Kaur v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1166
•23 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1166
File number(s): SYG 757 of 2021 Judgment of: JUDGE ELDERSHAW Date of judgment: 23 July 2025 Catchwords: MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of the Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges that the Tribunal did not consider all of the information before it – Where the applicant was found not to be a genuine temporary entrant – Application dismissed Legislation: Migration Act1958 (Cth), ss 357A, 359, 368D, 474, 476
Migration Regulations 1994 (Cth), cl. 500 sch. 2 500.212, 500.215
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: General Number of paragraphs: 104 Date of hearing: 8 July 2025 Place Sydney Applicants: The first applicant appeared in person by Webex Solicitor for the First Respondent: Mr J. Fyfe (MinterEllison) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 757 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DALVIR KAUR
First Applicant
SATNAM RAM
Second Applicant
SHANAYA RALPH
Third Applicant
MANAV RALH
Fourth ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The application filed 29 April 2021 be dismissed.
2.The name of the first respondent be changed to “Minister for Immigration and Citizenship”.
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 ELDERSHAW
INTRODUCTION
By their application filed on 29 April 2021, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 31 March 2021 (Decision) concerning the first applicant’s primary application for a Student (Temporary) (Class TU) visa (Student Visa) and the Second to Fourth applicant’s secondary applications.
The applicants seek:
(a)that the decision of the Tribunal be quashed;
(b)a writ of mandamus directed to the Tribunal requiring it to determine the Student Visa application according to law;
(c)a writ of prohibition directed to the Minister to prohibit him from giving effect to the Delegate’s decision dated 1 April 2021; and
(d)such further order as the Court thinks fit and costs.
The Minister seeks that the application be dismissed with costs.
The applicants to these proceedings are Ms Dalvir Kaur, Mr Satnam Ram, Miss Shanaya Ralh and Master Manav Ralh. Ms Kaur is the wife of Mr Ram and they are the parents of Miss Ralh and Master Ralh. Ms Kaur was appointed the litigation guardian for her minor children. For convenience, in these reasons, “the applicant” means Ms Kaur as she was the primary applicant for a student visa, with her spouse and children as secondary applicants.
DOCUMENTS
The applicant relies on her application and affidavit, both of which were filed on 29 April 2021. The Minister relies on his response filed 17 May 2021, Court Book filed 8 July 2021, the affidavit of Ms Kerrie Pieri filed 29 September 2021 and written submissions filed on 24 June 2025. The Court Book has been marked as Exhibit R1.
In these Reasons, references to the Court Book are styled CB followed by the page number.
LEGAL FRAMEWORK
Section 476(1) of the Migration Act1958 (Cth) (Act) confers power on this Court to undertake judicial review of migration decisions where a writ of mandamus or prohibition, or an injunction is sought against a Commonwealth officer, subject to the limitations imposed by s 476(2). This Court’s power to review the Tribunal’s decision is limited to review for judicial error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The Court is not permitted to undertake a review of the merits of the application for a visa: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
Clause 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) sets out the criteria for the grant of subclass 500 student visas.
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.
In considering whether the applicant satisfies clause 500.212(a), i.e. that he “intends genuinely to stay in Australia temporarily”, the Tribunal is to apply Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications” (Direction). The Direction addresses various factors which guide the decision-making process relating to the genuine temporary entrant requirement.
BACKGROUND AND MIGRATION HISTORY
The applicant was born in India on 30 August 1984. Mr Ram was born in India on 20 February 1969. Master Ralh was born in India on 13 January 2011. Miss Ralh was born in Australia on 24 February 2019.
The applicant first arrived in Australia on 28 October 2008.
Travel History
The applicant travelled to India between 4 and 31 December 2011 to visit her family. Her parents visited Australia for three months in 2019.
Study History
The applicant gave the following history of her study history in Australia, based on the information at CB139-140:
Course Commenced Concluded Status Advanced English November 2008 January 2009 Completed Master of Information Technology March 2009 November 2011 Completed Master of Business Management March 2012 June 2012 Did not complete English for General Purpose July 2012 September 2012 Completed Master of Business Administration November 2012 December 2016 Completed Professional Year in IT May 2017 April 2018 Completed Advanced Diploma - Network Security July 2019
(enrolled Nov 2018)July 2020 Completed Graduate Certificate - Management Learning October 2020 - Studying at time of Tribunal review Graduate Diploma – Strategic Leadership Proposed enrolment at time of Tribunal review Application to the Department
On 16 November 2018, the applicant applied for a student (subclass 500) visa to the Department of Home Affairs (as it was then known) (the Application).
On 29 January 2019, the Department wrote to the applicant requesting more information for the purpose of considering the Application. The information required related to overseas student health cover for herself and the other applicants.
On 24 February 2019, Miss Ralh was born in Sydney.
On 3 April 2019, the Delegate refused the Application on the basis that the applicant had not satisfied clause 500.215 in Schedule 2 of the Regulations, pertaining to health insurance. The secondary applications were consequently refused (First Delegate’s Decision).
First Appeal to the Tribunal
The applicant appealed the First Delegate’s Decision to the Tribunal. On 1 July 2019, the Tribunal remitted the Application with a direction that the applicant met the requirements of clause 500.215 of the Regulations (First Tribunal Decision).
Remitter to the Department
On 6 August 2019, the Department wrote to the applicant requesting more information for the purpose of considering the application. This included information about whether the applicant met the genuine temporary entrant criterion. Relevantly, the applicant provided a document styled “Statement of Purpose” which reads:
I, (Dalvir Kaur) am very much interested in pursuing ADVANCED DIPLOMA OF NETWORKING In Australia. Following is the brief description of my background, my academics, my interest and my aspirations.
'There are many roads to success. The best road is always the toughest'
I belong to a very educated family, where I always learnt that education is not just in order to earn money but it is a way to stay ahead in this competitive world. My parents and my husband are supporting me for my further study of Advanced Diploma of Networking in Pacific Collage of technology.
As a young student in primary school, I used to be completely enraptured by magical word of computers, the playful games its programming and applications in computer always attracts my interest and fascinated me in every aspect of my life. But due to some other reasons I had to take admission in bachelor of Arts in Guru Nanak Girls collage. During Study in Arts my main interest was still in technology. Then after finishing my bachelor I took admission Post Graduation Diploma in Computer application at ORV DAV collage. Where I completed it with 67% Marks.
