Sidhu v Migration Review Tribunal [2004] FCAFC 341 (22 December 2004)

Last Updated: 4 January 2005

FEDERAL COURT OF AUSTRALIA

Sidhu v Migration Review Tribunal [2004] FCAFC 341

MIGRATION – Migration Review Tribunal – refusal of application for student (temporary) visa – whether applicant a genuine applicant for entry and stay as a student – whether jurisdictional error in Tribunal’s decision.


Migration Act 1958 (Cth), ss 31, 65, 347

Migration Regulations 1994 (Cth), regs 2.01, 2.03

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 cited

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93 cited

Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1 cited

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 cited

Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 cited







LAKHWINDER SINGH SIDHU v MIGRATION REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Q117 OF 2004

LEE, MERKEL, HELY JJ
22 DECEMBER 2004
PERTH (Heard in Brisbane)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q117 OF 2004

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	LAKHWINDER SINGH SIDHU APPELLANT
AND:	MIGRATION REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGES:	LEE, MERKEL & HELY JJ
DATE OF ORDER:	22 DECEMBER 2004
WHERE MADE:	PERTH (Heard in Brisbane)

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The judgment of the learned trial judge dated 16 June 2004 be set aside and in lieu thereof it be ordered that:

"1. A writ of prohibition issue directing the second respondent not to act on the decision of the first respondent made 22 December 2003.

2. A writ of certiorari issue directed to the first respondent quashing the decision of the first respondent made 22 December 2003.

3. A writ of mandamus issue directed to the first respondent requiring the first respondent to determine according to law the application for review of the decision of the delegate of the second respondent dated 15 May 2003.

4. The second respondent pay the applicant’s costs"

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


Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q117 OF 2004

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	LAKHWINDER SINGH SIDHU APPELLANT
AND:	MIGRATION REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGES:	LEE, MERKEL, HELY JJ
DATE:	22 DECEMBER 2004
PLACE:	PERTH (Heard in Brisbane)

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment of a judge of this Court (Dowsett J) which dismissed an application by the appellant for the issue of constitutional writs to set aside a decision of the Migration Review Tribunal ("the Tribunal") made on 22 December 2003 refusing to grant to the appellant a visa for which the appellant had applied under the Migration Act 1958 (Cth) ("the Act").

2 The appellant, an Indian national, arrived in Australia on 16 February 2000. At that time he was 17 years of age and the holder of a Student (Temporary) (Class TU) Subclass 560 (Student) visa ("Subclass 560 visa"). That visa allowed the appellant to enter and remain in Australia for the purpose of undertaking a course of tertiary education and was valid until 31 January 2001. In March 2000 it was replaced by another Subclass 560 visa valid until 23 February 2001. In February 2001 the appellant was granted a further Subclass 560 visa valid until 15 March 2003.

3 Between February 2000 and February 2001 the appellant enrolled in, and completed, a Certificate IV and Diploma in Information Technology at the City Institute of Technology. In February 2001 the appellant enrolled in a Diploma of Information Technology course at the Swinburne University of Technology. In August 2001 he transferred his course enrolment to a Diploma of Information Technology (Network Engineering) at the Hales Institute. He completed that Diploma in August 2002.

4 In September 2002 the appellant enrolled in a Diploma of Hospitality (Commercial Cookery) at the Australian College of Travel and Hospitality Management. The period of the course was approximately 20 months and was to be completed in April 2004.

5 On expiry of his Subclass 560 visa on 15 March 2003 the appellant applied for a Student (Temporary) (Class TU) Subclass 572 – Vocational Education and Training Sector visa ("Subclass 572 visa"). The subclass 560 visa had ceased to be a prescribed class of visa on 1 July 2001 and had been replaced by other classes of visa, in particular the Subclass 572 visa.

6 Pending determination of the application for the Subclass 572 visa the appellant was granted a Bridging A visa which permitted him to continue his studies.

7 On 15 May 2003 a delegate of the second respondent ("the Minister") determined that the appellant not be granted a Subclass 572 visa. Under s 347 of the Act the appellant applied to the Tribunal for review of the delegate’s decision.

8 In June 2003 the appellant attained the level of Certificate III in Hospitality (Commercial Cookery) in the course of his study for the Diploma. Results in all of the courses in which the appellant had enrolled whilst in Australia were placed before the Tribunal and they demonstrated that the appellant was a diligent and competent student.

