Kaur v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1146
•24 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1146
File number: MLG 963 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 24 July 2025 (and delivered by Judge Humphreys by telephone pursuant to s 210 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider relevant information – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal acted unreasonably – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Migration Act 1958 (Cth), ss 357A, 359AA, 360 & 476 and Division 5 of Part 5
Migration Regulations 1994 (Cth), cll 500.212 & 200.312 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Jia Legeng (2001) 178 ALR 421
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 16 April 2025 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondent: Ms M Woollett Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 963 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP KAUR
First Applicant
SUKHJINDER SINGH
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application be dismissed.
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 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 27 March 2018 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time that the application for judicial review was filed (being on 12 April 2018), the Tribunal was 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, a proceeding 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, the Court made an order (at the hearing of this matter on 16 April 2025) substituting the ART as the second respondent in this proceeding.
The applicants’ migration history
The first and second applicants are citizens of India and are wife and husband respectively (Court Book (“CB”) 11-14 & 31-35).
The first applicant was granted an initial student visa (offshore) in August 2009 and first arrived in Australia later that same month (being August 2009) as a holder of that visa (which was valid until December 2011) (CB 64, 66 & 99).
The first applicant enrolled in 18 courses of study, including printing and graphic arts, interactive digital media, painting and decorating, business administration and marketing and management. Many of those courses were cancelled or not finished (CB 65 & 99).
On 17 August 2016, the first applicant applied for the Student (Class TU) (Subclass 500) visa the subject of this review (the “visa”) (CB 10-30). Her husband (the second applicant) was included in the visa application as a member of her family unit (CB 13-15). At that time, the first applicant proposed studying Advanced Diplomas of Marketing and Leadership and Management (CB 36, 38 & 65). With that visa application, the first applicant provided identification documents for herself and her husband, Overseas Student Confirmation-of-Enrolment (“COE”) documents, educational records and confirmation of overseas health cover (CB 31-55).
On 25 October 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 62-69). The delegate determined that the first applicant did not meet cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). That is, the delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily (CB 67). As a result, the delegate also found that the second applicant did not satisfy cl 500.312 in Schedule 2 of the Regulations (CB 69).
On 3 November 2016, the applicants applied for review of the delegate’s decision by the Tribunal (CB 70-72). In that review application, the applicants asked that all correspondence be sent to the first applicant directly (as the review applicant) (CB 71-72).
On 16 February 2018, the Tribunal invited the applicants (via email) to attend a hearing before it, scheduled to take place on 16 March 2018 (CB 77-85).
On 9 March 2018, the first applicant provided a completed “Response to hearing invitation” form to the Tribunal (via email) (CB 86-89).
On 16 March 2018, the applicants attended the Tribunal hearing to give evidence and present arguments in relation to their review application (CB 90-92). The applicants’ minor son also attended that hearing. The applicants’ son was not a party to the Tribunal hearing (and is not a party to the matter now before this Court).
On 27 March 2018, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 97-102).
On 12 April 2018, the applicants applied to the then Federal Circuit Court of Australia (the “FCCA”) for judicial review of the Tribunal’s decision (CB 1-6). That application was accompanied by an affidavit which was sworn by the first applicant on 12 April 2018 (and filed in the then FCCA on 12 April 2018) (CB 7-9).
THE TRIBUNAL’S DECISION
The application for judicial review is brought pursuant to s 476 of the Act. To succeed before this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is six pages long and spans 34 paragraphs (CB 97-102).
The Tribunal began by explaining that the applicants had applied for the visas on 17 August 2016 and that a delegate of the Minister had refused to grant the applicants those visas on 25 October 2016 because the delegate was not satisfied that the first applicant was a genuine temporary entrant (and thus did not satisfy the requirements of cl 500.212 in Schedule 2 of the Regulations). The Tribunal noted that the applicants sought review of the delegate’s decision and that the applicants appeared at a hearing before the Tribunal on 16 March 2018 (with the assistance of an interpreter in the Punjabi and English languages) (at [1]-[4]).
