KC v Minister for Immigration and Citizenship

[2025] FedCFamC2G 854

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

KC v Minister for Immigration and Citizenship [2025] FedCFamC2G 854

File number(s):

ADG 240 of 2021

Judgment of:

JUDGE GERRARD

Date of judgment:

6 June 2025

Catchwords:

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal considered the applicant’s progression and intention to study – whether the Tribunal took irrelevant considerations into account – allegations of bias – no jurisdictional error established – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 359(2), 476

Migration Regulations 1994 (Cth) Sch 2 cll 500.212, 500.212(a), 500.311

Cases cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 1 All ER 498

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) 289 FCR 21

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Division:

Division 2 General Federal Law

Number of paragraphs:

64

Date of last submission/s:

3 April 2025

Date of hearing:

6 May 2025

Place:

Adelaide

Applicants:

Self-represented

Counsel for the First Respondent:

Tara Rossetto

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 240 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SWAYAM KC

First Applicant

SMITA SHRESTHA

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	6 JUNE 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘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 GERRARD:

INTRODUCTION

1. Mr Swayam KC and Ms Smita Shrestha (the applicants) seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Student (subclass 500) visas (the visas). As will be explained, for the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.

2. For the reasons set out below, the Court has not found jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.

   BACKGROUND

3. Mr Swayam KC (the applicant) is a citizen of Nepal (Court Book (CB) 2). He first arrived in Australia on 3 October 2008 as the holder of a dependent Student (subclass 572) visa (CB 168). He has remained in Australia on Student and Temporary Graduate visas since that time.

4. On 14 December 2018, the applicant applied for the visa (CB 1-19), with Ms Smita Shrestha (the second applicant) named as a member of his family unit (CB 4-5). In that application, he indicated that he intended to study a Certificate III in Light Vehicle Technology, Certificate IV in Automotive Technology and a Diploma of Automotive Technology (CB 11, 33). He also provided a written statement in support of his application (CB 20-24).

5. On 14 February 2019, a delegate of the Minister invited the applicants to comment on information relevant to the application, namely, evidence of the applicant’s qualifications, curriculum vitae and the genuine temporary entrant criterion (CB 32-38). The applicants responded to this invitation, each providing a genuine temporary entrant letter along with other supporting documentation (CB 39-52).

6. On 1 April 2019, a delegate of the Minister refused to grant the applicants the visas. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 60-66). That criterion relevantly provides:

   The applicant is a genuine applicant for entry and stay as a student:

   (a)       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…

7. On 17 April 2019, the applicants applied to the Tribunal for review of the delegate’s decision (CB 67-68). In that review application, the applicants nominated a migration agent as their authorised representative (CB 68).

8. On 15 January 2021, the Tribunal invited the applicants, through their migration agent, to provide further information in a “Request for Student Visa Information” form by 29 January 2021 (CB 74-77). The Tribunal also provided the applicants with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications’ (Direction 69) (CB 78-82).

9. On 29 January 2021, the applicants’ migration agent requested an extension of time to provide further information, which was granted by the Tribunal on 1 February 2021 (CB 83, 116). The applicants provided various documents and information in response to the Tribunal’s invitation (CB 86-113).

10. On 12 March 2021, the applicants were invited to attend a hearing scheduled for 29 March 2021 (CB 130-132).

11. On 22 and 26 March 2021, the applicants’ migration agent provided a number of documents in support of the review application (CB 137-149, 158).

12. On 29 March 2021, the applicant attended the Tribunal hearing with his migration agent, and with the assistance of a Nepali interpreter (CB 159).

13. On 9 July 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 166-174).

14. On 5 August 2021, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). 

    THE TRIBUNAL’S DECISION

15. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.

16. The Tribunal began by identifying the visas under review, noting that the applicants applied for the visas on 14 December 2018. The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, the Tribunal noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]).

17. The Tribunal explained that a delegate of the Minister had refused to grant the visas as the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212(a) in Schedule 2 of the Regulations). Accordingly, the delegate was not satisfied that the second applicant met the requirements of cl 500.311 as a member of the applicant’s family unit (at [3]).

18. The Tribunal noted that the issue before it was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student (at [8]). The Tribunal set out the relevant legislative provisions in that regard (at [9]).

19. The Tribunal stated that in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Direction 69 (at [10]). The Tribunal noted, however, that the factors set out in Direction 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant’s circumstances as a whole (at [11]).

20. The Tribunal confirmed that on 15 January 2021, prior to the hearing, the applicant filed a response pursuant to an invitation to supply visa information about the courses he was studying, and information about his entry and stay in Australia, in accordance with s 359(2) of the Act (at [15]).

