De Carvalho v Minister for Immigration and Citizenship
[2025] FedCFamC2G 754
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
De Carvalho v Minister for Immigration and Citizenship [2025] FedCFamC2G 754
File number(s): SYG 2087 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 23 May 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – finding that applicant provided bogus document – finding that applicant did not satisfy genuine temporary entrant criterion - no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 97, 360, 476
Migration Regulations 1994 (Cth) Sch 2 cls 500.212, 500.217, Sch 4 cl 4020
Cases cited: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 7 May 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Mr L Dennis of Mills Oakley ORDERS
SYG 2087 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EDMAR FARIA DE CARVALHO
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $6,100.
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 ZIPSER
INTRODUCTION
On 4 September 2020, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 August 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided as a time of decision criterion for a student visa:
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.
Clause 500.217(1) of Schedule 2 provided as a time of decision criterion for a student visa:
The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
Public interest criterion 4020 (also known as PIC 4020) in Schedule 4 to the Regulations relevantly provided:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part - 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
FACTUAL BACKGROUND
On 20 March 2017, the applicant, a citizen of Brazil, applied for a student visa.
On 26 June 2017, the Department of Immigration and Border Protection (Department) sent the applicant a letter inviting him to comment on information which suggested that a bank document he provided with his student visa application was not genuine.
Shortly afterwards, the applicant provided a response to the letter dated 26 June 2017.
On 20 July 2017, a delegate of the first respondent refused to grant the visa. The delegate found that the applicant had given a bogus document and therefore did not meet PIC 4020, and therefore did not satisfy cl 500.217.
On 8 August 2017, the applicant applied to the Tribunal for review of the delegate’s decision.
On 29 January 2018, the Tribunal sent a letter to the applicant inviting him to attend a hearing on 13 February 2018.
On 13 February 2018, the applicant attended a hearing before the Tribunal where he gave evidence and presented arguments.
At the end of the hearing, the Tribunal made an oral decision to affirm the decision under review.
Following an application by the applicant to the Federal Circuit Court for judicial review of the Tribunal’s decision, on 26 July 2018 the Tribunal’s decision was set aside by consent, and the matter was remitted to the Tribunal for re-determination.
On 8 May 2020, the applicant attended a further hearing before the Tribunal where he gave evidence and presented arguments.
On 6 August 2020, the Tribunal made a decision affirming the decision under review not to grant the applicant a student visa.
TRIBUNAL’S DECISION
There were two separate bases for the Tribunal’s decision as follows:
(a)First, the Tribunal found that a bank document provided by the applicant was a bogus document and therefore the applicant did not satisfy PIC 4020 (Bogus Document Issue). Therefore, cl 500.217(1) was not met.
(b)Second, the Tribunal found that the applicant did not genuinely intend to stay in Australia temporarily (GTE Issue) and therefore cl 500.212(a) was not met.
In relation to the Bogus Document Issue, the Tribunal found at [27] that the bank document provided by the applicant to the Department in June 2017 was a bogus document, and at [29] that there were no compassionate or compelling circumstances which would justify the grant of the visa.
In relation to the GTE Issue, the Tribunal had regard to all the factors in Ministerial Direction No 69 and the applicant’s evidence and claims. The Tribunal at [62] found that it was not satisfied that he intended genuinely to stay in Australia temporarily. Therefore, he did not meet cl 500.212(a).
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 7 May 2025
On 4 September 2020, the applicant filed in this Court an application for judicial review of the Tribunal’s decision (Application). The Application contained the following grounds:
1.The Member for the Second Respondent failed to afford me a Fresh, Independent, and Just Hearing.