The Tribunal identified that the issue before it was whether the first applicant was a genuine applicant for entry and stay as a student (as required by cl 500.212 in Schedule 2 of the Regulations) and then set out the relevant legislative provisions in that regard. The Tribunal noted that it was also required to have regard to the factors specified in Ministerial Direction No. 69 (the “Direction”) and explained that those factors were not to be used as a checklist but were instead intended to guide a decision maker when considering the applicants’ circumstances as a whole. The Tribunal also confirmed that it had discussed the considerations contained in the Direction with the applicants at the hearing before it (at [6]-[10]).
The Tribunal outlined that, at the time of its decision, the first applicant was enrolled in a package of courses, including Certificates III and IV in Commercial Cookery (due for completion by 7 April 2019), that the applicant had spent eight years in Australia and had enrolled in 18 courses (including digital media, panting and decorating, business administration, marketing and management), however, most courses were cancelled or had not been completed (at [13]-[14]).
The Tribunal then considered the first applicant’s circumstances in her home country and noted that she was married with a child (born in 2016) and was (at that time) pregnant. The Tribunal had regard to the first applicant’s evidence that she had a “significant family network” in India, including her mother, father-in-law and other relatives and that the family “own[ed] a number of businesses”. The Tribunal noted, however, that the first applicant had only returned home for “brief periods” on three occasions since her arrival in 2009. The Tribunal balanced those ties against the first applicant’s “significant family ties” in Australia and “discount[ed] those personal ties” in India and noted that the first applicant gave no indication that “she was having any difficulty managing [the] ties … in her home country” (at [16]-[17]).
The Tribunal confirmed that it had put adverse information to the applicants pursuant to s 359AA of the Act in relation to the first applicant’s Provider Registration and International Students Management System (“PRISMS”) records (indicating that she had enrolled in 18 courses and that a number of those courses were cancelled for “non-commencement of studies”). The Tribunal explained that the first applicant had confirmed that she understood the information put to her and did not seek an adjournment, electing instead to respond during the Tribunal hearing. The Tribunal noted that the first applicant had given evidence that she “was trying to achieve a qualification level that would allow her to go back to India to assist in the family businesses. The Tribunal was concerned that the first applicant had “taken no practical steps to progress” her undertaking to return home and was “seeking to study further in Australia”. The Tribunal also noted that the first applicant was unable to provide any “coherent rationale” for her changes in study activities, lack of academic progress or how recent enrolments in Marketing and Commercial Cookery would assist in her career plan (at [20]-[22]).
The Tribunal summarised the first applicant’s evidence that she originally intended to gain qualifications in painting and decorating, however, due to health reasons, she decided to study general business and management courses. She then changed to commercial cookery, claiming this would assist her business and employment prospects back home. The first applicant did not explain how those courses would assist or provide “any compelling evidence of any health reasons” for such a major change in study trajectory. Instead, she asserted she had an “allergy” to paint (at [23]-[24]).
The Tribunal continued:
28.While Direction 69 indicates that reasonable changes to career trajectory should be accommodated, the tribunal is not persuaded that the applicant genuinely decided to cease her plan to achieve qualifications in general business and management, subsequent to the painting and decorating courses, to train as a commercial cook in accordance with her current plan to run a restaurant/hospitality business back in India. The Tribunal is concerned about the applicant’s poor study history and her explanations about changes in course study.
29.The consideration above cast significant doubt as to the applicant’s own perception of the value of study proposed for the applicant’s future. The applicant has had ample opportunity and time to achieve an educational outcome in courses and at providers of the applicants choosing. For the reasons above the tribunal is unpersuaded by the applicant’s explanation for why an educational outcome has not been achieved over a significant period of time. The tribunal considers that the primary reason the applicant has not achieved a complete set of educational outcomes of the applicant’s own choosing is because the applicant is not motivated to achieve that outcome. This casts significant doubt that the applicant will in fact achieve an outcome which is relevant to the stated future plan. The premise of the applicant’s claims is that a departure from Australia will only be made after the applicant’s own self-defined educational goals are met. Given the applicant’s study history, the tribunal is unable to foresee with any confidence when, or if, that time will come.
30.The Tribunal has significant concern that the value of the study now proposed does not lie outside Australia, but in the grant of further student visas for the purpose of continued residence in Australia. The tribunal has no confidence that the study now proposed will be completed and therefore has no confidence that the applicant will depart Australia.
31.The Tribunal is also concerned that the applicant also has significant incentive to remain in Australia bearing in mind her personal and family circumstances here. The Tribunal is concerned that having her family with her in Australia, including a husband and child, is a significant personal incentive to remain here in Australia.
