Dhaliwal v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1077
•14 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhaliwal v Minister for Immigration and Citizenship [2025] FedCFamC2G 1077
File number: MLG 2855 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 14 July 2025 Catchwords: MIGRATION – student (subclass 500) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – genuine temporary entrant criterion – whether Tribunal’s decision legally unreasonable – whether Tribunal’s decision affected by reasonable apprehension of bias – whether Tribunal gave genuine and active intellectual consideration to the applicant’s evidence – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued Legislation: Migration Regulations 1994 (Cth) sch 2, cls 500.212, 500.212(a) Cases cited: Charara v Commissioner of Taxation [2016] FCA 451
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337
Jatin v Minister for Immigration and Border Protection [2019] FCA 150
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, 240 FCR 158
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, 231 FCR 437
Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227, 256 FCR 1
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, 131 FCR 102
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submission/s: 28 April 2025 Date of hearing: 12 May 2025 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitors for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Mr S Crock Solicitors for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2855 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASPREET SINGH DHALIWAL
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
14 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.A writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal (AAT) made on 17 July 2020 in Case No 1831379.
3.A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application for review made to the AAT in Case No 1831379.
4.The first respondent pay the applicant’s costs 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 Gostencnik
INTRODUCTION
On 23 October 2018, a delegate of the (then) Minister for Immigration, Citizenship and Multicultural Affairs refused the applicant a Student (Temporary) (Class TU) (Subclass 500) visa. The former Administrative Appeals Tribunal (Tribunal) affirmed that decision on 17 July 2020 finding that the applicant was not a genuine temporary entrant and that he had applied for a student visa for the purpose of obtaining residency in Australia rather than for study. The applicant has applied to this Court for judicial review and by his amended application lodged on 4 April 2025, seeks orders quashing the Tribunal’s decision and remitting the review application to the second respondent to determine according to law.
The amended application helpfully recasts 25 review grounds into three. First, the applicant contends the Tribunal’s finding that the second tourist visa was obtained with an intention to reside in Australia is legally unreasonable. Second, the applicant says the Tribunal’s decision is affected by apprehended bias, in that the Tribunal cross-examined the applicant during the hearing. Third, the applicant maintains the Tribunal failed to undertake a sufficient intellectual effort to “consider” the applicant’s explanation for wanting to study in Australia.
BACKGROUND
The applicant is a citizen of India who arrived in Australia on 18 December 2017 as the holder of a visitor visa. On 7 September 2018, the applicant applied for a Student visa with the assistance of a migration agent to pursue various vocational courses relating to automotive technology. The Department of Home Affairs acknowledged receipt of that application by letter dated 7 September 2018, transmitted by email to the applicant’s migration agent. The application included a statement by the applicant setting out his reasons for choosing to study in Australia, purporting to demonstrate that he is a genuine temporary entrant.
On 23 October 2018, a delegate of the Minister refused the applicant’s visa application. The applicant was notified by letter of even date, transmitted by email to his migration agent which enclosed a copy of the delegate’s decision record.
The delegate’s decision record notes the criteria against which an application for a student visa must be assessed, including relevantly the ‘genuine temporary entrant’ criterion set out at cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth)[1] (Regulations) and Ministerial Direction No 69 (Direction No. 69) which sets out factors to which a decision-maker must have regard when assessing whether an applicant is a genuine temporary entrant.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.
The delegate appears to have been concerned that the applicant’s statement addressing the genuine temporary entrant criterion was vague and that he did not provide any convincing evidence to support his claims. The delegate noted that the applicant’s intended course of study in Australia appeared to be a step backwards when compared with the applicant’s level of education and his extant pursuit of vocational education in India. The delegate was not satisfied that the applicant’s proposed study in Australia would improve the applicant’s career prospects in his home country. The delegate was also concerned that, although the applicant may have had family ties to India, he also had family in Australia, and on balance, his ties to India did not constitute a significant incentive to return to India. The delegate was not satisfied that the applicant intended to stay in Australia temporarily and so refused the application.
TRIBUNAL PROCEEDING
On 25 October 2018, the applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal acknowledged receipt of the application by letter dated 26 October 2018 transmitted by email to the applicant via his migration agent. The letter noted that the validity of the application had not yet been assessed, and advised the applicant that if he wished to provide any material or submissions to do so as soon as possible. The letter also enclosed an ‘M15 – Information for review applicants’ factsheet.
On 19 March 2020, the Tribunal invited the applicant, by letter, to provide further information relating to his application by completing and returning an electronic ‘Request for Student Visa Information’ form, in order to satisfy the Tribunal that the applicant was a genuine applicant for entry and stay as a student. The invitation letter noted that the form must be completed by 2 April 2020, and enclosed a copy of Direction No. 69 for the applicant’s reference. The applicant completed and returned the form electronically, therein providing a range of information relevant to his application, including:
(a)details of enrolment and study in Australia, including his intended future enrolment and his reason for pursuing that course with the chosen education provider. The applicant claimed that by comparing a range of factors such as the quality of education, teacher experience and affordability, the selected course was far more advanced and career-oriented;
(b)the reason for the applicant choosing to study in Australia rather than India. The applicant claimed that Australian education is world-renowned, and offered advantages over the educational providers in India because India is still a developing country; the courses are theoretical and outdated, and the Australian course would better prepare him for employment;
(c)details of family members and their countries of residence, community ties to India and community involvement in Australia;
(d)details of the applicant’s assets and his expected expenses whilst in Australia; and
(e)a letter addressing the genuine temporary entrant criteria, wherein the applicant further outlined his reasons for studying in Australia and choosing the course he wanted to undertake; how that course was relevant to his prospective career; the particular value of the course offered in Australia, and his incentives and intention to return to India upon completion of the course.