a. As at Paragraph 21 of the Second Respondent's Decision Record and also throughout the entirety of its Decision Record, the Second Respondent makes excessive references to the preview Review Application brought before the Second Respondent and finalised in 2018. The Second Respondent has a duty to not only assess my case afresh, but to also primarily make reference to, if any, the First Respondents original Decision as opposed to excessively making reference to my previous matter brought before the Second Respondent which concluded in 2018 which was remitted back to the Second Respondent from the Federal Circuit Court. Whilst I understand that the Second Respondent can make reference to, and partly rely on, factors from my previous matter with the Second Respondent which concluded in 2018, in order to assess my case diligently and competently, it is appropriate to revisit and assess afresh, the issue regarding the proposed ‘Bogus Document', particularly as I was never put in a situation and provided any guidance from my previous Representative or the Second Respondent in some aspects as to the requirement for me to supply additional evidence. Until now, during both my previous matter which concluded in 2018 and the recent matter in 2020 with the Second Respondent, the Second Respondent has made assumptions and claims that I am aware and have been aware from the original decision with the First Respondent that I am required to provide additional evidence to support the integrity of the document provided. I am not a Migration Agent or someone who is highly educated in Australian Migration Law and as such, the Second Respondent has failed in its duty both in the current case and also the previous matter which concluded in 2018 in providing suitable guidance, having an open mind when assessing and being neutral and independent from the First Respondent in its assessment of my case. I have felt throughout this process that since the First Respondent alleged, I provided a 'Bogus Document' that the Second Respondent has been biased, unfair and extremely rigid in the assessment of my case from the first instance. I have never been given any leniency and support/guidance from the Second Respondent in being able to prove my innocence in relation to what has been purported to be a 'Bogus Document' which I have continued to adamantly maintain was not. Whilst I acknowledge that the Second Respondent may not always provide additional time to Applicants, it is clearly a situation in my case where it should have been allowed in order to assess my case fairly particularly as the entirety of outcome was formulated on the bases of PIC4020 and the purported 'Bogus Document'. Had the Second Respondent provided me with a small amount of time, allowing me to provide additional documentation from the Bank. it could have altered the outcome of my matter.
2.The Member for the Second Respondent denied me additional time to provide supporting evidence for a key issue, thus resulting in Jurisdictional Error.
a. As at Paragraph 23 of the Decision Record, the Member for the Second Respondent acknowledges and admits to refusing to give me further time to obtain additional documents to verify or confirm the accuracy of the subject document. My Application is heavily reliant upon the accuracy of the documents I originally provided the First Respondent in my Visa Application, hence the reason for the original refusal. As such, being such a major deciding factor in the outcome of my review Application, the Second Respondent had a duty to investigate this issue further and allow me time to provide any such requested document to support my claims rather than simply refusing to do so under the pretence that I was aware of the underlying issue due to it being raised in the initial review Application before the Second Respondent which concluded in 20I8. The Second Respondent made an assumption that I was aware of everything and failed to acknowledge the possibility that as a layperson, I may not be fully aware of what is required. I have had poor guidance from my previous Migration Agent until now. I was never made aware by my previous Migration Agent that I needed to provide supporting evidence in relation to the documents I provided the First Respondent in my original Visa Application. In fact, I was advised against doing so, as my Migration Agent mentioned that it was not required and that we had provided sufficient documentation.
3.The Second Respondent has been infected with Bias in its assessment of my Case resulting in an Error of Law and breach of Natural Justice.
a. As at Paragraph 27 of the Decision Record, the Member for the Second Respondent has made an assumption that the document in question is a bogus document without further investigating its accuracy. The Member for the Second Respondent firstly, failed to afford me anytime to provide such evidence supporting the accuracy of the document, and secondly, it is clear that the Member for the Second Respondent has been biased in its assessment, primarily relying upon and commenting upon what had occurred in previous Application with the Second Respondent which concluded in 2018, as opposed to making a fresh assessment itself. It is also evident that the Member for the Second Respondent was not open to any discussion on this underlying PIC4020 issue and had already made up its mind prior to the Assessment of my case. As per WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 at [16] Lee and Moore JJ mentioned s 416 as a qualification to the requirement that the Tribunal consider all relevant material and, after having regard to that material, make the findings of fact necessary to support its determination.
b. The Genuine Temporary Entrant requires the decision maker to understand the claims, but the Member for the Second Respondent was reluctant to understand and consider all of the facts with giving any weight due to the biased opinion already made in relation to the purported 'Bogus Document' issue.
4.The Second Respondent failed to assess my case with an Open Mind.
a. The Second Respondent failed to approach my case with an open mind. The Second Respondent Erred on the basis that it constrained its ability to assess my case competently by not giving me time to provide additional evidence to counter its assumption that I provided a 'Bogus Document' and instead relied excessively on what took place in the previous Application with the Second Respondent which concluded in 2018. As per Soboleva v Minister for Immigration and Multicultural Affairs [2001] FCA 528; (2001) 113 FCR 353 at [21], it was stated that the Tribunal must approach that discretion with an open mind. It will err if it proceeds on the basis that the manner in which a previous Tribunal decides a matter constrains it.