The Tribunal was ultimately not satisfied that the first applicant was a genuine applicant for entry and stay as a student and, as such, affirmed the delegate’s decision refusing to grant the applicants the visas (at [32]-[34]).
APPLICATION TO THIS COURT
The application for judicial review (filed in the then FCCA by the applicants on 12 April 2018) contained seven “grounds of review” as follows (without alteration) (CB 4):
1.Tribunal did not consider my genuine reasons and my intention behind my career courses options, and genuine reasons to complete my studies;
2.The Tribunal has upheld the decision of the delegate of the Minister for Immigration and Border Protection through review application 1618378 without considering the material facts of the matter and circumstances and affirmed the decision in accordance being not a Genuine Student;
3.The tribunal did not adopt principles of natural justice while disposing off my review application;
4.The tribunal failed to consider my medical issues and circumstances that led to change of courses and affirmed the decision in accordance being a non-Genuine student;
5.The Tribunal considered that Grounds of Rejection does exist for not being a genuine student, which I deny as I did complete most of the courses which I undertook and change of career trajectory was due to valid reasons outside of my control;
6.The Tribunal committed jurisdictional error while hearing my matter before it;
7.The tribunal hearing being de novo, the Tribunal did not consider fresh circumstances of my case.
The applicants also filed an affidavit (sworn by the first applicant on 12 April 2018) in support of the judicial review application. That affidavit annexed a copy of the Tribunal’s decision record and associated notification letter and factsheet and replicated grounds one to six of the grounds of review (outlined above) (CB 8-9).
On 17 April 2019, procedural orders were made by Registrar Gitsham of the then FCCA giving the applicants an opportunity to file an amended application, supplementary court book and written submissions.
On 21 March 2025, the first applicant sent an email to the Court which included a subject line which read “Submission Regarding My Case”. The contents of the first applicant’s email will be discussed below.
The first applicant appeared before this Court (by video link on 16 April 2025) without legal representation but with the assistance of a Punjabi interpreter. Ms Maggie Woollett from the Australian Government Solicitor appeared on behalf of the Minister (also by video link). The Court asked the first applicant to confirm that she would speak on behalf of herself and her husband. She did so. She also confirmed that she had received copies of the CB and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 12 April 2018 (the first applicant’s affidavit being taken as read and in evidence at the hearing on 16 April 2025), a CB numbering 102 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 26 February 2025 and the email correspondence from the first applicant to the Court (referenced above and marked as Exhibit 2 at the hearing of this matter).
Noting that the first applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that when she and her husband (the second applicant) attended the Tribunal hearing, “they asked why her COE ha[d] been cancelled”; however, when she tried to explain, “they were already asking another question”. The first applicant also explained that “a lot of things had happened that should not have happened but did – for example, the college teachers [had] misguided [her]”. Finally, the first applicant stated that she did not “have any platform to explain what ha[d] happened to [her] and [the Tribunal] did not hear her properly”. Further, if “they had heard [her] properly, the outcome could have been different”.
The first applicant’s concerns (both in her oral submissions and in Exhibit 2), to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below.
CONSIDERATION
The applicants were not legally represented. Upon review of the applicants’ judicial review application and supporting affidavit (both filed in the then FCCA on 12 April 2018) and the concerns raised in the first applicant’s oral submissions (at the hearing before this Court on 16 April 2025) and written submissions (contained in Exhibit 2), the Court (in an attempt to assist the applicants as much as possible) considers the applicants to have raised the following issues in need of consideration:
(a)whether the Tribunal failed to consider relevant information or evidence before it;
(b)whether the Tribunal’s decision was affected by bias;
(c)whether the Tribunal failed to afford the applicants procedural fairness; and
(d)whether the Tribunal acted unreasonably in coming to its decision.
Whether the Tribunal failed to consider relevant information or evidence before it
The applicants first claimed that the Tribunal failed to consider relevant evidence or information. In particular, the applicants suggested that the Tribunal did not consider or have regard to the:
(a)first applicant’s genuine reasons and intention behind her course and career options or her genuine reasons to complete her studies;
(b)material facts of the matter or the fresh circumstances of the applicants’ case;
(c)first applicant’s medical issues; and
(d)circumstances which led to the first applicant’s change in courses or study pathways.