21. The Tribunal confirmed that, in addition to that response, the applicant provided the following supporting documentation (at [16]):

    ·Confirmation of Enrolment (COE) for the applicant to study a Certificate III in Light Vehicle Mechanical Technology at Sheffield College of Technology Pty Ltd (Sheffield College) from 12 November 2018 to 11 December 2019, which was created on 22 October 2018;

    ·COE for the applicant to study a Certificate IV in Automotive Mechanical Diagnosis at Sheffield College from 10 February 2020 to 10 August 2020, which was created on 2 November 2018;

    ·COE for the applicant to study a Diploma of Automotive Technology at Sheffield College from 14 September 2020 to 13 May 2021, which was created on 2 November 2018;

    ·Sheffield College Final Academic Transcript dated 27 January 2021 for the applicant to study a Certificate III in Light Vehicle Mechanical Technology;

    ·Sheffield College Final Academic Transcript dated 27 January 2021 for the applicant to study a Certificate IV in Automotive Mechanical Diagnosis;

    ·A letter to whom it may concern from Dr [name redacted] dated 26 January 2021 regarding the diagnosis of the applicant’s father’s medical condition;

    ·A land rent agreement between the applicant as owner and Mr [name redacted] as tenant to rent land in Nepal;

    ·A letter from Nepal Investment Bank confirming deposits as at 28 January 2021 in the sum equivalent to $17,631.94;

    ·A letter from Citizens Bank International regarding funds held by [relative of applicant’s wife] dated 29 January 2021;

    ·A letter from Janajibika Saving & Credit Co-operative dated 29 January 2021 confirming the savings accounts for [relative of applicant’s wife] together with statement of account; and

    ·A GTE letter dated 29 January 2021 (GTE Statement).

22. The Tribunal confirmed that, prior to the hearing, the applicant also provided the following documents (at [17]):

    ·A letter from Sheffield College dated 31 January 2020 confirming that the applicant had completed a Certificate III in Light Vehicle Mechanical Technology and enclosed a copy of that certificate dated 2 March 2020;

    ·A letter from Sheffield College dated 31 January 2020 confirming the applicant’s enrolment in the Certificate III in Light Vehicle Mechanical Technology and work placement experience together with Final Academic Transcript and core structure for the Certificate III; and

    ·Final Academic Transcript from Sheffield College dated 9 October 2020 for the Certificate IV in Automotive Mechanical Diagnosis together with a copy of the Certificate IV issued 16 October 2020 and a letter from the College of 16 October 2020 confirming the issue of the Certificate together with a letter of work placements that he had undertaken.

23. The Tribunal set out that, at the date of the hearing, the applicant was studying to complete a Diploma of Automotive Technology. The Tribunal remarked that the Diploma ought to have concluded on 13 May 2021, however it noted that the applicant had not filed with the Tribunal any documentation confirming whether he had completed the Diploma, or whether he had obtained the necessary requirements to complete that course (at [18]).

24. The Tribunal noted that the applicant came to Australia on a dependent student visa to support his wife while she studied, but she was unable to complete those studies due to health issues. The Tribunal further noted that the applicant confirmed that, after his wife had surgery and the surgery was successful, there was no reason why their life could not go back to normal (at [19]).

25. The applicant conceded before the Tribunal that he had been in Australia since October 2008, well in excess of 12 years, which the Tribunal found to be a very long period of time and inconsistent with a temporary stay (at [21], [26]). The applicant confirmed to the Tribunal that he had not been able to undertake study prior to 2018 as he was supporting his wife and had no study rights under the dependent visa. However, the Tribunal noted that he was not prevented from seeking his own study visa during this time (at [21]).

26. In evidence before the Tribunal and in his GTE statement, the applicant claimed that he had developed an interest in becoming a mechanic through working as a bus driver in 2016 to 2018. The applicant then gave evidence to the Tribunal that, if he is able to complete his automotive courses, he intends to return to Nepal and obtain a job with a large European company undertaking automotive repairs for approximately three to four years, which would pay well, after which he would then open his own business (at [22]-[23]).

27. In respect of the applicant’s earning capacity, the Tribunal set out that in his response, the applicant confirmed his qualifications would allow him to obtain a salary of NPR200,000 (approximately AUD2,500) per month in a high-tech automotive repair facility in Nepal. The applicant confirmed this was a very high level of income for Nepal, but accepted that the level of wages in Australia are substantially higher than in Nepal. The Tribunal noted the higher level of wages in Australia would provide him with substantial economic incentive to remain in Australia, which is also supported by the minimum wage in Australia for full-time work being AUD772.60 per week, substantially higher than what he could expect to earn in Nepal (at [24]).

