Badhan v Minister for Immigration and Multicultural Affairs (No 3)
[2025] FedCFamC2G 1080
•14 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Badhan v Minister for Immigration and Multicultural Affairs (No 3) [2025] FedCFamC2G 1080
File number: MLG 3440 of 2019 Judgment of: JUDGE FORBES Date of judgment: 14 July 2025 Catchwords: MIGRATION – judicial review – decision of the Administrative Appeals Tribunal to refuse student visa –where the summary dismissal by a registrar was set aside on the basis of the applicant having a sufficiently arguable case – whether the applicant meets genuine temporary entrant criterion – whether the Tribunal erred – whether error met threshold of materiality – whether there is a realistic possibility of different outcome – application dismissed Legislation: Migration Act 1958 (Cth) ss 359, 360, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) div 21.2
Migration Regulations 1994 (Cth) sch 2 cll 500.211 to 500.218
Cases cited: Badhan v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 468
Badhan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 158
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 528
Kaur v Minister for Home Affairs [2019] FCA 2026
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
Lafu v Minister for Immigration & Citizenship (2009) 112 ALD 1
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Raj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1019
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 3 July 2025 Place: Melbourne The Applicant: Self represented Counsel for the First Respondent: Mr Dour Solicitor for the First Respondent: Mills Oakley The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3440 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMRIK BADHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
14 JULY 2025
THE COURT ORDERS THAT:
1.The application filed on 9 October 2019, as amended on 6 May 2025 be dismissed.
2.The Applicant pay the First Respondent’s costs of these proceedings, fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
By a decision dated 13 September 2019, the Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a Student (Class TU) (Subclass 500) visa (visa) on the basis that the applicant did not meet the genuine temporary entrant (GTE) criteria as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant seeks judicial review of the Tribunal’s decision on the grounds set out in his Amended Application filed on 6 May 2025.
The initial application for judicial review was summarily dismissed by Judicial Registrar Cummings on 11 February 2025[1]. The applicant sought review of the Judicial Registrar’s decision by a judge of the Court pursuant to division 21.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
[1] Badhan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 158
On 3 April 2025, Judge Blake identified arguable grounds of review. His Honour extended the time for the filing of an application to review the Registrar’s reasons, set aside the summary dismissal and granted leave for the applicant to file an amended application reflecting the matters identified as arguable[2].
[2] Badhan v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 468
The substantive application for judicial review of the Tribunal’s decision was heard on 3 July 2025.
For the reasons set out below, I am not persuaded that the decision of the Tribunal was affected by jurisdictional error. The application is therefore dismissed.
BACKGROUND
The background to this matter has been set out in the earlier two published decisions of the court and it is not contested. For the purpose of these reasons, I adopt and reproduce the summary contained in the paragraphs [4]-[16] of the Minister’s outline of submissions including the references to paragraphs of the Tribunal’s reasons and Court Book (CB) pages. Based on my own reading of the Court Book and the Tribunal’s reasons I am satisfied that the Minister’s summary is fair and balanced.
Student visa application and delegate’s decision
4.The Applicant arrived in Australia on 15 March 2015 as the holder of a Student (Class TU) (subclass 573) visa and had intended to study a Bachelor of Information Technology (CB 52, 143). In July 2015, the Applicant completed one semester of the course, having failed “all the units” (CB 143, [12]). In about August 2015, the Applicant changed to a Bachelor of Information Systems and studied for about a year and a half but also did not complete this course and abandoned it in March 2017 (CB 143, [12]). The Applicant had friends studying nursing and “just went and studied with them.” (CB 143, [12]). In March 2017, the Applicant then enrolled in a Diploma of Nursing but did not complete this course as the education provider shut down in May 2017 (CB 144, [14]). In July 2017, the Applicant enrolled in a Bachelor of Business specialising in Information Technology at Kent Institute (CB 144, [16]).
5. In July 2018, the Applicant was accepted into the Bachelor of Information Technology at the Kent Institute, which commenced at that time, and which credited the Applicant for subjects previously undertaken in the Bachelor of Business (CB 144, [16]).