9 The Tribunal conducted a "hearing" on 4 December 2003. The hearing was attended by the appellant who responded to questions put to him by the Tribunal. On 22 December 2003 the Tribunal determined that the appellant not be granted a Subclass 572 visa. Shortly thereafter the appellant commenced the proceeding in this Court seeking to set aside the Tribunal’s decision.

10 Pursuant to s 65 of the Act if the Minister is satisfied that, inter alia, the criteria prescribed for a visa by the Act or regulations have been satisfied the visa must be granted. Section 31 of the Act provides that there are to be prescribed classes of visas and that the regulations may prescribe criteria for a visa of a specified class.

11 Regulation 2.01 of the Migration Regulations 1994 (Cth) ("the Regulations") states that the prescribed visas for the purpose of s 31 are those set out in Schedule 1 of the Regulations or in reg 2.01(b). In the instant case the relevant class of visa is that prescribed in Item 1222 of Schedule 1, namely, "Student (Temporary) (Class TU)".

12 Regulation 2.03 of the Regulations provides that the prescribed criteria for a particular class of visa are those set out in Schedule 2 of the Regulations under the Part of Schedule 2 that bears a Subclass heading relevant to a class of visa prescribed in Schedule 1.

13 The prescribed criteria for the Student (Temporary) (Class TU) visa are set out in the Part of Schedule 2 that bears the heading "Subclass 572 – Vocational Education and Training Sector". The particular criteria that were relevant to the decision of the Tribunal in this matter were those prescribed in Item 572.223 which read as follows:

 ‘572.223(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

(2) An applicant meets the requirements of this subclause if:

(a) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:

(i) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and

(ii) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and

(iii) other requirements under Schedule 5A; and

(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii) any other relevant matter.’

14 The decision of the Tribunal turned on its consideration of the terms of Items 572.223(2)(a)(iii) and (2)(b)(ii).

15 In respect of Item 572.223(2)(a)(iii) the "other requirements under Schedule 5A" were those set out in Item 406 of Schedule 5A of the Regulations. The relevant parts of Item 406 read:

‘(1) The applicant must give evidence:
...

(b) that:

(i)	he or she is enrolled in a vocational education and training course; or
(ii)	he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and a vocational education and training course; or
(iii)	he or she is enrolled in a course that is a pre-requisite to a vocational education and training course and has an offer of a place in a vocational education and training course; and

(c) that the applicant’s principal course will:

(i) enhance the development of the applicant’s career; or
(ii) assist the applicant to obtain employment; or

(iii) assist the applicant to improve his or her prospects of promotion or of obtaining other employment.’

16 Item 406(2) defined a "vocational education and training course" as, inter alia, a course at the diploma or advanced diploma level and having regard to the terms of Item 406(1)(b) it is apparent that the words "principal course" in Item 406(1)(c) refer to the vocational education and training course in which the applicant is, or will become, enrolled.

17 It can be seen that the question whether there was evidence satisfying the alternative circumstances prescribed in Item 406(1)(c) required a broad rather than narrow approach to be taken to assessment of the utility of the vocational education and training course in which an applicant was, or would be, enrolled.

18 In respect of the criteria prescribed in Item 406 the Tribunal noted that a "Procedures Advice Manual" ("the Policy Manual") issued by the Minister’s Department for the guidance of persons making decisions on applications for Subclass 572 visas, provided the following advice:

‘64.1 Relevance to employment & career prospects

Where prescribed in Schedule 5A, the applicant must satisfy officers as to the usefulness of the principal course for career development or employment.

Under policy, the following are relevant in assessing whether the study plan is realistic and relevant to the student’s career development, employment or promotional prospects.

64.2 ... students should be able to demonstrate that

•	the proposed course is relevant and appropriate to their current circumstances and/or employment background;

•

they are genuinely employed and that the proposed course is relevant to their current occupation (if not currently undertaking, or has not recently completed, full-time study). Under policy, a course is considered relevant if it is a course that persons in that occupation generally may be expected to undertake (ie it is work/employment-related) and it is consistent with, and appropriate to, the applicant’s career prospects and/or their current level of training/experience in that occupation.

...
64.4 New career direction

While a student may be looking for a new direction in their career, it is open to officers to request evidence that the course is of relevance to their background and level of training.