By letter dated 14 April 2020, transmitted to the applicant by email via his migration agent, the Tribunal invited the applicant to attend a telephone hearing scheduled on 30 April 2020 to give evidence and present arguments in relation to his application for review. The letter enclosed a ‘Response to hearing invitation – MR Division’ form, and requested the applicant complete and return that form, indicating whether he intended to participate in the hearing. The letter also requested the applicant provide a copy of his current Confirmation of Enrolment (COE) demonstrating current enrolment in a course of study together with documentary evidence of his past studies in Australia.
On 21 April 2020, the applicant, by his migration agent, provided the Tribunal with a completed ‘Response to hearing invitation’ form indicating that he would be attending the hearing. The correspondence attached evidence of past qualifications; 2 COE’s to study Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Technology with Acumen Institute of Further Education; and a letter regarding his then in-progress course of study.
On 30 April 2020, the applicant attended the Tribunal hearing by telephone and was assisted by a Punjabi interpreter. The applicant subsequently requested the Tribunal provide a copy of the audio recording of the Tribunal proceeding, which was duly provided on 8 May 2020. On 28 May 2020 the applicant contacted the Tribunal seeking an update on the status of the review, and followed that inquiry up again on 11, 23 June and 9 July 2020. On 16 July 2020, the applicant’s migration agent contacted the Tribunal seeking an update and requesting the Tribunal to produce a decision record and provide the applicant with the same.
On 17 July 2020, the Tribunal affirmed the delegate’s decision and notified the applicant by letter dated 20 July 2020 transmitted by email to his migration agent. The notification letter enclosed the Tribunal’s Statement of Decision and Reasons (Decision) together with an ‘Information about decisions’ fact sheet and a copy of Direction No. 69.
TRIBUNAL’S DECISION
The Tribunal’s decision begins with a summary of the background to the review application, including a summary of the procedural history: Decision at [1]–[6]. That which follows from [8]–[11] is an outline of the considerations which the Tribunal considered relevant to the assessment of whether the applicant ought be granted a visa, before turning to consider the applicant’s claims and evidence from [12]–[51], but noting at [7] and concluding at [52]–[53] that the decision under review should be affirmed.
The Tribunal set out the requirements for the grant of a student visa: Decision at [10], noting first that the applicant must satisfy cl 500.212(a) of Sch 2 to the Regulations requiring the applicant be a ‘genuine temporary entrant’, then noting the mandatory considerations in Direction No. 69, which included:
(a)the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
(b)the applicant’s immigration history, including visa and travel history; and
(c)any other relevant information provided by the applicant or otherwise available to the decision-maker.
The Tribunal noted that these factors are not applied as a checklist and are intended only to guide the decision-maker to reach a decision whether an applicant is a genuine temporary entrant: at [11].
The Tribunal made various observations and comments about the applicant’s immigration history. The Tribunal noted the applicant first arrived in Australia in December 2017 as a tourist for the purpose of visiting family, before returning home to India less than a month later: Decision at [12], [22]. Upon his return to India, he continued his studies there, but did not complete his course of study before returning to Australia to visit his family in June 2018, this time for three months: at [22]–[24]. The applicant told the Tribunal that he did not have a return airfare booked but that he had sufficient funds to purchase such airfare and intended to do so: at [26]. The Tribunal asked the applicant whether he intended to remain in Australia upon his second visit to Australia rather than to depart as required by his visitor visa. The applicant said that he had not intended to remain in Australia: at [27]. The applicant conceded that his tourist visa expired in August 2018 and accordingly he was obliged to depart Australia, but that he did not do so: at [26].
It appears from the Decision that because the applicant had recently visited his family, the Tribunal did not accept he had returned to Australia for a second time within six months for the purpose of visiting his family again: Decision at [27]. The Tribunal concluded, rather, that the applicant had come to Australia with the intention of residing in Australia: at [27].
As to his decision to apply for a student visa while in Australia, the applicant said that after arriving in Australia for the second time, he came to realise the “level of courses in Australia were much better than those in India by reason that they were better resourced, had better technology and had a higher level of instruction and qualification”: Decision at [25]. Accordingly, he applied for a visa to study in Australia.
The Tribunal noted that since making the visa application, the applicant had enrolled in and completed various courses: Decision at [28]–[30] and was then enrolled in a Diploma of Automotive Technology: at [30]. The applicant said that once he completed that course, he intended to return to India and would seek employment as a Mechanic, with a view to starting his own business: at [31]. The Tribunal was not satisfied that the applicant’s studies in Australia represented any academic progression noting that he had already attained a Diploma in India and had only completed a Certificate III in Australia: at [32]. The Tribunal considered that the intended study would only marginally improve the applicant’s employment and career prospects upon return to India, and that there was “nothing preventing him from undertaking automotive courses back in India”: at [33]. Notwithstanding the applicant’s assertions that Australian courses are better recognised, resourced and taught, the Tribunal did not accept that the applicant had a reasonable motive for studying these courses in Australia rather than India: at [33].
The Tribunal also noted the applicant’s acknowledgment that he would earn a substantially higher income if he remained in Australia, and that his expected earning capacity in India as compared with equivalent employment in Australia did not present a significant incentive to return to India: Decision at [37]–[38].