28. The Tribunal accepted that the completion of the automotive courses would provide the applicant with substantive qualifications to obtain employment in automotive repairs, which would increase his employment prospects and level of wages in Nepal (at [25]).

29. The Tribunal noted the applicant’s various roles of employment since being in Australia. The Tribunal found that his work experience and level of wages, as well as the second applicant’s ability to work as a carer in aged care (earning between AUD700 and AUD800 per week) would generate a high level of wages, and provided the applicant with an economic incentive to remain in Australia and not return home (at [27]-[28]).

30. The Tribunal noted its concerns in respect of the applicant’s evidence that he intended to return home but decided to remain in Australia after his wife became ill and his father advised him to gain qualifications in Australia. The Tribunal remarked that the applicant had ample opportunity to obtain his own student visa and study in Australia prior to 2018 but had not chosen to do so, and that the applicant had previously applied for a permanent protection visa in 2010, which was refused over nine years prior to this Tribunal decision. The Tribunal therefore found that the applicant is using the student visa program to remain in Australia as a permanent resident and found it inexplicable that the applicant did not return home with his wife once she was fit enough (at [30]).

31. The applicant gave evidence that he had returned home to Nepal on eight occasions for a total period of 29 weeks. However, the Tribunal found that, as he had only returned home twice between 2008 (when he arrived in Australia) and June 2017, and that he only stayed in Nepal for a period of 10 weeks during that time, it did not accept this was consistent with someone intending to stay in Australia on a temporary basis (at [31]).

32. The applicant gave evidence that he had assets back in Nepal totalling AUD521,000, which comprised $41,000 in bank accounts, $180,000 in land and a building, and $400,000 in land (at [32]-[33]). In support of his application, he tendered a rental agreement for the land and building, and gave evidence that it was a restaurant providing rental income. He also tendered a statement from the Nepal Investment Bank confirming he had the equivalent of $17,631.94 in an account, and two accounts of $24,425 and $1,199 in the name of a relative of his wife which the Tribunal found to not form part of his particular assets. In his GTE statement, the applicant confirmed that the $400,000 property is in both his name and the name of his parents-in-law, but could not otherwise provide supporting documentation for that land holding. The Tribunal therefore found that, because the applicant had been in Australia for the last 12 years, his assets in Nepal would not provide a substantial incentive for him to return home, as he can seek to have the funds in the bank accounts transferred, and the properties appear to be either investments or co-owned with others (at [34]).

33. The Tribunal found that, based on the applicant’s evidence and circumstances in his home country, including his assets, education and family support, he is in a good position and that would provide him with a significant incentive to return home (at [36]). There were also no military service commitments or circumstances of political and civil unrest that would present a significant incentive for him not to return (at [37]).  

34. The Tribunal accepted that the applicant has both personal ties in Australia and Nepal (particularly with his father, sister and wife in Nepal). However, the Tribunal found that, due to the length of time he has been in Australia and the high level of income he can earn in Australia, his personal ties do not provide significant incentive for him to return to Nepal (at [40]). It found that, in fact, he has substantial ties to Australia, as evidenced by his length of stay, high levels of income, friendships, and involvement with a voluntary non-profit organisation, all of which demonstrate he has a strong incentive to remain in Australia (at [41]).

35. The Tribunal balanced all of its findings and considered that the weight of evidence pointed more against the applicant’s case than for it. Ultimately, the Tribunal found that the applicant is using his student visa as a means to maintain ongoing residence in Australia (at [43]-[44]).

36. The Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily in accordance with cl 500.212(a) of the Regulations (at [45]). The second applicant, therefore, was unable to meet the requirements under cl 500.311 (at [47]).

37. The Tribunal found that the applicants did not meet the criteria for the grant of the visas and, accordingly, affirmed the delegate’s decision (at [7], [48]).

    APPLICATION TO THIS COURT

1. The application for judicial review filed by the applicants on 5 August 2021 contains four grounds of review as follows (without alteration):

   1.AAT and Department ignored my progression and intention to study

   2.AAT has just looked into my age and long stay in Australia rather than considering my course progression

   3.Whole decision has been pretty one dimensional that as why I am doing Automotive course and its not good to do this course which is one of the most popular one in Adelaide and which can give me great future back in my country?

   4.My affidavit and supporting documents have been attached here with application to put focus on my points which has led to this error in judgement and prevented me in getting fair chance to make my career progression.

2. The applicant also filed an affidavit with that judicial review application on 5 August 2021, annexing copies of the Tribunal’s decision and the delegate’s decision.

3. The applicant appeared before the Court on 6 May 2025 without legal representation. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.

4. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 5 August 2021 (the affidavit being taken as read and in evidence at the hearing on 6 May 2025), a Court Book numbering 174 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 3 April 2025.

5. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282 at [41]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal’s decision and/or procedure.

6. The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

   (a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));

   (b)where the decision-maker ignores relevant material (Craig at 178);

   (c)where the decision-maker relies on irrelevant material (Craig at 178);

   (d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 354-355);

   (e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

   (f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).

7. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.

8. Against this background, the applicant simply told the Court that at the time of the Tribunal hearing, he had completed his course already. He had nothing further he wished to draw to the Court’s attention. 

   CONSIDERATION

9. As outlined above, the application for judicial review contains four grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).

   Ground one

10. Ground one contends that the Tribunal and the Department failed to take into account the applicant’s study intentions and progression in his courses. As correctly submitted by the Minister, the Court does not have jurisdiction to review any error on the part of the delegate. Accordingly, the Court will only consider this ground with respect to the Tribunal’s reasons.

11. In his affidavit, the applicant submitted that the Tribunal failed to consider that he has “abided by all [the] rules” and was genuinely pursuing trade qualifications for a career within the automotive field. 

12. Having reviewed the decision, it is the Court’s view that the Tribunal did expressly take into account and actively consider the applicant’s prior studies and progression within these courses. Paragraphs [8] to [17] of its decision demonstrate a detailed and intellectual consideration of these prior studies to inform its overall finding that the applicant did not satisfy the genuine temporary entrant criterion. It cannot be said, on this basis, that the Tribunal failed to consider the applicant’s study progression.

13. No jurisdictional error arises in respect of ground one.

    Ground two

14. In ground two, the applicant asserts that the Tribunal took into account irrelevant considerations, namely, his age and length of stay in Australia.

15. The Minister submitted that the weight attributed to any evidence was a matter for the Tribunal to decide. It was not unreasonable for the Tribunal to attribute more weight to these factors when assessing his evidence against the genuine temporary entrant criterion, especially in circumstances where the applicant conceded at the hearing that he had been in Australia for a “very long period of time” which was “inconsistent with the stay being temporary”.

16. The Court adopts the Minister’s view in this regard. The Tribunal is indeed permitted to attribute weight to evidence that it sees fit, within the scope of what is reasonable and noting that reasonable minds may still differ (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 1 All ER 498 at 498). It is not clear that the Tribunal did consider the applicant’s age (beyond merely mentioning it at [12] of its reasons) or applied it as a relevant factor in its consideration of the entirety of the applicant’s circumstances. The weight that the Tribunal placed on the applicant’s age or the duration of his stay in Australia when assessing his evidence against the genuine temporary entrant criterion was merely reflective of it taking into account all of his evidence, including his concession that being in Australia since 2008 was inconsistent with it being a temporary stay.

17. The Tribunal considered all the relevant considerations that it was required to, pursuant to Direction 69 and cl 500.212 of the Regulations, and did not consider any information that was entirely irrelevant or that it was not permitted to. That was precisely the task before the Tribunal. No error arises in the Tribunal’s approach.

18. No jurisdictional error arises in respect of ground two.

    Grounds three and four

19. Grounds three and four contend that the Tribunal’s decision was “one dimensional” and that the decision-maker was biased. 

20. Insofar as the applicant alleged in his affidavit that the “decision has been taken with [a] preconceived mind frame to only entertain refusal”, it is well established that any allegation of bias must be firmly established (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531). An applicant is unable to establish bias if the Tribunal simply makes adverse findings against an applicant’s case, as a decision-maker is not required to uncritically accept an applicant’s claims (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70).

21. There was nothing one dimensional about the Tribunal’s decision in circumstances where it took into account the numerous factors listed under Direction 69 in reaching its decision, such as the applicant’s lengthy stay in Australia, the economic incentives for him to stay, and the limited time he had spent overseas since his arrival in 2008.

22. In the Court’s view, the applicant has not established how the Tribunal might not have brought an impartial mind to bear upon the decision. The Tribunal simply and reasonably applied the evidence before it in accordance with Direction 69, giving weight to certain evidence that it saw fit. The Tribunal indicated that, as the applicant had been in Australia for nearly 17 years on various student visas, it was not satisfied that he met the genuine temporary entrant criteria in cl 500.212. In taking this approach, it is difficult to ascertain how the Tribunal may not have brought an impartial mind to deciding the applicant’s case. There was no error in the Tribunal’s approach in this regard.

23. No jurisdictional error arises in respect of grounds three and four.

24. The Court also asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the Tribunal’s decision. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal’s decision.

25. The Court is satisfied that, even adopting the broad approach referred to in [46] of these reasons, no jurisdictional error is apparent.

    CONCLUSION

26. The application for review and additional submissions made by the applicants have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.

27. Accordingly, the application is dismissed.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       6 June 2025