Kim v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1002
•30 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kim v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1002
File number(s): SYG 2539 of 2020 Judgment of: JUDGE DOUST Date of judgment: 30 June 2025 Catchwords: MIGRATION – application for student visa – copying of delegate’s findings by the Tribunal - whether Tribunal abrogated its statutory function - Tribunal erred by giving improper deference to decision of the delegate – Tribunal failed to bring its own mind to the determination of the correct or preferrable decision - appeal allowed – writ of certiorari issued – writ of mandamus issued Legislation: Migration Act 1958 (Cth) ss 349, 476, 477(1)
Migration Regulations 1994 (Cth) cl 500.212 of sch 2
Cases cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; [2015] FCAFC 133
Division: Division 2 General Federal Law Number of paragraphs: 97 Date of last submission/s: 26 March 2025 Date of hearing: 4 March 2025 Place: Sydney Counsel for the Applicant: Mr P Berg Solicitor for the Applicant: Mr J Jang, Jacobs Legal Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mr A Sharma, HWL Ebsworth Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2539 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KI WON KIM
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
30 JUNE 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Administrative Review Tribunal, quashing the decision of the Administrative Appeals Tribunal made on 9 October 2020 in Case Number 1826952.
2.A writ of mandamus issue directed to the Administrative Review Tribunal, requiring it to reconsider Case Number 1826952 according to law.
3.The first respondent is to pay the applicant’s costs of the proceedings.
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 DOUST:
INTRODUCTION
The applicant, a citizen of the Republic of Korea, applied to this Court on 10 November 2020 (the application) for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), made on 9 October 2020, affirming a decision of a delegate of the (then) Minister for Immigration, Citizenship and Multicultural Affairs, (the Minister), to refuse the applicant’s application for a student visa (the visa).
The application to this Court for judicial review was made pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) within the time stipulated in s 477(1) of the Act.
The Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant raised a number of grounds in her application. In the event, it is apparent following careful consideration of the Tribunal’s reasons that the Tribunal has erred. The Tribunal member copied parts of his reasons from those of the delegate and, more importantly, adopted an approach of treating some of the delegate’s findings as presumptively correct. That approach demonstrates that the Tribunal member failed to discharge his statutory review function.
For reasons that follow, the Tribunal erred in a manner that was fundamental to its statutory function and the application must be allowed.
EVIDENCE
At the hearing on 4 March 2025, a court book comprised of relevant documents from the Department’s file concerning the visa application and from the Tribunal was received into evidence without objection.
OPERATIVE PROVISIONS
The matter at issue in the application for review that was before the Tribunal was whether the applicant satisfied the requirements of cl 500.212 of sch 2 of the Regulations. That clause, referred to by the Tribunal as the ‘genuine temporary entrant’ (GTE) criterion, provides as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and :
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The Tribunal’s powers when conducting a review pursuant to Part 5 of the Act were outlined in s 349, which provided:
(1)The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c)if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e)if the applicant fails to appear--exercise a power under section 362B in relation to the dismissal or reinstatement of an application.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4)To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
ISSUES FOR DETERMINATION
The Court’s role is to review the Tribunal’s exercise of power for jurisdictional error.
Jurisdictional error describes a failure, by a person or body given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of a statutory power, where that failure is of such a character as to warrant the conclusion that the purported decision or purported exercise of power lacks the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; fails to observe some applicable requirement of procedural fairness; and in some cases, makes an erroneous finding or reaches a mistaken conclusion; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [2]-[3] (LPDT).
In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: LPDT at [7].
The applicant’s initial application, filed 10 November 2020, set out, under the heading “Grounds of application”, a series of items numbered 1 through to 5.
On 15 October 2021, the applicant lodged an amended application. It excised the existing fourth ground, substituted for it a ground differently expressed, and added a sixth ground.
By written submissions filed with the Court on 1 April 2021, the applicant indicated that she relied on Ground 4.