The Tribunal considered that the applicant’s failure to return home since arriving in Australia in June 2018 was consistent with a desire to remain in Australia permanently: Decision at [40]. It also considered the extent of the applicant’s family ties to India and his assets in that country, noting each of these may present an incentive to return home. But, weighed against the existing family ties to Australia and his living arrangements with family in Australia, the Tribunal did not consider that his ties presented a significant incentive for the applicant to return home in the circumstances: at [41], [43]–[47].
The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Therefore, he did not meet the requirements of cl 500.212(a) of Sch 2 to the Regulations and the Tribunal affirmed the decision not to grant the applicant a visa: Decision at [51]–[52].
CONSIDERATION
As earlier noted, by his amended application, the applicant sets forth three grounds of review as follows:
1.The Tribunal’s findings that the second tourist visa was obtained with an intention to reside in Australia are legally unreasonable.
2.The decision is affected by a reasonable apprehension of bias, in that the Tribunal cross-examined the applicant at (sic) hearing.
3.The Tribunal failed to undertake sufficient intellectual effort to “consider” the applicant’s explanation as to why he sought to study in Australia.
Ground 1
At [27] of the Decision, the Tribunal found that the applicant’s purpose in obtaining a second tourist visa was to secure residency in Australia. In so doing the Tribunal reasoned:
27. When questioned about whether he had intended on his second visa to Australia to remain and study and that he had travelled here solely for the purposes of undertaking study, the applicant reiterated that he had only come here on the second occasion to visit family. Considering that the applicant had only been to Australia less than 6 months earlier to visit his “brother” and that he had also come to Australia without a return airline ticket, the Tribunal does not accept that the applicant had come to Australia in accordance with the terms of his visa to be a tourist. Rather, the Tribunal considers that he had come to Australia on the second occasion with the intention of residing here.
The applicant contends that the Tribunal’s finding was legally unreasonable. The applicant says the Tribunal appears to have relied on the fact that he had not booked a return flight home for the end of his stay. But the applicant contends that in the context of holding a three-month visitor visa and his evidence that he had funds to purchase a return ticket, it was a matter of common-sense that a person would not buy a return ticket to allow for variations to one’s return travel plans. The applicant says that, even if, in his mind one possibility at the time of arrival was to pursue studies in Australia, that is a “far cry” from holding an intention to reside in Australia. He says it is too much to base such finding on the one circumstance of the applicant not having a return ticket on arrival.
The applicant also submits that the extent that another circumstance contributing to the Tribunal’s finding might be that the applicant had been to Australia only six months earlier, it was “impossible to understand” how this fact could have any bearing on whether the applicant’s intention at his second arrival in Australia on a visitor’s visa, was permanent residency. The applicant says that many people make multiple visits to Australia within a six-month period for touristic reasons, especially where the touristic reason is to visit family or friends. He says that taken together, there was an insufficient basis to justify the finding made, within the boundaries of legal reasonableness.
Legal unreasonableness concerns the lawful exercise of power, and the absence of legal unreasonableness is an essential element of lawful decision-making by an administrative body: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, 240 FCR 158 at [58]. Determining whether a decision is vitiated for legal unreasonableness is supervisory and does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or substituting its own view for that of the decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [66]; Eden at [59]. Where, as here, reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. Legal unreasonableness may be identified in a review by concentrating on the outcome of the exercise of a power by the Tribunal, where one cannot identify how the decision was arrived at or where the exercise of power lacks an evident and intelligible justification. Legal unreasonableness may also be identified by examining the reasoning process by which the Tribunal arrived at the exercise of power and through which a recognised specie of jurisdictional error is shown: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, 231 FCR 437 at [44]–[47]; Eden at [64]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21 at [30].
Importantly, as the Full Court in Eden at [65] observed:
. . . the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
Here, the applicant’s complaint is about the reasoning in which the Tribunal engaged to make the impugned finding. In substance, he says the inference drawn by the Tribunal about the applicant’s intention to permanently reside in Australia was not one that was available on the basis only that the applicant had not booked a return flight to India. Nor was it available if the fact the applicant had been to Australia only six months earlier is also considered. Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error. For example, jurisdictional error may arise if the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inference or conclusion drawn or factual finding made. Making a finding on a fact or issue by drawing an inference or a conclusion which lacks a logical connection with the evidence might also establish jurisdictional error. But a decision, conclusion or finding will not involve jurisdictional error if a reasonable decision-maker could make that decision or finding or reach that conclusion on the same material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [130]–[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. The question is whether a decision-maker could reasonably come to the conclusion reached: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1 at [21]. And if the conclusion is one on which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45].
Moreover, not every lapse of logic will give rise to jurisdictional error and a court should be slow, although not unwilling, to interfere in an appropriate case: SZMDS at [130]. Characterising a decision or finding as legally unreasonable is one not easily made: Djokovic at [33]. And illogicality or irrationality as a foundation for such a characterisation will involve establishing that the decision or finding is so lacking a rational or logical foundation that the decision or finding was one that no rational or logical decision-maker could reach: Djokovic at [34].
If it be accepted, as the applicant contends, that the only fact on which the Tribunal relied to reach its conclusion – that the applicant had “come to Australia on the second occasion with the intention of residing here” and so he was not a genuine temporary entrant – was the absence of a booked return flight, I agree with the first respondent, that this fact alone provided a sufficiently rational basis to make the finding. Reasonable minds might differ on whether, in light of other possible explanations for the absence of a return flight, the inference the Tribunal drew to underpin its finding should have been drawn. But that there may have been other possible explanations does not mean that the inference was not open. As the first respondent has pointed out, and I accept, a natural inference to draw from the fact of a person booking a one-way flight to a country is that they intend to stay in that country. The inference may not be drawn in all circumstances nor by every reasonable decision-maker, but it was an inference that could be drawn by a reasonable decision-maker.
