Hossain v Minister for Immigration and Citizenship
[2025] FedCFamC2G 734
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hossain v Minister for Immigration and Citizenship [2025] FedCFamC2G 734
File number(s): SYG 1660 of 2022 Judgment of: JUDGE CLEARY Date of judgment: 23 May 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing student visa – whether Tribunal failed to give “genuine and realistic consideration” to applicant’s circumstances – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Cases cited: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] FCA 6
Minister for Immigration, Citizenship and Multicultural Affairs v Lieu (2023) 297 FCR 162
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
SZSFS v Minister for Immigration and Border Protection [2015] FCA 534
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 15 May 2025 Place: Parramatta Counsel for the Applicant: Mr P.W. Bodisco Solicitor for the Applicant: Abu Legal Solicitor for the Respondents: Ms S. Frankel of Minter Ellison Lawyers ORDERS
SYG 1660 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD IMTIAZ HOSSAIN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the amount of $5,900.
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 CLEARY
INTRODUCTION
In this matter the applicant seeks constitutional writ relief under s 476 of the Migration Act 1958 (Cth) (Act) against the respondents, in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 13 October 2022, which affirmed an earlier decision of a delegate of the First Respondent refusing to grant the applicant a Student (Temporary) (Class TU) Student (Subclass 500) visa (student visa).
FACTUAL BACKGROUND
On 9 January 2014, the applicant, citizen of Bangladesh, first arrived in Australia on a student visa.
On 30 January 2020, the applicant applied for a Student (Temporary) (Class TU) Student (Subclass 500) visa.
On 28 September 2021, a delegate of the first respondent refused to grant the applicant a student visa on the basis that the delegate was not satisfied the applicant satisfied cl 500.212 to Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
On 14 October 2021, the applicant lodged an application to the Tribunal for review of the delegate’s decision.
On 18 May 2022, the Tribunal sent the applicant a written request for information under s 359 of the Act (s 359 request).
On 30 May 2022, the applicant sought a 2-month extension to provide the information sought by the Tribunal in its s 359 request.
The Tribunal granted that request, and a subsequent request for a further extension.
On 10 August 2022, the applicant sent an email to the Tribunal which advised that he had submitted the ‘Request for Student Visa Information’ form online as requested, and attached a copy of an Initial Psychological Assessment Report dated 8 August 2022 authored by two registered psychologists, Mr Brallian Hamidi and Mr Hamid Dadgostar (Psychological Report) to the Tribunal.
On 26 September 2022, the Tribunal invited the applicant to attend a hearing before it on
11 October 2022.On 11 October 2022, the applicant and his representative appeared before the Tribunal to give evidence and present arguments.
On 13 October 2022, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.
TRIBUNAL’S DECISION
The Tribunal had consideration to the applicant’s evidence in the context of Direction 69, including evidence that he enrolled in courses he did not complete and evidence of courses he did complete.
The applicant stated that his aspiration is to open a furniture business in Kumar and that he needs to complete his course in IT to support his business. The Tribunal considered the applicant’s statement in his visa application which stated his goal is to become an entrepreneur.
The applicant told the Tribunal that he struggled with his accounting degree at La Trobe University and moved on to a Bachelor of Business (Marketing) degree at the Holmes Institute but only completed 17 of the 24 units. He then enrolled into a Bachelor of Business (major in Marketing) but discontinued to return to Bangladesh due to his father’s health issues.
The Tribunal asked the applicant, if it was his motivation to remain in Australia permanently and he responded “No”. The applicant stated that he has no family in Australia and that his family are in Bangladesh. He stated he had returned to Bangladesh eight times since his arrival to Australia.
The Tribunal had regard to the applicant’s employment history, which the applicant had provided in response to a s 359 request for information from the Tribunal.
The applicant had enrolled in three Bachelor of Business courses that he did not complete and four courses that he did complete, including:
(a)Certificate IV in Training and Assessment at Ambition Training Institute from July 2019 to March 2020;
(b)Graduate Diploma of Management (Learning) at Institution of Safety Management Professionals of Australia from May 2020 to June 2021;
(c)Diploma of Quality Auditing at Institution of Safety Management Professionals of Australia from June 2021 to October 2021; and
(d)Diploma of Business at Victorian College of Vocational Excellence from November 2021 to May 2022.