5.The Member for the Second Respondent's Biased opinion in relation to the PIC4020 issue transcended onto its assessment of my Genuine Temporary Criteria assessment and failed to afford me a Fair and Just assessment.
a. I arrived in September 2016 in Australia and have since returned home on one occasion in 2018 and returned to Australia in 2019, but the Member for the Second Respondent at Paragraph 50(c) of its Decision Record, made another negative assumption that I do not have an incentive to return to my home country because of the limited travel. This is absolutely unfair and biased because in my opinion and in the opinion of any "ordinary person" my travel is sufficient given that I have not been in Australia for such an extended period of time. I am focused on studying and not wasting money on travel and the period spent here in Australia thus far has not been significant for the Member for the Second Respondent to assume that I have not travelled back enough.
b. As at Paragraph 45 of the Decision Record, the Member for the Second Respondent stated that I went on to do Advanced Diploma after completing my Certificate IV and Diploma. The Advanced Diploma related studies exist for a reason, so that an individual can complete one course and then move to the higher level. I was maintaining my progression in my qualifications which should be a positive sign of meeting GTE rather than taking it negatively. Significant weight should have been given to this.
c. As at Paragraph 48 of the Decision Record, the Member for the Second Respondent failed to acknowledge and understand that I had not previously enrolled in further courses after the Diploma of Leadership and Management at that time due to the added costs of Health Insurance. The Member for the Second Respondent instead stated that the cost of medical insurance is a cost that would in any event and has now been incurred by the applicant. Whilst this fact may be true, the Member for the Second Respondent failed to understand that OSHC Medical Insurance for Students is paid in whole, in lump sum and is not a monthly arrangement and at that time it was difficult for me to pay such a high amount at once and as such, it assisted me greatly in deferring that amount until later when 1 had better cash flow. It is ordinary for the common person to have varying amounts of money throughout different periods of his/her life and unfortunately at that time, I needed to be careful financially. My entire case was affected with Bias from the first instance when the Member for the Second Respondent failed to properly address the PIC4020 issue and afford me any time to provide additional evidence.
d. As at Paragraph 49 of the Decision Record, the Member for the Second Respondent was again Biased and unfair in its claim that I did not know about my course. It is possible and common for a student to not remember how many subjects/units were in their course. This is not a normal thing to remember.
e. It is clear from the decision provided by the Member for the Second Respondent that there been Bias and a clouded judgement in making this decision which originally arose from the underlying PIC4020 document issue which was not properly addressed.
f. The decision made by the Member for the Second Respondent is unfair and ultimately Bias is written all over it, because no weight was given to my reasons for studying or going back to my home country. Fair weight was not given when assessing GTE for my application.
g. If the Member for the Second Respondent could not assess GTE fairly and appropriately, then further documents and evidence should have been requested, rather than giving a poorly assessed GTE in my case.
6.My entire case was infected by Jurisdictional Error.
On 28 January 2021, the first respondent filed a written submission.
On 12 February 2025, a registrar made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application and any additional evidence on which the applicant sought to rely.
On 14 March 2025, the registry of the Court notified the parties that the matter was listed for hearing on 7 May 2025.
The applicant did not file a written submission or any other documents prior to the hearing.
Hearing on 7 May 2025
At hearing in this Court on 7 May 2025, the applicant appeared unrepresented, assisted by a Portuguese interpreter. Liam Dennis of Mills Oakley appeared for the first respondent.
At the commencement of the hearing, I caused to be given to the applicant a copy of the Tribunal’s decision dated 6 August 2020. I directed the applicant’s attention to the Tribunal’s decision. I explained the limited role of the Court and, for the applicant to win the court proceeding, he must persuade the Court there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. I explained the main categories of jurisdictional error. I offered the applicant a break of 10 minutes to consider oral submissions he wanted to make to the Court. The applicant did not want a break.
Mr Dennis tendered a Supplementary Court Book (SCB) which contained the Tribunal’s decision and a Court Book (CB) which contained the documents before the Tribunal.
The applicant made oral submissions. In relation to the Tribunal’s finding that he provided a bogus document and did not satisfy cl 500.217, the applicant asserted that the document was not bogus or forged. In relation to the Tribunal’s finding that he was not a genuine temporary entrant, the applicant stated that it was only his intention to study, and it was never his intention to migrate to Australia.
Mr Dennis, in his oral submissions, principally relied on the first respondent’s written submission filed in January 2021.