Then in 2009 by Grace of God I Enrolled in Master of information technology at University of Southern Queensland in Sydney. Then after finishing masters in IT I joined MBA at HOLMES college, to get the knowledge about business in IT. This leads my interest in field of computers. After finishing my MBA, I started searching job but the main challenge was networking. During my masters of information technology studies there wasn't much subjects of networking, So I couldn't develop my knowledge of networking. Most of the companies have the requirement of networking skills. I worked in a company for three months where I found interest in networking. Having a sound of business and IT now I would like to study in Advanced Diploma of Networking, which intendeds to provide me with the opportunity to be a qualified Professional. This Diploma will enhance my Knowledge and skills in networking.
This makes me select the course of Advanced Diploma of Networking at pacific collage of technology which would give an additional boost to my career. The information provided to me by the University, gave me a good insight of the course content, job opportunities and future prospects, after completion of my course. The reason to choose Pacific collage of technology is that, it is fulfilling all my needs of my required study and the bonus point is that, with kids it was hard for me to travel further away from home. This collage is very near to my home town. I am confident that with the strong motivation, hard work and interest for the study, I would be able to make the best of my abilities. I am sure that I can afford my well being while studying In Australia.
I have selected Australia as my destination for advance studies, since it is one of the countries having largest number or International student in the English speaking world. Its qualification and institution are recognized globally for their high quality and excellence. Students from Australia are very successful in getting the job and hold prominent position worldwide. Multicultural Australia is a safe, friendly, sophisticated and harmonious society in which students can easily learn and travel.
With this broad interest and specific goals, I am tempted to undertake Advanced Diploma of Networking at pacific collage of technology. I am sure that after finishing my study in Australia, it will be a career boost in my country to get job and knowledge and exposure gained will help me in building successful career in the field of Information System so I can work in some of Multinational IT Company for the rapid development of my country.
On 9 September 2019, the Delegate refused the Application on the basis that the applicant did not satisfy the genuine temporary entrant criterion. The secondary applications were consequently refused (Second Delegate’s Decision).
Second Appeal to the Tribunal
On 30 September 2019, the applicant applied to the Tribunal for a review of the Decision (Second Tribunal Appeal).
On 2 October 2019, the Tribunal wrote to the applicant in which it stated, inter alia: “If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.” The letter included multilingual advice and a document styled “Information for migration review applicants – MR Division”.
On 22 January 2021, the Tribunal wrote to the applicant inviting her to provide information by 5 February 2021. The letter identified that it was a requirement of a student visa that the applicant be enrolled in a course of study and be a genuine applicant for entry and stay as a student. The Tribunal further stated that:
In considering whether an applicant is a genuine applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No. 69 ‘Assessing genuine temporary entrant criteria for Student visa and Student guardian visa applications’. A copy of this is attached for your reference.
(Emphasis in the original)
Request for Student Visa Information
On 5 February 2021, the applicant lodged a Request for Student Visa Information (Request for Information). In that document:
(a)The applicant gave the study history which appears at paragraph 13 of these Reasons.
(b)The applicant said that she chose the education provider for the Australian course she was then studying because:
I choose this education provider because:
•subjects I needed to study was provided by this institute.
•positive and best reviews from friends.
•online classes. Most important in this pandemic situation
•less travel – close to my home, 10 minutes drive only.
(c)As to whether there are similar courses in the applicant’s home country, the applicant said:
First of all, these courses are not available in my country as if available without my knowledge than (sic) I know the level of the education provider intitute (sic) or level of education would be very low as compare (sic) to Australian education. I wanted to get a good level of education and Australia is a world known education provider.
(d)The applicant said that she did not study between February and July 2019 following the birth of her second child.
(e)The applicant said that she worked as a waitress at a hotel in Parramatta between 1 December 2014 and 11 January 2015, and in an unpaid information technology position in Sydney between 15 January 2018 and 15 April 2018.
(f)Of her family ties, the applicant said that her parents and two sisters live in India, and that her brother and another sister live in Italy. She last saw her brother in June 2005, her three sisters in December 2011, and her parents in 2019. The applicant said that she communicates with her parents and two of her sisters twice a week. I infer that the sisters with whom she speaks are those who live in India, noting the similarity of telephone numbers for them with the number of her parents. The applicant’s husband and two children reside in Australia with the applicant.
(g)Of her community ties in her home country, the applicant said:
Most of my community ties are in India. I am very much attached to my family, relatives, school friends, childhood friends and my neighbours. We used to celebrate cultural programs and festivals together. I am missing Indian weddings. That’s why I just want to finish my studies and go back to my home country as soon as possible.
(h)Of her community ties in Australia, the applicant said:
I don’t have any family relatives in Australia, but I have some friends and I meet them occasionally, like on kid’s birthday parties.
(i)The applicant stated that she owned land in India with an asserted value of about $40,000.
(j)Of her plans, including her employment plans, at the completion of the proposed course of study, and how these courses relate to those plans, the applicant said:
Currently, I am doing graduate certificate in management learning. I always wanted to start my career in IT business sector. With the help of IT and MBA I learned a lot about high level business techniques. But this course teaching me basics which is most important to start a career.
(k)Of the remuneration she expects to receive in her home country using the qualifications she will gain from the proposed study, the applicant said:
If I complete my studies in Australia and get job in my home country than (sic) I must say that it will be much better life than here in Australia. I can get around RS.200,000 monthly salary which is more than enough to live a quality of life as things are much cheaper there as compare (sic) to Australia. Moreover I can meet my family and friends whenever I want to.
(l)The applicant denied any military service commitments or civil or political unrest in her home country.