...
68.5 Intention to remain in Australia

In granting a Student visa it is expected that a student will study in Australia and abide by their visa conditions.

There are now 2 permanent visa classes:

•	the Skilled Independent Overseas Student visa (Residence) (Class DD); and

•	the Skilled Australian Sponsored Overseas Student visa (Class DE);

that mirror current offshore visas under the general points test scheme and that enable successful tertiary-qualified overseas students to apply for a permanent visa onshore:

A Student visa applicant who intends to apply at the end of their studies for a permanent visa in Australia on the grounds of meeting the requirements for visa class DD or DE should be considered a genuine applicant for entry and stay as a student –’

19 With regard to the prescribed criterion in Item 572.223(2)(b)(i) that the Minister, by having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted, be satisfied that the applicant is a genuine applicant for entry and stay as a student, it was accepted by the Tribunal that there was "no reason to believe" that the appellant would fail to comply with the conditions of the visa.

20 The conditions able to be imposed on a Subclass 572 visa include a requirement that the applicant maintain a satisfactory level of attendance and academic achievement in the vocational education and training course in which he or she is enrolled and that the applicant continue to satisfy the criteria of the visa (See: Regulations: Schedule 8, Items 8202, 8516). It would seem to follow that if the Tribunal was satisfied that the appellant intended to comply with any condition imposed, it was satisfied that the appellant intended to meet the requirements of the course in which he was enrolled.

21 At the time the appellant appeared before the Tribunal on 4 December 2003 he had completed 15 months of the 20-month period of the vocational education and training course in which he was enrolled and, as noted above, had been awarded a Certificate III in that course in June 2003. Prior to attaining that qualification the appellant had been employed as a kitchen hand. Upon receiving the certificate the appellant commenced employment forthwith as a cook. He worked 20 hours per week in that position, the maximum period of employment the appellant was permitted to work under the terms of the visa he then held.

22 The appellant informed the Tribunal that whilst studying for the Diploma of Information Technology (Network Engineering) between January 2000 and September 2002, he became aware that employment opportunities in information technology were reducing. The appellant stated that he believed it would be difficult for him to obtain work in that field and he decided to become qualified as a commercial cook, a position he thought would offer better prospects.

23 The appellant told the Tribunal that he changed his career to that of commercial cook. That decision, of course, did not prevent the appellant from seeking employment in information technology at some time in the future, but the level of skill he had in that field was less than that of a degree graduate and the prospect of future employment may have been limited unless he obtained further qualifications. At that time the appellant had no employment experience in information technology and the only employment he had had was in the field to which he had changed his vocational studies.

24 At the hearing in December 2003 the Tribunal was informed by a migration agent assisting the appellant that the agent had advised the appellant that upon being granted a Subclass 572 visa the appellant could apply, whilst in Australia, for a Skilled-Independent Overseas Student (Residence) (Class DD) visa (‘the "permanent" visa’), based on the qualification the applicant had obtained in June 2003, namely, Certificate III in Hospitality (Commercial Cookery).

25 As at December 2003 that advice would not appear to have been correct in respect of the appellant’s circumstances. The criteria required to be met for the grant of the "permanent" visa are set out in the Item 1128CA of Schedule 1 of the Regulations. A new paragraph 1128CA(3)(1) was substituted on 1 July 2003 (See: Migration Amendment Regulations 2003 (No 4) (Statutory Rule 122/2003)). From that date the period of the course of study in which the appellant was then enrolled was not of sufficient length to satisfy the requirements of Item 1128CA for the grant of the "permanent" visa. Thus the only benefit the appellant could obtain from the grant of a Subclass 572 visa in December 2003 was the opportunity to continue and complete the vocational education and training course in which he was enrolled.

26 The reasons for decision provided by the Tribunal set out the following findings:

‘35. ...The Tribunal has been given no probative evidence that the market for information technology professionals is as poor as the visa applicant makes out. In any case, it became clear at the hearing that the employment market is not the principal reason for the visa applicant’s change of career path. Based on the visa applicant’s own evidence at the hearing the Tribunal findings that the visa applicant’s motive for undertaking his new course is his belief that he will be able to apply for permanent residence more quickly than by continuing his career path in the information technology industry. There would appear to be no inhibition on the visa applicant’s motive, but it does not support the proposition that is he is seeking to undertake the hospitality course for genuine employment reasons.