CONSIDERATION
Ground 1
It is stated that the Tribunal “failed to afford [the applicant] a fresh … hearing” and “it is appropriate [for the Tribunal] to revisit and assess afresh the issue regarding the proposed bogus document”. However, the Tribunal’s reasons for decision, in particular at [27]-[30], indicate that the Tribunal considered for itself whether the bank statement was a bogus document and whether the applicant satisfied PIC 4020.
It is stated that the Tribunal did not “provide any guidance … in some aspects as to the requirement for me to supply additional evidence” and the Tribunal “failed in its duty … in providing suitable guidance”. The applicant has not particularised or specified the “guidance” he claims the Tribunal ought to have provided to him. This complaint, that the applicant was not given adequate or sufficient “guidance” in relation to the Bogus Document Issue so that he could obtain evidence responding to the issue, appears to be a principal complaint in the Application. Pursuant to s 360 of the Act, the Tribunal must “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Where an applicant is not aware of an issue arising in relation to the decision under review, there may be a breach of s 360. In the present matter, the applicant was made aware of the Bogus Document Issue on many occasions, such as by the Department’s letter dated 26 June 2017 (CB 88-91), by the delegate’s decision dated 20 July 2017 (CB 100-103), at the first hearing before the Tribunal on 13 February 2018 (see Tribunal’s decision at [18]-[19] at SCB 3), by the earlier Tribunal’s decision dated 13 April 2018 (CB 161-166), and at the second hearing before the Tribunal on 8 May 2020. Further, the applicant provided evidence in response to the Bogus Document Issue in an undated letter at CB 92 and in an email from his migration agent dated 12 February 2018 (CB 130). As correctly stated by Mr Dennis in oral submissions, the applicant had many opportunities since June 2017 to provide documents to the Department and Tribunal in response to the Bogus Document Issue. He was well-aware of the Bogus Document Issue by the date of the hearing before the Tribunal on 8 May 2020. As stated above, the applicant has not particularised or specified the “guidance” he claims the Tribunal ought to have provided to him. I am not persuaded that procedural fairness required the Tribunal to provide further “guidance” to the applicant.
The applicant complains that he was not “provided any guidance from [his] previous representative”. The applicant has not established a factual basis for this assertion. In any event, even if the applicant’s previous representative did not provide the applicant with guidance, this does not establish jurisdictional error in the Tribunal’s decision.
It is stated that the Tribunal “has been biased”. An allegation of bias must be clearly made and distinctly proven. The applicant has not identified or provided evidence to support his assertion that the Tribunal was biased. That the Tribunal found that the applicant did not satisfy two criteria for a student visa does not establish that the Tribunal was biased.
The applicant states that “had the Tribunal provided me with a small amount of time, allowing me to provide additional documentation from the Bank, it could have altered the outcome of my matter”. At the hearing on 8 May 2020, the applicant asked the Tribunal for more time to provide further evidence to establish the authenticity of the bank document in question. The Tribunal considered this request at [21]-[23] in the following terms:
[21]The applicant told the Tribunal if he was given more time he could provide further evidence to establish the authenticity of the document in question. The applicant asserted the same position at the last Tribunal hearing on 13 February 2018 and requested additional time at that hearing to obtain that information and has not done so.
[22]The Tribunal considers the applicant has been aware of the issue in relation to which his application was refused since at least 20 July 2017 and has been afforded a reasonable opportunity to obtain such evidence. The applicant has been on notice of the concerns of the delegate in relation to the document since being provided a ‘natural justice’ letter by the Department on 26 June 2017 to which he responded on 19 July 2017.
[23]If there was any doubt as to the issue, on 13 February 2018 the concerns in relation to the document were again put to the applicant by the Tribunal. In considering these matters the Tribunal did not provide the applicant further time to obtain additional documents or evidence that would verify or confirm the accuracy of the subject document.
If the Tribunal’s procedural decision to not adjourn the hearing to give the applicant more time was legally unreasonable, this may be a jurisdictional error. However, I consider that the Tribunal’s procedural decision was not legally unreasonable. The Tribunal provided reasons at [22]-[23] for refusing to give the applicant more time. The reasons provide “an evident, transparent and intelligible justification” (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92]) for its procedural decision.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
The applicant states that the Tribunal “denied me additional time to provide supporting evidence for a key issue”. I address this contention in paragraphs 34-35 above.
38 It is stated that the Tribunal “had a duty to investigate this issue further”. The applicant does not particularise the further investigation the Tribunal should have carried out. I am not persuaded that the Tribunal acted unreasonably in failing to investigate some unparticularised issue.