At the hearing on 4 March 2025, the applicant’s argument underwent some refinement. The applicant’s counsel handed up an authority in support of Ground 6 of the amended application and developed that ground. During argument, the applicant’s counsel also engaged with the question from the Court whether the Tribunal had reasoned in an illogical manner when it found the applicant’s statement, that the course would be of value to her whether she engaged in counselling just as a church member or professionally, contradicted her previous claim that she was retired. The applicant was given leave to advance the latter argument by filing an amended application and the parties were given an opportunity to supplement their existing written submissions.
The applicant lodged a further amended application on 19 March 2025. The further amended application contained the following grounds (the marking up from the document as filed is not displayed):
1.The Tribunal found that the applicant's course is delivered in Korean and similar courses will be available in Korea and less expensive. The Tribunal then erred by making a prejudicial finding of a potential for the applicant to study in Australia.
2.The Tribunal found that the applicant's statement that she is fully retired from any work and business was found to contradict her purpose of taking the course which was to acquire professional skills.
a.The Tribunal then erred by making a prejudicial finding of the applicant's intention to retire from working and contribution to a church in Korea.
b.The Tribunal then erred by failing to follow Direction No. 69 which directs the Tribunal to request additional information or further evidence from the applicant in that event.
3.The applicant's history of visa compliance was squarely raised on the evidence. The Tribunal then erred by failing to consider that history. And such history was unequivocally favourable to the applicant.
4.The task of the Tribunal is to review the decision of the primary decision maker afresh.
a.The decision record of the Tribunal includes at least one passage which is copied from the decision of the primary decision maker.
b.In the one passage, the Tribunal has adopted the reasoning processes and findings of the primary decision maker as if they were its own. It includes material that was central to the decision of the Tribunal.
c.The Tribunal has erred by failing to exercise its function.
d.In the one passage, the Tribunal has adopted 2 findings of fact. There is no evidence for the 2 findings in the evidence which was before the Tribunal. The findings include material that was central to the decision of the Tribunal.
e.The Tribunal has erred by making a central finding without an evident and intelligible basis.
…
5.The Tribunal found that the applicant has assets and source of income in Korea. However, they are not new developments. They existed in the applicant's life for decades, the assets are protected by the rule of law in Korea, and they are not under threat in anyway. The Tribunal then erred by making a prejudicial finding that the assets in Korea do not act as a strong incentive for her to depart Australia on completion of her study.
6.In at least one passage, the Tribunal has adopted the reasoning processes and findings of the primary decision maker as if they were its own.
a.The contents of the one passage and the Tribunal's intention to adopt their reasoning would have been a reason, or part of a reason for the Tribunal to affirm the primary decision maker's decision.
b.The contents of the one passage contained "in their terms a rejection, denial or undermining" of the applicant's claims.
c.The contents of the one passage and the Tribunal's intention to adopt their reasoning were "information" that was required to be given to the applicant as part of the Tribunal's review.
d.[struck through)]
e.The Tribunal has erred by not giving the information to the applicant and did not comply with Section 359A of the Migration Act.
7.The Tribunal's reasoning was illogical or legally unreasonable.
a.The Tribunal erred by making an illogical finding at paragraph [19] of its reasons that "This statement contradicts with her previous claim that she is now fully retired from any work and business".
b.The finding related to the applicant's plans to give counselling services through the church in Korea, being a sister church to the one she attends in Australia.
c.Whereas, the applicant stated she planned to give counselling services through the church in Korea:
i.In her retirement, as an alternative to being in work and business;
ii.As a volunteer;
iii.And, such statements were made by the applicant unambiguously and consistently at CB [28] and [45].
d.The contradiction identified by the Tribunal is not made out, or available on the evidence of the applicant's statements. In this respect the Tribunal has erred.
In the applicant’s further written submissions filed on 19 March 2025, only Grounds 4, 6 and 7 of the further amended application were addressed.
In those circumstances, the task of the Court is to determine whether the above grounds 4, 6 and/or 7 identify jurisdictional error on the part of the Tribunal entitling the applicant to the relief sought. Those questions are addressed below following a recitation of the factual background.
BACKGROUND
The applicant’s visa application
The applicant, born 15 July 1959, is a citizen of the Republic of Korea.
The applicant had formerly been employed in the education and training sector, but had retired in 2016. Her application disclosed that she had been present in Australia between 2007 and 2016 for business reasons, and had spent about ten months in total visiting Australia in 2017 and 2018.