6. On 5 March 2018, the Applicant lodged an application for a student visa on the basis of his enrolment in the Bachelor of Information Technology at Kent Institute (CB 1-16).
7. On 12 April 2018, a delegate of the Minister refused to grant the Applicant a student visa on the basis that he did not satisfy cl 500.212 of Schedule 2 (CB 48-52).
The Tribunal
8. On 20 April 2018, the Applicant applied to the Tribunal for review of the delegate’s decision (CB 53-54).
9. By a letter emailed to the Applicant on 17 July 2019, the Tribunal invited the Applicant to provide information pursuant to s 359(2) of the Migration Act 1958 (Cth) (Act) demonstrating that he was enrolled in a course of study and that he was a genuine applicant for entry and stay as a student. The s 359(2) invitation also contained a link to an online “Request for Student Visa Information” form. The invitation requested the Applicant respond by 31 July 2019 (CB 63-64). The Applicant provided a response together with an undated letter addressing the genuine temporary entrant criteria (CB 65- 94).
10. On 7 August 2019, the Applicant was invited to attend a hearing scheduled for 22 August 2019 (CB 96-98). The Applicant attended the hearing and gave oral and further documentary evidence (CB 113-134).
11. On 13 September 2019, the Tribunal affirmed the decision under review (CB 141-146).
12. The Tribunal identified the issue arising in relation to the decision under review as whether the Applicant intended genuinely to stay temporarily in Australia as required by cl 500.212 (CB 142, [7]). The Tribunal acknowledged that it was required to have regard to Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ made under s 499 of the Act. (Direction) (CB 65-69) and that it had to assess the Applicant’s genuineness for temporary stay against a number of specified factors in the Direction (CB 143, [9]). The Tribunal noted that the list of specified factors were not to be used as a checklist but were intended to guide decision makers to weigh up an applicant’s circumstances as a whole (CB 143, [10]).
13. The Tribunal considered the Applicant’s circumstances in his home country and accepted he had family ties (in the form of his mother, father and sister) but given the time he had spent in Australia and the intended period of future stay in Australia (until 2020), the Tribunal was not satisfied that there was a significant incentive for him to return to India (CB 145, [21]). The Tribunal considered that the length of the proposed stay created “serious concerns” that the Applicant was studying for the purposes of staying in Australia (CB 145, [22]).
14. The Tribunal was not satisfied that the Applicant was a genuine temporary entrant for further stay as a student (CB 146, [28]). The Tribunal considered that the Applicant was using the student visa program as a means of maintaining ongoing residence in Australia (CB 146, [29]).
15. The Tribunal found there was ‘no evidence’ before it regarding the economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the Applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the Applicant’s circumstances in India relative to others in that country (CB 146, [30]).
16. After weighing up the factors as a whole, the Tribunal was not satisfied the Applicant genuinely intended to stay in Australia temporarily and, accordingly, found he did not meet cl 500.212 (CB 146, [32]-[35]).
Statutory framework
The criteria for a Subclass 500 (student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl. 500.218 must be satisfied by an applicant.
One of the mandatory criteria, cl 500.212, states as follows:
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.
In considering whether an applicant satisfied cl 500.212(a), the Tribunal must have regard to the now revoked Ministerial Direction ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) made under s 499 of the Act: Kaur v Minister for Home Affairs [2019] FCA 2026 at [30] (Kaur [2019]); Raj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1019 at [88] and [106].
Direction 69 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.
The Tribunal is required by the Direction to evaluate a number of factors in assessing whether the Applicant satisfied the GTE criterion. Relevantly, in relation to the applicant’s circumstances in their home country, Direction 69 provides that a relevant factor is “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”: (clause 9(b)).
