Federal Court of Australia Noor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1125 Appeal from: Noor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 63 File number(s): QUD 37 of 2021 Judgment of: SC DERRINGTON J Date of judgment: 16 September 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal refused to grant appellant a student visa on basis not a genuine temporary entrant – appeal from dismissal of application for judicial review of Tribunal's decision by Federal Circuit Court (FCC)– whether FCC ought to have found Tribunal failed to properly consider effect of refusal on future immigration consequences – whether FCC erred in finding appellant had not advanced his studies – whether FCC erred in taking into account an irrelevant consideration Legislation: Migration Act 1958 (Cth) ss 29(1), 31(1), 31(3), 45, 65(1), 499(1), 499(2), s 499(2A) Migration Regulations 1994 (Cth) regs 2.01(1)(a), 2.03(1), Sch 1 cl 1222, Sch 2 cl 500.212 Cases cited: Kumar v Minister of Immigration and Border Protection [2020] FCAFC 16; 274 FCR 646 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 38 Date of hearing: 16 September 2022 Counsel for the Appellant: Appellant was self-represented Counsel for the First Respondent: Mr D Freeburn Solicitor for the First Respondent: Clayton Utz Solicitor for the Second Respondent: The Second Respondent submitted save as to costs ORDERS QUD 37 of 2021 BETWEEN: SAQIB NOOR Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: SC DERRINGTON J DATE OF ORDER: 16 SEPTEMBER 2022 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the costs of the first Respondent 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 (REVISED FROM TRANSCRIPT) SC DERRINGTON J Introduction 1 The Appellant, Mr Noor, appeals from a decision of the Federal Circuit Court (FCC) delivered on 21 January 2021. In his Reasons, the primary judge dismissed Mr Noor's application for judicial review of a decision of the Administrative Appeals Tribunal, made on 29 November 2019. The Tribunal was not satisfied that Mr Noor intends to genuinely 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). That decision affirmed a decision of a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant Mr Noor a temporary Class TU Subclass 500 Student visa (TU500 visa), for which he had applied on 29 September 2018. The purpose of that application was to study a Bachelor of Business at Torrens University. 2 Mr Noor contends the FCC erred in three respects: first, that it read the decision of the Tribunal without carefully considering Mr Noor's circumstances and submissions; secondly, at paragraph [21] of the decision (PJ), the FCC stated Mr Noor has not advanced his studies since the Tribunal hearing, which is an error as he has completed his Bachelor Degree at the time of hearing; and thirdly, by stating Mr Noor travelled to his home country (at PJ [21]) which is irrelevant. 3 For the reasons that follow, the appeal should be dismissed. Background 4 Mr Noor is a national of Pakistan. He came to Australia on 4 November 2012. Mr Noor was granted a student visa (Class TU) (subclass 573) (TU573 visa) for a period from 4 October 2012 to 15 March 2016 for the purpose of completing a suite of courses, those being, a Certificate IV in Frontline Management, a Diploma of Management, an Advanced Diploma of Management, culminating in a Bachelor of Business Studies. He was granted a second TU573 visa for the period 21 July 2016 to 30 September 2018 for the purpose of completing the Bachelor of Professional Accounting. He failed to complete many of these courses. 5 Mr Noor's enrolment history, as drawn from the records of his Confirmation of Enrolments, is as follows: (a) On 9 July 2012, Mr Noor enrolled in a Certificate IV in Frontline Management. On 31 December 2012, Mr Noor's enrolment in that course was cancelled. (b) On 4 February 2013, Mr Noor enrolled in a Diploma of Management. On 30 June 2013, Mr Noor's enrolment in that course was cancelled. (c) On 4 February 2013, Mr Noor enrolled in a Certificate IV in Frontline Management. Mr Noor finished that course on 30 June 2013. (d) On 8 July 2013, Mr Noor enrolled in an Advanced Diploma of Management. On 31 December 2013, Mr Noor's enrolment in that course was cancelled. (e) On 8 July 2013, Mr Noor enrolled in a Diploma of Management. On 31 December 2013, Mr Noor's enrolment in that course was cancelled. (f) On 12 August 2013, Mr Noor enrolled in a Certificate IV in Accounting. Mr Noor completed this course on 8 August 2014. (g) On 3 February 2014, Mr Noor enrolled in a Bachelor of Business Studies. On 