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Nikolli v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 940 (15 November 2022)

Last Updated: 15 November 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Nikolli v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 940

File number(s):	ADG 517 of 2019
Judgment of:	JUDGE LUCEV
Date of judgment:	15 November 2022
Catchwords:	MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of Greece – student visa refused – whether genuine temporary entrant – whether requirements misconstrued – whether irrelevant considerations taken into account – whether wrong test applied – whether factors in Ministerial Direction (Direction 69) considered – whether all factors in Ministerial Direction required to be considered – whether medical evidence considered – whether jurisdictional error
Legislation:	Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06 Migration Act 1958 (Cth) ss 359, 474, 476, 499 Migration Regulations 1994 (Cth) Sch 2, cll 500.2, 500.212
Cases cited:	Communications, Electrical, Electronic, Information, Postal, Plumbing & Allied Service Union of Australia (Western Australian Division) v Fortescue Metals Group Ltd  [2016] FCCA 1227 ; (2016) 310 FLR 1 Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Division:	Division 2 General Federal Law
Number of paragraphs:	28
Date of last submission/s:	26 October 2022
Date of hearing:	26 October 2022
Place:	Heard in Perth, delivered in Adelaide
Applicant:	In person via CISCO Webex with an interpreter
Counsel for the First Respondent:	Mr T Ellison via CISCO Webex
Solicitor for the First Respondent:	Australian Government Solicitor
Second Respondent:	Submitting appearance, save as to costs

ORDERS

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2. The originating application filed 18 December 2019 be dismissed.

REASONS FOR JUDGMENT

JUDGE LUCEV

1. Before the Court is an application filed by Mr Tonin Nikolli (“Mr Nikolli”) on 18 December 2019 seeking judicial review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), not to grant Mr Nikolli a Student Temporary (class TU) subclass 500 visa (“Student Visa”).
2. The Court Book (“CB”) was marked as Exhibit 1 in the proceedings. The Tribunal Decision appears at CB 141-152.

BACKGROUND

3. The relevant background to the matter is as follows:

(a) Mr Nikolli is a citizen of Greece and first arrived in Australia on 15 December 2016 on an Electronic Travel Authority (UD601): CB 75;

(b) on 23 May 2017 Mr Nikolli lodged a Student Visa application to undertake a Certificate IV in English and a Certificate III in Business: CB 9-31;

(c) on 3 August 2017 the Delegate’s Decision was to refuse to grant Mr Nikolli the Student Visa on the basis that he did not satisfy relevant provisions of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 69-77;

(d) on 10 August 2017 Mr Nikolli applied to the Tribunal for review of the Delegate’s Decision: CB 78-79;

(e) on 18 October 2019 the Tribunal sent an invitation to Mr Nikolli to provide information regarding Mr Nikolli’s course of study and Mr Nikolli’s entry and stay in Australia as a student: CB 94-101;

(f) on 29 October 2019 Mr Nikolli was invited to attend a hearing at the Tribunal on 12 December 2019: CB 103-105;

(g) Mr Nikolli intended to attend the Tribunal hearing with the assistance of a legal representative: CB 108-110;

(h) on 11 December 2019 Mr Nikolli’s legal representative informed the Tribunal that Mr Nikolli would not be able to attend the Tribunal hearing scheduled for 12 December 2019 as Mr Nikolli was unwell, and that Mr Nikolli was “happy” for the Tribunal to make a decision based on the papers: CB 132-136; and

(i) on 12 December 2019 the Tribunal Decision was to affirm the Delegate’s Decision to refuse to grant Mr Nikolli a Student Visa: CB 141-152.

TRIBUNAL DECISION

4. In the Tribunal Decision the Tribunal:

(a) set out the background of the review application to the Tribunal: CB 142 at [1]-[3];

(b) noted that it was not for the decision maker to make a case for Mr Nikolli and it was for Mr Nikolli to satisfy the Tribunal that the requirements of the Migration Act and Migration Regulations had been met: CB 142 at [8];

(c) identified that the basis for the Delegate’s Decision was whether Mr Nikolli complied with cl 500.212 of Sch 2 to the Migration Regulations, as to whether Mr Nikolli was seeking genuine temporary entry and stay as a student. The Tribunal set out the criteria for a Student Visa as stated in cl 500.212 of Sch 2 to the Migration Regulations: CB 143 at [11]-[12];