36. There is nothing in the visa applicant’s background that would be considered relevant to a new career path in commercial cookery. The level of training on which the visa applicant says he will rely to apply for permanent residence is a Certificate III in Cookery, and is a lower qualification than the Certificate IV and diploma he already holds in information technology. On this basis, the Tribunal finds the visa applicant’s change in career from Information Technology to the Hospitality trade is inconsistent with previous studies and would not enhance his career.
...
38. The underlying purpose, referred to in the last section of the policy in paragraph 68.5, is that genuine students who are undertaking a qualification which would allow them to meet Class DD or DE visa requirements, and who intend to apply for one of those permanent residence visa Classes, should not on those grounds be considered as other than a genuine student. However, in the present case, the visa applicant claims that he already holds the qualification (in Hospitality) on which his claim to apply for a Class DD or DE visa is based. His purpose in seeking the visa which is the subject of this review is not to study for a qualification which would allow him to meet Class DD or DE visa requirements. The Tribunal finds that the visa applicant’s change in career from Information Technology to the Hospitality trade is inconsistent with his previous studies and would not enhance his career. The Tribunal finds that the visa applicant does not meet the other requirements specified under 5A406(c).

...

42. The visa applicant is from India. There is a significant economic incentive for Indian nationals to migrate to Australia, and the visa applicant has indicated his intention of doing so. The question of the visa applicant’s applying for a Class DD or DE visa was raised above where the Tribunal considered issues arising out of paragraph 68.5 of ‘Procedures Advice Manual 3: Generic guidelines G – Student visas’ which is also relevant to ‘genuineness’. In the Tribunal’s view the purpose underlying the application for a student visa in this case is incidentally to enable the visa applicant to be a student but principally to enable him to hold a substantive visa for the express purpose of applying for another visa.

43. The visa applicant’s academic record is satisfactory. He has no links with Australia other than having been a student and working. Inappropriate study plans is not a relevant consideration in this case, since the visa applicant is not applying in the Schools sector.

44. On balance, the Tribunal is not satisfied that that the applicant is a genuine applicant for entry and stay as a student, having regard to the relevant factors.’

27 The Tribunal, in conducting a review of the delegate’s decision, had to have regard to the prescribed criteria and determine whether the appellant was "a genuine applicant for entry and stay as a student" (See: Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1).

28 The Tribunal purported to find that the grounds on which it was not satisfied that the appellant was a genuine applicant for entry and stay as a student were, first, that the vocational education and training course in which he was enrolled "would not enhance his career" and, therefore, the appellant "[did] not meet the other requirements specified under [Item 406(1)(c) of Schedule 5A]" and, second, the regard the Tribunal had given to "any other relevant matter" pursuant to Item 572.223(2)(b)(ii).

29 The first task the Tribunal had to perform was to determine whether any of the requirements of Item 406(1)(c) was satisfied, namely, whether the vocational education and training course in which the appellant was enrolled would:

(i) enhance the development of his career;

(ii) assist him to obtain employment; or

(iii) assist him to improve his prospects of promotion or of obtaining other employment.

30 The word "career" in Item 406(1)(c)(i), as it applied to the circumstances of the appellant, may be taken to mean a proposed occupation, trade or profession in which education qualifications were being sought to ground the commencement of a working life.

31 With regard to the requirement set out in Item 406(1)(c)(i) the Tribunal purported to hold that the course in which the appellant was then enrolled would not enhance development of the career of the appellant. The only explanation for that finding appears to be a misunderstanding by the Tribunal that information technology was the relevant career for the purpose of Item 406(1)(c)(i) because the appellant held a higher qualification in that field.

32 That approach finessed the question whether the appellant had made a change in career. The Tribunal’s observation that it had "been given no probative evidence that the market for information technology professionals" was "as poor as the [appellant made] out" was a comment on the extent of the appellant’s pessimism as to his future prospects in information technology not a finding that the appellant had not changed his career. The Tribunal would have been aware that there had been official recognition of the reduction in demand for information technology skills in Australia in the changes effected under the Regulations between April 2001 and September 2002 to remove a substantial number of areas of specialisation in information technology from the list that previously gave priority to persons who were qualified in those areas and seeking to migrate to Australia. (See Specification of Migration Occupations in Demand for the Purposes of Regulation 1.03, Gazette Notice No 18, 9 May 2001; Specification of Migration Occupations in Demand for the Purposes of Regulation 1.03, Gazette Notice No 15, 17 April 2002; Specification of Migration Occupations in Demand for the Purposes of Regulation 1.03, Special Gazette Notice No 364, 2 October 2002). The material before the Tribunal was sufficient to show that the appellant had changed his career to commercial cook. As counsel for the Minister put it, the Tribunal appears to have accepted that there was a change in career but in its view the principal reason for the change was to facilitate the grant of the "permanent" visa.

