Bhasker v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 620
•6 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
File number(s): MLG 3614 of 2020 Judgment of: JUDGE FARY Date of judgment: 6 May 2025 Catchwords: MIGRATION - Application for judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not satisfy cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to Direction 69 – found no jurisdictional error on behalf of the Tribunal – Application dismissed. Legislation: Australian Constitution s75(v)
Migration Act 1958 (Cth) s 47, 65, 474, 476, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 of Pt 2 of Sch 2
Migration Regulations 1994 (Cth) cl 500.211 to 500.218
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 29 April 2025 Date of hearing: 29 April 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Ms Weir, HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3614 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VANDANA BHASKER
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
6 MAY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $5600.
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 Fary
INTRODUCTION
By an Application filed in this Court on 8 October 2020 (Application), the Applicant seeks judicial review of the decision of Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 10 September 2020 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) Student (Subclass 500) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that she intended genuinely to stay in Australia temporarily for the Visa pursuant to cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
The hearing of the Application took place at the Melbourne Registry of the Court on 29 April 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the aid of a Punjabi interpreter. At the conclusion of the hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 29 April 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal committed jurisdictional error during the Tribunal’s hearing on 8 September 2020 (Tribunal Hearing), by failing to take into account evidence in relation to her capacity to satisfy the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212 of Schedule 2 of the Regulations (cl 500.212).
BACKGROUND
The Court has before it a Court Book with 181 pages filed by the Minister on 15 July 2021 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions, filed 22 April 2025 (Minister’s Submissions) accurately summarise the background to this matter at [4] to [14]. The Court adopts those submissions with amendments as follows.
The Applicant is a citizen of India.
On 14 June 2018, the Applicant arrived in Australia as the holder of a Visitor (Class FA Subclass 600) visa. The visa was approved offshore on 23 May 2019 and was valid until 12 June 2019.[2]
[2] CB 83.
On 1 May 2019, the Applicant applied for the Visa (Visa Application) with the intention to undertake a package of courses including Certificate III in Hairdressing, a Diploma of Salon Management and Essentia English.[3] The Visa Application included the Applicant’s: Tax Returns, Confirmation of Enrolment (CoE) and Business Registration.[4]
[3] CB 1.
[4] CB 17.
On 9 September 2019, a Delegate of the Minister refused to grant the Applicant the Visa (Delegate’s Decision).[5] The Delegate was not satisfied that the Applicant met the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212. The Applicant was required to have ties back to her home country that were sufficient to meet the threshold in the Regulations during her stay in Australia.
[5] CB 77-85.
On 26 September 2019, the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application) via her migration agent, Mr Singh Gurbinder from Ausin Associates Pty Ltd.[6] On 1 October 2019, the Tribunal acknowledged receipt of the Review Application and advised the Applicant that material or written arguments should be provided to the Tribunal as soon as possible.[7]
[6] CB 87.
[7] CB 87-93.
On 15 May 2020, the Tribunal wrote to the Applicant's migration agent as per Direction 69 inviting her to provide evidence to demonstrate she a genuine student and intends to stay for study purposes.[8]
[8] CB 99.
On 29 May 2020, the Applicant's migration agent wrote to the Tribunal and provided current CoEs, study progress, work references and other documentation.[9]
[9] CB 106.
On 24 August 2020, the Applicant was invited to attend a hearing before the Tribunal on 8 September 2020 (Hearing Invitation).[10]
[10] CB 106.
On 1 September 2020, the Applicant responded that she would attend the hearing with her migration agent Mr Gurbinder Singh and would require a Punjabi interpreter.[11]
[11] CB 133.
On 7 September 2020, the Applicant's migration agent provided to the Tribunal the Applicant's submissions.[12]
[12] CB 138.
On 8 September 2020, the Applicant attended the Tribunal hearing with her migration agent Mr Gurbinder Singh and the assistance of a Punjabi interpreter.[13]
[13] CB 148.
On 10 September 2020, the Tribunal provided a written reasons of the Tribunal’s Decision to uphold the Delegate’s Decision.[14]
[14] CB 154.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 156 to 160 of the Court Book.
