Kaur v Minister for Immigration and Multicultural Affairs - [2024] FedCFamC2G 1436

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1436

File number: PEG 37 of 2024

Judgment of: JUDGE KENDALL

Date of judgment: 23 December 2024

Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal misconstrued or misapplied cl 11(b) of Direction 69 – whether the Tribunal’s conclusions were unreasonable – jurisdictional error established – writs issued.

Legislation:
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16

Migration Act 1958 (Cth), ss 47, 65, 359, 476 & 499

Migration Regulations 1994 (Cth), cll 500.2, 600.2, 500.211, 500.212, 500.218, 500.311, 600.211 & 600.221

Cases cited:
Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061

Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385

Kumar v Minister of Immigration and Border Protection [2020] FCAFC 16; 274 FCR 646

Division: Division 2 General Federal Law

Number of paragraphs: 95

Date of hearing: 30 July 2024

Place: Perth

Counsel for the Applicants: Mr H Glenister

Solicitor for the Applicants: William Gerard Legal Pty Ltd

Counsel for the First Respondent: Ms M Scott

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Australian Government Solicitor
ORDERS

PEG 37 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PAWANDEEP KAUR

First Applicant

SUKHJINDER SINGH

Second Applicant

JAPINDER SINGH PUREWAL

Third Applicant

JAPJI KAUR

Fourth Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

23 DECEMBER 2024

THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
3.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 15 January 2024 in Case Number 2314711.
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicants’ application for review according to law.

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 KENDALL:
BACKGROUND
Recent Amendments to the Migration Act 1958 (Cth)

The Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 15 January 2024 and thus predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, proceedings will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court has made an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The Applicants’ migration history
The applicants are citizens of India (Court Book (“CB”) 15-22, 42-43, 101-105, 106-108 & 111-114). The first and second applicants are wife and husband respectively (CB 15-18 & 41). The third and fourth applicants are their minor children (a son and a daughter) (CB 19-22 & 106-113).
The first applicant initially arrived in Australia in August 2022 to visit her pregnant sister. She stayed in Australia for three months and then returned to India (CB 210).
The first applicant then returned to Australia (together with the second and third applicants) in May 2023 as the holder of a Visitor (Class FA) (Subclass 600) visa (CB 165-166 &210). The second applicant arrived in Australia before the first applicant (CB 210).
On 7 July 2023, the first applicant applied for the Student (Temporary) (Class TU) (Subclass 500) visa the subject of the review application now before this Court (the “visa”) (CB 14-40 & 210). The second, third and fourth applicants were included in that visa application as members of the first applicant’s family unit (CB 17-22). The first applicant provided a “genuine temporary entrant statement” (the “GTE statement”) dated 27 June 2023 with the visa application (CB 49-54). In that statement, the first applicant indicated that she intended to study a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management (CB 52-53).
On 4 September 2023, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 136-143). The delegate found that the first applicant did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily (CB 139). The delegate also found that the second, third and fourth applicants did not satisfy the requirements set out in cl 500.311 in Schedule 2 of the Regulations (CB 140-143).
On 18 September 2023, the applicants applied for review of the delegate’s decision at the Tribunal (CB 144-151).
On 11 October 2023, the Tribunal invited the applicants (via email and pursuant to s 359 of the Act) to provide information in relation to their review application (CB 155-162). That invitation letter asked the applicants to provide information confirming the first applicant’s enrolment in a registered course of study and evidence that the first applicant was a genuine applicant for entry and stay as a student. The Tribunal also asked the applicants to complete a “Request for Student Visa Information” form (the “questionnaire”) (CB 156).
The applicants provided a completed questionnaire and supporting documentation to the Tribunal in response (CB 163-180).
On 31 October 2023, the Tribunal obtained a search of the first applicant’s records through the Provider Registration and International Student Management System (CB 180).
On 6 November 2023, the applicants were invited to attend a hearing before the Tribunal on 20 December 2023 (CB 181-185).
On or about 6 November 2023, the first applicant provided the Tribunal with a completed “Response to hearing invitation” form and three “Overseas Student Confirmation-of-Enrolment” documents (“COEs”) (CB 186-192).
On 15 November 2023, the Tribunal advised the applicants that the hearing (originally scheduled to take place on 20 December 2023) would need to be rescheduled to 15 January 2024 (CB 193-197).
On 15 January 2024, the first and second applicants attended the Tribunal hearing to give evidence and present arguments. They were assisted by a Hindi interpreter. The third and fourth applicants were also in attendance at the Tribunal hearing (CB 199-201).
The Tribunal made an oral decision at the completion of the hearing (on 15 January 2024) affirming the delegate’s decision refusing to grant the applicants the visa (CB 204).
The applicants were notified of the outcome of the review via email on 16 January 2024 (CB 202-203).
On 30 January 2024, the first applicant wrote to the Tribunal (by email) and requested a written statement of its decision (CB 205-206).
The Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 209-213). A copy of the written reasons was provided to the applicants via email on 31 January 2024 (CB 207-208). The Court notes that the date on the Tribunal’s decision record reads 26 February 2024. That date appears to be no more than a typographical error.
On 6 February 2024, the applicants applied to this Court for judicial review of the Tribunal’s decision (CB 1-7).
THE TRIBUNAL’S DECISION
The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus helpful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is five pages long and spans 27 paragraphs (CB 209-213).
The Tribunal began by explaining that the applicants had applied for the visas on 7 July 2023 and that, on 4 September 2023, a delegate of the Minister had refused to grant the applicants those visas because the first applicant did not satisfy cl 500.212 in Schedule 2 of the Regulations. The Tribunal explained that the applicants had sought review of that decision by the Tribunal and had attended a hearing before it on 15 January 2024 (at which time the Tribunal made an oral decision). The Tribunal noted that the applicants were assisted at the hearing by a Hindi interpreter. No concerns were recorded with the quality of the interpretation provided (at [1]-[7]).
The Tribunal explained that, prior to the hearing, it had invited the applicants to provide information to it. The Tribunal confirmed that the first applicant was enrolled in a registered course of study and the only factor for consideration was whether the first applicant was a “Genuine Temporary Entrant”. The Tribunal acknowledged receipt of information and documents provided by the applicants and confirmed that it would have regard to the requirements sent out in cl 500.212 in Schedule 2 of the Regulations and Ministerial Direction No. 69 (“Direction 69”) (at [8]-[9]).
The Tribunal noted that some “new” information arose during the Tribunal hearing regarding the first applicant’s employment (noting that, although the delegate had stated that the first applicant had not been employed for the last nine years, the first applicant had showed a message to the Tribunal that she had sent to the Department of Home Affairs (the “Department”) indicating that she had worked for five years in one job and a year and a half in another). The Tribunal noted that it had considered the other evidence before it (including a marriage certificate, passports and identity documents and valuations of a house and agricultural land). The Tribunal also confirmed that it had a progress report from the first applicant’s college (dated 23 October 2023) which indicated that she had only completed one unit (with three other units marked as “continuing activity”) (at [10]-[12]).
The Tribunal acknowledged that it had before it the first applicant’s GTE statement (dated 27 June 2023) and further noted that that she had told the Tribunal that it was written by her migration agent. The Tribunal placed little weight on the GTE statement in relation to the first applicant’s future intentions (in light of the first applicant’s contradictory evidence given at the Tribunal hearing). The Tribunal also had concerns about the first applicant’s motivation for choosing her education provider and, given the Tribunal’s concerns about the contradictory evidence before it, determined that it was not satisfied that the claims made in the GTE statement were genuine (at [13]-[14]).
The Tribunal then referenced Direction 69 and explained the factors it would consider. The Tribunal noted that there was no evidence before it to suggest that the first applicant could not become a qualified chef in India. The Tribunal did, however, accept that the quality and international recognition of studying in Australia provided the first applicant with an incentive to study in Australia (at [15]).
The Tribunal continued:
16.That particular course also provides within the Australian migration system a pathway to permanency, so I am not satisfied that you have been motivated to study this course in Australia for the right reasons. I have to consider the extent of your personal ties to your home country for both yourself and your husband, and while you both have parents within your home country, you both have siblings who are also married here in Perth, and my understanding from your explanation is that your husband’s brother is married to your sister, and you are here with your children that are very young, and as such it is reasonable to conclude that there is a significant incentive for you to remain in Australia. Your only other sibling is your brother, who is a resident in Italy.
The Tribunal considered the applicants’ economic circumstances, acknowledged that there was evidence of “some land holding back in India” but noted that there was a “significant difference between the wages’ scales in Australia” compared to India. The Tribunal also explained that, “even on a minimum wage”, the amount of money the first and second applicants would make in Australia would be “significantly higher” than they would in India and that would provide “an incentive to stay [in Australia] for as long as possible” (at [17]-[18]).
The Tribunal continued:
19.I have considered your potential circumstances in Australia, and as I said, you are residing with your siblings, who are also married, and as I mentioned, the cookery and hospitality pathway at present provides a path to permanency. I am also concerned about when you made a decision to become a student. Mrs Kaur, you told me in your evidence that your sister had advised you to come here on a tourist visa, and then apply for the student visa, and it was your intention to do that prior to leaving your home country.
20.The alternative would be that yourself and your husband and your two young children significantly changed their migration intentions within five weeks, which would also raise significant concerns. Given that you knew in advance that you were going to apply for a student visa before departing India, I am concerned that you abused the visa system in order to get to Australia prior to applying for the student visa, and as such I am not satisfied that you are not using the student visa program for the purpose of circumventing the intentions of the migration program. Likewise, I am not satisfied that you are not using the student visa program to maintain residency here in Australia.
The Tribunal considered the first applicant’s knowledge of her intended courses of study and noted that she had only completed one unit. The Tribunal further noted that the first applicant did not write the GTE statement and that her reasons for choosing her education provider differed. On that basis, the Tribunal was not satisfied that she had sufficient knowledge of her education provider or that she had undertaken research into the proposed course of study. The Tribunal also found it “difficult to be satisfied that [the first applicant] genuinely ha[d] an interest in a career” in the field of cooking or that the course was “relevant to [her] past or proposed future employment” (at [21]-[23]).
The Tribunal continued:
24.I have considered your previous travels to Australia, and you both have travelled here on separate tourist visas in the past, and have no evidence to suggest you have not complied with previous visa conditions. However, I am concerned that you somewhat misled the department in your application for your more recent visitor visa, and you knew, based on your own evidence, that if you applied for a student visa from back home, it would most unlikely be granted, which is why you followed your sister’s advice of applying for a tourist visa, and then a student visa once you landed.
Having considered the documents, information and evidence before it (individually and cumulatively), the Tribunal found that the first applicant was not a genuine temporary entrant and thus did not meet the requirements set out in cl 500.212 in Schedule 2 of the Regulations.
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (at [25]-[27]).
APPLICATION TO THIS COURT
On 15 July 2024, an amended application for judicial review was filed on behalf of the applicants. That amended application included one ground of review, as follows:
1.The Second Respondent (Tribunal) made a jurisdictional error by misapplying or misconstruing cl 11(b) of Direction 69, or otherwise unreasonably concluding at [20] of its reasons for decision that the Applicants had ‘abused the visa system in order to get to Australia prior to applying for the student visa … [and that the Applicants used] the student visa program for the purpose of circumventing the intentions of the migration program’.
The matter proceeded to a final hearing on 30 July 2024. The applicants were represented at that hearing by Mr Hamish Glenister (“Mr Glenister”) from William Gerard Legal Pty Ltd. The Minister was represented at the hearing by Ms Madisen Scott (“Ms Scott”) from the Australian Government Solicitor. The Court thanks both Mr Glenister and Ms Scott for their considerable assistance with this matter.
The materials before the Court include a Court Book numbering 213 pages (marked as Exhibit 1 at the hearing of this matter), the amended application filed on behalf of the applicants on 15 July 2024, written submissions filed on behalf of the applicants on 18 July 2024, the affidavit of Mr Glenister annexing a transcript of the Tribunal hearing (affirmed on 19 July 2024, filed on 22 July 2024 and taken as read and in evidence at the hearing of this matter) (the “Glenister affidavit”) and written submissions filed on behalf of the Minister on 29 July 2024.
The Court notes that it also had before it an affidavit of Ms Centaine Alexandra Mumford (affirmed and filed on 29 July 2024) (the “Mumford affidavit”). However, at the hearing of this matter, Ms Scott told the Court that the Minister did not seek to have Ms Mumford’s affidavit read or to rely on it. Further, insofar as there was any reference to that affidavit in the Minister’s written submissions, the Minister sought for that portion of the submissions to be struck out (being the final three sentences of paragraph 29 of the submissions filed on 29 July 2024). The Court has, accordingly, not had regard to the information contained in the Mumford affidavit or the portion of the Minister’s submissions that reference that affidavit.
CONSIDERATION
Parties’ written submissions
Applicants’ written submissions