33 If the Tribunal had addressed the correct question under Item 406(1)(c)(i), namely, whether the course in which the appellant was enrolled would enhance a career of commercial cook, the only conclusion reasonably available to the Tribunal would have been that the course did enhance that career. The Tribunal, however, seems to have given consideration instead to whether the change in career from information technology to commercial cook permitted the appellant to obtain the "permanent" visa with a "lower qualification" than would have been necessary if the appellant had continued to pursue his initial career.

34 Hence the Tribunal stated that "[o]n this basis, the Tribunal finds the [appellant’s] change in career from Information Technology to the Hospitality trade is inconsistent with previous studies and would not enhance his career." The reasons provided by the Tribunal reveal failure by the Tribunal to consider the question the Act obliged it to address, namely, whether the requirement in Item 406(1)(c)(i) of Schedule 5A had been met and whether it was satisfied that the applicant was a genuine applicant for entry and stay as a student.

35 The alternative requirement in Item 406(1)(c)(ii) required the Tribunal to consider whether the vocational education and training course in which the appellant was enrolled would assist the applicant to obtain "employment". There is nothing in the context of the Regulation to suggest that word "employment" is to be given other than its ordinary broad meaning. The Tribunal, therefore, had to assess whether there was evidence that the appellant would be assisted by the diploma studies he was undertaking in obtaining employment of any nature in the field of commercial cookery.

36 The Tribunal did not address that question. The only statement made by the Tribunal that could be said to have had relevance to the foregoing question was the following:

‘There would appear to be no inhibition on the visa applicant’s motive but it does not support the proposition that he is seeking to undertake the hospitality course for genuine employment reasons.’

37 The reasoning of the Tribunal is difficult to follow. There is no necessary inconsistency between holding an intention to apply for the "permanent" visa and an intention to undertake and complete studies that would qualify that person for an expanded range of employment. In other words enrolling in and completing a Diploma of Hospitality (Commercial Cookery) could not be said to fail to assist the appellant to obtain employment in the field to which the vocational education and training course was related. There was no suggestion in the material before the Tribunal that the appellant had no intention of seeking employment in that field. Indeed, by reason of the Certificate III qualification the appellant had been able to obtain employment as a cook and had worked regularly in that position thereafter, within the limits of the hours of work he was permitted to work by the conditions endorsed on the visa he held.

38 It appears to be obvious from the terms of the Tribunal’s reasons that it was influenced in its decision by an irrelevant and erroneous assumption that the appellant would be entitled to the grant of the "permanent" visa if granted a Subclass 572 visa and that the Tribunal did not address at all the question whether the course in which the appellant was then enrolled would assist the appellant to obtain employment.

39 The evidence before the Tribunal included the fact that chefs were in demand in Australia and that the appellant had obtained employment as a cook immediately upon attaining the Certificate III qualification. A conclusion that continuing to study for the Diploma would not assist the appellant to obtain employment, either in Australia or elsewhere, would have been an unlikely and, indeed, unreasonable conclusion. Having regard to the breadth of the meaning of the word "employment" the question whether the appellant satisfied the requirements of Item 406(1)(c)(ii) had to be determined in the appellant’s favour.

40 With regard to the question to be considered under Item 406(1)(c)(iii), namely, whether there was evidence that the vocational education and training course in which the appellant was enrolled would assist the appellant improve his prospects of promotion or of obtaining other employment, the reasons provided by the Tribunal did not discuss whether the appellant satisfied that requirement. It is apparent that if the Tribunal had considered that issue the clear inference available from the material before the Tribunal was to the effect that the criterion was satisfied.