The Court notes that on 16 February 2018, the Tribunal invited the applicants (via email) to attend a hearing before it (CB 77-85). That hearing invitation letter also invited the applicants to provide additional information in support of their review application, as follows (CB 79):
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.
In addition, please provide the following information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as is required for the grant of a student visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
We request that you provide the written statement and other evidence to us at least 7 days before the hearing date.
The applicants were also provided a copy of the Direction which outlined the factors the Tribunal might consider when determining whether the first applicant genuinely intended to stay in Australia temporarily (CB 81-85). Unfortunately, the applicants did not provide any additional information or evidence to the Tribunal ahead of the hearing before it.
In the circumstances, the Tribunal made its decision based on the evidence before it (being the materials in the Departmental file, the first applicant’s PRISMS records, the review application and supporting documentation provided to it by the applicants and the oral evidence given by the applicants at the hearing before it, held on 16 March 2018) (CB 90).
In relation to the first applicant’s genuine reasons and intention behind her course and career options, the Tribunal noted the first applicant’s evidence as follows:
(a)she was “trying to achieve a qualification level that would allow her to go back to India to assist the family businesses and to allow her to be able to gain employment” (at [21]);
(b)she had studied general business and management courses and then decided to study commercial cookery because it would assist her business and employment prospects back home (at [23]); and
(c)she had a plan to run a restaurant/hospitality business back in India (at [28]).
Insofar as the applicants claim that their current circumstances were not considered, the Court notes that, as outlined above, the applicants were given an opportunity to provide information to the Tribunal in relation to their current circumstances ahead of the Tribunal hearing but did not avail themselves of the opportunity to do so. The Tribunal did, however, put information to the first applicant (pursuant to s 359AA of the Act), asked the first applicant questions about her current situation and had regard to the responses and information provided by the first applicant (see, for example, paragraphs [16]-[27] of the Tribunal’s reasons).
To the extent that the first applicant contends that her medical issues were not considered, the Court notes that no medical evidence was provided to the Tribunal. The Tribunal did, however, acknowledge that the first applicant claimed to have changed her studies from painting and decorating “because of health reasons”, noting that she had “some allergy to the paint”. The Tribunal was concerned that the first applicant had “not provide[d] any compelling evidence” in that regard (at [23]-24]). The Tribunal also acknowledged that the applicant had had a child in June 2016 and was (at the time of the Tribunal hearing) pregnant again (at [16] & [25]-[26]).
Whilst the first applicant claimed (in Exhibit 2) to have faced “serious pregnancy complications” which made it difficult for her to “deal with sudden course changes and enrolment pressures”, there was no evidence provided to the Tribunal (or before this Court) in that regard.
Insofar as the applicants claim that the Tribunal failed to consider the circumstances which led to the first applicant’s change in courses or study pathways, this fails on a factual level. The Tribunal questioned the first applicant about this issue at the Tribunal hearing and noted that the first applicant “was unable to outline a coherent rationale for her many changes in course type” (at [22]). The Tribunal continued:
23.The applicant stated that she had originally intended to gain qualifications in painting and decorating but had, because of health reasons, decided to study general business and management courses. She then decided to study commercial cookery because this would assist her business and employment prospects back home. She did not explain however how these courses would actually assist this endeavour. The Tribunal was concerned about this lack of progress.
…
28.While Direction 69 indicates that reasonable changes to career trajectory should be accommodated, the tribunal is not persuaded that the applicant genuinely decided to cease her plan to achieve qualifications in general business and management, subsequent to the painting and decorating courses, to train as a commercial cook in accordance with her current plan to run a restaurant/hospitality business back in India. The Tribunal is concerned about the applicant’s poor study history and her explanations about changes in course study.
Whilst the first applicant raised concerns (in her oral submissions and Exhibit 2) about issues with some of the educational providers and lecturers (claiming that one college closed unexpectedly, double COEs were issued without her knowledge and a course had been discontinued and she was pressured and harassed by that college to enrol in alternate courses), no evidence in that regard was provided to the Tribunal (or to this Court).
The Court is satisfied that the Tribunal properly considered all of the evidence before it and no jurisdictional error arises in this regard.