APPLICATION FOR JUDICIAL REVIEW
In an Amended Application filed on 6 May 2025, the applicant articulated his grounds of review as follows (bolding in original):
Ground 1 – Failure to properly consider ties to India (Direction No. 69, cl. 9(b))
The Administrative Appeals Tribunal (Tribunal) failed to properly consider the Applicant’s personal and economic ties to India as required by Ministerial Direction No. 69, clause 9(b). While the Tribunal acknowledged that the Applicant had family and financial ties to India that could incentivise his return upon completing studies, it then gave no proper weight to those ties. Instead, it elevated the time already spent in Australia and the intended duration of future stay—an irrelevant consideration under cl. 9(b)—as determinative. This approach misapplied the Direction and failed to give genuine, lawful consideration to a mandatory relevant factor. The reasoning was illogical and unreasonable in the statutory framework and deprived the Applicant of a favourable finding, thereby amounting to a jurisdictional error.
Ground 2 – Erroneous finding of “no evidence” of economic circumstances
In paragraph 30 of its reasons, the Tribunal stated there was “no evidence” regarding the Applicant’s economic circumstances. This is factually incorrect. The record (Court Book) contains extensive evidence of the Applicant’s financial and familial support, including bank statements, affidavits, and a letter confirming potential employment in India. The Tribunal acknowledged some of this evidence in paragraph 21 but then contradicted itself. Its finding was either based on a failure to consider relevant material or an unreasonable conclusion contrary to the evidence, constituting jurisdictional error.
The judicial review application was heard on 3 July 2025. The applicant was self-represented. Mr Dour of counsel appeared for the Minister.
The applicant had a good command of English and did not require an interpreter. Although the applicant’s Amended Application and written submissions demonstrated a sound understanding of the judicial review function, I nonetheless explained the process to him. The applicant understood that I could not grant the visa he seeks and that his submissions were to be directed to jurisdictional error in the Tribunal decision rather than the merits of his visa application.
At the hearing, the applicant sought to impugn the decision of the Tribunal by tailoring his oral submissions around the following propositions:
(1)That the Tribunal misapplied Direction 69 in relation to its consideration of whether the applicant’s family ties to India should be regarded as a significant incentive for him to return to his home country.
(1A) As a subset of the above, in what I will call ground 1A, the applicant submitted that the Tribunal engaged in irrational decision-making in finding that the applicant’s ties to India was not a significant incentive for him to return to his home country. In particular, that the Tribunal unreasonably considered that the time that the applicant had spent in Australia demonstrated that his intention to remain outweighed the ties which would draw him back to India.
(2)That the Tribunal made a significant error at [30] of its reasons by finding that there was no evidence before it regarding the applicant’s financial circumstances.
(3)That the applicant was denied procedural fairness by failing to properly consider the evidence before it. This last ground was not pleaded in the applicant’s amended application and was only raised orally at the hearing.
Applicant’s Submissions
At the hearing, the applicant relied upon his written submissions.
In relation to Grounds 1 and 1A he submitted that the Tribunal had misapplied Direction 69.
As mentioned, cl 9(b) of the Ministerial direction provides:
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
…
(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.
The applicant said that there was evidence before the Tribunal which clearly demonstrated that he had significant personal ties with his family in India. He submitted that the Tribunal acknowledged his substantial ties to India, including that his mother, father and sister lived there and evidence of family property and financial support. He noted that at [21] of its reasons, the Tribunal accepted these were “an incentive to return”.
However, the Tribunal then found that the applicant had no significant incentive to return. The applicant said that at the time of the Tribunal’s decision, he had only been in Australia for one year in excess of the original three-year visa period. The applicant submitted, in effect, that the Tribunal improperly asserted the significance of the time already spent in Australia as a determinative consideration.
The applicant submitted that the Tribunal failed to take into account the reasons why he had been in Australia for that period. In that respect, he said that his studies had been interrupted when one of the colleges in which he was enrolled in went into administration. He also said that a course which he wanted to follow had not originally been available at one of the educational institutions and that added additional time. He said that he had encountered difficulties fitting in, but once he found his feet he dedicated himself to his study and had demonstrated success.