But the one-way ticket was not the only reason the Tribunal drew the inference. As it noted at [27], the Tribunal did not accept the applicant’s explanation of his reason for travelling to Australia on his second visit as one of visiting family, because he had travelled to Australia only six months earlier to visit his “brother”, and as noted at [22], his relatives without a return airline ticket. Moreover, [27] of the Decision should be read with the Tribunal’s discussion at [26] which contains the applicant’s explanation for arriving in Australia on the second visit without a booked return flight:
26. The applicant was questioned as to when he came to Australia on the second occasion whether he had a return airline ticket, to which he stated he did not. He claimed that he had difficulties coming to Australia and getting a ticket here and conceded that under the terms of his visa, he was required to return home in August 2018 but he did not return home. The applicant also stated that when he came to Australia, he had money with a view of being able to buy a ticket to come back home to Australia.
None of the explanations the applicant’s counsel offered in submissions as a possible explanation for the applicant’s arrival in Australia without a return airline ticket, was given to the Tribunal by the applicant. The Tribunal therefore did not have alternative explanations, other than the one the applicant had given, front of mind when drawing the inference that the applicant travelled to Australia on the second visit with the intention of residing in Australia.
I therefore consider the Tribunal articulates a rational basis for the inferential finding it made. It was not affected by legal unreasonableness and so ground 1 fails.
Ground 2
By ground 2, relying on the audio recording and transcript of the Tribunal proceeding, the applicant contends there is a reasonable apprehension of bias arising from the Tribunal member’s cross-examination of the applicant. The applicant contends the Tribunal inappropriately sought to extract serious adverse concessions about the applicant’s second Visitor (Subclass 600) visa, in circumstances where he maintained his position. The applicant says that the Tribunal’s repeated attempts at extracting a concession indicate the possibility of a view held by the Tribunal about what “really happened” and the Tribunal was merely pursuing its efforts to extract a concession from the applicant confirming that view. To make good this point, the applicant points to the following exchanges recorded in the transcript of the Tribunal’s hearing at T7.4-40:
INTERPRETER: When I came here, I came with money and when I thought I really liked the studies here, that's why I stayed.
MEMBER: But you didn't have a return air ticket, did you?
INTERPRETER: But I had the money because I brought some money with me.
MEMBER: It might be said you didn't have a return air ticket – it might be said, Mr Dhaliwal, you didn't have a return air ticket because your intentions were to remain in Australia the second time you came around to study. Isn't that the case?
INTERPRETER: Actually, I was not getting the return ticket. All of the flights were booked. That's why I did not have the return ticket.
MEMBER: Mr Dhaliwal, you came to Australia at the end of 2017, and you'd spoken to your brother about studying here in Australia, hadn't you?
INTERPRETER: At that time, I did not have much time with me because I just had one month of visa.
MEMBER: That's not my question, Mr Dhaliwal. You had made the decision to come out here and study before you came to Australia the second time.
INTERPRETER: When I came here, my main aim (indistinct). I wanted to see the whole Victoria, and my main aim was to see Victoria when I came for the first time. Me and my father, we both, you know, went around.
MEMBER: Do you expect this tribunal to believe that when you came out here the second time in 2018 that you had no intention to study in Australia?
INTERPRETER: When I came here, I visited my friend's college. And when I can see the studies out here, the studies were much, much better than India. When I saw that, I discussed this with my brother and after that, I thought of taking admission here.
(emphasis added)
The applicant says the manner of questioning above is a departure from impartiality. The applicant contends, correctly, that the purpose of the Tribunal’s hearing is to give the applicant an opportunity to attend, give evidence and present arguments in relation to his review. The applicant accepts that the Tribunal was entitled to test evidence as part of its function, but says the testing is undertaken in the context of the Tribunal being a trier of facts. And while he accepted that robust or confrontational questioning is allowed, the applicant says there is a line to be drawn, beyond which the Tribunal’s questioning trespasses into prohibited areas, such as when questioning becomes intimidatory, bullying, or suggests cross-examination to secure concessions from an applicant which would be unfair.
The applicant says that the transcript discloses that the Tribunal member held concerns about the absence of a return air ticket, but the applicant had answered the point by saying that he had the money for a return, and that all (return) flights were booked. The applicant says that in the context that a delegate of the Minister was satisfied that the applicant met the genuine temporary entrant criterion applicable to a Visitor (Subclass 600) visa when granting it to the applicant, it was then inappropriate for the Tribunal to attempt to extract from the applicant a concession repeatedly. The applicant contends that the impression on the mind of the lay observer would be that the Tribunal held the view embedded as the premise of the Tribunal’s cross-examination – that the applicant was not a genuine temporary entrant – and it was determined to have the applicant concede the point.
The applicable principles assessing whether a Tribunal hearing was conducted in a manner giving rise to a reasonable apprehension of bias are not here in dispute. These were discussed in Jatin v Minister for Immigration and Border Protection [2019] FCA 150 at [8]–[11] citing Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227, 256 FCR 1 at [21]–[25] and VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, 131 FCR 102 at [27] as follows:
8. … As those principles apply to a decision of the Tribunal, taking into account the relevant provisions in the Migration Act, they are with respect helpfully set out by the Full Court in Sharma at [21]-[25]:
The applicable principles relevant to the circumstances of this appeal are not in issue and can be stated as follows. Apprehended bias is shown if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring a fair and impartial mind to the making of the decision: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson, McHugh, Gummow and Hayne JJ). This test is the same for judicial and administrative decision-makers but its content in terms of what is expected of that decision-maker may often differ according to the type of decision-maker: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438, at 460 per McHugh J and at 480 per Kirby J. Especially that can be so where the function being discharged is purely administrative rather than judicial or, as here, quasi-judicial (notwithstanding that the Tribunal’s merits review function is strictly administrative). The outcome of the present appeal does not turn on any particular difference in content.