Further documents
By document dated 22 February 2021, the applicant provided a document styled “Statement in addition to student visa information form submitted to AAT” (Statement). Without derogation from the totality of the Statement, the applicant said that:
(a)she belonged to an educated family and understood the value of education. The “importance and relevance” of the course was to “support my career”;
(b)she had always had a keen interest in management studies. After completing her Masters of Business Administration, the applicant wanted to pursue further business-related courses “within my local region and internationally”. The courses in Strategic Leadership and Management “intends to provide me with the opportunity to be a qualified professional” and “will enhance my knowledge and skills required in the job market”;
(c)the courses “will give an additional boost to my career […] The information provided by the University gave me good insight of the course content, job opportunities and prosects after completion of this course. I am confident that with the strong motivation, hard work and interest for the study, I would be able to make the best of my abilities. The reason for choosing this collage (sic) is that it is fulfilling all of my need of necessary qualification to find a desirable employment”;
(d)the college was close to the applicant’s home, and she had the financial support of her family;
(e)she chose to study in Australia since it has many English-speaking international students and provides high quality education. She said:
Multicultural Australia is safe, friendly sophisticated and harmonious society in which students can easily learn and travel. I choose a career in this field, which not only supplement the knowledge I possess but also provides a stable platform for my future career goals. In future I have always wanted to work in an international organisation which I can have the chance to see how various cultures that are combined and the possibility of working as a team. Nowadays in India, there are numerous multinational companies looking for international graduates having international exposure. There are even more employment opportunities available after completion of my course.
(f)her study intentions are sincere, she has a good attendance record and wished to complete the courses in which she was then enrolled. The applicant said she was a law-abiding and complied with all visa requirements; and
(g)she was “very confident and ready to take this opportunity towards achieving my career goals”.
On 5 March 2021, the Tribunal wrote to the applicant. The letter began:
I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Student (Temporary) (Class TU) visas.
We have considered the material before us, but we are unable to make a favourable decision on this information alone.
You are invited to appear before the [Tribunal] to give evidence and present arguments relating to the issues arising in your case. We are arranging for you to appear by telephone.
[…]
Please provide at least 7 days before the hearing all documents you intend to rely on to support your case. […]
In addition, please provide at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the 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.
In determining whether you are a genuine applicant for entry and stay as a student, we may also have regard to cl.500.212(b) of Schedule 2 to the Regulations. This clause requires that you intend to comply with any conditions subject to which the visa is granted, having regard to your record of compliance with any previous visa conditions and your stated intention to comply with any conditions to which the visa may be subject. Please be prepared to answer any questions the Tribunal may have on this issue and provide any supporting information or documents you may wish to provide to the Tribunal.
(Emphasis added)
The applicant submitted a “Response to hearing invitation” dated 29 March 2021 in which she stated that she would be appearing with her authorised representative, that she did not require an interpreter. The applicant answered “No” to the questions:
(a)“Is there any issue that may affect your ability, or that of any other person participating, to take part in the hearing (e.g. a health problem or disability?”;
(b)“Do you believe that you or another person will experience difficulty participating in the hearing or that hearing cannot be conducted as arranged in the hearing invitation?”;
(c)“Do you intend to rely on any documents at the hearing e.g., written witness statements, written submissions, country information, or other evidence?”; and
(d)“…that the Member takes oral evidence from another person.”
On 8 March 2021, the applicant’s representative emailed the Tribunal and stated:
We have received hearing invitation for the above mentioned applicant. According to the hearing request letter, today we have uploaded past study documents. In hearing invitation, it is mentioned that, We (sic) need to submit current enrolment proof. But we have uploaded that document to AAT application on 22-02-2021 as per earlier request. We have also uploaded genuine temporary entrant letter at the same time.
Kindly let us if you are unable to locate those documents; so that we will resubmit it.
The documents appearing at CB170 to CB192 inclusive are student records and certificates. I understand those documents to be the “past study documents” to which the 8 March 2021 email refers.
Hearing before the Tribunal and its reasons
On 31 March 2021, the applicant and her representative attended a telephone hearing before the Tribunal at which time the applicant gave evidence. The hearing commenced at 9:34am. The Tribunal delivered oral reasons commencing at 10:37am and concluding at midday (Second Tribunal Decision).
On 1 April 2021, the Tribunal wrote to the applicant informing her that she may request a written statement of the Second Tribunal Decision within 14 days of the decision (i.e. by 15 April 2021). The written record was published on 17 May 2021.
The Second Tribunal’s Decision to affirm the Second Delegate’s Decision. Its reasons for doing so were summarised in the Minister’s submissions which I adopt:
16. The Tribunal accepted that the applicant was enrolled in two courses, being a Graduate Certificate in Management (Learning) and a Graduate Diploma of Strategic Learning, and was therefore enrolled in a registered course of study (CB 229 at [13]-[15]). Accordingly, it found that the issue on review was that the same as that before the delegate—being whether she intended to remain in Australia temporarily for legitimate study purposes (CB 230 at [16]).
17. The Tribunal identified that it must consider this issue with due regard to the factors in Direction No. 69 (CB 230 at [17]–[18]) and consider it afresh having regarding to the material before it (CB 230 at [19]).
18. The Tribunal referred to the material before the delegate and noted that the applicant had provided a statement of purpose in which she explained why she wanted to study the Advanced Diploma of Network Security that she then intended to study (CB 230 - 231 at [20]–[24]). The Tribunal noted that it did not have a copy of the visa application itself but found that '[n]othing really turn[ed] on this' other than the fact that it did not know what the applicant said in application (CB 231 at [24]).
19. The Tribunal noted the concerns that the delegate had in relation to the application (CB 231 at [25]–[31]) and proceeded to record the applicant's evidence provided in support of the review and made relevant findings (CB 232-239 at [33]–[98]) as follows:
(a) value of the course to the applicant's future: the Tribunal did not accept the applicant's oral evidence as to the value of the two VET courses to her future (CB 232 at [32]). It noted that the applicant's evidence as to her employment plans differed between those provided in her s 359 form and at hearing, and found that it could not accept that her Graduate Certificate would be of any real assistance to her finding employment in a multi-national IT company in India when regard was had to the courses she completed in the course of her Master of Business Administration (CB 233 – 235 at [57]–[64]). It also found that the course in Strategic Leadership would be of limited value (CB 235 at [66]–[68]) and that these courses would not materially assist her in finding employment in India (CB 236 at [69]–[75]).