The applicant submitted that he had been endeavouring to get through his course as quickly as possible, as evidenced by him undertaking summer school rather than pausing his studies during the academic holidays.
In his written submissions, the applicant argued that the Minister’s process of reasoning misapplied Direction 69. Adopting the language of Judge Blake at [44] of the registrar review decision[3], the applicant submitted that the Tribunal had strayed outside the bounds of item 9(b) of the Direction and had deprived him of the benefit of a proper finding. The applicant submitted that the Tribunal’s conclusion failed to comply with the framework mandated by the Ministerial Direction and therefore constituted jurisdictional error.
[3] Badhan v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 468
Citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the applicant added that the Tribunal had acted unreasonably or had engaged in irrational decision-making by placing undue emphasis on the applicant’s period of stay in Australia and by making assumptions about his future intentions. The applicant submitted that the rejection of his ties to India as a significant incentive for him to return was not rationally based.
The applicant also submitted that the Tribunal’s reasoning at [21] is contradictory in that it accepted the applicant’s personal ties were an incentive for him to return to India, but rejected those ties as insufficient due to his time in Australia. The applicant submitted that the Tribunal’s reasoning lacked coherence and that the finding was not logically open to it. It was submitted that the reasoning was internally inconsistent, irrational, and thereby, legally unreasonable.
In relation to Ground 2, the Tribunal said as follows:
[30] There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant circumstances in India relative to others in that country. (underlining added)
The applicant contends that the finding that there was no evidence before the Tribunal regarding his economic circumstances or the remuneration he could expect to receive in India was factually incorrect. The applicant sought to rely upon the observations made by Judge Blake that the finding was simply wrong and may give rise to an arguable case of jurisdictional error.
The applicant noted that the Tribunal had at [17] and [21] acknowledged that the applicant had produced evidence of financial support and property ownership. Furthermore, the applicant said that he had provided relevant documents as part of his application, not mentioned in the Tribunal’s decision, including evidence of term deposits, bank certificates and balances and a letter confirming his parents’ ownership of land and details of their employment.
In his written submissions, the applicant submits that the proposition that the Tribunal’s statement at [30] is incorrect is borne out by the Tribunal’s own reasons. He submits that the error was material to the outcome and, again relying on the decision of Judge Blake at [49] submitted that it “could not be dismissed as immaterial”.
In oral submissions the applicant advanced a third ground of review, although he did not seek leave to do so. As to this Ground 3, the applicant says he was denied procedural fairness because the Tribunal failed to perform its statutory task of considering all the evidence advanced by the applicant in support of his claim.
Minister’s Submissions
The Minister also relied on their written submissions.
The Minister submits that it is self-evident from the Tribunal’s reasons that it gave cl 9(b) of the Ministerial Directive active consideration. However, the Minister points out that in assessing whether the applicant satisfied the GTE criterion, the Tribunal is required by the Direction to evaluate a number of factors. Clause 9(b) is but one of the factors, among several others, to which the Tribunal “should” have regard as part of that assessment process.
The Minister submitted that the list of considerations contained in the Ministerial Direction act as guideposts in determining whether the decision-maker reaches a state of satisfaction in applying the GTE criterion. As the authorities have stated repeatedly, the list of considerations do not operate as a checklist.
The Minister submits that other relevant factors, in addition to cl 9(b), which the Tribunal was entitled to take into account included cl 11(b) “evidence that the student visa programme is being used to circumvent the intentions of the migration programme”, cl 11(c) “whether the Student visa… is being used to maintain ongoing residence” and cl 16 any other relevant information “that may be either beneficial or unfavourable to the applicant”. In other words, the Minister submits that the Tribunal’s consideration of any one particular factor, such as cl 9(b), is required to be undertaken in the context of the broader factual matrix.
The Minister submitted that the applicant’s attack on the Tribunal’s decision is reliant upon Judge Blake’s observation that the Tribunal may have considered matters which strayed beyond cl 9(b). The Minister submitted that his Honour’s observation about the approach to be taken in relation to application of the Ministerial Direction was incorrect and at odds with the broader factual matrix approach endorsed in matters such as Kaur [2019] and Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 (Kaur [2022]) (discussed below).