(d) identified that in considering whether Mr Nikolli satisfied cl 500.212(a) of Sch 2 to the Migration Regulations, the Tribunal must have regard to Direction No 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications”(“Direction 69”) made under s 499 of the Migration Act: CB 143 at [13];

(e) stated that it had read and had regard to information provided by Mr Nikolli: CB 143-145 at [15]-[16];

(f) set out Mr Nikolli’s immigration background: CB 145 at [17];

(g) noted that in the 2 years and 7 months since Mr Nikolli had sought to study in Australia, he had told the Tribunal he had not been enrolled for 13 months. The Tribunal noted that on review of the Department of Educations’ Overseas Student Confirmation-of-Enrolment records, Mr Nikolli had not been actively studying from May 2017 to September 2018, plus an unknown time in which Mr Nikolli did not complete the General ELICOS course commenced in May 2019 until he enrolled in the General ELICOS course in October 2019: CB 145 at [18];

(h) noted that the bridging visa WA010 (“Bridging Visa”) provided to Mr Nikolli on 23 May 2017 permitted him to study, yet, as indicated to the Tribunal on 1 November 2019, Mr Nikolli was of the mistaken view that he could not study while on a Bridging Visa. The Tribunal determined this error “to be significant and places weight on this in considering the genuine study intent of ... [Mr Nikolli]”: CB 145 at [19];

(i) identified that Mr Nikolli supplied information to the Tribunal from SACE English Colleges containing a signed statement by a teacher from 18 October 2019, claiming that Mr Nikolli was not competent in English and was defined as being “unable to grade” in the Speaking, Listening, Writing and Reading components. The Tribunal determined this finding to be significant and placed weight on this in considering the genuine study intent of Mr Nikolli: CB 145 at [20];

(j) noted that Mr Nikolli’s Bridging Visa did not permit him to work. The Tribunal identified that Mr Nikolli’s application for a Student Visa stated that Mr Nikolli would support his requested one year of study with his own funds. The Tribunal noted that Mr Nikolli had been in Australia for 2 years and 7 months from the time of the Student Visa application and had not supplied information on his financial resources. As such, the Tribunal determined this to be significant and placed weight on this in considering the genuine study intent of Mr Nikolli: CB 145 at [21];

(k) noted that on 1 November 2019 Mr Nikolli had advised that his two daughters were studying in Australia without providing any details of where his daughters were living and studying. The Tribunal determined this to be significant and placed weight on this in considering the genuine study intent of Mr Nikolli: CB 146 at [22];

(l) noted that Mr Nikolli stated in his Student Visa application that he was seeking to study English and Business in Australia, and that in the 2 years and 7 months since this statement, Mr Nikolli had been assessed as “not competent” in English. No evidence of further study being undertaken in the Business Certificate course in which he was enrolled was provided to the Tribunal. The Tribunal determined this to be significant and placed weight on this in considering the genuine study intent of Mr Nikolli: CB 146 at [23];

(m) noted that Mr Nikolli gave information to the Tribunal on 1 November 2019 in which he stated that there were no reasons as to why he could not return to Greece and that there were no issues or concerns relating to military service, political or civil unrest: CB 146 at [24];

(n) noted that Mr Nikolli stated in information provided to the Tribunal on 1 November 2019 that he wished to study in Australia to give him the English skills to work in a shop operated by his employer on a farm, providing organic products to locals and tourists, with his employer undertaking to do this in late 2020. The Tribunal noted that Mr Nikolli’s Student Visa application simply stated his wish to study “because it is important for my work.” The Tribunal further noted that no evidence of business plans or work responsibilities in relation to the proposed shop were provided by Mr Nikolli: CB 146 at [27];

(o) identified concerns that Mr Nikolli’s decision to seek to undertake training in Australia offered limited incremental financial value and could have been achieved by undertaking training in Greece: CB 146 at [28]; and

(p) came to the conclusion that it was not satisfied that Mr Nikolli intended to genuinely stay in Australia temporarily as a student, and that therefore he did not meet the criteria set out in cl 500.212(a) of Sch 2 to the Migration Regulations for the grant of the Student Visa. The Tribunal accordingly affirmed the Delegate’s Decision: CB 146 at [29]-[32].