(b) circumstances in India: the Tribunal found that it was difficult to reconcile the applicant's evidence that she was in touch with her parents in India twice a week with the fact that she had not been back to India since 2011, but was prepared to accept that there was some ongoing contact (CB 233-234 at [51]–[52]). The Tribunal did not accept the applicant's evidence that she was 'much attached' to her family in light of the extensive period of time the applicant and her immediate family remained in Australia without return visits to India (CB 234 at [53]–[55]). The Tribunal acknowledged the applicant's statement that she owned land in India, but noted that she had not provided any corroborative evidence of this (CB 234 at [56]). The Tribunal noted that the applicant had no concerns about military service commitments in India (CB 235 at [65]) but ultimately found that the applicant did not have a strong incentive to return to India (CB 237 at [76]–[81]; CB 238 at [89]–[90]).
(c) potential circumstances in Australia: the Tribunal found that the applicant had significant personal ties to Australia and that she and her immediate family appeared 'fairly well entrenched' in the Australian community (CB 237 at [82]–[83]). It found that these were 'significant … profound ties' (CB 237 at [85]).
(d) immigration history: the Tribunal noted that the applicant had been in Australia for 12.5 years, which was an 'extensive stay' for a genuine temporary student in Australia (CB 238 at [91]). In addition, it noted that she had been granted 'no less than six TU-573 visas' (CB 238 at [92]) and that there was nothing in her immigration history that alleviated the findings the Tribunal had otherwise made (CB 238 at [93]). It concluded that the applicant's immigration history should be 'given weight' (CB 239 at [94]).
(e) other relevant matters: the Tribunal found that there were no other relevant matters to consider, apart from the fact that she had enrolled in two additional VET courses and had given almost no evidence to justify her enrolment in the Graduate Diploma of Strategic Leadership course (CB 239 at [96]–[97]).
20. Given the above findings, the Tribunal concluded that the applicant could not be regarded as a genuine applicant for entry and stay temporarily as a student as required by clause 500.212, and affirmed the decision under review (CB 239 at [99]–[101]).
Judicial Review Proceedings
On 29 April 2021, the applicant filed an application for judicial review in this Court alleging six Grounds:
1. The Tribunal denied the applicant procedural fairness and/or failed to exercise its jurisdiction by failing to provide the applicant ample opportunity and time to respond to the matter and queries sought by the Tribunal.
2. The Tribunal erred in finding that the applicant's visa should be refused and failed to give proper weight and consideration to the earlier documents submitted by the applicant. By doing so, the Tribunal erred jurisdictionally by failing to objectively and dully consider the evidence before it by discounting the evidence before it.
3. As procedural fairness was not accorded by the Tribunal to the applicant, the Tribunal erroneously concluded that it had to affirm the decision of the delegate, and is accordingly. breach of the applicant's right to natural justice by:
a. Failing to explore and make proper enquiries into their erroneous conclusion that the applicant did not meet the the requirements of cl.500.212(a} of Schedule 2 to the Migration Regulations 1994 (the Regulations).
b. Not considering the evidence that was already before it.
4. The tribunal has accordingly breached section 338,348 353 and 357A of the Migration Act by failing to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
5. The Tribunal has further breached section 368 of the Migration Act by its failure to provide proper reason for its decision and findings on the material question of fact on which the decision was made.
6. The decision of the Tribunal on 1st April 2021 was and is invalid in that:
a. The Second Respondent ("the Tribunal") wrongly held that the visa should be refused.
b. The Tribunal reached a mistaken conclusion that the applicant is not a genuine applicant criteria set out under cl.500.212(a), and for that the Tribunal must have regard to Direction No.69, 'Assessing the genuine temporary entrant criterion for a Student visa.
c. The Tribunal was mistaken as to its finding there was insufficient evidence to satisfy the primary criteria.
d. The Tribunal acted improperly and unreasonably by affirming the decision of the delegate.
CONSIDERATION
In the following consideration of the Grounds of review, where brevity allows, “Tribunal” refers to the Tribunal which was constituted after the Second Delegate’s Decision and which heard and determined the subject administrative appeal. “Decision” means the Second Tribunal’s Decision.
GROUND ONE
1. The Tribunal denied the applicant procedural fairness and/or failed to exercise its jurisdiction by failing to provide the applicant ample opportunity and time to respond to the matter and queries sought by the Tribunal.
Submissions
As to the first limb of Ground One, namely that the Tribunal denied her procedural fairness, the applicant submitted that her visa “was the same” case and that the process before the Tribunal was unfair because “how could it be if one person can accept your application and the other refused”. I clarified this to mean that the First Tribunal Decision, which resulted in a remittal to the Department, ought to have resulted in a successful appeal on the second (subject) occasion. When asked how that submission is to be understood against the background of the First Tribunal Decision relating to whether the applicant held relevant health insurance whereas the dispositive issue in the Second Tribunal Decision was whether the applicant was a genuine temporary entrant, the applicant made no further submissions.
As to the second limb of Ground One, namely whether the Tribunal failed to provide her with ample opportunity and time to respond to matters and queries, the applicant clarified that there were two courses that she wanted to do and that “these courses were important for me and I couldn’t get the visa.” That is, that the applicant wanted more time to finish her studies. When I asked the applicant whether she was saying that she wanted more time to present evidence and arguments about the visa application to the Tribunal, the applicant said “I think I already provided what I wanted.”
The Minister submitted in his written submissions that:
23. There is no evidence before the Court that supports this contention. The Tribunal's reasons also do not indicate that the applicant requested further time to provide evidence. Accordingly, the Minister submits that this ground fails on the facts.
24. The Minister further submits that the Tribunal complied with s 360 of the Act by inviting the applicant to attend a hearing to give evidence and to present arguments in relation to her case, which she attended (CB 156-169; CB 209-212). In these circumstances, the applicant was plainly afforded sufficient opportunity to give evidence and present arguments about the determinative issue on review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In his oral submissions, the Minister’s legal representative submitted that, as the “ample opportunity” and “time” referred to the completion of the applicant’s studies, Ground One invites an impermissible merits review.
The applicant also said that the Tribunal refused her visa application because it was not satisfied that she was a genuine applicant by reference to her ties with family in India and that she only travelled to India in 2011. The applicant submitted that she was pregnant in 2018 and that her parents visited her in Australia in 2019.