The Minister submitted that the Tribunal’s evaluative exercise was entirely appropriate in the context of weighing the various factors in the Direction. In the present case, the Tribunal expressly noted at [20] that it had regard to the relevant factors, which “were used to weigh up the applicant’s circumstances as a whole”. That reasoning, the Minister submits, shows that the Tribunal did not ignore the applicant’s ties to India, but simply evaluated the significance of those ties as an incentive to return in the broader context of the applicant’s overall conduct and plans.
In relation to Ground 2 of the Amended Application, the Minister accepts that paragraph [30] of the Tribunal’s reasons is odd and superficially inconsistent with the rest of the decision. The Minister accepts that the words “[t]here is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant… remuneration the applicant could expect to receive in India”, if read alone, conveys an incorrect finding.
However, the Minister submits that any apparent contradiction in paragraph [30] is shaken off when the reasons are read fairly and in their entirety. Furthermore, it is submitted that even if [30] contains a factual error, that error was not material and is therefore not jurisdictional.
The Minister concedes that there is tension between what appears to be a definitive statement in paragraph [30] (i.e. that there was no evidence before the Tribunal regarding the economic circumstances of the applicant) and other earlier paragraphs in the reasons which reveal in very clear terms that there was such evidence before the Tribunal. For example:
·at [17] the Tribunal notes the applicant’s evidence that persons who are graduates of overseas information technology degrees obtain good employment in India and can be expected to earn between AU$40,000 and AU$50,000;
·at [17] the Tribunal notes that the applicant has no assets in India but that he gave evidence his parents owned a house worth about AU$60,000 and land worth approximately AU$30,000;
·at [18] the Tribunal records that it received a statement in support of the application and that the statement is consistent with the evidence given by the applicant at the hearing;
·at [21] the Tribunal acknowledges that the applicant had provided evidence of financial ties to his home country and other economic incentives to return;
·at [28] the Tribunal stated that it had considered all information provided by the applicant in support of his application. Although not referred to in the Tribunal’s reasons, it appears that documents available to the Tribunal included bank certificates, term deposit records, correspondence confirming land ownership and parental employment and a document listing the applicant’s estimated annual expenses.
The Minister submits that the Tribunal’s reasons in paragraph [30] relate to the absence of evidence of the applicant’s current economic circumstances in Australia addressing the intention to stay temporarily. It is submitted that documents which were not specifically averted to in the reasons (such as bank deposit receipts, bank certificates and the like) show only that the applicant had a certain level of savings at a point in time and do not materially bear on the assessment of genuineness to stay temporarily in Australia.
In his oral submissions, counsel for the Minister submitted that it was possible that [30] of the reasons had been included by the Tribunal member as a “catch all” to demonstrate that the Tribunal had considered all of the evidence referred to earlier in its reasons and that there was, in effect, nothing else of an economic character which had not been taken into account. Put another way, it was submitted that paragraph [30] should be read as the Tribunal saying that there are no other relevant economic circumstances relevant to the application other than those already addressed.
The Minister further submits that even if the Tribunal’s reasons contained a factually incorrect finding, the reference to there being “no evidence of economic circumstances” was of limited significance and was not material to the outcome. The Minister submits that the Tribunal’s overall assessment that the applicant was seeking to prolong his stay in Australia and was not a genuine temporary entrant was based on its consideration of all the information provided with the visa application (see [28] and [32]) and its detailed reasoning (including consideration of economic matters) at [17] and [21]-[23]. The Minister submitted that the potentially erroneous finding at [30] really goes nowhere when read in the context of the reasons as a whole.
CONSIDERATION
Grounds 1 and 1A
The statutory obligation to “have regard to” matters means “the decision-maker has to take each criterion into account and give it weight, as a fundamental element, in making his or her determination”: Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 528, [29]. The obligation to “have regard to” the visa applicant’s circumstances must be understood to be conditioned on a requirement that the decision-maker do so logically and rationally: Kaur [2022], [29].