The Tribunal first outlined the background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [7].
The Tribunal reviewed the evidence provided by the Applicant about her desire to achieve a better education level in Australia, finding that the evidence was not credible given her bachelor level studies in India and the fact that she has worked as a hairdresser for 13 years as well as owning the business.[15]
[15] CB 157-158.
The Tribunal was not satisfied that the Applicant would earn more money as a result of her studies in Australia.[16]
[16] CB 157-158.
The Tribunal found the Applicant did not have significant familial incentive to return to her home country, having regard for the Applicant’s business continuing to operate in India while she remains in Australia.[17]
[17] CB 157-158.
The Tribunal found that the Applicant’s circumstances did not present as a significant incentive for her to return to her home country and she was unable to provide a coherent narrative regarding her visa history as well as her decision to remain in Australia to study after arriving as a visitor.[18]
[18] CB 157-160.
The Tribunal was not satisfied that the Applicant intended to genuinely stay in Australia temporarily as per cl 500.212 of the Regulations.[19]
[19] CB 93.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 8 October 2020, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 5 May 2021, Orders were made by Registrar Van Der Westhuizen of this Court for the Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence.
On 17 March 2025, Orders were made by Registrar Cummings of this Court for the First Respondent’s name to be amended to the Minister for Immigration and Multicultural Affairs. For the Second Respondent’s name to be amended to Administrative Review Tribunal. The callover was adjourned to 19 March 2025 as neither the Applicant’s lawyer nor the Applicant attended. The Court attempted to contact both the Applicant and her lawyer but there was no response.
On 19 March 2025, Orders were made by Registrar Cummings of this Court for the Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence.
On 4 April 2025, Orders by consent were made by me, Judge Fary, in Chambers varying Order 3 and 4 of Orders made by Registrar Cummings on 19 March 2025.
This matter was heard on 29 April 2025 at the Hearing. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
The Applicant relied upon the following documents:
(a)The Application filed 8 October 2020;
(b)The Affidavit of the Applicant sworn and filed 8 October 2020 (Applicant’s Affidavit);
(c)The Applicant’s Notice of Intention to Withdraw as lawyer filed 7 March 2025; and
(d)The Applicant’s Outline of Submissions filed 7 April 2025.
The Minister relied upon:
(a)The Response, filed 9 November 2020;
(b)The Minister’s Outline of Submissions filed 22 April 2025;
(c)The List of Authorities filed 23 April 2025; and
(d)Affidavit of Service of Helen Sassine on 23 April 2025.
Both parties relied on the Court Book.
The Application contains four (4) grounds of review (Grounds of Review):
1.The Second Respondent failed to properly interpret and apply cl 500.212 of Schedule 2 in the Migration Regulations 1994 according to law and thereby failed to exercise its jurisdiction (Ground 1).
Particulars
a.The Second Respondent erroneously found it incredible and ingenuine to have experience in the field of study and as evidence of an ingenuine intention of the Applicant not to return to India pursuant to cl 500.212(a)(i);
b.The Second Respondent erroneously made and gave weight to a finding pursuant to cl 500.212(a)(ii) that the applicant’s immigration history did not show that she was a genuine student. The Second Respondent erroneously made and gave weight to a finding that the applicant changed his visa plan to stay in Australia.
c.The Second Respondent therefore relied on the applicant’s work and business experience in the field of study and did not give significant weight to her business, family and her financial position in her home country to determine whether the applicant was a genuine temporary entrant.
2.The Second Respondent erroneously gave significant weight to the fact that the Applicant enrolled in a low-level course of study and she could have gain the same qualification in her home country. The Second Respondent failed to take into account a relevant consideration in its consideration of claims and evidence to satisfy cl 500.212 of Schedule 2 in the Migration Regulations 1994, and as a result its decision was infected by jurisdictional error (Ground 2).
Particulars
a.The Applicant submitted that the chose course of study would give her practical knowledge in her chosen field. The course she enrolled in are of practical nature and most relevant to her occupation. There are no higher course available in the occupation. The Second Respondent erroneously undermined the value addition and opportunities Australian education provides in the developing countries such as Applicant’s home country.