The Tribunal found that the applicant’s change in courses so often indicated a purpose of maintaining residency within Australia, as opposed to the expected behaviour of a genuine temporary entrant
The applicant provided a confirmation of enrolment (COE) to complete a Diploma of Information Management, which commenced on 3 October 2022. The Tribunal noted that this COE was applied for after being notified by the Tribunal, pursuant to s 359(2) of the Act, of the request for information. The Tribunal found that the applicant had chosen this course in order to maintain residency and lifestyle in Australia. It also found that there was no evidence that the applicant would not return to Bangladesh, however, that the applicant had developed a desire to remain in Australia.
The Tribunal considered the lack of academic participation since the discontinuation of his studies when the applicant's stated his purpose was to remain in Australia for academic study.
The Tribunal found that there was a significant gap in the applicant's studies from March 2014 to June 2019.
The Tribunal carefully considered the medical evidence provided by the applicant and accepted the applicant's strong attachment to his parents and his anxiety regarding their welfare.
The applicant stated he did not complete his bachelor’s degree due to depression. The Tribunal noted at [28] that the applicant provided a psychological report to mitigate the reason for his academic performance from 2018 to the period for consideration of the Tribunal’s decision.
The Tribunal considered the applicant’s medical evidence at [34], in particular the Psychological Report dated 10 August 2022 provided to the Tribunal by the applicant. The Tribunal stated at [34]:
The Tribunal finds that the significant gap in the applicant's studies occurred from March 2014 to June 2019, following which he commenced studying a Certificate IV in Training and Assessment course. The Tribunal has carefully considered the medical evidence provided in support of the applicant's behaviour since 2018, when his father experience heart related issues, and accepts that the applicant has a strong attachment and anxiety concerning the welfare of his parents in Bangladesh, however, the disjointed stream of study options appears to be more about access to the low cost convenience of courses than a genuine desire to pursue a career orientated study stream. The Tribunal has regard to the Psychological Assessment and Psychological Report submitted on 10 August 2022 and accepts the applicant's diagnoses contained therein. The Tribunal also accepts that the applicant's personal issues and medical condition affected his ability to study. However, the applicant did not seek to defer his studies and has completed courses in the most recent period when his parents were post the onset of their major medical episodes.
The Tribunal found there was no evidence before the Tribunal that would suggest that the applicant has any reason not to return to Bangladesh and that the applicant has developed a desire to remain in Australia for the purposes of residency and the lifestyle, particularly given the financial benefits derived from his part-time work opportunities and the significant earnings he has accessed whilst resident relative to potential earnings in Bangladesh.
The Tribunal found, based on the evidence before it of the applicant's circumstances overall, and in the absence of any other relevant information, including his immigration and study history, his circumstances abroad and in Australia and other matters, including in having regard to Direction 69, the Tribunal was not satisfied the applicant is a genuine applicant for temporary entry and stay as a student in Australia. The Tribunal was not satisfied that after a period of more than 8 years in Australia, and an expectation of more than 2 years study on a student visa, if granted, that the applicant intended to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively.
The Tribunal affirmed the decision not to grant the applicant a student visa.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 15 November 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 13 October 2022. The application contains one particularised ground of review. The ground is as follows:
1.SOLE GROUND
The Administrative Appels Tribunal (AAT) has made a decision so unreasonable that no reasonable person would have made it.
Particulars
The AAT made a decision so unreasonable that no reasonable person would have made it by failing to give genuine and realistic consideration of the Applicant's claims of his circumstances in paragraph 34 of the decision.
i)The applicant's psychological wellbeing was not considered as raised by the applicant.
On 9 April 2025, the proceedings were docketed to me and set down for hearing on 14 May 2025.
On 7 May 2025, I made an Order for the applicant and first respondent to file an amended application with proper particulars of the grounds of the application, written submissions and any additional evidence. The applicant filed a written submission in accordance with this Order. The first respondent lodged their written submissions as required by the Order.
Hearing on 15 May 2025
At the hearing on 15 May 2025 before this Court the Mr Paul Bodisco of counsel appeared on behalf of the applicant. Ms S Frankel of Minter Ellison appeared on behalf of the first respondent.