30 June 2015, Mr Noor's enrolment in that course was cancelled. (h) On 3 February 2014, Mr Noor enrolled in an Advanced Diploma of Management. On 30 June 2014, Mr Noor's enrolment in that course was cancelled. (i) On 7 July 2014, Mr Noor enrolled in a Bachelor of Business Studies. On 31 December 2015, Mr Noor's enrolment in that course was cancelled. (j) On 11 August 2014, Mr Noor enrolled in a Diploma of Accounting. On 6 February 2015, he finished that course. (k) On 16 March 2015, Mr Noor enrolled in a Bachelor of Professional Accounting. On 31 December 2016, Mr Noor finished that course. (l) On 13 March 2017, Mr Noor enrolled in a Bachelor of Professional Accounting. On 31 July 2018, Mr Noor's enrolment in that course was cancelled. (m) On 31 July 2017, Mr Noor enrolled in a Bachelor of Business at Stotts College. On 31 December 2019, Mr Noor's enrolment in that course was cancelled. (n) On 19 February 2018, Mr Noor enrolled in a Bachelor of Commerce. On 15 December 2019, Mr Noor's enrolment in that course was cancelled. (o) On 19 February 2018, Mr Noor enrolled in a Bachelor of Business at Torrens University Australia. Mr Noor was due to complete that course on 10 May 2020. (p) On 18 March 2019, Mr Noor completed a Diploma of Business. 6 These records reveal a pattern of enrolling in numerous similar and overlapping courses, many of which were never completed. Statutory and legal framework 7 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). 8 A non-citizen who wants a visa must apply for a visa of a particular class: s 45. 9 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 the 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. 10 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 11 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. 12 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 Mr Noor applied included "primary criteria" (cl 500.2) and "secondary criteria" (cl 500.3). 13 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. 14 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 (Tribunal's reasons at [56]) which meant that it could not be satisfied under s 65(1)(a)(ii) that the prescribed criteria had been met. 15 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 clauses (i) to (iv). 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 16 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 and the exercise of those powers: s 499(1). Those directions must not be inconsistent with the Migration Act or Regulations: s 499(2). 17 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). 18 Direction 69 is a written direction to which s 499 applies and which commenced on 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". 19 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), 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). 20 Direction 69 is divided into two parts: "Part 1 Preliminary" and "Part 2 Directions". Part 1 includes: Preamble … 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. 21 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. Ground One 22 As has already been described, by ground one, Mr Noor contends the primary judge failed to properly consider his circumstances and submissions. That ground was not particularised in the notice of appeal filed in this matter. Instead, the gravamen of Mr Noor's complaint emerged in oral submissions – and that is, that the Tribunal failed to consider the consequence that the refusal of his most recent application for a TU500 visa would preclude him from being eligible for a 485 visa should he complete his degree at Torrens University. Suffice to say, this was not a proper consideration for the Tribunal, nor was it even put to the Tribunal. The Tribunal's task was not to speculate on future events but rather, to assess whether Mr Noor met the criteria for that visa, and to be satisfied at the time of its decision, that he was a genuine temporary entrant. That was not a matter to be assessed by reference to whether he would sometime in the future, in fact, complete the course of study that formed the basis of his application, nor were the future immigration consequences to Mr Noor a matter for the Tribunal. 23 Similarly, this matter was not raised as a ground of review before the primary judge, and the primary judge cannot be criticised for failing to deal with that issue as it has emerged at the hearing. It is clear from the decision of the primary judge that proper consideration was given to Mr Noor's claim below that the Tribunal had erred in its construction of Direction 69, that the Tribunal had made "incorrect assumptions", and that the Tribunal had failed to consider a "no further stay request". 