In written submissions filed in this Court on 18 July 2024, Mr Glenister made the following submissions:
(a)the only evidence before the Tribunal about the type of visa that the applicants entered Australia on was in the application for student visas (CB 14), the request for student visa information form (CB 165-166) and what was said at the hearing. All that evidence revealed with any certainty is that the applicants entered Australia on visitor (subclass 600) visas and, arguably, due to what was written in the student visa application and what was said during the hearing, those visas were in the tourist stream;
(b)as a matter of law, as the applicants had successfully applied for student visas, the applicants could only have entered Australia on visitor (subclass 600) visas in the tourist or business visitor streams due to the mandatory imposition of “no further stay” conditions on any other visitor visa stream. There was not a skerrick of evidence, or even any suggestion, that the applicants were business visitors. The only reasonable conclusion open on the materials is that the applicants held visitor (subclass 600) visas in the tourist stream;
(c)as holders of visitor (subclass 600) visas in the tourist stream, the applicants were required to genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted – which purpose could be anything that is not related to business or medical treatment. That would necessarily include the purpose of applying for student visas from inside Australia;
(d)the Tribunal found (at [3] of its written reasons) that the first applicant “arrived … on 29 May 2023, and as the holder of a tourist visa. [Her] husband had arrived in Australia before [she did], and [she] had [her] two children with [her].” The Tribunal’s understanding of the applicants’ visa status, consistent with the only reasonable conclusion open on the evidence before it, was that the applicants were tourists (in other words, holders of visitor (subclass 600) visas in the tourist stream);
(e)at [19] of its written reasons, the Tribunal stated “I am also concerned about when you made a decision to become a student. Mrs Kaur, you told me in your evidence that your sister had advised you to come here on a tourist visa, and then apply for the student visa, and it was your intention to do that prior to leaving your home country”. Following from that (at [20] of its written reasons), the Tribunal concluded that “[g]iven that you knew in advance that you were going to apply for a student visa before departing India, I am concerned that you abused the visa system in order to get to Australia prior to applying for the student visa, and as such I am not satisfied that you are not using the student visa program for the purpose of circumventing the intentions of the migration program”;
(f)the Tribunal also stated (at [24] of its reasons) that it was “concerned that [the first applicant] somewhat misled the Department in [her] application for [her] more recent visitor visa, and [she] knew, based on [her] own evidence, that if [she] applied for a student visa from back home, it would most unlikely be granted, which is why [she] followed [her] sister’s advice of applying for a tourist visa, and then a student visa once [she] landed”;
(g)the Tribunal’s findings about the applicants’ “abus[ing] the visa system in order to get to Australia prior to applying for the student visa”, “using the student visa program for the purpose of circumventing the intentions of the migration program” and “somewhat misle[ading] the Department in [their] application for [their] more recent visitor visa” were all based on the proposition that having the intention to apply for a student visa in Australia prior to applying offshore for a visitor visa was in some way wrongful or contrary to the purpose of the migration programme. Such a proposition is misconceived; the Regulations in relation to visitor visas make clear that those in the tourist stream can be granted for any purpose not related to business or medical treatment;
(h)the Tribunal has applied its own idiosyncratic view of what the intentions of the migration programme are and has assumed, without evidence, that the applicants somehow misled the Department in their visitor visa application. There has been no prior judicial consideration of cl 11(b) of Direction 69. However, whatever the intentions of the migration programme are, they cannot be contrary to what is expressly provided for by law in relation to the purpose for which a given visa is (or can be) granted;
(i)the Tribunal, in determining that the applicants had used the student visa program to circumvent the intentions of the migration programme, misconstrued or misapplied cl 11(b) of Direction 69 which the Tribunal itself put in issue in the application. A failure to comply with Direction 69 in reaching an adverse state of satisfaction under cl 500.212(1)(a) in Schedule 2 of the Regulations which is sufficiently material to the formation of that state of satisfaction can constitute jurisdictional error: Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385 (“Kandel”) at [25] citing Kumar v Minister of Immigration and Border Protection [2020] FCAFC 16; 274 FCR 646 (“Kumar”) at [29];
(j)further (or alternatively), the Tribunal’s findings about the applicants “abus[ing] the visa system in order to get to Australia prior to applying for the student visa”, “using the student visa program for the purpose of circumventing the intentions of the migration program” and “somewhat misle[ading] the department in [their] application for [their] more recent visitor visa” were unreasonable, in the sense that they were not capable of having been reached on the material before the Tribunal or on lawful grounds: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [21]. The Tribunal’s satisfaction of these matters was irrational, illogical or not based on findings or inferences of fact supported by logical grounds, and can properly be characterized as unjust, arbitrary or capricious: Djokovic at [35];
(k)the Tribunal (at [25] of its written reasons) concluded that the first applicant did not meet the criterion at cl 500.212 in Schedule 2 of the Regulations, stating “[n]ow in making findings about this application, I have considered all of the documents, the information and oral evidence, both independently and cumulatively, and with relation to your intention to genuinely stay in Australia temporarily, I find that you are not a Genuine Temporary Entrant for the purpose of the (subclass 500) Student visa”; and
(l)on any view, the Tribunal brought to bear a number of considerations in reaching its state of satisfaction that the applicants were not “genuine temporary entrants”. One of the most significant adverse considerations was undoubtedly its findings about and related to the applicants’ circumvention of the intentions of the migration programme. There is, at the very least, a realistic possibility that had the Tribunal not made those findings that the decision could have been different. If the Tribunal misconstrued or misapplied Direction 69 or otherwise made findings that were unreasonable in relation to the applicants’ circumvention of the intentions of the migration programme those errors were jurisdictional errors and the applicants are entitled to the relief sought.
Minister’s written submissions
In written submissions (filed in this Court on 29 July 2024), Ms Scott submitted as follows:
(a)the applicant’s ground raises two separate errors:
(i)the Tribunal misconstrued or misapplied cl 11(b) of Direction 69 by basing its findings on the proposition that having the intention to apply for a student visa in Australia, prior to applying offshore for a visitor visa, was in some way wrongful or contrary to the purpose of the migration programme (“Part A”); and
(ii)the Tribunal’s findings about the applicants at [20] and [24] were unreasonable (“Part B”); and
(b)the Minister accepts that, if the applicant satisfies the Court that the Tribunal has erred in the way alleged in Part A or Part B, those errors were material to the Tribunal’s conclusions.
Minister’s written submissions in relation to Part A
(a)Clause 11(b) of Direction 69 provides as follows:
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
…
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
(b)the Tribunal’s conclusion that it could not be satisfied that the first applicant was not using the student visa to circumvent the intentions of the migration programme was entirely orthodox. There was no misapplication or misunderstanding of what was required by cl 11(b) and the ground of review should be dismissed for the following reasons;
(c)first, the Tribunal’s reasoning was not based on a proposition that having the intention to apply for a student visa in Australia prior to applying offshore for a visitor visa was in some way wrongful or contrary to the purpose of the migration programme. The Tribunal’s findings need to be read as a whole. The Tribunal found:
19.I have considered your potential circumstances in Australia, and as I said, you are residing with your siblings, who are also married, and as I mentioned, the cookery and hospitality pathway at present provides a path to permanency. I am also concerned about when you made a decision to become a student. Mrs Kaur, you told me in your evidence that your sister had advised you to come here on a tourist visa, and then apply for the student visa, and it was your intention to do that prior to leaving your home country.
20.The alternative would be that yourself and your husband and your two young children significantly changed their migration intentions within five weeks, which would also raise significant concerns. Given that you knew in advance that you were going to apply for a student visa before departing India, I am concerned that you abused the visa system in order to get to Australia prior to applying for the student visa, and as such I am not satisfied that you are not using the student visa program for the purpose of circumventing the intentions of the migration program. Likewise, I am not satisfied that you are not using the student visa program to maintain residency here in Australia.
…
24.I have considered your previous travels to Australia, and you both have travelled here on separate tourist visas in the past, and have no evidence to suggest you have not complied with previous visa conditions. However, I am concerned that you somewhat misled the department in your application for your more recent visitor visa, and you knew, based on your own evidence, that if you applied for a student visa from back home, it would most unlikely be granted, which is why you followed your sister’s advice of applying for a tourist visa, and then a student visa once you landed.
(d)the reference (at [19] of the Tribunal’s reasons) to what was “mentioned” relates to the Tribunal stating that the particular course the first applicant sought to study provides “within the Australian migration system a pathway to permanency, so I am not satisfied that you have been motivated to study this course in Australia for the right reasons” (at [16] of its reasons);
(e)read fairly, the Tribunal has made no finding that having the intention to apply for a student visa in Australia prior to applying offshore for a visitor visa was in some way wrongful or contrary to the purpose of the migration programme. Rather, the Tribunal has considered the fact that the first and second applicants came to Australia on a visitor visa knowing they were intending to apply for a student visa was, in their particular circumstances, a concern which went to whether they were using the student visa as a means to circumvent the intentions of the migration programme and maintain residency in Australia. The particular circumstances of the applicants were that they chose to apply whilst on a tourist visa because they knew it was unlikely they would be granted the visa if they applied offshore, and so they wanted to first “get to Australia”. If the applicants were already in Australia when they applied, they could maintain residency in Australia, something which the Tribunal was not satisfied that the applicants were not using the student visa to achieve;