3.The Second Respondent failed to give proper genuine and realistic consideration to the family, business and financial ties provided by the applicant and unreasonably and erroneously concluded that managing the business and property with the help of family while in studying in Australia, is an intention to stay in Australia. (Ground 3).
Particulars
a.The applicant submitted that she has her parents, brother, and sister present in India. The Applicant submitted that she is in regular contact with her family and talk to them every day. She also travelled back to her country after her first visit to Australia. The second respondent did not give weig to the fact that regular contact with family in home country presents ties to the home country;
b.The Applicant presented evidence that she owns a business and property in India, and she has many employees working in her business. Second Respondent found that managing business while studying in Australia, provides an incentive to live in Australia and properties being managed by the family is an incentive to stay in Australia. The Second respondent failed to consider Applicant’s personal business and financial ties to her home country.
4.The Second Respondent failed to take into account a relevant consideration in its consideration of claims and evidence to satisfy cl 500.212 of Schedule 2 in the Migration Regulation 1994, and as a result its decision was infected by jurisdictional error. (Ground 4).
Particulars
a.The applicant provided a record of her academic progress in Australia. The Applicant successfully completed an English course and a Certificate III and is enrolled in Diploma. The Second Respondent did not refer to these documents in its findings regarding whether the applicant was a genuine student.
(Words in bold added, otherwise as written).
APPLICANT’S SUBMISSIONS
The Applicant submits that she intends to become an entrepreneur in the hairdressing industry in the future with the skills from her studies in Australia.
The Applicant further submits that she does not intend to stay in Australia permanently and intends to go back to India to pursue her business goals.
The Applicant has annexed to her submissions:
(1)Essential English Course Completion Documents;
(2)Certificate III in Hairdressing Course Completion Documents; and
(3)Diploma of Salon Management Course Completion Documents.
RESPONDENT’S SUBMISSIONS
The grounds raised by the Applicant invariably contend the Tribunal weighed aspects of the Applicant’s evidence erroneously.
Ground 1
At paragraph [10] of the Tribunal’s reasons, the operation of cl 500.212 and Direction 69 is outlined which includes the Applicant’s circumstances in their home country, the value of the course to the Applicant’s future and the Applicant’s immigration history.
The Minister submits that the Tribunal properly understood and applied cl 500.212 of the Regulations and Direction 69. The Tribunal was required to consider those matters and made findings which were reasonably open.
Ground 2
The Minister submits that the Tribunal did not fall into error and that the Tribunal engaged in evidence before it, carefully considering and weighing the evidence before reaching its findings.
Further, as part of the fact-finding function of the Tribunal, it was reasonably open to weigh these matters against the Applicant.
Ground 3
The Tribunal considered the fact that the Applicant’s business was operating in her absence and that this suggested her continued residence in Australia was achievable and desirable.
The Minister submits that the Tribunal’s reasons were rational, logical and reasonable. The Applicant may not agree with the Tribunal’s findings but that does not amount to a jurisdiction error.
Ground 4
Under Direction 69, there is no requirement to consider the Applicant’s record of academic progress in Australia. However, under any other relevant matters decision makers should also have regard to any other relevant information provided by the Applicant when assessing the Applicant’s intention to temporarily stay in Australia.
Whilst the Tribunal did not expressly refer to the Applicant’s Australian academic progress in reaching its findings, the Minister submits that a fair reading of the decision as a whole demonstrates the Tribunal had regard to the Applicant’s course progress.
The Minister submits that the Applicant’s Application should be dismissed with costs fixed in the sum of $5,600, this being less than the scale amount.
CONSIDERATION
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[20]
[20] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[21]
[21] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[22] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[23] Different kinds of error may overlap.[24] The categories are not closed.[25] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[26]
[22] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[23] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[24] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[25] LPDT at [3].
[26] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[27] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[28] It has been described as an “undemanding” standard.[29]
[27] LPDT at [7].
[28] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[29] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Student Visas
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Student (Temporary) (Class TU) Student (Subclass 500) visa are set out in cl 500.211 to 500.218 in Schedule 2 of the Regulations.
