational level study was an irrelevant consideration for the purposes of an application for a Subclass 500-Student visa (PJ [22]-[24]). The appellant had submitted that the Tribunal had drawn a distinction between tertiary level and vocational level study in para [16] of its reasons. The relevant consideration for the purposes of cl 500.211(a) of Sch 2 of the Regulations was whether the visa applicant was enrolled in a full-time registered course. Therefore, taking into account the difference was an irrelevant consideration. The primary judge’s reasons for rejecting that submission were as follows.

23    I do not accept this submission. Irrespective of whether the applicant’s enrolment at the time of the Tribunal decision was for a tertiary qualification or for study at the VET level, it was open to the Tribunal to have regard to the applicant’s past study and enrolment history. There is nothing in the subject-matter, scope and purpose of cl 500.212(a) from which I can infer any limitation on the permissibility of the Tribunal taking into account the applicant’s change in study from tertiary level to VET level study, or that the reason for this was his inability to maintain his tertiary studies.

24    Further, the Tribunal’s reasons need to be read as a whole. The Tribunal’s concerns about the applicant’s study history, in the context of whether he genuinely intended to stay in Australia temporarily, were not simply that the applicant came to Australia to study at the tertiary level and has only completed courses at the VET level. Rather, the Tribunal’s concern was that the applicant had enrolled in a large number of seemingly disparate courses without offering any adequate explanation for this, and that he seemed unable to conform to any stated study plan or career orientation. The Tribunal accepted that students can make reasonable changes to their pathways, but in the context of the applicant’s multiple changes of courses over a significant period, the Tribunal considered that the applicant was using the student visa programme to maintain ongoing residence in Australia. It was open to the Tribunal to take into account the applicant’s original intention to undertake tertiary studies, and his failure to complete those studies, as part of this assessment.

Grounds of appeal

27    The notice of appeal contains two grounds of appeal as follows:

1.    [The primary judge] erred in determining that the Tribunal misapplied and misunderstood the required test in the regulation for genuine temporary entrant.

a.    [The primary judge] failed to consider as irrelevant consideration the differentiation between tertiary and VET level as reflected in final two sentences of para 16 of the Tribunal decision record at [16].

b.    Either of tertiary level and VET level enrolment, is allowed to be obtained in by an applicant for granting the student visa Subclass 500 and are criteria envisaged by the regulation.

c.    [The primary judge] made an error in accepting the Tribunal’s understanding as to there being “expectation” upon grant of visa.

d.    The Tribunal at [16] suggested that the applicant was granted a visa with the expectation that he would study at higher education level.

e.    The Tribunal at [15] of its decision record suggested that the applicant despite being granted a student visa with the expectation he could complete a bachelor’s degree, the applicant ceased his higher education studies and has only studied successfully at VET level.

f.    The applicant submits there is no such expectation in any form or shape or as required by law nor is in anyway relevant to consideration required under the statute as suggested by Peko-Wallsend (1986). The scope, purpose and subject matter of consideration does not create such expectation on granting nor could be part of the consideration in decision of second student visa renewal. Failing to recognize that caused an error on the part of [The primary judge].

2.    [The primary judge] undertook impermissible merit review.

a.    At para 24 of the judicial decision in justifying the Tribunal’s decision by suggesting the Tribunal’s concerns rather than looking at the ground being raised and argued.

b.    In doing so, [the primary judge] justified and found as to the applicant not being genuine and hence was satisfied of him being non-genuine student and so was satisfied of the same giving a reason for [the primary judge] to satisfy otherwise.

c.    Having justified the genuineness of the applicant, [the primary judge] could be satisfied that the Tribunal has not made any error otherwise.

Consideration

Ground 2

28    It is convenient to commence with a consideration of ground 2 of the notice of appeal. In para [24] of the primary judge’s reasons she has not engaged in merits review.

29    The appellant had made a submission to the effect that the Tribunal had taken into account that the appellant was not enrolled in full-time registered tertiary level course and that was not a relevant consideration. In the course of rejecting that submission, the primary judge correctly, with respect, and in keeping with well-established principle indicated that the Tribunal’s reasons must be considered as a whole. The primary judge reasoned that, when the reasons are read as a whole, it was not the mere fact that the appellant was enrolled in vocational level courses and not tertiary level courses that the Tribunal had taken into account. Rather, the Tribunal had taken the change from tertiary to vocational level courses into account along with other matters concerning the appellant’s study history that lead the Tribunal to conclude that the appellant did not have a coherent study plan and was using the student visa system to retain residency in Australia (PJ [24]).

30    In substance, (at PJ [24]) the primary judge rejected the premise of the appellant’s submission. That is, the absence of enrolment in a full-time registered tertiary level course was not a separate factor that was taken into account by the Tribunal as a reason for affirming the delegate’s decision.