(f)once the Tribunal’s reasons are understood in that (proper) way, it is clear that the Tribunal has not misconstrued or misapplied cl 11(b) of Direction 69, or applied its own idiosyncratic view of what the intentions of the migration programme are. Rather, the Tribunal has assessed the evidence before it, and rationally considered that the way in which the applicants came to apply for the visa undermined their claims to be genuine temporary entrants. That is, the “intention of the migration programme” was for the student visa to be a “temporary” visa, and the circumstances in which the applicants applied for the visa, combined with the pathway to permanency which the courses presented and the Tribunal’s concerns as to the first applicant’s genuineness in her intentions was such that the Tribunal could not be satisfied that the first applicant was not using the programme to maintain residency;
(g)second, the applicants’ submissions regarding the requirements of a visitor visa are misplaced. The fact that a visitor visa can be granted for the purpose of intending to visit Australia, or remain in Australia, for any other purpose that is not related to business or medical treatment is not the only basis upon which the applicants could be granted a visitor visa. The applicants could also have been granted the visa on the basis that they intended to visit and remain in Australia for the purpose of “visit[ing] an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant”: cl 600.221(b) in Schedule 2 of the Regulations;
(h)the applicants’ submissions regarding the Regulations and the visitor visa rest upon the applicants having been granted the visa for any other purpose that is not related to business or medical treatment;
(i)third, the applicants gave evidence that they arrived on a “tourist visa” (see paragraphs [12]-[14] of the applicant’s submissions). There was no reference to which type or subclass the applicants were granted. The Tribunal put to the first applicant, and the second applicant, that travelling to Australia on a tourist visa knowing that the first applicant was going to apply for a student visa and doing so because the first applicant knew she would not be granted the visa if she applied from India, was adverse to the application (see the Glenister affidavit, pp 20-21 & 34 of the transcript at Annexure HWG-1). The Tribunal stated that it had concerns that in doing so the applicants were “using the visa system to shortcut or to jump the line in front of other visa applicants”: (see the Glenister affidavit, p 34 of the transcript at Annexure HWG-1);
(j)in response to the Tribunal’s very clear indications of how it viewed the first applicant’s evidence, the first applicant confirmed what she said (ie, that she was sure she would not have received a student visa if she applied in India). The second applicant confirmed that they came to Australia on a tourist visa, to study (see the Glenister affidavit, p 30 of the transcript at Annexure HWG-1). The Tribunal explained its concerns about the evidence to the second applicant who stated that coming on the visitor visa was a “mistake”, and then changed his evidence to say that there was “no fixed plan” to study when they arrived; and
(k)at no time did the applicants put to the Tribunal that applying for a student visa was consistent with the purpose for which they came to Australia. They had the opportunity to do so, and did not.
Minister’s written submissions in relation to Part B
(a)by Part B, the applicant claims that it was unreasonable for the Tribunal to have concluded that the applicants were “abus[ing] the visa system in order to get to Australia prior to applying for the student visa”, “using the student visa program for the purpose of circumventing the intentions of the migration program” and “somewhat misle[ading] the department in [their] application for [their] more recent visitor visa”;
(b)the Minister submits that an accurate representation of what the Tribunal said at [20] is as follows:
(i)the Tribunal had a “concern” about the applicants having abused the visa system in order to get to Australia before applying for the student visa. Relevantly, this “concern” is not a finding: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [22]. It is an expression by the Tribunal as to how it viewed the evidence regarding the applicants only applying for the visa when they arrived in Australia (which the Tribunal noted to the second applicant reflected an attempt to “shortcut or to jump the line in front of other visa applicants” (see the Glenister affidavit, p 34 of the transcript at Annexure HWG-1));
(ii)the Tribunal could not be satisfied that the applicants were not using the student visa program for the purpose of circumventing the intentions of the migration programme. That is, the Tribunal did not find or conclude that the applicants had sought to circumvent the intentions of the migration programme, just that it could not rule out the possibility;
(iii)the Tribunal was “concerned” that the applicants had misled the Department in the visitor visa application. Once again, this concern was not an equivocal finding or conclusion that the applicants had, but a reflection that the evidence provided exposed the possibility that this might have been the case; and
(c)it cannot be said, in light of the applicants’ own evidence before the Tribunal about why they travelled to Australia, that there was no basis for the Tribunal to hold concerns or conclude as it did (at [20] of its written reasons). Relevantly, the first applicant expressly stated that she came to Australia on a visitor visa in May 2023 to apply for the student visa because she knew that if she applied for the student visa offshore, it would not be granted. A reasonable decision-maker could draw the inference from this evidence that the first applicant was seeking to, somewhat, manipulate her circumstances to provide the best possible outcome for herself.
Parties’ oral submissions
Applicants’ oral submissions
In oral submissions before this Court, Mr Glenister stated as follows:
(a)in response to the Minister’s points in relation to the context of the decision and how to “construct the reasons”, Mr Glenister took the Court through portions of the transcript (annexed to the Glenister affidavit), highlighting as follows:
(i)on page 20 of that transcript, the first applicant gives some evidence about coming to Australia on a tourist visa, as follows:
Member:Why didn't you apply for a student visa before you left?
Applicant:Because is in India they give very few student visas so my sister had advised you come here and then you can apply.
Member:Do you understand what you’re telling me.
Applicant:Yes.
Member:Is adverse to your application. You came here on a tourist visa because you knew you wouldn’t get a student visa?
(ii)that line of questioning is continued on the following page (being page 21 of the transcript) as follows:
…
Member:So you, if you knew you were going to be a student when you left, but you came here on a tourist visa, you came here on the wrong visa. You deliberately misled in your tourist visa application.
(iii)that followed a conversation about whether the second applicant knew that the first applicant was going to apply for a student visa before they left India; and
(iv)the Member effectively reiterates that statement on page 34 of the transcript (annexed to the Glenister affidavit), not long after which the Member delivered ex tempore reasons;
(b)a copy of Direction 69 appears in the CB. Clause 11 of Direction 69 (at CB 160), in particular, guides the Tribunal by stating that it should have regard to a number of factors when considering an applicant’s potential circumstances in Australia;
(c)cl 11(b) of Direction 69 relevantly provides as follows:
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
(d)the important part of that factor is that there is evidence that the student visa program is being used to circumvent the intentions. It does not require a finding as a matter of certainty or on the balance of probabilities that that is in fact what is occurring;
(e)the Tribunal did not use the language of the Direction, using the word “concerns” rather than “I find”. Nonetheless, in the context of the exchanges the Member had with the applicants immediately prior to making its decision, and noting the lack of any other obvious motivation to make such a finding (or raise such a concern), that finding could only come from the proposition that, as a matter of law, a person could not come to Australia on a tourist visa and apply for a student visa or, if that had occurred, that they must have somehow misled the Department or done something which is contrary to the intentions of the migration program. There is no evidence before the Tribunal that that was in fact the case here;
(f)that was one factor which pointed very strongly against the conclusion that the applicants were genuine temporary entrants;
(g)the delegate did not make any fundings of that nature at all so the first time that it was raised was by the Member at the Tribunal hearing. That is less than desirable given that the applicants do not speak English and were unrepresented at that hearing;
(h)the Tribunal ultimately assumed that the tourist visa had been granted for the purpose of visiting Australia or visiting family members in Australia without realising that it could in fact be granted for “any other purpose” (other than a business or medical purpose as set out in the applicants’ written submissions);
(i)at no point does the Tribunal specify exactly what the intentions of the migration program are. However, the Tribunal seemed to be of the view that applying for a tourist visa and then a student visa meant that the applicants were effectively “jumping the queue”. That is not how the migration programme is designed;
(j)at law, there is absolutely no impediment to the applicants doing just that. In fact, there is a mechanism for the Minister to impose visa conditions which would prevent that if it was in fact contrary to the intention of the migration programme;
(k)when the Tribunal said that it had a concern that the applicants had abused the visa system in order to get to Australia before applying for the student visa, that concern was not based on any probative evidence. It was based on the Tribunal’s misconception of what a visitor visa allowed the applicants to do and its own view as to what effectively were the intentions of the migration programme (which appear in the applicants’ submission to be contrary to the statutory framework in which the visas applied for and gained by the applicants were set out);
(l)whilst the “concerns” raised by the Tribunal may not have gone as far as findings, when the Tribunal said (at [24] of its written reasons) that it was “concerned that [the first applicant] somewhat misled the [D]epartment”, that was a finding and the Tribunal does not express, in any equivocal terms, the basis upon which it formed that opinion. However, the Tribunal put to both the first and second applicant, in no uncertain terms, that they had “misled the Department” and, contextually, the Tribunal’s statement in that regard must have been a finding;
(m)the Tribunal did not have the visitor visa applications before it and there was really no basis for the Tribunal to say that the applicants had misled the Department (at law) and it was not a certainty that the applicants had misled the Department. There was a pathway for them to apply for and be granted a visitor visa for the purpose of making a student visa application in Australia (which could be granted for any other purpose not related to medical or business issues); and
(n)there was no basis for the Tribunal to conclude that the applicants had misled the Department in the earlier application or that they were in some way abusing or circumventing the migration programme. It seems to have stemmed from the proposition that applying offshore for a visitor visa was in some way wrongful or contrary to the purpose of the migration programme and it simply wants (as a matter of law) and there was no evidence before the Tribunal about how the applicants had in fact obtained their visitor visas.
Minister’s oral submissions