The applicant repeats the complaint that he “had poor guidance from [his] previous migration agent” who did not make him aware that he needed to provide supporting evidence, and adds that his previous migration agent advised him against providing supporting evidence. First, the applicant has not established a factual basis for these assertions. Second, there is a tension between the applicant’s assertion that his migration agent did not advise him that he needed to provide supporting evidence, and the assertion that his migration agent positively advised him against providing supporting evidence.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
The applicant asserts that the Tribunal “has been infected with bias” and “it is clear that the [Tribunal] has been biased in its assessment”. The applicant has not provided evidence in support of this assertion.
The applicant complains that, in relation to the bogus document, the Tribunal failed to “further investigat[e] its accuracy”. The applicant neither particularises the further investigations the Tribunal should have carried out, nor explains why it was necessary for the Tribunal to conduct further investigations in light of the results of the investigations summarised in the Department’s letter dated 26 June 2017 (see CB 88). I am not persuaded the Tribunal acted unreasonably in failing to carry out an unparticularised investigation.
The applicant complains that the Tribunal “failed to afford [him] any time to provide such evidence supporting the accuracy of the document”. I address this contention in paragraphs 34-35 above.
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 4
It is stated that the Tribunal “failed to assess my case with an open mind”. The applicant has not identified a paragraph of the Tribunal’s decision which suggests that the Tribunal did not assess his case with an open mind. I am not persuaded that the Tribunal did not have an open mind.
The applicant complains that the Tribunal did not “giv[e] me time to provide additional evidence”. I address this contention in paragraphs 34-35 above.
It is stated that the Tribunal “relied excessively on what took place in the previous application with the second respondent which concluded in 2018”. For reasons explained in paragraph 30 above, I do not agree that the Tribunal relied excessively on the earlier Tribunal’s decision.
Ground 4 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 5
Ground 5 is the single ground which challenges the Tribunal’s finding concerning the GTE Issue.
The first particular (a) challenges the Tribunal’s finding at [50(c)]. In effect, the applicant asserts the finding is “unfair and biased” because the applicant disagrees with the finding. That the applicant disagrees with a finding of the Tribunal does not demonstrate bias or unfairness by the Tribunal in relation to the finding.
It is stated in the first particular (b) that “significant weight should have been given to” the fact that the applicant “went on to do Advanced Diploma”. The weight the Tribunal gives to an item of evidence is a matter for the Tribunal. That the Tribunal did not give an item of evidence the weight desired by an applicant is not a jurisdictional error.
It is initially stated in the first particular (c) that the Tribunal at [48] “failed to acknowledge and understand that I had not previously been enrolled in further courses … due to the added costs of health insurance”. But, as then acknowledged in particular (c), the Tribunal at [48] expressly considered the applicant’s explanation about the cost of medical insurance. That the Tribunal was not persuaded by the explanation is not a jurisdictional error.
The second particular (a) asserts that the Tribunal was biased in stating the following at [49]:
When asked by the Tribunal how many subjects were in the Advanced Diploma of Leadership and Management the applicant told the Tribunal he would have to look that up. The applicant subsequently confirmed there were 12 subjects however it was apparent the applicant was confirming this from documents rather than his own knowledge. The applicant was unable to satisfactorily articulate the additional skills an Advanced Diploma of Leadership and Management would provide him over a Certificate IV and Diploma of Leadership and Management other than to state that the course offered wider and deeper subjects.
The applicant does not explain how this paragraph demonstrates or indicates bias by the Tribunal. I do not accept the Tribunal was biased.
The second particulars (b) and (c) make broad and vague assertions of bias by the Tribunal, without explaining the basis for the assertions other than that the Tribunal made findings adverse to the applicant. That the Tribunal made findings adverse to the applicant, without more, does not demonstrate bias.
Particular (d) contends that the Tribunal should have requested further documents and evidence concerning the GTE Issue. It is for the applicant to provide material to the Tribunal to satisfy the criteria for a visa. Where an applicant’s material is not satisfactory, the Tribunal does not have an obligation to request further documents and evidence from the applicant.
Ground 5 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, the parties made submissions on costs. Mr Dennis sought costs in the amount of $6,100, which was less than the first respondent’s solicitor/client costs. The applicant did not object to this amount. The amount is reasonable. I will make this costs order.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 23 May 2025
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