41 The "other relevant matters" to which the Tribunal gave regard under Item 572.223(2)(b)(ii) and formed the second ground on which the Tribunal’s decision was based were not identified in the Tribunal’s reasons. However, the Tribunal did set out the following matters to which the Policy Manual referred in respect of "other relevant matters" under Item 572.223(2)(b)(ii):

‘• The student’s situation in their home country ...
 • The student’s academic record ...
 • The student’s links with Australia ...
 • For the school sector only – inappropriate study plans’

42 The Tribunal made findings in respect of those matters as set out in [42]-[44] of its reasons referred to above.

43 It can be seen from the Tribunal’s reasons that underlying this ground on which the Tribunal relied for determining that it was not satisfied that the appellant was a genuine applicant for entry and stay as a student, was the consideration that the course in which the appellant was enrolled was incidental to the principal purpose of the appellant, namely, to use the Subclass 572 visa to apply for the "permanent" visa.

44 That statement by the Tribunal that the purpose underlying the application for a Subclass 572 visa was "incidentally to enable the [appellant] to be a student but principally to enable him to hold a substantive visa for the express purpose of applying for another visa" disclosed that the decision of the Tribunal was affected by an irrelevant consideration.

45 If the Tribunal accepted that the grant of the Subclass 572 visa would enable the appellant to continue and complete his studies in the diploma course in which he was enrolled, no ground to refuse the grant was provided by the Act if the appellant also intended to use the visa to exercise another entitlement provided by the Act. The question that had to be answered by the Tribunal was whether the appellant would duly attend to his studies in the vocational course in which he was enrolled if the Subclass 572 visa were granted and be a "genuine applicant to enter and stay as a student". On the material before the Tribunal the only conclusion reasonably available to the Tribunal on that issue was that the appellant would be such an applicant. The Tribunal did not find otherwise but purported to take into account that the "principal" use of the visa would be to support an application for the "permanent" visa, a proposition based on mistaken understanding of the application of the Act and Regulations to the appellant’s circumstances and of the question to be addressed by the Tribunal.

46 The extracts from the Policy Manual to which the Tribunal referred anticipated that a non-citizen who had been permitted to enter Australia for the purpose of undertaking vocational studies may, by reason of that study, obtain qualifications in a trade or profession given priority for the purposes of the Act and that a person may undertake such study with the intention of using the qualifications obtained to ground an application for a visa that would entitle that person to reside in Australia after the course of study had been completed. The Policy Manual stated that a person with such an intention was still to be considered to be a genuine applicant for a temporary visa to enter and stay in Australia as a student. Clearly that policy advice was grounded on an understanding that consideration of whether a student may intend to obtain education qualifications in a profession or trade to allow that person to apply for the grant of a permanent visa would not per se be a relevant consideration in determining the "genuineness" of the application by that person for a temporary visa to enter Australia and study for those qualifications.

47 Upon the application for the issue of constitutional writs to review the decision of the Tribunal coming before his Honour, his Honour inferred from the reasons of the Tribunal that the Tribunal had made a finding that it was not satisfied that the appellant had changed his career to that in which he was receiving vocational education and training by enrolment in the Diploma of Hospitality (Commercial Cookery). His Honour determined, therefore, that further findings of the Tribunal based on that premise could not be challenged.

48 With respect to his Honour, for the reasons set out above we are of the opinion that the Tribunal did not reach that finding and, further, that the Tribunal misunderstood the findings it was required to make under the Act and Regulations and failed to duly exercise the functions and duties it was required to perform under the Act. (See: Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 per Barwick CJ at 478, Gibbs J at 483; Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]–[85]; Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93 at [43]).

49 Counsel for the Minister conceded that if it were shown that the Tribunal misunderstood the requirements of the Act and Regulations and did not address the correct question, jurisdictional error would be established and the relief sought by the appellant could be granted. It was not submitted that such orders would lack utility.

50 Accordingly orders should be made allowing the appeal and setting aside the judgment appealed from. The judgment should be replaced with orders that a writ of prohibition issue directing the Minister not to act on the decision of the Tribunal; a writ of certiorari issue to quash the decision of the Tribunal; and a writ of mandamus issue directing the Tribunal to determine the appellant’s application according to law. The Minister must pay the costs of hearing below and the costs of the appeal.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Merkel and Hely.

Associate:

Dated: 22 December 2004

Counsel for the Appellant:	N K Sharma
Solicitor for the Appellant:	Sharma Lawyers
Counsel for the Second Respondent:	P G Bickford
Solicitor for the Second Respondent:	Clayton Utz
Date of Hearing:	10 November 2004
Date of Judgment:	22 December 2004