JUDICIAL REVIEW APPLICATION

Litigation History

5. As indicated at [1] above the Judicial Review Application was filed on 18 December 2019. It was filed in the Adelaide Registry of the Court. As almost three years have passed since the filing of the application it is appropriate to set out the subsequent litigation history of the matter, which is as follows:

(a) on 26 February 2020 a Registrar of the Court in the Adelaide Registry made orders by consent that the Judicial Review Application be listed for final hearing on a date to be advised, and notified the parties that a directions hearing listed on 6 March 2020 was vacated;

(b) nothing further happened with the matter until May 2022 when it was docketed to the now presiding Judge in the Perth Registry of the Court;

(c) on 19 May 2022 an email was sent from the presiding Judge’s Chambers advising the parties that the matter had been listed for a directions hearing before the presiding Judge on 27 May 2022 at 9.20am AWST/10.50am ACST by video link; and

(d) at a directions hearing attended by the parties on 27 May 2022 orders (“May 2022 Orders”) were made as follows:

(i) for Mr Nikolli to file and serve any further amended Judicial Review Application, further affidavits, and an outline of submissions by 27 September 2022;

(ii) for the Minister to file and serve any amended response, affidavits in reply, and an outline of submissions by 10 October 2022; and

(iii) programming the matter for final hearing by video link on 25 October 2022 at 11.00am AWST/1.30pm ACDT before Judge Lucev,

and noting that the matter may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) if Mr Nikolli did not appear at the final hearing.

Grounds

6. The Judicial Review Application contained the following grounds (reproduced unaltered):
   1. The Second Respondent denied the Applicant appeal that the applicant has fulfilled significantly the student visa application requirement and meet the visa application of student (Temporary) (Class TU) visa hence misconstrued the requirements of the said visa.

Particulars

1.1 The Tribunal misconstrued the visa requirements under clause 500 .212 in Schedule 2 of the migration Regulations;
1.2 The Tribunal failed to consider the Applicant has complied substantially all student visa conditions and took into account his misunderstanding of the bridging visa conditions;
1.3 Applicant obeyed substantially student visa condition hence Tribunal failed to consider the applicant intends genuinely to stay in Australia temporarily.

2. The Second Respondent committed jurisdictional error when took into account irrelevant considerations and constructively failed to consider the requirement of visa grant was met therefore misconstrued the criteria or applied wrong test regarding the grant of the visa application of subclass 500.

Particulars

2.1 The Tribunal failed to consider the Applicant has and meet the requirement of visa grant clause 500 .212 of genuine intends to stay temporary in Australia.
2.2 The Tribunal failed to consider that applicant has met all other relevant requirement to grant of student visa subclass 500.
2.3 Tribunal failed to take into the consideration

2.3.1 The nature of the ties;
2.3.2 Significance of the ties;
2.3.3 Whether application was genuine in nature;
2.3.4 Other circumstances such as close family and economic ties of applicant.

Mr Nikolli’s submissions

7. In written submissions Mr Nikolli submitted that:

(a) the Tribunal raised concerns about Mr Nikolli staying in Australia with his children and about using Mr Nikolli’s Student Visa to stay in Australia. Mr Nikolli’s children were studying in Australia, and in the Tribunal Decision, the Tribunal raised with Mr Nikolli that he was using the Student Visa process to maintain ongoing residence;

(b) the Tribunal Decision, specifically from CB 145-146 at [18]-[24], noted Mr Nikolli’s circumstances, and made a decision on the noted circumstances without making a finding in relation to each circumstance noted in the Tribunal Decision;

(c) the Tribunal failed to make findings with respect to all of the factors identified in the Direction 69, that is, no finding was made by the Tribunal for each factor;

(d) despite Mr Nikolli providing medical evidence to the Tribunal no consideration was given to the medical evidence; and

(e) the Tribunal did not consider that Mr Nikolli had complied substantially with his Student Visa conditions, and did not make any findings in relation to his understanding of the Bridging Visa conditions.

8. In his oral submissions Mr Nikolli:

(a) initially opted to rely upon his written submissions; and

(b) in reply, reiterated that the Tribunal did not make findings with respect to “any factors”: Transcript, p 5.