In oral submissions before this Court, Ms Scott stated as follows:
(a)the Minister principally relies on the written submissions filed on 29 July 2024;
(b)it may be useful to first step through the Tribunal’s reasoning to understand the context of what it was deciding:
(i)the Tribunal has regard to the matters set out in Direction 69;
(ii)from paragraphs [1] to [14] of its written reasons, the Tribunal provides a general background and detailed the evidence that was before it, what happened at the Tribunal hearing and generally uncontested matters;
(iii)at [15], the Tribunal refers to Direction 69 and discusses what it refers to as “the push and pull factors” that it needs to consider and ultimately balance when determining whether the first applicant is a genuine temporary entrant;
(iv)following on from [15], the Tribunal effectively addresses each of the relevant factors (from Direction 69) in its reasons;
(v)at [15] and the start of [16], the Tribunal addresses the first applicant’s personal ties to her home country and it addresses these within the context of an incentive to return to India (which is what is reflected in cl 9(b) of Direction 69) and whether those circumstances are a significant incentive for the applicant to remain in Australia (as required by cl 11(a) of Direction 69);
(vi)at [17] and [18], the Tribunal considers the applicants’ economic circumstances (as required by cl 9 of Direction 69);
(vii)paragraphs [19] and [20] of the Tribunal’s reasons address cll 11(b) and 11(c) of Direction 69;
(viii)paragraph [21] of the Tribunal’s reasons addresses cl 11(e) of Direction 69 and deals with the applicant’s knowledge of living in Australia and the intended course of study;
(ix)paragraphs [22] and [23] turn to the next substantive consideration in Direction 69 (which is the value of the course to the applicant’s future); and
(x)paragraph [24] relates to the final consideration which is the applicant’s immigration history and whether there are any other relevant matters;
(c)turning to Direction 69 (at CB 162), one of the considerations that the Tribunal can take into account is:
…any other relevant information provided by the applicant … when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
(d)in relation to any concern about some of the “oddities” in the Tribunal’s questioning and looking at whether the first applicant had “misled the Department”, the Minister says that this falls squarely into a consideration of whether there is any other relevant matter as it goes to their state of mind, what they had previously told the Department and whether that informs an intention to genuinely stay in Australia temporarily;
(e)the Tribunal’s core reasoning in relation to cl 11(b) of the Direction 69 is found in [19] and [20] of the Tribunal’s reasons;
(f)those paragraphs do not reference whether it was impermissible or inappropriate for the first applicant to have an intention to apply for a student visa prior to applying offshore for a visitor visa. Instead, the Tribunal’s concern related to the first applicant’s intention to apply for a student visa before she departed India and that can be seen from the final sentence of [19] where the Tribunal says “… and it was your intention to do that prior to leaving your home country”;
(g)paragraph [20] then states that the first applicant “knew in advance that [she was] going to apply for a student visa before departing India” and that she “abused the visa system in order to get to Australia prior to applying for that student visa”;
(h)it is clear that the Tribunal’s concern was not directed at the first applicant having come to Australia on a visitor visa. Rather, it was the timing of the student visa application (noting that she had already travelled to Australia and in circumstances where she knew that she would not be granted the visa if she applied offshore);
(i)while the Minister does not dispute that there was nothing in the Regulations that prevented the applicants from doing what they did, the approach taken by the applicants, however, demonstrated that they were trying to circumvent what the ordinary process would have been. That is, they were trying to get to Australia to be there for the purpose of applying for that student visa (which would mean that they would not then need to return to India);
(j)reading the Tribunal’s decision in context, the Tribunal talks about the first applicant using the student visa program as a means to maintain residency and the fact that the study pathway chosen was a pathway to permanent residency;
(k)the Tribunal’s concern related to the fact that the applicants were better off by coming to Australia before applying for the visa and that “they knew that”;
(l)it was not the case that it was not permissible for the applicants to have come to Australia and then applied for a student visa. However, having done it that way, when considered with the other circumstances, the Tribunal considered that this essentially meant that the applicants were not genuine temporary entrants;
(m)the Tribunal did not say that there was anything improper or wrong in the way that the applicants did what they did (ie, arriving in Australia and then applying for a student visa). Rather, it was the timing that was the issue;
(n)the intention of the migration programme was for the student visa to be a temporary visa and, given the circumstances in which the applicants came to apply for the visa, combined with the first applicant’s proposed course of study leading to a pathway of permanency, the Tribunal could not be satisfied that the first applicant was not using the programme to maintain residency or that she was not using the programme to circumvent the overall intentions for it to be a temporary visa;
(o)there is no evidence before the Court (and there was none before the Tribunal) to indicate the basis upon which the applicants were granted the visitor visas;
(p)there is reference in the transcript (annexed to the Glenister affidavit) that the applicants travelled to Australia to visit family on their previous visit to Australia and it is noted that that is the same visa that they came on this time;
(q)on pages 10 and 11 of the transcript (annexed to the Glenister affidavit) there is the following exchange between the first applicant and the Tribunal:
Member:        When did you first come to Australia?
Applicant:       6 or 7 August 2022.
Member:        As a tourist?
Applicant:       Tourist visa.
Member:        How long did you stay for?
Applicant:       Three months.
Member:        Why did you come?
Applicant:       My sister was pregnant. I came to help her.
(r)this indicates that the first applicant was granted the visitor visa on the basis of visiting family (not necessarily for any other particular purpose). The Court does not need to make a particular finding about that because the Court is not in a position to make an assessment that there was any misconstruction or that the Tribunal proceeded from a false premise because we do not know the basis for the grant of the visitor visa;
(s)the applicants were also given ample opportunity to address the Tribunal’s concerns. The Tribunal squarely put the applicants on notice in relation to the concern about the evidence that the first applicant gave about when she decided to come to Australia and then apply for the student visa;
(t)the Tribunal’s questioning, whilst a little “abrupt” at times, is essentially no more than the Tribunal putting the proposition to the first applicant – which can be seen at page 20 of the transcript (annexed to the Glenister affidavit), as follows:
Member:I’m concerned that when you came back to Australia with your family, you knew that you were going to enrol as a student?
…
Applicant:Because is in India they give very few student visas so my sister had advised you come here and then you can apply.
Member:Do you understand what you’re telling me.
Applicant:Yes.
Member:Is adverse to your application. You came here on a tourist visa because you knew you wouldn’t get a student visa?
(u)the Minister submits that the Tribunal here is phrasing it – in the form of a proposition being put to the first applicant as to why the information is adverse to her application;
(v)in relation to the “unreasonableness aspect” of the sole ground of review, the Minister again relies on the written submissions filed;
(w)in order to reach an unreasonableness or illogicality threshold, there needs to be an extreme level of illogicality. That is not present here;
(x)the Tribunal is permitted to have regard to any other relevant considerations which an applicant raises. Here, the Tribunal heard evidence from the first applicant that she knew that she would not obtain a visa if she applied offshore so she came to Australia essentially for the purpose of applying for that visa and to “try and get a better outcome”. Here, there is a reasonable and rational basis upon which to conclude that the first applicant was using the student visa process or trying to circumvent the migration programme and to get to Australia; and