APPLICANT’S SUBMISSIONS
The applicant pleads in its application that the Tribunal’s decision was legally unreasonable because it failed to give genuine and realistic consideration of the Applicant's claims of his circumstances in [34] of its decision.
In paragraph 38 of his written submissions filed on 29 April 2025, after helpfully and extensively setting out the law on legal unreasonableness, the applicant submitted that the Tribunal “strayed into unreasonableness” by:
a.Accepting the diagnosis and “personal issues and medical condition affected his ability to study”; [CB 194- 195]
b.Erroneously holding that “the applicant did not seek to defer his studies” – a factual error in the decision; and
c.Failing to have regard to the fact that the disabling aspect of his mental health issues was ultimately “bound up” in personal circumstances that were unlikely to be repeated if allowed to study over the coming two years - noting that his concerns regarding his mother turned on her exposure to the COVID-19 pandemic and his own isolation and ruminations at the time.
The applicant submitted at paragraph 39 on the last page of his written submissions that these matters, “reduce the utility of his prior academic performance as a predictor of future performance in his studies”. He submitted this was the only conclusion why the Psychological Report was led by the applicant, and it provides a cogent explanation as to why he was severely impaired at the time he last studied in Australia, and why he will not be impaired in the future. In its written submissions, the applicant submitted the Tribunal misdirected itself to the significance of the Psychological Report, and, by so doing, “made a decision that was so unreasonable no reasonable person would make it” (see paragraph 40 of the applicant’s written submissions).
At the hearing in this Court on 15 May 2025, after taking the Court through some documents in the Court Book, as well as the Psychological Report, Mr Bodisco on behalf of the applicant focused his oral submissions on why the findings in [34] led the Tribunal to make a legally unreasonable decision.
While the applicant took no issue with the first four sentences of [34], he submitted that what the Tribunal said in final sentence of [34] meant that the Tribunal’s decision was legally unreasonable.
The applicant made the following submissions about the last sentence of [34]:
(a)It contained two factual errors, namely, it said that the applicant “did not seek to defer his studies”, and that the applicant “has completed courses in the most recent period when his parents were post the onset of their major medical episodes”.
(b)It failed to appreciate that the Psychological Report was led by the applicant to prove that mental health issues impacted the applicant in the past, but they would not impact his future academic performance.
When he was asked what evidence he had to support his assertion that the applicant had deferred his studies, Mr Bodisco pointed to a document in the Court Book which showed that in 2015 the applicant had sought and was granted two, six-month deferments of a course he was then enrolled.
The applicant also orally submitted that as well as relying upon legally unreasonableness test that the decision of the Tribunal the applicant did not intend to genuinely stay temporary in Australia as a student was “so unreasonable that no reasonable Tribunal could ever have come to it”, the applicant also submitted it relied upon the legally unreasonableness test that the decision of the Tribunal the applicant did not intend to genuinely stay temporary in Australia as a student lacked an “evident and intelligible justification”.
During his oral submissions Mr Bodisco handed up two Federal Court of Australia decisions, both by Login J. The first SZSFS v Minister for Immigration and Border Protection [2015] FCA 534 (SZSFS), the second was SZRHL v Minister for Immigration and Border Protection [2013] FCA 1093 (SZRHL). Mr Bodisco told the Court that he relied upon SZSFS being a case, he submitted, which was similar to the present case. The Court in SZFSF found the Tribunal’s decision was a legally unreasonable one. In relation to SZRHL, at the end of the hearing Mr Bodisco told me he did not rely upon it and I did not need to read it.
FIRST RESPONDENT’S SUBMISSIONS
The first respondent, in his written submissions, firstly, makes a general submission on the applicant’s sole ground of review. The Minister submitted that in so far as the applicant contends that the Tribunal did not give genuine and realistic consideration to the applicant’s psychological wellbeing, the Minister says that the Tribunal did, in fact, consider the applicant's psychological wellbeing, and, came to a conclusion, open to it, and that its reasoning disclosed a proper evaluation of the applicant's evidence that was logical, rational and had a probative basis in the circumstances.
The first respondent submitted that the Tribunal’s findings were, in this regard, not ones which, “no rational or logical decision maker could arrive on the same evidence”, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [130], nor were they findings which lacked an “evident and intelligible justification”, citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Minister for Immigration and Citizenship v Li).