Minister’s submissions

9. The Minister submitted that:

(a) satisfaction of the genuine temporary entrant criterion is a mandatory requirement for the grant of Mr Nikolli’s Student Visa: cl 500.2 of Sch 2 of the Migration Regulations;

(b) in assessing Mr Nikolli against the genuine temporary entrant criterion, the Tribunal was bound to apply Direction 69, but as noted in Direction 69 the factors specified should not be used as a checklist but are a guide: Direction 69 at [1];

(c) the Tribunal was required to make a finding as to whether Mr Nikolli satisfied the genuine temporary entrant criterion, but the Tribunal was not required to make a finding in relation to each factor: Direction 69 at [1];

(d) the factors specified in Direction 69 (as related to Mr Nikolli) are:

(i) Mr Nikolli’s circumstances in his home country (in this case, Greece): Direction 69 at [9]-[10];

(ii) Mr Nikolli’s potential circumstances in Australia: Direction 69 at [11];

(iii) the value of the course to Mr Nikolli’s future: Direction 69 at [12];

(iv) Mr Nikolli’s immigration history: Direction 69 at [13]-[14]; and

(v) any other relevant matters: Direction 69 at [16];

(e) the Tribunal noted that the primary issue for it to determine was whether Mr Nikolli satisfied the genuine temporary entrant criterion: CB 143 at [13]. The Tribunal had regard to Direction 69 and matters relevant to each of these factors insofar as they were known to the Tribunal;

(f) Mr Nikolli has submitted that no regard was given to medical evidence, however, the Tribunal specifically had regard to Mr Nikolli’s medical evidence. The Tribunal observed that:

(i) Mr Nikolli suffered from type 2 diabetes: CB 145 at [16(v)]; and

(ii) Mr Nikolli’s alleged health issues were making work challenging for him and that a change in work role may be needed: CB 144 at [16(n)] and 146 at [28], but it did not explain why Mr Nikolli could not study English in Greece: CB 146 at [28]. Further, it did not explain the large amount of time Mr Nikolli spent in Australia not studying: CB 145 at [18]; and

(g) that the Tribunal carefully considered the factors in Direction 69 insofar as they were relevant, and that no jurisdictional error in the Tribunal Decision has been demonstrated.

Requirement for jurisdictional error

10. For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:

(a) identifies a wrong issue;

(b) asks the wrong question;

(c) ignores relevant material; or

(d) relies on irrelevant material,

in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

Genuine temporary entrant criteria

11. The genuine temporary entrant criteria are set out in cl 500.212 of Sch 2 to the Migration Regulations, and the Tribunal Decision identified that in considering whether Mr Nikolli satisfied cl 500.212(a) of Sch 2 to the Migration Regulations, the Tribunal must have regard to Direction 69: CB 143 at [13].
12. In Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 (“Kaur”) at [13]-[15] per Middleton J the Federal Court of Australia recently observed that:
    13. In discussing Direction 69, in Kaur v Minister for Home Affairs [2019] FCA 2026 Steward J said at [30] and [31]:

“[30] Then, for the purpose of applying those factors, the Minister has made a Direction which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a ‘guide’ in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a ‘checklist’; rather they are to guide a decision-maker ‘when considering the applicant's circumstances as a whole’. In other words, a decision-maker is not required to check each identified factor in the Direction. In my view, this language is inconsistent with the first appellant's contention that every factor must be considered as a mandatory consideration. It is also inconsistent with the function and purpose of Direction No. 69 as a guide to assist in applying cl 500.212.
[31] In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v Minister for Home Affairs [2019] FCAFC 135; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at 172-176 [75]- [81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ.”

14. There may be some question whether the approach adopted in [31] by Steward J is in fact correct. A different approach to the construction of Direction 69 was taken by SC Derrington J in Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1861 at [22], having regard to the differences between Direction 69 and its predecessor, Direction No. 53:

“The text of Direction 69 differs in some minor respects from that of Direction 53. In particular, Direction 53 used language in terms that a decision maker ‘must have regard to [the relevant factor or factors]’ (emphasis added). Direction 69 replaces ‘must’ with ‘should’. It was not suggested that this made any material change to the substance of the Direction, at least to the extent of lessening the strength of the Direction. Indeed, that it is unlikely that any such change was intended might be discerned from the Preamble, where the previous wording in Direction 53 to the effect that ‘factors should be considered’ is replaced in Direction 69 with the ‘factors that require consideration’”

(emphasis added).