(y)whilst the Court or another decision-maker may have come to a different conclusion, it is not the case that no decision-maker would have concluded that the first applicant, by knowing an outcome and by seeking to obtain a different outcome by an alternative method, was a choice which reflected unfavourably on her intentions more generally.
Applicants’ oral submissions in reply
In oral submissions in reply before this Court, Mr Glenister stated as follows:
(a)the ground of review is not about whether or not the Tribunal was “entitled to consider”, but whether there was any legal basis for the Tribunal to make the finding in the first place;
(b)while paragraph [24] might (to some degree) be directed at other considerations set out in Direction 69 (and it is not clear that it is), it is inextricably bound up with what the Tribunal said at [20] of its reasons, which was:
… Given that you knew in advance that you were going to apply for a student visa before departing India, I am concerned that you abused the visa system in order to get to Australia prior to applying for the student visa…
(c)it is the same basis upon which the Tribunal made the finding or expressed the concern at paragraph [24] of its reasons (that is, knowing that she would not get a student visa back home, the first applicant applied for a visitor visa so that she could then apply for a student visa onshore). The basis for the concern expressed by the Tribunal was the fact that the first applicant knew that she was going to apply for a student visa before she had travelled to Australia on a visitor visa and it was the same basis upon which the Tribunal opined that she had misled the Tribunal. It is essentially all “bound up” in cl 11(b) of Direction 69;
(d)any conclusion that the first applicant had misled the Department in her visitor visa application must have informed the conclusion or the concern that she had abused the visa system;
(e)the Tribunal’s reasons are to be read as a whole and not in a piecemeal or broken up fashion;
(f)a student visa is also a temporary visa so, to the extent that it is suggested that by applying for a visitor visa and then a student visa, or that by intending to apply for a student visa as a tourist, this would amount to an applicant being a genuine temporary entrant, this is simply not true;
(g)the fact that the course that the first applicant chose included a pathway to permanent residency “down the track” should not count against the first applicant being a genuine temporary entrant. If that were the case, anyone who chose any course which could lead to a pathway to permanent residency would similarly be affected (and almost any course could, in the right circumstances, lead to a pathway to permanent residency);
(h)people come to Australia every day on visitor visas and apply for other visas. That is entirely permitted by the visitor visa programme. A partner visa is one of the more popular visas applied for from a visitor visa and that is a direct pathway to permanent residency so it is difficult to see how that could be permitted while excluding what the first applicant did here;
(i)the only fact before the Tribunal was that the first applicant had come to Australia as the holder of a visitor visa in the tourist stream. That fact alone was insufficient to make the findings or raise the concerns the Tribunal did in this case;
(j)a determination that there has been an “abuse of the visa system” is a very serious finding. The fact that the first applicant came to Australia on a visitor visa in the tourist stream is insufficient for such a finding or concern when there was no information before the Tribunal about the purpose for which that visitor visa was granted. However, the Tribunal must have reasoned that the visitor visa could not have been granted for the purpose of the first applicant applying for a student visa onshore;
(k)the first applicant gave some evidence about why she came to Australia in 2022 (that evidence being that she came to visit her sister), however, she did not give any evidence about the purpose of the grant of the visitor visa on the second occasion (prior to applying for the student visa). The first applicant simply said that she intended to apply for a student visa prior to leaving India, which is not at all barred by the Regulations or by the Act; and
(l)it is difficult to see how it could be that a person could be thought to be circumventing the intentions of the migration programme simply by following one path which seemed to be more beneficial than another path that was open to them, without any other evidence about wrongdoing or misleading anyone or anything of that sort.
Legislative provisions
Before the Court considers the issues raised in this case, it is first useful to set out some of the legislative provisions relevant to this matter.
Section 47 of the Act requires the Minister to “consider a valid application for a visa”: s 47(1) of the Act.
Section 65 of the Act requires that, when deciding whether to grant or refuse a visa application, the Minister must be satisfied that the criteria for the grant of the visa (as prescribed by the Act or the Regulations” have been satisfied: s 65(1)(a)(ii).
As outlined above, the first applicant in this matter applied for a Subclass 500 (student) visa. The primary eligibility criteria for the grant of that visa are set out in cl 500.2 in Schedule 2 of the Regulations which, at the time of the Tribunal’s decision in this matter, relevantly provided as follows:
500.2 Primary criteria
Note: The primary criteria must be satisfied by at least one member of the family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
The criteria that the first applicant was required to satisfy for the grant of the visa in this case are set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations.
Of particular relevance in this matter is cl 500.212 in Schedule 2 of the Regulations which, at the time of the Tribunal’s decision, provided as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)        the applicant’s circumstances; and
(ii)       the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)      any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)       of any other relevant matter.
Section 499 of the Act grants the Minister the power to “give written directions to a person or body having functions or powers under [the] Act if the directions are about [either] the performance of those functions or the exercise of those powers”: s 499(1) of the Act. The Tribunal is required to comply with a direction made under s 499(1) of the Act: s 499(2A) of the Act; Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 at [65].
Direction 69 relates to the assessment of the genuine temporary entrant criterion (set out above at cl 500.212(a) in Schedule 2 of the Regulations) for student visa applicants.
In this matter, cl 11 is relevant. That provision provides as follows:
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
…
Reference is also made in this matter to the Subclass 600 (visitor) visa that the first applicant arrived on.
The primary eligibility criteria for the grant of that visa are set out in cl 600.2 in Schedule 2 of the Regulations which, at the time of the Tribunal’s decision in this matter, relevantly provided as follows:
600.2—Primary criteria
Note:The primary criteria for the grant of a Subclass 600 visa include criteria set out in streams.
If an applicant applies for a Subclass 600 visa in the Tourist stream, the criteria in Subdivisions 600.21 and 600.22 are the primary criteria for the grant of the visa.
If an applicant applies for a Subclass 600 visa in the Sponsored Family stream, the criteria in Subdivisions 600.21 and 600.23 are the primary criteria.
If an applicant applies for a Subclass 600 visa in the Business Visitor stream, the criteria in Subdivisions 600.21 and 600.24 are the primary criteria.
If an applicant applies for a Subclass 600 visa in the Approved Destination Status stream, the criteria in Subdivisions 600.21 and 600.25 are the primary criteria.
If an applicant applies for a Subclass 600 visa in the Frequent Traveller stream, the criteria in Subdivisions 600.21 and 600.26 are the primary criteria.
The primary criteria must be satisfied by all applicants.
All criteria must be satisfied at the time a decision is made on the application.
As can be seen from the above, there are five individual streams within the Subclass 600 (visitor) visa. Those streams are the tourist stream, the sponsored family stream, the business visitor stream, the approved destination status stream and the frequent traveller stream.
For each of the visitor visa streams, it is a requirement that the “applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl 600.211 in Schedule 2 of the Regulations.
The first applicant arrived in Australia on 29 May 2023 as the holder of a visitor visa in the tourist stream (CB 166 & 210). The specific criteria relevant to the tourist stream of the Subclass 600 (visitor) visa relevantly provide as follows:
600.22—Criteria for Tourist stream
Note:These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 600 visa in the Tourist stream.
600.221
The applicant intends to visit Australia, or remain in Australia:
(a)to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or
(b)for any other purpose that is not related to business or medical treatment.