Whether the Tribunal’s decision was affected by bias
The applicants also suggest that the Tribunal’s decision was biased or that “it seemed as though the Tribunal member had already made up their mind” about the applicants’ matter. The Court disagrees for the reasons that follow.
It is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove an allegation for bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
There is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicants to attend a hearing and, in that hearing invitation letter, advised the applicants that they could provide additional information in relation to their review application (CB 79). The applicants did not provide any additional documentary evidence in support of their review application.
The applicants did, however, attend a hearing before the Tribunal on 16 March 2018 (CB 90). At that hearing, the Tribunal member asked the first applicant questions and had regard to the responses and oral evidence given by the applicants at that hearing.
Having considered the (limited) evidence before it against the factors contained in the Direction (as it was required to do), the Tribunal ultimately determined that the first applicant was not a genuine temporary entrant and affirmed the delegate’s decision refusing to grant the applicants the visas.
The Court is satisfied that the Tribunal was not biased in its review of this matter and no jurisdictional error arises in this regard.
Whether the Tribunal failed to afford the applicants procedural fairness
The applicants also suggested that the Tribunal failed to afford them procedural fairness or that the Tribunal’s decision was (in some way) unfair.
As previously explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 (and other similar matters), Division 5 of Part 5 of the Act (as was in force at the time of the Tribunal’s decision) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal was obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal complied with the relevant requirements in this matter and notes as follows:
(a)the Tribunal invited the applicants to attend a hearing before it to give evidence and present arguments in support of their review application. The applicants gave evidence at that hearing (with the assistance of a Punjabi interpreter) (CB 90-92). Accordingly, the Tribunal complied with s 360 of the Act;
(b)during the course of the hearing, the Tribunal put information to the applicants about the first applicant’s enrolment record obtained from her PRISMS records. The Tribunal (in its written reasons) noted that it explained to the first applicant what the PRISMS database was and the significance of the records obtained from it. The Tribunal also appears to have taken the first applicant through her study and enrolment history and explained to the first applicant that the records indicated a “lack of academic progress”. The Tribunal also explained to the applicants the consequences of the Tribunal relying on the enrolment record and the first applicant confirmed that she understood. The Tribunal recorded that the first applicant “did not seek an adjournment and elected to respond at the hearing” (at [20]). There is no evidence to suggest that the applicants requested additional time to comment on or respond to that information or that the first applicant was unable to respond to the information because she was not given sufficient time to do so. The Tribunal thus complied with s 359AA of the Act;
(c)the dispositive issue before the Tribunal (being whether the first applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 in Schedule 2 of the Regulations) was the same as the issue before the delegate – which led to the refusal of the applicants’ visas. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(d)the Tribunal questioned the first applicant, listened to her responses and actively sought information from her about her circumstances. As outlined above, there is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness.
No jurisdictional error arises in this regard.
Whether the Tribunal acted unreasonably in coming to its decision
To the extent that there is any suggestion that the Tribunal acted unreasonably in determining that the first applicant did not intend to stay in Australia temporarily (and, as a result, that the second applicant could not be granted the visa), the Court disagrees for the reasons that follow.
As this Court explained in Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673 (and other similar matters), legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision making: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4].
The principles in relation to legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Before considering any of the evidence in the matter before it, the Tribunal here identified that the issue before it was whether the first applicant was “both a genuine student and a genuine temporary entrant” (at [6]). It set out the legislative requirements under cl 500.212 in Schedule 2 of the Regulations and explained the considerations it was required to have regard to, as outlined in the Direction, and detailed how that Direction ought to be used when reaching findings on whether the first applicant satisfied the genuine temporary entrant criterion (at [7]-[10]).
The Tribunal’s ultimate decision was based on the (limited) information provided to it (being materials before the Department and the Tribunal, together with the first applicant’s oral evidence given at the Tribunal hearing).
On the basis of all of the evidence before it, the Tribunal was ultimately not satisfied that the first applicant was a “genuine applicant for entry and stay as a student as required by cl 500.212” in Schedule 2 of the Regulations (at [32]).
The Tribunal’s findings in this matter were entirely logical and reasonable. It cannot be said here that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33].
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit (both filed by the applicants on 12 April 2018), the applicants’ written submissions (contained in Exhibit 2) and the first applicant’s oral submissions to this Court have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 July 2025
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