The first respondent then addressed the applicant’s three matters which it submitted showed the Tribunal “strayed into unreasonableness” (set out above).
The first respondent submitted that the Tribunal accepted that the 'applicant's personal issues and medical condition affected his ability to study'. However, it found that despite the applicant's claims in relation to his studies being affected by his personal (or family) circumstances and mental health, the applicant did not seek to defer his studies. This finding, the first respondent submitted, was open to the Tribunal, and was not illogical or irrational because in the preceding paragraphs the Tribunal had regard to the applicant's study progression, the level of courses enrolled, completed and withdrawn from, periods of not studying, his articulated career objectives and his career path.
The first respondent also submitted, the applicant’s argument that the Tribunal’s finding in [34] 'reduce[s] the utility of his prior academic performance as a predictor of future performance in his studies', should be rejected. It was submitted that the Tribunal’s reasons (at [28]) disclose it understood the actual purpose of the Psychological Report adduced by the applicant. It was to mitigate the applicant’s academic performance for the period while he suffered poor mental health, not to show past issues would not have an effect on future academic performance.
In relation to the contention that the Tribunal did not consider that the circumstances were unlikely to be repeated if allowed to study over the coming two years, the first respondent submitted that the Court cannot take into account evidence not before the Tribunal. No evidence of such circumstances was ever put to the Tribunal by the applicant, the first respondent submits, and therefore such an argument cannot be relevant to whether the Tribunal decision was legally unreasonable. The first respondent relies upon Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 (Parker) at [60] to make good this argument.
The first respondent further submitted that the applicant’s ground of review is an impermissible attempt to seek merits review, because he is challenging factual findings about medical or psychological evidence led by the applicant. The first respondent cites Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] FCA 6 at [31] per Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in support of this submission.
In reply to the applicant’s oral submission, Ms Frankel made the following submissions on the applicant’s ground of review at the hearing on 15 May 2025.
Firstly, the first respondent submitted that the Tribunal had regard to all the evidence before it (not just the Psychological Report) when it made its decision: see [39] of its decision.
Second, in relation to the allegation the Tribunal had committed two factual errors, the first respondent submitted that allegation was wrong. In relation to the alleged factual errors, it was submitted that, in the context of the entire paragraph, it was open to the Tribunal to find in the last sentence of [34] that the applicant “did not seek to defer his studies”, and that he had “completed courses in the most recent period”. It was submitted that the reference to the applicant not deferring his studies was referrable to the period October 2018 until August 2022 (the relevant period covered by the Psychological Report), and not to 2015. It was also submitted that the reference to, “completed courses in the most recent period”, was also referrable to the same period October 2018 to August 2022. It was submitted that read in its context, it was open on the evidence to make the factual findings in the last sentence of [34].
Thirdly, the first respondent submitted that the applicant’s allegation the Tribunal failed to appreciate that the Psychological Report was led by the applicant to prove that mental health issues impacted the applicant in the past, but that those issues would not impact his future academic performance, was not relevant to what the Tribunal had to decide. It was submitted that what type of student the applicant might be in the future was not relevant to the Tribunal’s decision it was required to make, namely, whether the applicant intends to genuinely stay temporary in Australia as a student.
It was also submitted the applicant’s submission was not consistent with what the authors of the Psychological Report said was the reason for the report being prepared. Mr Frankel highlighted that on page 1 of the Psychological Report, the authors stated that the applicant “wishes to use the result of this assessment to mitigate the reason for his academic problems at the AAT”. It was submitted that the purpose of the Psychological Report being given to the Tribunal by the applicant was to mitigate the applicant’s academic performance for the period while he suffered poor mental health as a result of his parents being ill or unwell, namely, the period 2018 to 2022, and not to show that his past mental health issues would not impact his future academic performance. This, the first respondent submitted, was well understood by the Tribunal: see [28] of its decision.
CONSIDERATION
The applicant’s sole ground of judicial review alleges the Tribunal’s decision to affirm the delegate’s decision to refuse a student visa was vitiated by jurisdictional error because it was a legally unreasonable decision.
The leading High Court authority on legal unreasonableness as a ground of judicial review is Minister for Immigration and Citizenship v Li. At [27]-[28] in Minister for Immigration and Citizenship v Li, French CJ (as part of the majority) held:
[27]In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:
“If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.”
That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.