Clause 500.212 of Schedule 2 of the Regulations provides:
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.
Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) of the Migration Act provides that a person or body (which would include the Tribunal) must comply with a direction given under s 499(1).[30]
[30] See Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209 at [65].
Direction 69 is a direction given by the Minister under s 499(1) of the Migration Act concerning the assessment of the genuine temporary entrant criterion at cl 500.212(a).
Ground 1
Ground 1 is that:
1.The Second Respondent failed to properly interpret and apply cl 500.212 of Schedule 2 in the Migration Regulations 1994 according to law and thereby failed to exercise its jurisdiction.
Particulars
The Second Respondent erroneously found it incredible and ingenuine to have experience in the field of study and as evidence of an ingenuine intention of the Applicant not to return to India pursuant to cl 500.212(a)(i);
The Second Respondent erroneously made and gave weight to a finding pursuant to cl 500.212(a)(ii) that the applicant’s immigration history did not show that she was a genuine student. The Second Respondent erroneously made and gave weight to a finding that the applicant changed his [sic, her] visa plan to stay in Australia.
The Second Respondent therefore relied on the applicant’s work and business experience in the field of study and did not give significant weight to her business, family and her financial position in her home country to determine whether the applicant was a genuine temporary entrant.
The dispositive issue in relation to the Tribunal’s Decision was whether the Tribunal was satisfied in relation to the genuine temporary entrant criterion in cl 500.212(a). This question required the Tribunal to consider not only the Applicant’s stated intention, but “the Applicant’s circumstances”, “the Applicant’s migration history”, and “any other relevant matter”.[31]
[31] Clause 500.212.
Ground 1 alleges failures to “interpret” and “apply” the temporary entrant criterion (cl 500.212), by reason of erroneous factual findings (Particulars (a) and (b)) and erroneously weighting of certain evidence (Particulars (b) and (c)).
As to the role of the court and principles to be applied on judicial review where a challenge is made to the decision maker’s reasoning, findings of fact or conclusion:[32]
[32] Noting that different kinds of error may overlap: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
(a)In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ confirmed that the proper role of the court on a judicial review was not to review the merits of the administrative decision-maker.[33]
[33] See also Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54].
(b)Kirby J stated (at p 291) that:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the propsect that a verbal slip will be found warranting inference of an error.
(Emphasis added) (Footnotes omitted)
(c)In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held (at [69]) that s 430 of the Migration Act obliged the Tribunal to set out findings on material questions of fact to the conclusion it reached. It does not require the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make.
(d)In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593, the Full Court of the Federal Court (French, Sackville and Hely JJ) stated:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(Emphasis added)
(e)In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ stated:
In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
(Emphasis added)
(f)In Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SZJSS), French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ held (at [33]) that the weighing of evidence was a matter for the Tribunal.
(g)In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court of the Federal Court (Kenny, Griffiths and Mortimer JJ) stated:[34]
[34] At [49] – [50].
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made ... Representing as it does what the Tribunal itself considered important and material, what is present – and what is absent – from the reasons may in a given case enable a Court on review to find jurisdictional error ...
... The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
(Emphasis added)
(h)In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, Robertson J held (at [77] and [111]) that the question of whether a failure to consider evidence gives rise to jurisdictional error:
… is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error… the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.
(Emphasis added)
(i)In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), Hayne, Kiefel and Bell JJ stated:
The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
(Emphasis added)
(j)In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J stated:
As Robertson J put it in Minister for Immigration and Citizenship v SZRKT(2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22–23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
…The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137–138 [151]–[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]–[62].
Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598–599 [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].
(Emphasis added)
(k)In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Allsop CJ (with whom Wigney J agreed) stated:
The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
(Emphasis added)
(l)In Minister for Home Affairs v DUA16 (2020) 271 CLR 550, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ stated:
A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".