Discussion and Disposition
As to the first part of Ground One, the dispositive issue in the First Tribunal Decision was whether the applicant held the relevant health insurance. Once answered in the affirmative, the Application was remitted for reconsideration on the basis that such insurance was in place. The Second Tribunal Decision concerned whether the applicant satisfied the genuine temporary entrant criterion. It does not follow that the Second Tribunal Appeal would result in a remitter because the First Tribunal Appeal was successful when the dispositive issue in each process was different.
As to the second part of Ground One, I accept the Minister’s submission that the applicant’s need for more time to complete her studies invites an impermissible merits review.
In my duty to a self-represented litigant, I have remained astute and alert to an error by the Tribunal: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158. As such, I have nevertheless considered whether there is any apparent failure to afford procedural fairness to the applicant. I am satisfied that the Tribunal afforded the applicant a reasonable opportunity to give evidence and present arguments, consistent with Division 5 of Part 5 of the Act. The effect of s 357A of the Act is that Division 5 of Part 5 of the Act is an exhaustive statement of the natural justice hearing rule. I note:
(a)The Tribunal wrote to the applicant on 2 October 2019 inviting her to provide material and written arguments, and enclosing multilingual and other information.
(b)The applicant was invited to provide information in support of her application pursuant to s 359 of the Act and accepted that invitation by way of her Request for Information. The applicant also provided additional documents including study documents and the Statement dated 22 February 2021.
(c)The applicant was invited to appear before the Tribunal at an oral hearing, and she availed herself of this. In her “Response to hearing invitation” dated 29 March 2021, the applicant denied any impediments to the conduct of such hearing.
(d)The applicant appeared at the hearing with the assistance of her representative and gave evidence, as demonstrated by the hearing record as to the applicant taking an affirmation and paragraph 11 of the Tribunal’s Decision. The applicant’s representative made short oral submissions before the Tribunal, as recorded in paragraph 12 of its Decision.
I asked the applicant if she was saying that she wanted more time to present evidence and argument about visa application to the Tribunal. The applicant said: “I think I already provided what I wanted.”
The matters raised by the applicant in her oral submissions, which I have recorded at paragraph 39 above restate uncontroversial matters of fact and do not advance Ground One.
For the reasons given, Ground One discloses no jurisdictional error and so fails.
GROUND TWO
2. The Tribunal erred in finding that the applicant's visa should be refused and failed to give proper weight and consideration to the earlier documents submitted by the applicant. By doing so, the Tribunal erred jurisdictionally by failing to objectively and dully consider the evidence before it by discounting the evidence before it.
Submissions
The applicant did not press the proposition expressed in the first sentence in Ground Two.
As to the second limb of Ground Two, namely that the Tribunal erred by failing to objectively and duly consider the evidence before it and discounting the evidence before it, the applicant submitted that “the Tribunal did not see the previous acceptance” and it was “not a different case from before” “it was the same file”.
The Minister submitted:
25. Ground 2 contends that the Tribunal failed to give 'proper weight and consideration' to the earlier documents submitted by the applicant.
26. The applicant has not identified which documents the Tribunal allegedly failed to give proper weight and consideration to, and the Minister submits that this ground should be dismissed on this basis alone.
27. This ground may relate to the fact that the Tribunal stated that it did not have the student visa application before it (CB 231 at [24]), which seems to mean the 'Record of Responses' form. The Tribunal had before it the Department file bearing the reference 'BCC2018/5111902' (Department file) (CB 228), which is annexed to the Affidavit of Kerrie Pirri, affirmed 28 September 2021, and contains the complete visa application form and documents attached thereto. Therefore, it appears that the Tribunal was mistaken in its observation that it did not have the visa application before it.
28. In any event, as the Tribunal indicated, it had before it all of the relevant information including the documents submitted along with the visa application, and thus there could not realistically have been a different outcome were the 'Record of Responses' form considered: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ at [7].
In his oral submissions, the Minister’s legal representative said that this is the same issue raised by Ground One.
Discussion and Disposition
Having regard to the applicant’s submissions about the second limb of Ground Two, I reiterate paragraph 40 of these Reasons.
For the reasons given, Ground Two discloses no jurisdictional error and so fails.
GROUND THREE
3. As procedural fairness was not accorded by the Tribunal to the applicant, the Tribunal erroneously concluded that it had to affirm the decision of the delegate, and is accordingly breach of the applicant's right to natural justice by:
a. Failing to explore and make proper enquiries into their erroneous conclusion that the applicant did not meet the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
b. Not considering the evidence that was already before it.
Submissions
As to Ground 3(a), the applicant submitted that the Tribunal failed to explore and make proper enquiries about her and “just came to the conclusion that [I was] not a genuine temporary entrant just because I didn’t visit to India” and that she had “no ties with family and friends in India” although “I talk to family every day by phone”. The applicant said that, in 2021, when she finished her Graduate Certificate, she wanted to visit India, but her son refused. She said that her son was scared that the family would not return to Australia and that “changes [are] not so good for him” so the family “plan[ned] to move to Adelaide to see how he coped with change” The applicant said that the Tribunal “did not check I’m a genuine applicant” noting that she has undertaken study, is not a criminal and the effects of the COVID-19 pandemic.
In response to my question about the contention about the failure to make enquiries and whether there is a duty to make enquires, the applicant said: “Just because I did not go to India, does not make me not a genuine applicant.”
As to Ground 3(b), I asked the applicant about the evidence to which she was referring and how such evidence was not considered. The applicant said that she had been in India once and returned to Australia. As to the evidence about her telephone calls to her family in India, the applicant said that “the Tribunal could have checked”.
The Minister submitted:
30. The Minister submits that the Tribunal is not under a general duty to make further inquiries and that this was not one of the rare or exceptional circumstances in which the Tribunal may have been under an obligation to make an 'obvious inquiry about a critical fact, the existence of which is easily ascertained': see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
31. Further, it is for an applicant to provide their evidence and arguments in sufficient detail to enable the decision maker to establish the relevant fact: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61. The decision maker is not required to make the applicant’s case for him or her: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187] per Gummow and Hayne JJ. The Minister’s legal representative said in his oral submission that the Tribunal’s concern about the applicant’s lack of travel to India was recorded at paragraph 77 of its Decision, and that such finding was open to it on the evidence. Ground Three seeks to engage in an impermissible merits review.