31    In the Tribunal’s reasons (at T [16]) it expresses a concern about the appellant’s evidence relating to his reasons for studying in Australia. Paragraph 9.a. of Direction 69 provided that the Tribunal should have had regard to whether the appellant had reasonable reasons for not undertaking the study in his home country or region if a similar course is already available there. A decision to undertake vocational level study rather than tertiary level study was of potential relevance to that factor in Direction 69. However, the Tribunal made no concrete finding about the reasonableness of the appellant’s reasons for not undertaking vocational level studies in his home country. The Tribunal merely expressed concern, in effect, that the reason for which a student visa was originally granted was for tertiary level study in Australia when the appellant has not, in fact, undertaken study in Australia for that reason. At the time, it was a condition of the student (class TU subclass 573) visa that the appellant continue to satisfy the primary criteria for the grant of that visa. That included that the appellant be enrolled in a tertiary level course: cll 573.231, 573.611 of Sch 2; cl 8516 of Sch 8 of the Regulations; IMMI 10/069 Sch 1. Therefore, implicitly, the Tribunal’s concern was that the appellant had breached a condition of his student (class TU subclass 573) visa. Otherwise, the Tribunal’s substantive findings or conclusions about the absence of a genuine intention to reside in Australia temporarily were made in paras [22], [24]-[27]. Those findings or conclusions were not built upon any findings or conclusions made about the reasonableness of the appellant’s reasons for undertaking vocational level study in Australia made in para [16] or at all.

32    It follows that the primary judge was correct to reject the appellant’s submission for the reasons the primary judge gave (PJ [24]) and the reasons given in para [31]. In short, the appellant’s submission is founded on the false premise that the Tribunal had taken into account as a separate irrelevant consideration that the appellant was not enrolled in full-time registered tertiary level courses rather than taking into account the relevant consideration that he was enrolled in full-time registered courses.

33    Ground 2 must be dismissed.

Ground 1

34    In substance, ground 1 of the notice appeal contains a contention that the primary judge was in error for failing to accept the appellant’s submissions below.

35    For the reasons already given, the appellant’s submission and ground of review before the primary judge were founded on a false premise regarding the considerations that the Tribunal had taken into account. The primary judge was not in error for rejecting the appellant’s submission on that basis. Further, the Tribunal had not taken into account any ‘expectation’ that the appellant should be enrolled in tertiary level study for the purposes of assessing the criterion in cl 500.211(a) of Sch 2. The concern the Tribunal expressed about ‘expectation’ was related to an evident breach of the conditions of the previous student (class TU subclass 573) visa. That was a matter relevant, at least, to an assessment of the appellant’s immigration history.

36    Otherwise, the primary judge was correct, with respect, in her conclusion that there was nothing in the Act, Regulations or Direction 69 that expressly or by implication prevented the Tribunal from taking into account the appellant’s inability to complete tertiary level studies as a matter relevant to the Tribunal’s consideration of whether the appellant genuinely intended to stay in Australia temporarily. Generally, the question of whether a consideration is relevant or irrelevant turns on the proper construction of the relevant legislation. Therefore, any limit imposed upon to what a decision-maker may permissibly have regard is to be discerned through statutory construction: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [73]-[74] (McHugh, Gummow and Hayne JJ); Seymour v Federal Commissioner of Taxation [2016] FCAFC 18; (2016) 241 FCR 361 at [47]-[48] (Griffiths J).

37    The subject-matter, scope and purpose of the Act and Regulations were such that it was legitimate for the Tribunal to take into account whether the appellant had a coherent study plan as a factor or consideration that was relevant to the issue of whether the applicant intended genuinely to stay in Australia temporarily. A change from tertiary level to vocational level studies or an inability to complete tertiary level studies when taken together with other matters such as many incomplete courses and courses directed to many different vocations was relevant to and informed the question of whether the appellant had a coherent study plan.

38    Ground 1 must be dismissed.

Costs

39    The Minister applied for a costs order in his favour fixed in the sum of $5,000.

40    Section 43(2) and s 43(3)(d) of the Federal Court Act confers on the Court a discretionary power to award a party costs in a specified sum. Rule 40.02(b) of the Rules provides that a party who is entitled to costs may apply to the Court for an order that costs be awarded in a lump sum, instead of, or in addition to, any taxed costs. Where it is practicable and appropriate to do so, the Court’s preference is to make a lump sum costs order so as to finalise costs and avoid the need for taxation hearings. Paciocco v Australia and New Zealand Banking Group Pty Ltd (No 2) [2017] FCAFC 146; (2017) 253 FCR 403 at [16]-[19] (Allsop CJ, Besanko and Middleton JJ).

41    Rule 40.43 of the Rules provides that where an appeal from an order made by the Federal Circuit and Family Court of Australia (Division 2) in respect of a migration decision is dismissed after hearing, the respondent is entitled to the short form amount costs outlined in item 15.2 of Sch 3. The short form amount, including costs and disbursements, that may be claimed is $7,965.

42    I am satisfied that it is practicable and appropriate to make an order that costs be awarded in a lump sum. Taking into account that the Minister prepared and filed the Appeal Book in accordance with the Registrar’s orders referred to earlier in these reasons, the nature of the issues and that the short form amount that may be claimed under item 15.2 of Sch 3 of the Rules is $7,965, I am satisfied that $5,000 is a reasonable sum in which to allow and fix the Minister’s costs.

Conclusion

43    he appeal must be dismissed. The appellant should pay the Minister’s costs fixed in the sum of $5,000.

Associate:

Dated:    5 March 2024