As mentioned, in considering whether the applicant satisfied the primary criteria for the grant of a student visa, the Tribunal was at the time required to have regard to Direction 69, a ministerial direction made under s 499 of the Act. In discussing the role and application of the Direction in the context of assessment, Steward J said in Kaur [2019] that:
[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 [in clause 500.212(a)]. 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… 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…
In the present case, the applicant did claim to have substantial and ongoing ties to India which would operate as an incentive for him to return to that country after completion of his studies. Accordingly, there was an obligation on the Tribunal to genuinely engage with that issue.
I do not, however, accept the applicant’s submission that engagement with cl 9(b) of the Ministerial Direction was to be undertaken as an independent, self-contained and closed process. That is inconsistent with the intended role of the Direction, which is to act as guidance and not as a checklist.
In circumstances where a decision-maker is required to have regard to several mandatory considerations, he or she must actively engage with each of the considerations by determining how and to what extent, if at all, each of them might feed into the deliberative process and the ultimate decision: Lafu v Minister for Immigration & Citizenship (2009) 112 ALD 1, [47]–[54].
The Minister submitted, and I accept, that the Tribunal did engage with cl 9(b) and made a finding about the applicant’s ties to India, but it assessed the significance of those ties as an incentive to return in the context of a much broader evaluative exercise. That approach was not only permissible but was consistent with the reasoning of Middleton J in Kaur [2022] where his Honour said at [21]:
The Tribunal’s acknowledgement that the First Appellant’s family and in-laws were “relatively affluent” indicates the Tribunal considered that fact (and any associated incentive it offered) in its overall evaluation of the First Appellant’s economic circumstances. It is a fact that could tend to offer an incentive to return to India, but the strength of any incentive to return to India or the weight to attach to it was a matter for the Tribunal to determine in the broader factual matrix. In this regard, the Tribunal noted the First Appellant’s ties to her (relatively affluent) family had not to date been sufficient to motivate her to conclude her studies and return home, except for a few visits. Counsel for the Appellants emphasised that the Tribunal’s qualification – “to date”’ – indicates that the Tribunal did not properly complete its analysis by considering the First Appellant’s motivation or intention to return home in the future. However, I find no such indication in the Tribunal’s reasons, which must be read fairly rather than too minutely with an eye keenly attuned to the perception of error. (emphasis added)
In the present case, the Tribunal’s engagement with cl 9(b) led to a conclusion that the applicant did in fact have ties to India. At [21] of its reasons, the Tribunal considered the applicant’s circumstances in his home country, including that he was unmarried and from India and that he had provided evidence of social, direct family and financial ties to the country. The Tribunal accepted that he had been able to demonstrate ties which would act as an incentive for him to return home at the completion of his studies.
However, it is important to note that cl 9(b) requires consideration not only as to whether the applicant might have ties to his home country but whether those ties would operate as a “significant incentive” for him to return. The process of determining whether ties would operate as a “significant” incentive necessarily involves an evaluation of those ties in a broader deliberative context. The weight to attach to the incentive is a matter for the Tribunal.
In my view, in considering the significance of the applicant’s ties to India as an incentive for him to return to his home country, the Tribunal did what it was required to do. The Tribunal considered the applicant’s ties in the context of the applicant’s current and potential circumstances in Australia.
The last sentence of [21] of the Tribunal’s reasons stated its finding in relation to consideration of cl 9(b) of the Ministerial Directive:
However, the Tribunal accepts that the applicant may have family ties to India, given the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
This conclusion is explained by what appears both before and after it. In the earlier sentences in [21] the Tribunal explains that it has considered the applicant’s circumstances in his home country including evidence of social, direct family and financial ties. The Tribunal notes that the applicant has been able to demonstrate ties which would act as an incentive to return to his own country. However, the paragraphs which follow explain why those ties would not in the overall scheme of things operate as a “significant incentive” to return. These paragraphs are demonstrative of a weighing exercise.