15. It is unnecessary for me to decide this difference. However, it seems to me that the appropriate approach to the Direction 69 is that taken by Steward J. In my view, the change of wording from “must” to “should” cannot be ignored. Further, the words of the preamble that the Direction “provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d” do not imply that the factors are mandatory considerations, but rather that the Direction indicates what factors are likely to and might require consideration in any given case. As Steward J points out, the decision-maker must only engage with the factors if they are the subject of clearly articulated claims or they arise clearly on the material.

13. The views expressed by the Federal Court of Australia in Kaur are binding on this Court, whether obiter or otherwise: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Communications, Electrical, Electronic, Information, Postal, Plumbing & Allied Service Union of Australia (Western Australian Division) v Fortescue Metals Group Ltd  [2016] FCCA 1227 ; (2016) 310 FLR 1 at  [51] -  [55]  per Judge Lucev.
14. The Court notes that the Tribunal correctly set out and summarised the relevant legislative provisions and Direction 69 in the Tribunal Decision at CB 143 at [12]-[14] as follows:

12. Clause 500.212 states the following must be satisfied:-

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.

13. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
    • the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
    • the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
    • if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
    • any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
14. The Direction indicates that the factors specified should not be used as a checklist but rather, 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.

15. In the circumstances it is apparent that the Tribunal understood the relevant criteria as set out in cl 500.212 of Sch 2 of the Migration Regulations and Direction 69, and it cannot be said, as Mr Nikolli asserts in ground 1 and particular 1.1 and ground 2, that the Tribunal misunderstood or misconstrued the relevant Student Visa requirements or applied the wrong test in relation to those requirements.
16. Particulars 1.2 and 1.3 to ground 1 and 2.1 and 2.2 to ground 2, variously assert that the Tribunal failed to consider that Mr Nikolli met or substantially complied with the requirements under cl 500.212 of Sch 2 of the Migration Regulations. In the Tribunal Decision the Tribunal found otherwise: CB 146 at [29]-[31]. The Tribunal did so having regard to:

(a) information which it had read and which had been provided by Mr Nikolli pursuant to a request for information by the Tribunal under s 359(2) of the Migration Act, set out at CB 144-145 at [16] as follows:

(a) completed his secondary school certificate in June 1985 and did not undertake any other study before arriving in Australia.

(b) since July 1885 he has been a farming worker, mine worker and part owner during 2016 of a family business pastry shop

(c) arrived in Australia on 15 December 2016

(d) he had holidayed, for a total of 12 days, in Germany, in July and October 2015

(e) enrolled in June 2017 in a Certificate lV in English and a Certificate lll in Business, with an anticipated completion in June 2018, which was not completed.

(f) enrolled in a General ELICOC course in October 2018, with a completion in April 2019, which he completed

(g) enrolled in a General ELICOS course in May 2019, with an anticipated completion in October 2019, which he did not complete

(h) enrolled in a General ELICOS course in October 2019, with an anticipated completion in January 2020, which he is studying now.

(i) states some courses are available in Athens, but he lives in a different area of Greece, and with his use of English on a daily basis in Australia it accelerates his learning process.

(j) was not enrolled from August 2017 to September 2018 as he mistakenly believed he could not study while on a bridging visa.

(k) his annual expenses are $ 13,680

(l) last saw his wife in Greece in December 2016, and last saw his 2 daughters in Australia in October 2019, who are studying in Australia and notes their student visas have been rejected, while maintaining contact through electronic options.

(m) he and wife own a home in Greece, and he has shared assets with his siblings in Albania from an inheritance.

(n) has been a farm worker, and supervisor of other farm staff, and seeks to learn English so he can operate for his employer a shop providing organic products to locals and tourists. He states this arrangement will allow him to keep working, as physically the effects of health issues are making his previous work challenging.

(o) has no concerns about military service commitments or political or civil unrest.

(p) a letter from SACE English Colleges Australia of 24 May 2019 confirming he is currently enrolled in a two part English Language Course.

(q) a certificate from SACE English Colleges Australia from 18 October 2019 certifying he has attended a General Language Course from 22 October 2018 to 18 October 2019.