(Footnotes omitted) (Emphasis added)
(m)In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, Kiefel CJ, Keane, Gordon and Steward JJ stated:
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker’s reasons disclose that the decision maker ignored, overlooked or misunderstood relevant facts and materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
(Footnotes omitted)
I am not satisfied that the matters alleged in Ground 1 demonstrate that the Tribunal failed to “interpret” or “apply” cl 500.212(a) or that the Tribunal’s Decision or decision making process was otherwise irrational, illogical or unreasonable:
(a)I am not satisfied that the Tribunal’s finding that the Applicant was not genuine in her intention to achieve specific educational outcomes in Australia in circumstances where she had worked as a hairdresser in India for 13 years and owned her own business (at [18]), was erroneous. The Applicant’s experience in India, when contrasted with the courses undertaken, is logically probative of the conclusion drawn. Further, paragraph [18] contained other matters that supported that conclusion, including the comparison between the Australian courses (“low level”) and her Indian qualifications (“high level”). The Tribunal’s approach is also consistent with paragraph 12 of Ministerial Direction 69, which required it to take into account the value of the Applicant’s course to her future. (Particular (a))
(b)I do not consider that error has been demonstrated in relation to the use made by the Tribunal of the Applicant’s immigration history, namely the change of Visa plan (at [21]). The change between the Applicant’s arrival on a visitor’s visa to studying on a longer visa without a “coherent” explanation is a matter that supports the conclusion drawn.[35] It was a matter that the Tribunal was required to take into consideration by reason of cl 500.212(a)(ii) and paragraphs 13 and 14 of Ministerial Direction 68. To the extent that it is alleged that the error lay in the “weight” attributed to the change of plan, generally[36] speaking and in the present case, that is for the decision maker.[37](Particular (b))
(c)I do not consider that any error has been demonstrated in the weighting to be given to the Applicant’s “work and business experience in the field of study” as opposed to “her business, family and her financial position in her home country”. Again, the weight to be given to conflicting evidence was a matter for the Tribunal and not the court.[38] The Tribunal’s approach is also consistent with paragraphs 9 and 10 of Ministerial Direction 69, which required it to take into account the applicant’s circumstances in their home country, including the extent to which their personal ties would serve as a significant incentive for them to return home. The conclusion and reasoning are not illogical, unreasonable or irrational. (Particular (c))
[35] Noting the matters at [7] and [8].
[36] Compare Li at [72].
[37] SZJSS at [33].
[38] SZJSS at [33]. Compare Li at [72].
I am not satisfied that jurisdictional error has been demonstrated by reference to Ground 1.
Ground 2
Ground 2 is that:
1. The Second Respondent erroneously gave significant weight to the fact that the Applicant enrolled in a low-level course of study and she could have gain the same qualification in her home country. The Second Respondent failed to take into account a relevant consideration in its consideration of claims and evidence to satisfy cl 500.212 of Schedule 2 in the Migration Regulations 1994, and as a result its decision was infected by jurisdictional error (Ground 2).
Particulars
The Applicant submitted that the chose course of study would give her practical knowledge in her chosen field. The course she enrolled in are of practical nature and most relevant to her occupation. There are no higher course available in the occupation. The Second Respondent erroneously undermined the value addition and opportunities Australian education provides in the developing countries such as Applicant’s home country.
Ground 2 covers some of the same matters that were covered by Particular (a) of Ground 1, with the addition that the Tribunal “erroneously undermined” the value Australian education provided in developing countries. The Tribunal made reference to the Applicant’s contention that study in Australia would give her more “polish” (at [15]) and considered the other of the Applicant’s claimed benefits, including a “bright career” (at [17]). The Tribunal also referred to the Applicant’s submission that Australian qualifications in hairdressing and salon management were “better and more durable quality” (at [17]). Ultimately, the weight to be attributed to that “value addition” and to the “opportunities” was a matter for the Tribunal in its decision-making role.[39] The conclusion and reasoning are not illogical, unreasonable or irrational.
[39] SZJSS at [33]. Compare Li at [72].
I am not satisfied that jurisdictional error has been demonstrated by reference to Ground 2.
Ground 3
Ground 3 is that:
2. The Second Respondent failed to give proper genuine and realistic consideration to the family, business and financial ties provided by the applicant and unreasonably and erroneously concluded that managing the business and property with the help of family while in studying in Australia, is an intention to stay in Australia. (Ground 3).