In [22] the Tribunal found that the applicant had been in Australia for a period beyond the initial visa period, that his planned studies would have him remain in the country for a further extended period, and that the applicant had not conducted himself like a temporary entrant. The Tribunal suspected that the applicant was using the Student Visa Programme as a means of extending his stay in Australia.
Furthermore, at [23] the Tribunal considered the applicant’s study record in Australia and found it to be inconsistent with the conduct expected of a genuine temporary entrant. The Tribunal was also not persuaded that the course of studies would be of value to the applicant’s future career prospects in his home country.
At [24], [25] and [26] the Tribunal considered that the applicant’s future plans were vague and that his proposed additional studies were unlikely to be of significant value to his future. The Tribunal expressed its concern that the applicant’s intention to live in Australia may be motivated by factors other than his studies.
Read fairly and as a whole, it is clear that the Tribunal properly engaged with the consideration set out at cl 9(b) of the ministerial direction, but that it did so in the course of a broader deliberative process which was directed at assessing the ultimate relevant question, namely whether the applicant satisfied the GTE criterion for the grant of a student visa.
In my view, the Tribunal properly considered cl 9(b) as a relevant factor. It found on the evidence that there were family ties which would act as an incentive for the applicant to return to India after his studies. However, the Tribunal found that there were countervailing incentives of greater weight for the applicant to remain in Australia. The evaluative exercise undertaken by the Tribunal led to the conclusion that there were not, on balance, significant incentives for the applicant to return.
The conclusion reached by the Tribunal was plainly open to it. It was a product of a rational decision making process. While at face value I can understand the applicant’s submission that [21] of the Tribunal’s reasons appear internally inconsistent, that is only so if it is read in complete isolation. When read properly and in context and as part of a broad deliberative process, there is no inconsistency.
For the reasons articulated above, Ground 1 and the associated Ground 1A are not made out.
Ground 2
This ground requires the applicant to establish error and that the error was jurisdictional. The applicant bears the onus of persuading the court on both matters.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 the plurality of the High Court said the following in relation to jurisdictional error (omitting citations):
[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non-compliance.
…
[9] Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.
[10] The inquiry posited by each question is wholly backward-looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious.
In the current case, the applicant asserts the Tribunal’s statement at [30], that “[t]here is no evidence before the Tribunal regarding the economic circumstances of the applicant…” is factually false and constitutes a material error.
As previously mentioned, the applicant also relies on Judge Blake’s observation where at [47] of the reasons, his Honour observed that “the statement… is plainly incorrect and is borne out by the Tribunal’s reasons”. Insofar as materiality is concerned, his Honour added at [49] that the error “may well have been material to the ultimate conclusion reached by the Tribunal”.
On its face the Tribunal’s statement is plainly incorrect. It sits at odds with the balance of the Tribunal’s reasons and is inexplicable. There is a possibility that the paragraph found its way into the reasons as part of a cut-and-paste exercise in an endeavour to close off any holes in the reasons and to demonstrate that all Direction 69 factors had been considered, but even if so it clearly gives rise to confusion.
I accept that the statement about the absence of evidence regarding the economic circumstances of the applicant is an error. However, that error will only be jurisdictional and give rise to an entitlement to relief if it reaches a threshold of materiality. As mentioned, the applicant bears the onus of establishing materiality, although meeting the threshold is not usually demanding or onerous.
In LPDT, the High Court said that “…[w]hether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application”. The court went on to state:
[14] The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one whether possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting at threshold is not demanding or onerous.