(r) a letter, signed by teacher Stephen Ogier, of SACE English Colleges of 18 October 2019 noting he is not yet competent in English and that an “unable to grade” response exists for each of the study areas being Speaking, Listening, Writing and Reading.

(s) Australian Government, Department of Education, Overseas Student Confirmation-of-Enrolment, General ELICOS, 2/10/18 to 19/04/19

(t) Australian Government, Department of Education, Overseas Student Confirmation-of-Enrolment, General ELICOS, 27/5/19 to 18/10/19

(u) Australian Government, Department of Education, Overseas Student Confirmation-of-Enrolment, General ELICOS, 28/10/19 to 31/01/20

(v) letter from Firle Medical Centre of 28/10/19 confirming applicant suffers from Type 2 diabetes and medication used.

(b) Mr Nikolli’s study record and activities since his arrival in Australia: CB 145 at [18];

(c) the terms of Mr Nikolli’s Bridging Visa which permitted him to study in Australia, and in relation to which Mr Nikolli had taken the mistaken view that he was not permitted to study in Australia: CB 145 at [19];

(d) Mr Nikolli’s level of English language competence, and that he had been assessed as “not competent” in English: CB 145 at [20] and CB 146 at [23];

(e) Mr Nikolli’s inability to work in Australia and his alleged capacity to support himself financially from his own funds for the requested one year of study in circumstances where he had been in Australia for two years and seven months and had not supplied further information on his financial resources: CB 145 at [21];

(f) Mr Nikolli’s two daughters being in Australia to study, albeit no details of their study or living arrangements were provided by Mr Nikolli: CB 146 at [22];

(g) there being no issues or concerns relating to military service, political or civil unrest, or other reasons that Mr Nikolli could not return to Greece: CB 146 at [24];

(h) Mr Nikolli’s expressed wish to study for work purposes related to his employment in a shop operated on a farm in Greece, which he had stated was “important” for his work, but in relation to which no evidence of business plans or work responsibilities had been provided to the Tribunal: CB 146 at [27]; and

(i) Mr Nikolli’s training in Australia which offered him limited incremental financial value and could have been achieved by undertaking training in Greece: CB 146 at [28].

17. Mr Nikolli’s assertion that the Tribunal failed to consider that Mr Nikolli met or substantially complied with the requirements under cl 500.212 of Sch 2 of the Migration Regulations is not made out when regard is had to the matters considered by the Tribunal as set out in the preceding paragraph, and in the summary of the Tribunal Decision at [4] above. Likewise the assertions in:

(a) particular 1.3 that the Tribunal failed to consider that Mr Nikolli “intends genuinely to stay in Australia temporarily”; and

(b) ground 2 that the Tribunal “constructively failed” to consider the requirements for the grant of the Student Visa,

cannot be made out for the same reasons, that is, when regard is had to the matters considered by the Tribunal as set out in the preceding paragraph, and in the summary of the Tribunal Decision at [4] above.

18. No error arises by reason of the Tribunal’s treatment of the fact that Mr Nikolli’s two daughters were studying in Australia, and the Tribunal allegedly raising this with Mr Nikolli in the context of his use of the Student Visa process to maintain ongoing residence in Australia. In the absence of a transcript or audio recording of the Tribunal hearing being put into evidence it is not possible for the Court to determine whether the fact of the daughters study in Australia was raised with Mr Nikolli in the Tribunal hearing (as opposed to Mr Nikolli’s advice to the Tribunal of 1 November 2019: see CB 146 at [22]) in the context of his use of the Student Visa process to maintain ongoing residence in Australia. Assuming it was so raised in the Tribunal hearing that would not constitute jurisdictional error in the Tribunal Decision as it was plainly capable of constituting a relevant consideration for the Tribunal.
19. Insofar as particular 2.3 alleges that the Tribunal failed to take into consideration:

(a) the particular “ties”, their nature and significance, and other circumstances including family and economic ties, those matters were discussed as part of the Tribunal’s consideration of the Direction 69 factors set out at [20] below; and

(b) that the Student Visa application was genuine in nature, that was a matter considered by the Tribunal having regard to all the matters that are considered, and in respect of which it reached a conclusion that Mr Nikolli did not intend genuinely to stay in Australia as a student,

and therefore particular 2.3 is not made out, and does not establish jurisdictional error in the Tribunal Decision.