In Johnson v Johnson [2000] HCA 48 (2000) 201 CLR 488 at [53], Kirby J said that the reasonable bystander: “would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers”. His Honour continued:
The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
The test for apprehended bias is only satisfied if the lay observer might reasonably apprehend that the decision-maker might have embarked on the case with a closed mind, that is to say, a mind not open to persuasion or, expressed another way, a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. But that is not to say that a decision-maker must be free of a preliminary reaction or an inclination for or against an argument or conclusion.
The present case underscores that position because under the statutory regime in question the Tribunal will only embark on a hearing when it is unable to decide the application in favour of the applicant: s 360(2)(A) of the Act. Further, the Tribunal, in the performance of its statutory task of review under the Act is not precluded from testing the applicant’s case by posing questions which challenge the version of facts put forward by the applicant. That questioning may be robust and even confrontational. The reasonable bystander must also be taken to know that the Tribunal is entitled to express doubts about the answers given by the applicant in order to provide the applicant with the opportunity to supply further explanations. Robust questioning or the expression of doubt designed to allow the applicant to respond do not necessarily raise an apprehension of bias because they do not necessarily demonstrate that the decision-maker is determined in a view against the applicant. That said, the nature and extent of questioning and the expression of doubt may amount to a level that gives rise to a reasonable apprehension that the Tribunal might have a fixed or unalterable attitude.
The nature of the assessment by the Court of whether a hearing is affected by apprehended bias is governed by the need to strike a balance between competing requirements of the legal system. On the one hand, a too demanding a standard for decision-makers will have a chilling effect on the exercise of their function as independent decision-makers. Thus, the Court must not approach the reasons of a decision-maker with an overly critical attitude which zealously seeks to establish error. On the other hand, a too lax a standard applicable to decision-makers will threaten the confidence of the public and parties in the fairness of the process of the system.
9.. . . In an inquisitorial setting such as that before the Tribunal, it is important that the Tribunal is able to express doubts it has about an applicant’s evidence or the consistency of narratives or explanations given by an applicant, or the reliability of information or other material presented to the Tribunal. If the Tribunal does not test that material, there is no one else to do so. If the Tribunal does not make an applicant aware of its concerns, its concerns may go unaddressed and unanswered.
10.It may well be that the principal method by which an applicant can have a full opportunity to persuade the Tribunal it should be satisfied of the position he or she seeks to advance, is for an applicant to be informed of the matters which trouble the Tribunal, or which the Tribunal might currently consider to be adverse to the success of the review for the applicant. The more that a Tribunal engages with an applicant about potential difficulties or matters that may not be readily understandable, the more opportunity is given to an applicant to set the Tribunal right and to assist the Tribunal to understand the evidence that has been given. That is a core function of procedural fairness, and of the proper discharge of the Tribunal’s review function.
11.On the other hand, as the authorities disclose, there will be a line – to be drawn on findings of fact on judicial review by a court based on the evidence and circumstances of each particular case – beyond which the Tribunal inquisitorial method trespasses into prohibited areas. That may be because the Tribunal’s questioning becomes intimidatory, or bullying, or suggests cross-examination to secure particular concessions from an applicant which would be unfair. It may be because the nature of the questioning or its style, suggests the Tribunal has prejudged the outcome of the review as a whole or certain aspects of its fact finding, denying an applicant the fair hearing to which she or he is entitled. The evidence may prove that during the very opportunity the applicant has for persuasion, the Tribunal has already closed its mind. All these matters will require careful consideration of the evidence before the reviewing Court: in particular, the Tribunal’s reasons and any transcript of the review hearing, together with any evidence of persons present at that review hearing, including (but not limited to) the applicant. See for example the evidence given in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; 131 FCR 102 by the applicant’s lawyer and migration agent who was present at the Tribunal hearing.
12.In VFAB, Kenny J referred to what had been said by the High Court in Re Refugee Review Tribunal;Ex parte H [2001] HCA 28; 75 ALJR 982. Kenny J said (at [27]):
In Ex parte H, the court took account of the fact that the proceedings of the Tribunal were inquisitorial in nature and that the parties cannot be represented in the same manner as they are in a court, remarking, at [31]:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question …
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.
It may be accepted that a review hearing before the Tribunal presents the applicant with an opportunity to proffer material and evidence. It is not simply an occasion for the Tribunal to inquire, and as noted in the extracted passages above, although the Tribunal’s role is inquisitorial, the inquisitorial nature of the Tribunal’s proceeding is not licence to trespass into prohibited areas, and here relevantly, on accepted principles against apprehended bias. When allegations of apprehended bias are made relying on the transcript or record of a proceeding, then the whole of the transcript or record must be reviewed and passages about which complaint is made should not be assessed in isolation: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [75]. Allegations that the Tribunal member cross-examined the applicant can be problematic because, as here, the applicant was not represented at the hearing and the Tribunal might be said to move into counsel’s shoes as though the proceeding was adversarial rather than inquisitorial. But not every questioning by a Tribunal member in a cross-examination style will raise apprehended bias. Much will depend on the extent to which the questioning crossed into the territory of cross-examination considered in the context of the hearing as a whole: Charara v Commissioner of Taxation [2016] FCA 451 at [132].