[28]Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
Minister for Immigration and Citizenship v Li followed on from an earlier decision of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [130]– [132] and [135] per Crennan and Bell JJ and at [78] per Heydon J, where the Court held that when deciding whether a Tribunal’s decision was illogical or irrational or unreasonable, a decision will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material. Their Honours concluded on this issue that:
If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In other words, if the conclusion is one upon which reasonable minds can differ, it will not be a legally unreasonable decision.
In Minister for Immigration and Citizenship v Li at [76] the High Court held that “legal unreasonableness”, as a ground of judicial review, can also be established where a decision has been made that lacks an “evident and intelligible justification”.
In the present case, the applicant relied upon both tests for legal unreasonableness. The applicant submitted the Tribunal decision was “so unreasonable that no reasonable Tribunal could ever have come to it”, and that it lacked an “evident and intelligible justification”.
It is well established that a finding of legal unreasonableness is not lightly made. As Mortimer CJ stated recently in Minister for Immigration, Citizenship and Multicultural Affairs v Lieu (2023) 297 FCR 162 (Lieu) at [81]:
To reach a conclusion that an exercise of power is legally unreasonable involves a level of confidence on judicial review that either the outcome of the exercise of power, or the reasoning that led to that outcome (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]) so departed from the underlying premises of the exercise of public power that it has resulted in the power entirely miscarrying, in effect being an abuse of power. See generally Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [80] (Nettle and Gordon JJ). In this context, the term “abuse” of power refers to an exercise of power other than for the purposes and within the limits conferred.
As to assessing whether there is legal unreasonableness in a Tribunal decision, in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (Stretton) at [11] Allsop CJ (as part of the majority) defined that task as follows:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
In Stretton Allsop CJ held that the correct question or perspective is,
…not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter.
In BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [43] Perry J recently held that, in determining whether an administrative decision is vitiated by legal unreasonableness, it is essential to bear in mind that the Court’s jurisdiction is strictly supervisory, and does not involve the Court reviewing the merits or substituting its own view as to how the discretion should be exercised. Perry J also observed at [48] that the question of legal unreasonableness is highly fact focused. As such, only limited assistance can be gleaned from other cases, especially where the facts, including the precise line of reasoning adopted by the decision-maker, are different.
In summary, the applicant submitted the Tribunal decision was legally unreasonable because it failed to give “genuine and realistic consideration” to the claims of his circumstances in [34], namely, his psychological wellbeing. There were two arguments made in support of this contention. Firstly, the applicant submitted that the last sentence in [34] contains two factual errors. Secondly, the applicant submitted the Tribunal failed to appreciate that the purpose of the Psychological Report was to prove that mental health issues impacted the applicant in his past academic performance, but they would not impact his future academic performance.
Dealing with the first argument. The relevant part of [34] is as follows (last sentence is emphasised):
The Tribunal has regard to the Psychological Assessment and Psychological Report submitted on 10 August 2022 and accepts the applicant's diagnoses contained therein. The Tribunal also accepts that the applicant's personal issues and medical condition affected his ability to study. However, the applicant did not seek to defer his studies and has completed courses in the most recent period when his parents were post the onset of their major medical episodes.
The applicant submitted the Tribunal’s statement in the last sentence of [34] that “the applicant did not seek to defer his studies” was a factual error. In oral submissions the applicant pointed to a document in the Court Book (at page 155) which showed the applicant had sought a deferment of his studies for one semester in 2015, which the applicant submitted, showed the Tribunal made a factual error.
I reject that submission. Fairly read, the statement in the last sentence of [34] that the applicant “did not seek to defer his studies” was made in the context of the period covered by the Psychological Report namely, October 2018 to August 2022, not in 2015, which was prior to his parents’ medical episodes occurring. I accept the first respondent’s submission that the statement in the last sentence of [34] that the applicant “did not seek to defer his studies” was open on the evidence before the Tribunal.
The applicant next submitted the Tribunal’s statement in the last sentence of [34] that “[the applicant] has completed courses in the most recent period when his parents were post the onset of their major medical episodes” was also a factual error. I also reject that submission. Apart from anything else, the Psychological Report itself states the applicant was able to successfully complete his Diploma from abroad in May 2022: Court Book at page 108. For completeness, I accept the first respondent’s submission that when the Tribunal said, “completed courses in the most recent period”, fairly read, it was referring to the same period October 2018 to August 2022 covered by the Psychological Report.