32. Accordingly, in the absence of further and better particulars, the Minister submits that this ground cannot be made out.
Discussion and Disposition
Paragraphs 13 and 16 to 19 of the Decision correctly summarise the approach to be taken to applications for student visas. This includes a reference to the Direction and a correct statement that such Direction is to be used as a guide to determine if the applicant satisfies the genuine temporary entrant requirement having regard to the whole of the circumstances.
At paragraphs 14 and 15 of its Decision, the Tribunal accepted that the applicant satisfied the requirement to be enrolled in a course of study.
The evidence that was before the Tribunal is recorded in its Decision at paragraphs 11 (as to oral evidence), 20 to 23 (as to the applicant’s Statement of Purpose) 33 to 45 (as to the uncontroversial factual background), and 46 to 47 (as to the contents of the Request for Information). Paragraph 24 of the Decision record that the Department file was available to it, other than the Application. However, Ms Pieri deposes that the Tribunal did have a copy of the Application. Even if the Application was available to the Tribunal, it appears that it was not read. The Tribunal was nevertheless satisfied that nothing turned on that omission (or oversight) on the inferential basis that the Visa Application was likely to be in the same terms as the Statement of Purpose. Having compared the two documents, such inference was correct such that I am satisfied that nothing turns on the fact that the Tribunal did not have specific regard to the Visa Application.
The applicant’s travel history is a factor for consideration pursuant to clause 14(b) of the Direction. As to travel history, clause 14(b)(iii) includes, inter alia, a consideration of the amount of time that applicant has spent in Australia. The applicant’s circumstances in India, including her personal ties, family, community and employment in India, and whether those ties would serve as a significant incentive to return to India, engaged clause 9(b) of the Direction. The Tribunal’s consideration of the applicant’s potential circumstances in Australia, including her ties to, and incentive to remain in, Australia, engaged clause 11(b) of the Direction.
There is a natural overlap between the evidence concerning the applicant’s travel history (i.e. the history of her returning to India to visit her family and community and conclusions that may be drawn as to the fortification or preservation of her ties to them) and the evaluation of her personal ties to her home country on the one hand, and Australia on the other, and the relative incentives such ties provide.
Paragraphs 51 to 55 of the Decision address the evidence concerning the applicant’s ties to her family in India, based on the representations made by the applicant in Sections 8, 22 and 23 of her Request for Information (at CB137 and CB 143). At paragraph 52 of its Decision, the Tribunal identified that there is no corroboration of the applicant’s evidence “in that regard”. Contextually, “in that regard” means the twice weekly telephone calls to the family in India which was described in paragraph 51 of the Tribunal’s Decision. At paragraphs 53 to 55, the Tribunal refers to uncontroversial facts as to the applicant’s travel to India in 2011 (but not since) and the applicant’s parents’ visit to Australia in 2019. In the absence of any corroborative evidence as to the telephone calls and considering the sparse direct contact between the applicant and her family who reside in India, it was open to the Tribunal to reach the conclusion set out at paragraph 54 of its Decision.
At paragraph 56 of its Decision, the Tribunal referred to the applicant’s evidence that she owned land in India. This arose from Section 25 of the Request for Information (at CB144). The Tribunal did not accept this evidence on the basis that it was a bare assertion. The weight that was applied to the bare assertion and the Tribunal’s conclusion were reasonably open to the Tribunal.
The Tribunal developed its analysis of the evidence and its findings about the applicant’s travel history and ties to India and Australia at paragraphs 76 to 83 of its Decision. It considers these matters through the lens of relative incentive to return to India or remain in Australia at paragraphs 84 to 90. I am satisfied that the findings of fact that that were made and the inferences and conclusions drawn from such findings were open on the probative evidence of the applicant’s ties to her family and community in India, on the one hand, and Australia on the other, the applicant’s travel history and her economic ties to each country.
In its Decision, the Tribunal otherwise considered:
(a)the duration of the applicant’s study history (at paragraphs 48 and 49);
(b)the applicant’s reasons for choosing her education provider (at paragraph 50);
(c)the value of the courses of study to the applicant’s future (at paragraphs 32, 57-63, 66 to 75 and 97 to 98);
(d)the applicant’s likely future remuneration (at paragraph 64);
(e)whether the applicant had any military service commitments in India (at paragraph 65); and
(f)the applicant’s visa history (at paragraphs 91 to 96).
Clause 4 of the Direction invites further scrutiny of applications in appropriate circumstances including where the applicant or one of the applicant’s relatives has an immigration history of reasonable concern. There was no issue that the applicant did not have a criminal history, nor that the applicant or one of her relatives had an immigration history of reasonable concern, for the purposes of clause 4(b). Nor did the Tribunal otherwise advert to clause 4 of the Direction in its Decision.
As to Ground 3(a), I accept the Minister’s submissions at paragraphs 30 and 31 of his written submissions as a correct statement of principle. The Tribunal was not required to make its own enquiries to satisfy itself of the asserted twice weekly telephone calls to India or property ownership.
As to Ground 3(b), I do not accept the applicant’s submission that “just because [she] did not go to India” she is not a genuine applicant. This submission misconceives the totality of the circumstances which are to be balanced by the decision maker, of which her travel history forms but one aspect. It is clear from its Decision that the Tribunal considered the range of relevant factors as set out in the Direction.
For the reasons given, Ground Three discloses no jurisdictional error and so fails.
GROUND FOUR
4. The tribunal has accordingly breached section 338, 348 353 and 357A of the Migration Act by failing to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
Submissions
In response to my question to identify how the Tribunal failed to properly review the decision that was before it, the applicant referred to the “previous approval by Tribunal”, which I understood to mean the First Tribunal Decision. The applicant submitted that the Second Tribunal Decision was “not fair because the Tribunal did not go through the previous case and if it was an error in the previous one, [the Tribunal] should check with them.”