As the first respondent correctly points out, the impugned questioning recorded at T7 followed a line of open-ended questions directed to ascertaining the applicant’s purpose in travelling to Australia on the second visit. At T4.1-8 the Tribunal engages with the applicant as follows:
MEMBER: Did you complete that course?---No.
INTERPRETER: Because I came to Australia.
MEMBER: How long did you have left to complete your course, Mr Dhaliwal?
INTERPRETER: Only two subjects more left when I came to Australia.
Next, at T4.10-47 and T5.1-11 the Tribunal member engages with the applicant about his purpose of coming to Australia as follows:
MEMBER: What was the purpose of coming to Australia, Mr Dhaliwal?
INTERPRETER: I came here to visit my brother.
MEMBER: And is your brother studying here or is he a resident here?
INTERPRETER: He came here on student visa to study. He came here to study, my brother, but now he's a permanent resident here.
MEMBER: How long has he been here, Mr Dhaliwal?
INTERPRETER: From the last 10 years.
MEMBER: You say you came here for the purposes of visiting your brother. You obtained a tourist visa back in October 2017, didn't you?
INTERPRETER: Can you please repeat the question?
MEMBER: In October 2017, you obtained a tourist visa to come to Australia, didn't you?
INTERPRETER: I came again; but when I came before, I had less time.
MEMBER: When did you come before?
INTERPRETER: In 2017, but after that point of time, I had only one month visa.
MEMBER: When did you come in 2017? What time of the year?
INTERPRETER: 18 December.
MEMBER: And then did you go home?
INTERPRETER: Pardon?
MEMBER: After coming to Australia in December 2017, did you go home?---Yes.
And you did that in January 2018, is that right?
INTERPRETER: Yes.
MEMBER: And then did you go back to studying at MLM Polytechnic College?---Yes.
Why did you not complete the course at MLM Polytechnic?
INTERPRETER: I came here - - -
At T5.17-26, the applicant describes how he came to compare the relative education standards here in Australia compared to that in India. At T5.28-30, the Tribunal member asks whether the applicant compared the quality of courses between Australia and India in December 2017 and January 2018 and the applicant responded at T5.32 that he did so when he came to Australia on the second visit in June 2018. At T5.34-41, the Tribunal member asks the applicant whether, when he visited Australia in June 2018, he was “having a study break” or “on holidays” from his studies at MLM College, which the applicant confirmed. From T5.43 to T6.37, the Tribunal member sought to ascertain when the applicant was due to return to his studies at MLM College after his break, with the applicant stating he was due to return in August 2018 but did not do so because he liked the studies here. And at T6.40-47 and T7.1-5 immediately before the impugned questioning begins, the following exchange is recorded:
MEMBER: When you came out here the second time, did you have a return air ticket?
INTERPRETER: No.
MEMBER: How long was your visa when you came out the second time?
INTERPRETER: I came with the money here. I came - - -
MEMBER: Madam Interpreter.
INTERPRETER: When I came here, I came with money and when I thought I really liked the studies here, that's why I stayed.
The Tribunal’s questioning did not conclude with the questioning which is the subject of the applicant’s complaint. At T8.19-20, the Tribunal asked the applicant when he decided that he was going to study in Australia – which might be seen as an invitation to give evidence about his intentions in circumstances where the Tribunal had earlier, perhaps forcefully, expressed a doubt about his intention. From T8.24 to T9.9, the Tribunal member asks the applicant a series of questions about his studies in Australia. Thereafter from T9.11 to T10.46, the following exchange is recorded during which the Tribunal member again adopts a cross-examination style:
MEMBER: But these courses are lower than the courses you were studying back in India, Mr Dhaliwal, which were diplomas.
INTERPRETER: The courses are more similar, but here, the technical is more. Here, there are more machines and more technology.
MEMBER: You were just studying these courses so you can stay here and live here in Australia. Isn't that the case, Mr Dhaliwal?
INTERPRETER: In India, I have got (indistinct). I have a family. I've just been here to do studies.
MEMBER: You've also got family out here, haven't you, Mr Dhaliwal?---Yes. Many – many (indistinct), many family. My (indistinct).
INTERPRETER: I have a lot of friend circle over there. My family is there. And I want to do business over there. So I want to go there.
MEMBER: Mr Dhaliwal, it would assist me if you would answer the question. Do you have family here?
INTERPRETER: My cousin-brother and my cousin-sister is here. But I don't have any real brother or sister here.
MEMBER: I thought you told me that your brother is a permanent resident here, Mr Dhaliwal? And you were visiting him in 2017.
INTERPRETER: Yes, that is my cousin-brother.
MEMBER: It would be useful if you actually gave me the correct description. You said it was your brother.
INTERPRETER: In our culture, we normally call our brother and sister to everyone. And I live in a joined family, so that's why I said 'brother'.
MEMBER: Mr Dhaliwal, the courses that you are currently undertaking are very similar to the ones you were studying in India, aren't they?
INTERPRETER: Here, the technology is (indistinct). It's not like, you know – it's more technical here. In India, you don't get these activities over there.
MEMBER: Mr Dhaliwal, I (sic) give you the same outcome that you can go and work as a mechanic in India. Isn't that the case?---Yes.
INTERPRETER: But I will be learning the latest technology from here.
MEMBER: Mr Dhaliwal, what are your intentions – will you let me ask the question, Mr Dhaliwal. What are your intentions after you complete the Diploma of Automotive Technology?
INTERPRETER: Member, I could hear you in a – distorted words. Maybe are you on the speaker phone or?
MEMBER: I'll try again. Is that better?