24 As to the construction Direction 69, the primary judge considered the manner in which the Tribunal had applied Direction 69. The Tribunal was explicit in its reasons (at [10]) that it was not to use the guide as a checklist, and it did not do so. This included consideration of Mr Noor's circumstances in his home country (Tribunal's reasons at [41]–[46]; PJ at [18]), Mr Noor's circumstances in Australia (Tribunal's reasons at [12]–[40]; PJ at [12]–[15]), the value of Mr Noor's proposed course of study to his future and the number of changes to his course of study and proposed career plans (Tribunal's reasons [33]–[37], [47], [48]: PJ at [16]–[17]); and Mr Noor's immigration history (Tribunal's reasons at [49]–[52]; PJ at [19]). 25 No error is shown in the Tribunal's application of Direction 69. 26 Mr Noor also contended the Tribunal incorrectly assumed he was not a genuine temporary student because his sister was a permanent resident of Australia. The Tribunal made no such assumption. Rather, his sister's residence in Australia was a factor validly weighed by the Tribunal in considering whether Mr Noor's "family and community ties with Australia" constituted "a strong incentive" for him to remain in Australia, within the meaning of s 11(a) of Direction 69. 27 Further, Mr Noor raised that the Tribunal incorrectly assumed he was not a genuine temporary student because of his "lack of travel back home". This contention is also misconceived. The Tribunal took into account that Mr Noor only returned Pakistan twice in the seven years since his arrival in Australia, a matter that was squarely within the factors for the Tribunal to weigh when considering the extent of an applicant's personal ties to their home country (Direction 69 s 9(b)). 28 Mr Noor contended the Tribunal failed to consider a request by him to impose a "no further stay" on him such that he would be prevented from applying for any further visa. This was said to reveal his genuine intention to complete his studies and return home. 29 There is no evidence to support this contention and the primary judge was correct to dismiss it. 30 The primary judge concluded, (PJ at [21]), that "The Tribunal carefully considered the genuine temporary entrant criteria in the context of the evidence before it … in a considered and careful manner". 31 No error having been shown in the primary judge's approach, ground one must be dismissed. Ground Two 32 Grounds two and three are directed at paragraph [21] of the PJ: The Court does not find the applicant's written submissions to be persuasive. As found by the Tribunal, the applicant had spent at least seven years in Australia up until the time of the Tribunal hearing without having significantly advanced his academic course of study. The applicant has remained in Australia since the Tribunal hearing. The Tribunal carefully considered the genuine temporary entrant criteria in the context of the evidence before it, and found against the applicant. It did so in a considered and careful manner. 33 By ground two, Mr Noor contends the primary judge erred in finding he had not advanced his studies since the Tribunal hearing as he had completed his Bachelor of Business at the time of the hearing. This ground is misconceived. 34 The primary judge did not find Mr Noor had not advanced his studies since the Tribunal hearing. Rather, the primary judge observed, "[a]s found by the Tribunal, the applicant had spent at least seven years in Australia up until the time of the Tribunal hearing without having significantly advanced his academic course of study." In any event, whether Mr Noor had completed his degree by the time of the hearing before the primary judge is irrelevant. It was clear on the evidence before the Tribunal that he had not done so at the time of that hearing. No error in the primary judge's observation is established. 35 Ground two must fail. Ground Three 36 Similarly, ground three is misconceived. The primary judge did not find Mr Noor "travelled back to his home country". To the contrary, the primary judge observed the "applicant has remained in Australia since the Tribunal hearing". That observation was, of course, irrelevant to the primary judge's consideration of the issues before him but was not directed at any irrelevant consideration on the part of the Tribunal. 37 Ground three must fail. Disposition 38 For these reasons, the appeal must be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice SC Derrington. Associate: Dated: 30 September 2022