The Minister submitted:
33. Ground 4 contends that the Tribunal breached ss 338, 348, 353 and 357A of the Act by failing to properly review the decision before it and act in a way that was fair and just. These sections of the Act, as in force at the time of the Tribunal's decision, can be summarised as follows:
(a) s 338 contains the definition of a 'Part 5-reviewable decision';
(b) s 348 states that the Tribunal must review a Part 5-reviewable decision that is the subject of a valid review application;
(c) s 353 provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence, and shall act according to substantial justice and the merits of the case; and
(d) s 357A states that Division 5 of Part 5 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
34. The Minister submits that ss 338, 348 and 357A do not confer any discretion or obligation on the Tribunal that could be breached so as to give rise to jurisdictional error.
35. Further, s 353 is exhortative in nature and any failure to comply (which is not conceded) would also not give rise to jurisdictional error: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [53] per Hayne, Kiefel and Bell JJ.
36. The applicant has otherwise not particularised the contention that the Tribunal failed to act in a way that was fair and just and the Minister submits that the evidence before the Court does not disclose any apparent breach of the Tribunal's procedural fairness obligations. Accordingly, this ground should be dismissed.
Discussion and Disposition
I accept the Minister’s submissions in relation to Ground Four as a correct construction of the statute and correct statement of applicable principle.
By her submissions, the applicant re-agitated the issue concerning the relationship between the First and Second Tribunal Decisions. I reiterate paragraph 40 of these Reasons.
For the reasons given, Ground Four discloses no jurisdictional error and so fails.
GROUND FIVE
5. The Tribunal has further breached section 368 of the Migration Act by its failure to provide proper reason for its decision and findings on the material question of fact on which the decision was made.
Submissions
The applicant made no submissions in relation to Ground Five.
The Minister submitted (subject to a correction to the citation at paragraph 42):
39. The Minister apprehends that the applicant intended to refer to s 368D of the Act, which sets out the requirements for an oral decision. The Minister accepts that the Tribunal did breach subsection 368D(4) of the Act but submits that this does not give rise to jurisdictional error.
40. Pursuant to s 368D(4) of the Act, where a review applicant make a request for written reasons within the time specified by the Regulations, the Tribunal is obliged to produce written reasons. Regulation 4.27B of the Regulations requires that any request for written reasons is to be made within 14 days of the decision.
41.The applicant requested the oral statement on 1 April 2021, which was within 14 days after the Tribunal made its decision on 31 March 2021 (CB 220-221). The Tribunal was therefore obliged to provide the applicant with written reasons within 14 days of that request (that is, by 15 April 2021): see s 368D(4)(b). The Tribunal did not provide its written reasons to the applicant until 17 May 2021 and, therefore, failed to comply with subsection 368D(4) of the Act (CB 225-239).
42. However, it is well established that a failure to comply with s 368D(4) of the Act does not affect the validity of the Tribunal's decision and does not lead to a denial of procedural fairness in circumstances where a decision had already been made: Sochorova v Minister for Immigration [2002] FCA 87 at [11] per Kiefel J; see Magar v Minister for Immigration & Anor [2020] FCCA 2461 at [13]–[17] per Judge Driver.
43. Accordingly, the Minister submits that any breach did not result in jurisdictional error, and the ground cannot be made out.
Discussion and Disposition
Section 368D of the Act provides:
368D Tribunal’s decisions given orally
How and when oral decisions are taken to have been made
(1) A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.
Statement in relation to oral decision
(2) If a decision on a review is given orally, the Tribunal must:
(a) make an oral statement that:
(i) describes the decision of the Tribunal on the review; and
(ii) describes the reasons for the decision; and
(iii) describes the findings on any material questions of fact; and
(iv) refers to the evidence or any other material on which the findings of fact were based; and
(v) identifies the day and time the decision is given orally; or
(b) make a written statement that:
(i) sets out the decision of the Tribunal on the review; and
(ii) sets out the reasons for the decision; and
(iii) sets out the findings on any material questions of fact; and
(iv) refers to the evidence or any other material on which the findings of fact were based; and
(v) records the day and time the decision is given orally.
(3) The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.
Written statement to be provided on request of applicant
(4) If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i) to the applicant by one of the methods specified in section 379A; and
(ii) to the Secretary by one of the methods specified in section 379B.
Written statement to be provided on request of Minister
(5) If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b) within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i) to the Secretary by one of the methods specified in section 379B; and
(ii) to the applicant by one of the methods specified in section 379A.
Return of documents etc.
(6) After the Tribunal makes a statement under subsection (2), the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(7) The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a)a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or
(b) a failure to comply with subsection (4), (5) or (6).
The Tribunal did not provide a copy of its written reasons until 17 May 2021 despite it being due by 15 April 2021.
I accept the Minister’s submissions at paragraph 42 of his written submissions as a correct statement of principle and am satisfied that no jurisdictional arises from the breach of s 368D of the Act.
For the reasons given, Ground Five discloses no jurisdictional error and so fails.
GROUND SIX
6. The decision of the Tribunal on 1st April 2021 was and is invalid in that:
a. The Second Respondent ("the Tribunal") wrongly held that the visa should be refused.
b. The Tribunal reached a mistaken conclusion that the applicant is not a genuine applicant criteria set out under cl.500.212(a), and for that the Tribunal must have regard to Direction No.69, 'Assessing the genuine temporary entrant criterion for a Student visa.’
c. The Tribunal was mistaken as to its finding there was insufficient evidence to satisfy the primary criteria.
d. The Tribunal acted improperly and unreasonably by affirming the decision of the delegate.
Submissions
In his written submissions, The Minister reiterated his submissions relating to Grounds 1 to 5.
As to paragraph (a), the applicant submitted that the Tribunal erred in refusing the application because the appeal to the First Tribunal was successful. The Minister’s legal representative submitted that this sub-ground re-agitates Ground One as to the relationship between the First and Second Tribunal Decisions.
As to paragraph (b), the applicant submitted that she is a genuine applicant as she has no criminal history and has been studying. She stated that there could be a reason that she did not visit her family but that her parents visited her for three months. The Minister’s legal representative submitted that this re-agitates earlier grounds and that the findings of the Tribunal were open on the evidence.
As to paragraph (c), the applicant submitted that the Tribunal refused her visa but that she had satisfied the criteria in that she was attending to her and going to college. She said that she wanted to do short courses to help her to get a better job. The Minister’s legal representative submitted that this contention invites an impermissible merits review.