INTERPRETER: Thank you, thank you. I really appreciate it.
MEMBER: Mr Dhaliwal, what are your intentions are (sic) you complete the Diploma of Automotive Technology?
INTERPRETER: After finishing this course, I will go to India.
MEMBER: Which course is that? Is that the Certificate IV or are you proposing to study a Diploma of Automotive Technology?---Yes.
INTERPRETER: Yes.
MEMBER: Yes, which one? Do you intend to go back to India after completing the Certificate IV or are you going to study a Diploma of Automotive Technology?
INTERPRETER: After (indistinct) to do, I would like to do Diploma of Automotive Technology, and then I can do better when I go back to India.
MEMBER: Have you enrolled in a Diploma of Automotive Technology?---Yes.
Have you got a COE?---Yes.
Have you submitted that to the tribunal?---Yes. Yes, yes, yes.
(emphasis added)
At T13.4-30, the Tribunal examines the applicant about his understanding of his potential earnings as a mechanic in Australia compared to India, again opting for a cross-examination style:
MEMBER: Per year?---Yes.
And you're aware that if you were working as a mechanic in Australia, you would earn substantially more than that. Is that right?
INTERPRETER: But my main aim is to open my own workshop.
MEMBER: I understand that, Mr Dhaliwal, but could you please tell me if you were working as a mechanic in Australia, would you earn substantially more than $10 – $15,000 a year Australian?
INTERPRETER: But I want to go back to my own country and want to spend time with my family. And I have got my friend circles, and I want to go there.
MEMBER: Mr Dhaliwal, it would assist your application if you would actually answer the question?---Hello? Sorry?
INTERPRETER: Yes, Member?
MR DHALIWAL: Hello?
MEMBER: I asked a question, Mr Dhaliwal. It would assist you if you would answer the question. I have asked you twice already and I'll ask you for the third time. Are you aware that if you were working as a mechanic in Australia, you would be earning substantially more than $10 – $15,000 a year?
(emphasis added)
Finally, at T13.42 to T14.5, the Tribunal member examines the applicant about comparative economic conditions, resorting to condescension:
MEMBER: How would you rate the economic conditions in India compared with those in Australia?
INTERPRETER: It's easy for me to make money in India because I have got too many (indistinct). Because I have got my family's support there. My same support is there.
MEMBER: Mr Dhaliwal, it's not a difficult question. Comparing Australia with India. Which country has better economic conditions?
INTERPRETER: Australia has a lot better situation.
(emphasis added)
I have also had the advantage of listening to the audio recording of the hearing. The audio conveys on several occasions through the Tribunal member’s tone or questioning and responses to answers given, a suspicion and even disbelief about the applicant’s truthfulness. There is also an air of frustration, irritation and impatience evident in the member’s tone reflected in a raised or elevated voice, and resort to occasional sarcasm, responsive to that which the member evidently perceives as the applicant interrupting a question, not answering or perhaps not understanding a question or in the use of that which the member considers to be inaccurate familial descriptors.
An examination of the Tribunal’s hearing transcript read in context, as a whole, and with the benefit of the audio reveals the Tribunal’s approach as one involving a cross-examination style of questioning and a tone which continually challenges the applicant’s truthfulness and the plausibility of his account. The transcript and audio shows that the Tribunal member faced challenges in comprehending some of the applicant’s evidence. But in my assessment, the extent to which the Tribunal member’s questioning crossed the line into cross-examination was not insignificant. A cross-examination style adopted with respect to only a small part of the applicant’s evidence, which circumstantially invited some scepticism, or suspicion might be of no moment. But here, the style was not isolated and the Tribunal member’s expression of scepticism in the form of a question opening with “[d]o you expect this tribunal to believe . . .” was inappropriate.
Tribunal members will undertake questioning during a hearing adopting different styles – some will be robust and frank, others will be more circumspect. This a reasonable bystander will understand. But here, the Tribunal was doing more than the legislative scheme contemplates it would do. Under that scheme the Tribunal will only invite the applicant to a hearing if it is unable to decide the application in favour of the applicant. In conducting such a hearing, the Tribunal is permitted to test the applicant’s case by posing questions of him which challenge his version of facts. As is accepted, that questioning may be robust and even confrontational. And so, a reasonable bystander will be taken to know that the Tribunal is entitled to express doubts about the answers the applicant has given. Expressing doubts also has the benefit of giving the applicant the opportunity to elaborate, clarify and provide a further explanation. As is clear from Sharma at [24], engaging in robust questioning or expressing doubt designed to allow the applicant to respond does not necessarily raise an apprehension of bias because it does not necessarily show the decision-maker is determined in a view against the applicant.
But here, the nature and extent of questioning and the expression of doubt conveyed in sometimes hostile terms and the tone of delivery of questions in response to some of the applicant’s answers and the member’s engagement with the applicant was cumulatively such, that in my opinion, gave rise to a reasonable apprehension that the Tribunal might have a fixed or unalterable attitude about the applicant’s purpose of visiting Australia. The question as to a reasonable apprehension of bias is “one of possibility (real and not remote), not probability”: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [7]. And here overall, a fair-minded lay observer might reasonably apprehend, based on the Tribunal’s questioning style, its frequency and the tone replete with disbelief, frustration, irritation and impatience evident in the audio, that the Tribunal member might not bring an impartial mind to the matter, that he had reached a concluded view, was not open to persuasion, or might decide the application other than on merit.
Ground 2 is made out and the jurisdictional error it establishes is plainly material.