I therefore accept it was open to the Tribunal on the evidence to make both the factual findings in the last sentence of [34]. Therefore, the first argument is rejected.
Next, I deal with the second of the applicant’s arguments. I accept the first respondent’s submissions on the second argument. It is clear from contents of the Psychological Report itself that the purpose of the report being tendered in the Tribunal was to mitigate the applicant’s academic performance for the period when he suffered poor mental health as a result of his parents’ medical episodes, namely, the period October 2018 to August 2022.
The Tribunal itself acknowledges this was purpose of the report at [28]. Its purpose was not to show that the applicant’s past mental health issues would not impact his future academic performance. Further, as the first respondent correctly submitted, in relation to the contention that the Tribunal failed to consider that the circumstances were unlikely to be repeated if allowed to study over the coming two years, such evidence was not before the Tribunal, and the Court cannot take into account evidence not before the Tribunal on judicial review under
s 467 of the Act: Parker at [60]. Finally, as the First Respondent also correctly submitted, the type of student the applicant might be in the future was not relevant to the Tribunal’s decision in any event. Rather, it was required to decide, under cl 500.212(a) of the Migration Regulations 1994 (Cth), whether the applicant intended “genuinely to stay in Australia temporarily” as a student.
The applicant’s second argument is rejected.
As to the argument more generally that the Tribunal failed to give “genuine and realistic consideration” to the applicant’s circumstances in [34], namely, his psychological wellbeing, I also reject that argument.
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [26]-[27] per Kiefel CJ, Keane, Gordon and Steward JJ, with Gageler J agreeing, the High Court said (footnotes omitted):
26.Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
27.None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
I accept the first respondent’s submission that the Tribunal did, in fact, consider the applicant's psychological wellbeing, and that its reasoning disclosed a proper evaluation of the applicant's evidence that was logical, rational and had a probative basis in the circumstances. I consider, for the reasons already given above as to the first and second of the applicant’s arguments, the Tribunal did not ignore, overlook or misunderstand the claims of his circumstances in [34], regarding applicant's psychological wellbeing as raised in the Psychological Report. It gave that report proper, genuine and realistic consideration, in accordance with what is discussed by cases such as Plaintiff M1/2021.
For completeness, I deal with the Federal Court authority the applicant cited in support of his arguments during the hearing in this Court. The applicant submitted the decision of SZSFS was relevant to the determination of his case. However, I consider SZSFS to be distinguishable from the present case.
In SZSFS the Tribunal was prepared to accept a diagnosis made by a psychologist in a report, who found the applicant suffered from a mental health condition, a symptom of which was “severe lack of concentration and memory”, but was not prepared to accept the report as independent corroborative evidence that the applicant had a severe lack of concentration and memory. Justice Login found the Tribunal’s decision in that case was irrational, illogical and legally unreasonable: SZFSF at [40]-[41].
The Tribunal’s finding here was very different. The Tribunal in the present case accepted the diagnosis contained in the Psychological Report and found (favourably to the applicant) that, based on this report, his “personal issues and medical condition affected his ability to study”. It did not discount the opinion on the issue of the applicant’s credibility, as occurred in SZSFS. It found the Psychological Report supported the conclusion for which it was led in the Tribunal by the applicant.
In conclusion, applying Minister for Immigration and Citizenship v Li and SZMDS outlined above, the applicant has failed to establish that the Tribunal’s decision to refuse to grant the applicant a student visa was a decision, “so unreasonable that no reasonable authority could ever have come to it”. Further, I do not consider the Tribunal’s decision was unreasonable, insufficiently lacking a rational a foundation, or an evident or intelligible justification. Nor was it a decision that was plainly unjust, arbitrary, an abuse of power, capricious or lacking common sense in the context of its statutory setting: Lieu and Stretton.
For the reasons outlined above, the applicant has not established that the Tribunal’s decision is vitiated by jurisdictional error.
The application is dismissed.
COSTS
The first respondent has sought an order that the applicant pay the first respondent’s costs in the amount of $5,900. The amount sought is fair and reasonable given the nature of these types of matters. I will make an order for the first respondent’s costs in this amount.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 23 May 2025
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