20. In relation to Direction 69 and the factors specified in Direction 69 which were expressly considered by the Tribunal (albeit not expressly individually signposted as such) these included:

(a) Mr Nikolli’s circumstances in his home country of Greece: Direction 69 at [9]-[10], and Tribunal Decision at CB 144 at [16(a)-(b) and (l)-(o)] and 146 at [24]-[27] (wife in Greece with whom he owns a home, employment as a farm worker in Greece, no evidence of a business plan for farm shop in Greece, no concerns about military service commitments or civil or political unrest, no studies in Greece since completing secondary school in 1985, capacity to study English in Greece);

(b) Mr Nikolli’s potential circumstances in Australia: Direction 69 at [11] and Tribunal Decision at CB 144-145 at [16(c)-(k) and (p)-(v) and 145-146 at [17]-[23] (time spent in Australia, course of study and progress made, whether capacity to work on Bridging Visa, daughters studying in Australia);

(c) the value of the course to Mr Nikolli’s future: Direction 69 at [12] and Tribunal Decision at CB 146 at [28] (“limited incremental financial value”);

(d) Mr Nikolli’s immigration history: Direction 69 at [13]-[14] and Tribunal Decision at CB 145 at [17], [19] and [21] (arrival in Australia on an Electronic Travel Authority, lodgement of Student Visa application, effect of Bridging Visa); and

(e) any other relevant matters: Direction 69 at [16] (no other relevant matters appear to have arisen for consideration by the Tribunal).

21. It is apparent from the previous paragraph that the Tribunal considered and applied relevant matters arising from Direction 69 and whilst the Tribunal did not expressly cross-reference the relevant paragraphs of Direction 69, or its summary of them at CB 143 at [13], it is apparent from the manner and form of the Tribunal Decision that it was addressing the matters referred to in the previous paragraph by reference to Direction 69. To the extent that Mr Nikolli asserts that the Tribunal made no finding in relation to each factor in Direction 69 that assertion was neither particularised nor articulated in the course of these proceedings. The Tribunal was only required to address relevant matters or matters raised by Mr Nikolli. It is not evident that Mr Nikolli raised any such matters, and to the extent that the Tribunal did not refer to any matters arising under Direction 69 at [15] and [16] that is presumably because:

(a) [15] deals with an applicant who is a minor, which Mr Nikolli is not; and

(b) [16] deals with other relevant matters, of which it would appear, or it can be inferred, that the Tribunal considered there were none.

22. The Tribunal’s approach to Direction 69 was orthodox, methodical and involved no misapplication nor misunderstanding of the text or effect thereof, and does not establish any jurisdictional error in the Tribunal Decision.
23. Insofar as Mr Nikolli asserted that the Tribunal gave no consideration to medical evidence provided to it by Mr Nikolli, that assertion cannot be sustained. The Tribunal specifically adverted to the medical certificate provided by Mr Nikolli indicating that he suffered from Type 2 diabetes and advising of the medication used in relation to that illness, and went on to observe that skills may need to change “if health issues arise”: CB 146 at [28], which, in context, can only be a reference to Mr Nikolli’s Type 2 diabetes. It is not evident that any other health issues were alleged to arise, and therefore it cannot be said that the Tribunal did not give consideration to Mr Nikolli’s health issues.

Jurisdictional error otherwise

24. The Court is also cognisant that Mr Nikolli was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. In this regard the Court has considered whether a jurisdictional error of the type identified in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (“Eros”). This matter is distinguishable from Eros as, having set out and attributed weight to the matters referred to in the Tribunal Decision: see [4] above, the Tribunal made specific findings concerning the matters adverted to in Direction 69 (see [20] above, including an evaluation of Mr Nikolli’s courses and progress in those courses: Eros at [22] per Allsop CJ), and also found that Mr Nikolli did not intend genuinely to stay in Australia temporarily “as a student”: CB 146 at [29]-[30]; Eros at [22] per Allsop CJ.
25. In the Court’s view, there is nothing in the materials before it which indicates that the Tribunal made a jurisdictional error otherwise in the Tribunal Decision.

CONCLUSION AND ORDERS

26. For the reasons set out at [11]-[25] above, the Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application filed on 18 December 2019.
27. There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
28. The Court will hear the parties as to costs.

Associate:

Dated: 15 November 2022