[15]… Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained…
[16] In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
In MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [37] the court observed that determination of materiality involves “a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation”.[4] The court added that “[m]ateriality is concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker” and that “[t]he enquiry is backward looking and concerns what the decision-maker did in the particular case”.[5]
[4] CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 95-96 per Keifel GJ and Gageler J
[5] BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170 at 187
In terms of the realistic possibility that a decision without error could have been different, the High Court in MZAPC said at [38]:
[38] The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred-as distinct from what would have occurred-had there been compliance with the legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
Investigating the anatomy of the decision-making process through the published reasons is the means by which an error can be best seen in context and its materiality or otherwise to the ultimate decision assessed. It is necessary to explore the relationship between the error and the impugned decision in order to understand the effect of the former on the latter.
What strikes me about the error in paragraph [30] is how it is so plainly at odds with the rest of the well constructed and thorough reasons of the Tribunal. To say that there was no evidence before the Tribunal of the economic circumstances of the applicant can, in my view, only be sensibly read as meaning that there is no other evidence of relevance in addition to that already considered by the Tribunal. If the Tribunal’s comment is read in that manner, it does no violence to the balance of its reasons.
But even if I am wrong about that construction of paragraph [30] in the overall context of the reasons, I am not persuaded that the error was material. In my view the Tribunal’s approach to the critical question, namely whether it was satisfied that the applicant was a genuine temporary entrant, was thorough and properly embraced consideration of all relevant evidence and the guidance presented by the Ministerial Direction.
The unusual comment made by the Tribunal at paragraph [30] of its reasons does not evidence, in my opinion, any failure to conform to the statutory task entrusted to the decision-maker. Looking backwards at the decision and how it was made, the reasoning is orthodox and, but for the inexplicable comment in paragraph [30], otherwise unimpeachable.
Although the threshold of materiality is low and proof should not be unduly onerous, materiality should nonetheless be assessed in the “real world” and against a standard involving commonsense. In the context of a discussion regarding materiality, the plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) observed in MZAPC at [32] that:
…“[d]ecision-making is a function of the real world” by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no “practical injustice” will deprive a decision of statutory force…
In my view the error identified by the applicant at [30] of the Tribunal’s reasons was not one that led to a practical injustice. As I have previously stated, the Tribunal properly engaged with the statutory task, properly directed itself to the relevant question, did in fact take into account the evidence and other considerations it was required to take into account and made a decision which was open to it. Based on the way the Tribunal engaged in its reasoning process, I am not satisfied, as a matter of reasonable conjecture, that a different decision could realistically have been reached had that error not occurred.
I am not persuaded that paragraph [30] of the reasons reveals jurisdictional error. Accordingly, Ground 2 must be dismissed.
Ground 3
The alleged denial of natural justice was not pleaded in the Amended Application and was raised only at the final hearing. It was poorly articulated by the applicant and advanced as a general sweeping allegation that error had occurred by reason of the Tribunal’s failure to take into account all the relevant evidence.
The Minister addressed this ground satisfactorily. I am satisfied that the applicant was properly invited to the hearing as required by s 360 of the Act. The only matter in issue was the decision of the delegate that the applicant did not meet the requirements of a genuine temporary entrant. There could be no doubt in the applicant’s mind of what matters were in issue and that the GTE criterion would be the dispositive issue in the review. The applicant was requested, and in fact did, subsequently provide to the Tribunal additional information relating to the various matters that the Tribunal would consider in relation to whether he met that criteria. He appeared before the Tribunal. In these circumstances, I am satisfied that there is no viable basis on which to suggest that the review proceedings before the Tribunal were procedurally unfair.
Insofar as the applicant advances this ground is a “failure to consider” the evidence or on the basis that the Tribunal misconstrued the evidence, this additional ground takes the matter no further than Grounds 1 and 2 which I have already addressed.
DISPOSITION
I have carefully considered the Tribunal’s reasons and the written and oral submissions of the parties. The Tribunal afforded the applicant procedural fairness and properly considered the matters it was required to consider under Direction 69. While I can see ambiguity in paragraph [30] of the Tribunal’s reasons, I am not persuaded that it was material to the decision.
For the reasons set out above, I am not satisfied on the material before me that the Tribunal’s decision is affected by jurisdictional error.
The application should be dismissed. I will hear the parties on the question of costs.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 14 July 2025
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