The legislative criteria above (as it relates to the matter before the Court) will be discussed further below.
The Court’s consideration
As outlined above, the amended application for judicial review (filed on behalf of the applicants in this Court on 15 July 2024) included one ground of review, as follows:
1.The Second Respondent (Tribunal) made a jurisdictional error by misapplying or misconstruing cl 11(b) of Direction 69, or otherwise unreasonably concluding at [20] of its reasons for decision that the Applicants had ‘abused the visa system in order to get to Australia prior to applying for the student visa … [and that the Applicants used] the student visa program for the purpose of circumventing the intentions of the migration program’.
The Court will first address whether the Tribunal misapplied or misconstrued cl 11(b) in Direction 69.
As set out above, that clause relevantly provides as follows:
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
…
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
…
The relevant paragraphs in the Tribunal’s decision provide as follows:
19.I have considered your potential circumstances in Australia, and as I said, you are residing with your siblings, who are also married, and as I mentioned, the cookery and hospitality pathway at present provides a path to permanency. I am also concerned about when you made a decision to become a student. Mrs Kaur, you told me in your evidence that your sister had advised you to come here on a tourist visa, and then apply for the student visa, and it was your intention to do that prior to leaving your home country.
20.The alternative would be that yourself and your husband and your two young children significantly changed their migration intentions within five weeks, which would also raise significant concerns. Given that you knew in advance that you were going to apply for a student visa before departing India, I am concerned that you abused the visa system in order to get to Australia prior to applying for the student visa, and as such I am not satisfied that you are not using the student visa program for the purpose of circumventing the intentions of the migration program. Likewise, I am not satisfied that you are not using the student visa program to maintain residency here in Australia.
…
24.I have considered your previous travels to Australia, and you both have travelled here on separate tourist visas in the past, and have no evidence to suggest you have not complied with previous visa conditions. However, I am concerned that you somewhat misled the department in your application for your more recent visitor visa, and you knew, based on your own evidence, that if you applied for a student visa from back home, it would most unlikely be granted, which is why you followed your sister’s advice of applying for a tourist visa, and then a student visa once you landed.
The Court notes that the Tribunal’s reasons in this matter are not as clear as they might be. This is perhaps because the decision was made orally (CB 204) (with written reasons subsequently provided (CB 209-213) at the request of the first applicant (CB 205-206).
What can be seen from the passages above, however, is that the Tribunal had “concerns” with the first applicant having arrived in Australia (as the holder of a visitor visa) and then applying for that visa when she was in Australia.
Those concerns appear to have arisen from the following exchange between the Tribunal Member and the first applicant at the Tribunal hearing (see the pp 20-21 of the transcript annexed to the Glenister affidavit):
Member:        Why didn't you apply for a student visa before you left?
Applicant:Because is in India they give very few student visas so my sister had advised you come here and then you can apply.
Member:        Do you understand what you’re telling me.
Applicant:       Yes.
Member:Is adverse to your application. You came here on a tourist visa because you knew you wouldn’t get a student visa?
…
Member:So you, if you knew you were going to be a student when you left, but you came here on a tourist visa, you came here on the wrong visa. You deliberately misled in your tourist visa application.
Whilst not raised by the parties at the hearing, the Court notes that cl 11(b) of Direction 69 requires that there is “evidence that the student visa programme is being used to circumvent the intentions of the migration programme” (emphasis added).
It is “problematic” that the Tribunal appears to have taken issue with the first applicant applying for a visitor visa to come to Australia and that any findings or concerns in relation to whether there was any evidence that the student visa programme was being used to circumvent the intentions of the migration programme appear to have stemmed from the first applicant’s visitor visa application, information that the first applicant may have provided the Department as a part of that visa application and the first applicant’s intentions and thought process at the time that she applied for that visitor visa.
It strikes the Court as inherently contradictory that the Tribunal could make findings about the student visa programme being used to circumvent the migration programme because of the way in which the first applicant lawfully arrived in Australia (having made a valid application for, and being granted, a visitor visa in the tourist stream).
It is difficult to see how making an application for a visitor visa (in the tourist stream) could in any way amount to evidence that the student visa programme was being used to circumvent the intentions of the migration programme.
In any event, that is not one of the questions that is currently before the Court.
The first question that the Court needs to consider (as raised by Mr Glenister on behalf of the applicants) is whether the Tribunal erred by misapplying or misconstruing cl 11(b) of Direction 69 when concluding that the applicants had “abused the visa system in order to get to Australia prior to applying for the student visa … [and that the Applicants used] the student visa program for the purpose of circumventing the intentions of the migration program”.
The Court notes that Departmental Policy (as at 28 July 2023 and current at the time of the Tribunal decision in this matter) in relation to the Subclass 500 (Student) visa suggests that the decision-maker should “check the claimed intentions of a visitor visa applicant and the purpose of the visitor visa program with those of the Subclass 500 visa and compare the timeframe in which those claims are made to see if they “reveal misrepresentation of intentions”.
That is not what the Tribunal did in this case. As can be seen from the passages extracted from the transcript of the Tribunal hearing (see above at 43), the Tribunal Member asked the first applicant why she did not apply for a student visa before she left India. At no point did the Tribunal Member ask the first applicant to explain the basis upon which she had applied for the visitor visa or to provide details of the information that she provided to the Department as part of that visitor visa application process. Nor did the Tribunal seek to obtain (from the Department) a copy of the first applicant’s visitor visa application or supporting documentation.
As correctly submitted by Mr Glenister, the only fact before the Tribunal was that the first applicant had come to Australia as the holder of a visitor visa in the tourist stream. That fact alone was insufficient for the Tribunal to make the findings or to raise the concerns that the Tribunal did in this case.