As to paragraph (d), the applicant submitted that the Tribunal only saw the Second Delegate’s Decision and did not see the “previously approved application”. She said that the Tribunal refused her application based on the Second Delegate’s Decision. The Minister’s legal representative submitted that the basis of the Second Delegate’s Decision and the Second Tribunal’s Decision were the same. I understood this submission to mean that the symmetry of outcome between each decision-making process does not mean that the Tribunal failed to review the Application afresh.
Discussion and Disposition
As to paragraph (a), I reiterate paragraph 40 of these Reasons.
As to paragraph (b), I reiterate paragraphs 58 to 64 of these Reasons. The Tribunal’s Decision demonstrates that it had regard to the Direction and referred to its factors as a guide when determining whether the applicant satisfied the genuine temporary entrant criterion on a reasonable and balanced basis.
As to paragraph (c), I accept the Minister’s submission that this contention invites an impermissible merits review. The fact that the applicant was attending to her studies, attending college and wanted to do short courses to help her to get a better job were all matters to which the Tribunal had regard in its evaluation of the totality of the evidence.
As to paragraph (d), I reiterate paragraph 40 of these Reasons. Paragraphs 25 to 31 of the Tribunal’s Decision summarise the Second Delegate’s Decision. This is set out in the context of the background to the matter. The Tribunal correctly identified at paragraph 19 of its Decision that it must re-determine the dispositive issue afresh having regard to the evidence before it at the time. That consideration is exposed at paragraphs 32 to 101 of the Tribunal’s Decision.
For the reasons given, Ground Six discloses no jurisdictional error and so fails.
CONTENTION OF BIAS
At paragraphs 5 and 6 of her affidavit, the applicant deposes:
5. The Tribunal hearing was conducted on phone and was scheduled for two hours. It seams that the member made up his mind even before the hearing and hence not provide sufficient opportunity.
6. The first 15 min was taken used for the introduction and last one hour of the hearing was used to deliver the oral decision. In 45 min of discussion the Tribunal ignored the evidences and statement as they were more inclined towards concluding the hearing within time frame instead of giving fair opportunity explain.
Submissions
The applicant submitted that:
(a)the Tribunal Member had made up his mind before the hearing and initially told her that he was not satisfied about the genuine temporary entrant requirement, even though her family had visited;
(b)the Tribunal was not fair to her because the Member said he did not accept that she had family ties in India yet did not ask her to provide anything, such as family photos and proof of the video calls; and
(c)the Tribunal asked her about her family and studies and why she was not a genuine temporary entrant, whereas he should have asked about the applicant’s husband’s jobs, her jobs, and “about the evidence”.
The Minister submitted:
45. Paragraphs [5] and [6] of the applicant's supporting affidavit contend that it seemed that the Tribunal had already made up its mind before the hearing. The Minister submits that there is nothing before the Court which demonstrates that a fair-minded lay person might think that the Tribunal did not bring a fair and impartial mind to the making of its decision: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 at [37] per Rares and Jagot JJ.
The Minister’s legal representative said that there was no transcript of the Tribunal hearing to allow Court to be satisfied the circumstances underlaying the contention of bias. Furthermore, the Tribunal’s letter dated 5 March 2021 in which the applicant was invited to attend a hearing to give evidence and present arguments was predicted on the basis that it was not satisfied that the applicant satisfied the requirements for the student visa. That letter stated, inter alia:
We have considered the material before us, but we are unable to make a favourable decision on this information alone.
That is, there would be no need for a hearing if the Tribunal were satisfied in favour of the applicant prior to the hearing.
Discussion and Disposition
I accept the Minister’s written submission as a correct statement of principle as to the circumstances in which a finding of apprehended bias may be made. I further accept that the Tribunal’s invitation dated 5 March 2021 was made because it did not accept that the applicant satisfied the visa requirements. However, it does not follow that a fair-minded lay observer would thereafter apprehend bias on the part of the Tribunal. On the contrary, the invitation to attend a hearing to give evidence and present arguments reflected the Tribunal’s process to afford natural justice to the applicant and allow her to advance her case.
The applicant did not adduce the transcript of the Tribunal hearing in these proceedings. The hearing record demonstrates that the hearing was conducted from 9:34am to 10:37am, i.e. 63 minutes. There is no basis for me to infer undue brevity on the part of the Tribunal, less still that the presiding member was focused on concluding the matter within two hours, including the making of its Decision.
For the reasons given, this contention discloses no jurisdictional error and so fails.
MINISTERIAL DIRECTION NO. 69
At paragraph 8 of her affidavit, the applicant deposes:
8. The Tribunal did not follow the [M]inisterial [D]irection 69 properly in [assessing] the case.
Submissions
The applicant submitted that the Tribunal said that her visa was mainly refused because she did not visit India. However, she was pregnant in 2018, the COVID-19 pandemic interrupted travel and she could not travel to India in 2021 because her son refused to leave Australia. She said that she has travelled to India with her children since the Tribunal’s Decision.
The Minister submitted that:
46. Paragraph [8] of the applicant's supporting affidavit contends that the Tribunal did not follow Ministerial Direction No. 69 properly. The applicant does not elaborate on this argument in any way.
47. Without further particulars, the argument is incapable of an intelligible response and should be dismissed. Further, the Minister submits that the Tribunal correctly noted the matters to which it was required to have regard under clause 500.212 of Schedule 2 to the Regulations, as well as the matters in Direction No. 69 (CB 230 at [17]–[18]). The Tribunal then proceeded to make detailed findings against each of the matters in Direction No. 69 as set out above.
The Minister’s legal representative submitted that the Direction guides the way the decision maker should structure their reasons. The Tribunal was concerned about a variety of factors including, but not limited to, her travel history.
Discussion and Disposition
I reiterate paragraphs 58 to 64 of these Reasons. The Tribunal’s Decision demonstrates that it had regard to the Direction and referred to its factors as a guide when determining whether the applicant satisfied the genuine temporary entrant criterion on a reasonable and balanced basis.
For the reasons given, this contention discloses no jurisdictional error and so fails.
FINAL DISPOSITION
For the reasons given, no jurisdictional error has been demonstrated. The application filed on 29 April 2021 must be dismissed.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 23 July 2025
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