Particulars
The applicant submitted that she has her parents, brother, and sister present in India. The Applicant submitted that she is in regular contact with her family and talk to them every day. She also travelled back to her country after her first visit to Australia. The second respondent did not give weight to the fact that regular contact with family in home country presents ties to the home country;
The Applicant presented evidence that she owns a business and property in India, and she has many employees working in her business. Second Respondent found that managing business while studying in Australia, provides an incentive to live in Australia and properties being managed by the family is an incentive to stay in Australia. The Second respondent failed to consider Applicant’s personal business and financial ties to her home country.
Ground 3 alleges error by the Tribunal in failing to give “proper genuine and realistic” to “family, business and financial ties” (see [14]) and that “managing the business and property with the help of family while in studying in Australia” evidenced an intention to stay in Australia. The Tribunal gave detailed consideration to the Applicant’s “ties to her home country” (at [20]), in particular, to the question of whether they would serve as an incentive for her to return home. The Tribunal found that those ties did not serve as a significant incentive for her to return home; in particular, her business was operating remotely with the assistance of employees, and that her property could be held, with the help of parents, or rented out (at [20]). The Tribunal’s approach is also consistent with paragraphs 9 and 10 of Ministerial Direction 69, which required it to take into account the applicant’s circumstances in their home country, including the extent to which their personal ties would serve as a significant incentive for them to return home. Ultimately, the conclusions to be drawn from these matters were for the Tribunal in its fact-finding role. The conclusion and reasoning are not illogical, unreasonable or irrational.
I am not satisfied that jurisdictional error has been demonstrated by reference to Ground 3.
Ground 4
Ground 4 is that:
3. The Second Respondent failed to take into account a relevant consideration in its consideration of claims and evidence to satisfy cl 500.212 of Schedule 2 in the Migration Regulation 1994, and as a result its decision was infected by jurisdictional error. (Ground 4).
Particulars
The applicant provided a record of her academic progress in Australia. Applicant successfully completed an English course and a Certificate III and is enrolled in Diploma. The Second Respondent did not refer to these documents in its findings regarding whether the applicant was a genuine student.
Ground 4 alleges error by the Tribunal by failing to take into account the Applicant’s academic progress which formed part of the material before the Department and the Tribunal (see CB 73-74, 114 and 121) concerning its findings in relation to the temporary entrant criterion. In addition to the material being before the Tribunal (at [38]), there are references at [14] of the Tribunal’s Decision to her current enrolment, and completion of an English Course in 2019 and a hairdressing certificate in 2020. I do not consider that the absence of a specific finding concerning “academic progress” beyond reference to the courses completed, and the course enrolled in, constitutes an error, let alone a jurisdictional one. Section 430 of the Migration Act does not require the Tribunal to make findings on any and every matter of fact objectively material to the decision that it is required to make.[40]
[40] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [69].
I am not satisfied that jurisdictional error has been demonstrated by reference to Ground 4.
Other Matters
The Applicant was self-represented in the hearing before me.
I have been mindful of the guidance set out in decisions like SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 concerning the Court’s obligation to act in a procedurally fair manner when dealing with self-represented litigants; in particular, the requirement to put an unrepresented litigant in a position to make an effective choice about how to conduct his or her case.
Having noted these matters, I have not otherwise identified any arguable jurisdictional error in the Tribunal’s Decision that I have not specifically addressed above.[41]
[41] Noting the comments of Mortimer J (as the Chief Justice was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, the Application for review must be dismissed.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that that the application succeeded or was dismissed. In the event that the application was dismissed, the Minster sought costs in the sum of $5,600, being less than the scale amount.[42] I am satisfied that costs ought to follow the event,[43] and that it is appropriate to make an order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[44]
[42] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[43] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[44] Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] 305 FCR 172.
The Applicant requested, that if a costs order were made against her, that she be given twelve months to pay it by instalments because of her financial position. I am not prepared to make such an order at this point in time in the absence of any supporting material. However, my refusal of that Application is without prejudice to the Applicant’s right to make a further application for a stay of execution of the costs order. I note that the Department would consider an informal request for time to pay by instalments.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 6 May 2025
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