The Court notes that the first applicant did give evidence about the reason that she had come to Australia previously (in August 2022). In that evidence (detailed above), she explained to the Tribunal that she had come to Australia to visit her sister, who was pregnant. The first applicant also told the Tribunal that she had come to help her sister and that her daughter had come with her on that occasion (see pp 10-11 of the transcript annexed to the Glenister affidavit). However, the Court notes that the first applicant did not provide any evidence to the Tribunal about the purpose of the grant of the visitor visa in May 2023. The first applicant simply said that she had intended to apply for a student visa prior to leaving India.
The Court does not have before it any information about the basis upon which the first applicant applied for the 2023 visitor visa. That information was also not before the Tribunal. It is unclear from the Tribunal’s reasons why the Tribunal determined that the first applicant had misled the Department. However, the Court agrees with Mr Glenister’s submission that, in the context of the exchanges that the Member had with the applicants immediately prior to making its decision, and the lack of any other obvious motivation to have made such a finding (or to have raised such a concern), those findings or concerns could only have come from the proposition that, as a matter of law, a person could not come to Australia on a tourist visa and then apply for a student visa or, if that had occurred, that they must have somehow misled the Department or done something which is contrary to the intentions of the migration programme.
Unfortunately, there is simply no evidence before this Court (or before the Tribunal) to determine that that was in fact the case in this matter.
It appears that the Tribunal simply assumed that the first applicant’s 2023 visitor visa had been granted for the purpose of visiting Australia or vising family members in Australia. However, that is not the only purpose for which a visitor visa (in the tourist stream) can be granted. As detailed above, a visitor visa in the tourist stream can be granted “to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant or for any other purpose that is not related to business or medical treatment”: cl 600.221 in Schedule 2 of the Regulations.
Clause 11(b) of Direction 69 requires that there be evidence that the student visa programme was being used to circumvent the intentions of the migration programme (emphasis added). In the absence of evidence, the Court considers that the Tribunal had no basis to conclude that the first applicant had used the student visa programme to circumvent the intentions of the migration programme. Similarly, there was no basis for the Tribunal to weigh its concerns against the first applicant in its determination about whether the first applicant was a genuine applicant for entry and stay as a student.
The Court is satisfied that by doing so the Tribunal here has misconstrued or misapplied cl 11(b) in Direction 69.
As correctly submitted by Mr Glenister, a failure to comply with Direction 69 in reaching an adverse state of satisfaction under cl 500.212(a) in Schedule 2 of the Regulations can constitute jurisdictional error on the part of the Tribunal: Kandel at [25] (citing Kumar at [29]).
As outlined above, the Minister accepted (at [21] in written submissions filed in this Court on 29 July 2024) that if the Court was satisfied that the Tribunal had erred (in either of the ways set out in the applicant’s ground of review), those errors would be material to the Tribunal’s conclusions.
The Court agrees.
The Tribunal has thus fallen into jurisdictional error.
Having found that the Tribunal erred, it is not strictly necessary for the Court to consider the second question before it – that question being whether the Tribunal unreasonably concluded (at [20] of its written reasons) that the applicants had “abused the visa system in order to get to Australia prior to applying for the student visa … [and that the Applicants used] the student visa program for the purpose of circumventing the intentions of the migration program”.
In this regard, the Court notes the comments of the Full Court of the Federal Court of Australia in Djokovic as follows (emphasis added):
21.The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 [131] and the cases cited at footnote 109.
The Tribunal in this matter ultimately determined as follows (emphasis added):
25.I should also mention I have significant concerns for the evidence given by your husband with regards to when you had made that decision to apply for the student visa. I put more weight on the evidence of Mrs Kaur than I do of the evidence of your husband, Mr Singh. Now in making findings about this application, I have considered all of the documents, the information and oral evidence, both independently and cumulatively, and with relation to your intention to genuinely stay in Australia temporarily, I find that you are not a Genuine Temporary Entrant for the purpose of the (subclass 500) Student visa. Accordingly, the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as required by clause 500.212.
As correctly submitted by Mr Glenister (at [22] in written submissions filed on 18 July 2024), the Tribunal reached the conclusions above on the basis of a number of factors. However, the Court agrees that one of the biggest considerations arguably related to the Tribunal’s findings or concerns referenced above (being that the applicants had used the student visa programme to circumvent the intentions of the migration programme).
Given the Court’s findings above, it must follow that the Tribunal’s satisfaction (or lack thereof) was not capable of being reached on lawful grounds.
The Court is satisfied that the Tribunal’s conclusions in this matter were also unreasonable.
The Tribunal in this matter has fallen into jurisdictional error.
CONCLUSION
For the reasons outlined above, the applicants’ amended judicial review application has identified jurisdictional error.
The Tribunal’s decision will be set aside and the matter will be remitted to the ART for reconsideration.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 23 December 2024

File number:	PEG 37 of 2024
Judgment of:	JUDGE KENDALL
Date of judgment:	23 December 2024
Catchwords:	MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal misconstrued or misapplied cl 11(b) of Direction 69 – whether the Tribunal’s conclusions were unreasonable – jurisdictional error established – writs issued.
Legislation:	Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16 Migration Act 1958 (Cth), ss 47, 65, 359, 476 & 499 Migration Regulations 1994 (Cth), cll 500.2, 600.2, 500.211, 500.212, 500.218, 500.311, 600.211 & 600.221
Cases cited:	Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385 Kumar v Minister of Immigration and Border Protection [2020] FCAFC 16; 274 FCR 646
Division:	Division 2 General Federal Law
Number of paragraphs:	95
Date of hearing:	30 July 2024
Place:	Perth
Counsel for the Applicants:	Mr H Glenister
Solicitor for the Applicants:	William Gerard Legal Pty Ltd
Counsel for the First Respondent:	Ms M Scott
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Australian Government Solicitor

PEG 37 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	PAWANDEEP KAUR First Applicant SUKHJINDER SINGH Second Applicant JAPINDER SINGH PUREWAL Third Applicant JAPJI KAUR Fourth Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	23 DECEMBER 2024