Ground 3
By ground 3, the applicant contends the Tribunal did not give genuine and active intellectual consideration to his evidence about the benefits and advantages of undertaking his courses of study in Australia compared to India, which was the applicant’s explanation for “shifting sideways” to study in Australia. At [31] of the Decision, the Tribunal reasons that:
31. The applicant claims that once he completes his proposed courses of studies in Australia, being a Diploma of Automotive Technology and the Certificate IV in Automotive Mechanical Diagnosis, he intends to return to India for the purposes of obtaining employment as a mechanic in a large company, and after gaining experience he gave evidence that he wishes to commence his own business and operate a mechanical repair business. However the applicant has already obtained a Diploma of Mechanical Diesel in India and was about to complete his second Diploma in Automobile Engines. Instead of completing those studies and seeking to come to Australia to further or progress his education, he has somewhat regressed by studying two certificates and intends to study a Diploma in the future. The applicant’s course pathway does not reveal any academic progression and the Tribunal considers that the applicant is studying the certificates, in the automotive field which he studied back in India, merely to retain residency here in Australia.
The applicant contends the finding at [31] of the Decision that the applicant’s intended course of study indicated academic regression, is premised on a view that the courses in India were of at least as high a level as those the applicant was taking and proposed to undertake in Australia. The applicant says the Tribunal merely recounts his evidence but failed to undertake the required level of effort to consider the evidence as it bore on the issue discussed at [33]–[35].
The applicant says the question whether he should undertake his courses in Australia which were not obviously progressive from his courses in India was answered by the applicant – because tuition in Australia was much better than tuition in India. The applicant says he was at least capable of explaining that which the Tribunal saw as an anomaly between his conduct and his claim to be a genuine temporary entrant as a student. He submits the Tribunal did not make a finding about whether the evidence he gave explained or answered its concern that the applicant was “shifting sideways” by his study in Australia, including the applicant’s reason that the tuition in Australia is much better than that in India. Consequently, so the applicant contends, the Tribunal failed to give active intellectual consideration to the applicant’s explanation which directly related to the Tribunal’s concern.
I do not accept the applicant’s contentions and do not accept that the Tribunal failed to make express findings responsive to the applicant’s explanation. The Tribunal heard the applicant’s evidence about the quality of teaching in Australia and India and gave it the level of consideration and weight that it required in context. I agree with the first respondent’s assessment that the applicant’s evidence about the superior quality of automotive degrees in Australia, including in resources and teaching, was vague, general and assertive. As it is recorded in the transcript, the applicant’s evidence during the hearing was as set out below.
First, at T5.17-26:
INTERPRETER: When I came here, I got a chance to go to my friend's college. When I saw the studies along the way they were teaching here, it was much better than what I was studying. Then, I (indistinct). So here, the study was a bit better as compared to what I was doing. They were using more technological stuff like laptop, internet. The Australian study is very good all over the world. Here, if l study, I can make my future anywhere in the world. On the other hand, India is just progressing. But we don't get too many facilities over there. Most of the time, there is a Hindi over there. Practically, we don't get much to learn because of – we don't have that machines over there.
Second, at T7.37–39:
INTERPRETER: When I came here, I visited my friend’s college. And when I can see the studies out here, the studies were much, much better than India.
Third, at T9.14–15:
INTERPRETER: The courses are more similar, but here, the technical is more. Here, there are more machines and more technology.
On listening to the audio, the word “technical” in the transcription is incorrect. The interpreter said “practical”.
Fourth, at T10.4–11:
INTERPRETER: Here, the technology is (indistinct). It’s not like, you know – it’s more technical here. In India, you don’t get these activities over there.
MEMBER: Mr Dhaliwal, I (sic) give you the same outcome that you can go and work as a mechanic in India. Isn't that the case?---Yes.
INTERPRETER: But I will be learning the latest technology from here.
The Tribunal acknowledged at [32] of the Decision that it is important to allow for reasonable changes to career and study pathways. It then considered the applicant’s explanatory evidence and found at [33] that:
33. In light of the applicant’s previous qualifications both in India and in Australia together with his work experience, the Tribunal finds that the applicant’s present course of studies would only marginally improve his employment prospects and remuneration in India. The applicant by his evidence confirmed that there was nothing preventing him from undertaking automotive courses back in India, and his evidence confirmed that he had completed one Diploma and had almost completed a second Diploma before coming to Australia. The applicant gave evidence that if he was to return home on the basis of his visa being refused, it is likely he would be able to go back and complete the Diploma that he has only partly completed back home. Whilst the applicant gave evidence that studying these courses in Australia are better recognised, better resourced and better taught, having regard to the fact that the applicant is able to study these courses back in India and he had almost completed the second Diploma in India, the Tribunal does not consider that the applicant had a reasonable motive to study these courses in Australia rather than in his home country.
(emphasis added)
It seems clear from the passage above read as a whole that the Tribunal considered the applicant’s evidence about the superior teaching quality and resources of courses in Australia, but reasoned that these considerations were outweighed by the fact that the applicant was already completing a substantially similar course in India, that the courses in India awarded a higher academic qualification to the course he had and was undertaking, and that the applicant had almost completed his second diploma in India.
The Tribunal engaged sufficiently with the applicant’s explanatory evidence having regard to the quality of that evidence. Ground 3 is not made out.
DISPOSITION
As ground 2 has been made out and the error identified is material, the Tribunal’s decision will be quashed, and the applicant’s application will be remitted to the second respondent for it to determine according to law. The first respondent is to pay the applicant’s costs fixed in the sum of $8,371.30.
The name of the first respondent is to be amended to reflect the most recent name change effective from 13 May 2025.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 14 July 2025
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