On 6 June 2018, the applicant applied for a student visa for the purpose of undertaking a Diploma of Counselling and Graduate Diploma of Relationship Counselling.
The primary decision
On 31 August 2018, the applicant was notified by a delegate of the Minister (the delegate) that her visa application had been refused. The letter notifying the applicant of the decision contained a decision record, setting out the delegate’s reasons for the refusal.
The delegate was not satisfied that the criteria for the grant of the visa had been met. The decision record referred to cl 500.212 in sch 2 of the Regulations, known as the ‘genuine temporary entrant’ criterion.
The delegate also referred to Ministerial direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Direction) which identifies factors that are to be taken into consideration when assessing student visa applications.
The delegate set out a summary of the factors to be considered arising from the Direction, which include, inter alia:
(a)the applicant’s circumstances in her home country;
(b)the applicant’s potential circumstances in Australia;
(c)the value of the course to the applicant’s future; and
(d)the applicant’s immigration history.
The delegate noted that the applicant had advised of her intention to study a Diploma of Counselling and a Graduate Diploma of Relationship Counselling.
The delegate expressed concern that the applicant was not a ‘genuine temporary entrant’ for the purpose of a student visa, referring to, amongst other things, her long history of residence in Australia on temporary visas, numerous visa applications since 2001 and the presence of immediate family members in Australia, namely, her two adult children and three siblings.
The delegate noted that the applicant’s continued residence in Australia until completion of her course of study would result in her total time in Australia, since first arriving on a temporary or associated bridging visa, accruing to over 21 years. The delegate viewed the applicant’s intention to undertake study for the purpose of working professionally as contradicting her statement that she was ‘fully retired’.
The delegate refused the application after concluding that she was not satisfied that the applicant intended genuinely to stay temporarily in Australia and finding that the criteria in cl 500.212 for the grant of the visa were not met.
The review by the Tribunal
The applicant applied on 14 September 2018 to the Tribunal for review of the primary decision.
On 18 March 2020, the Tribunal wrote to the applicant inviting her to provide further information in relation to her application for review.
The Tribunal’s invitation advised of the requirement that the applicant, in order to be eligible for the visa, be both:
(1)enrolled in a registered course of study; and
(2)a genuine applicant for entry and stay as a student.
The invitation also advised the applicant of the need to provide sufficient information to satisfy the Tribunal that she met both visa requirements. The invitation provided a link to the ‘Request for Student Visa Information’ form which could be used for this purpose and was returnable by 1 April 2020. The invitation also attached a copy of the Direction for the applicant’s reference.
The applicant returned the completed request for Student Visa Information form on 24 March 2020.
The applicant in her form indicated that she consented to the Tribunal deciding the review without a hearing.
The applicant disclosed in the form that she first arrived in Australia in 2007 and had held a number of visas in the intervening period. She also indicated that she had been refused a state sponsored business owner visa in October 2012 and a student visa in August 2018 and was awaiting a decision on a ‘contributory parent (temporary)’ visa, the application for which she had made in January 2020.
The applicant also disclosed that she had been a director of ABC Education Pty Ltd between March 2008 and June 2016 but indicated that she was now retired.
The applicant attached with the form evidence of her enrolment in a Graduate Diploma of Relationship Counselling and a Diploma of Counselling at Alphacrucis College.
The Tribunal decision
On 9 October 2020, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Student (Temporary) (class TU) visa.
The applicant was notified of the Tribunal’s decision by letter sent to her migration agent on 13 October 2020. The Tribunal’s decision record was attached with the letter.
In its reasons, the Tribunal set out cl 500.212, under cover of a heading “Genuine applicant for entry and stay as a student (cl.500.212)” and noted that the Tribunal was required to have regard to the Direction.
The Tribunal then went on to discuss the meaning of ‘genuine applicant’, noting that the term “genuine” was not defined in the Regulations. The Tribunal proceeded to discuss the requirements of cl 500.212, including that the applicant must demonstrate an intention to stay in Australia for a limited period, not permanently. The Tribunal noted that a visa holder’s circumstances may change during their stay due to a desire to extend their studies, or having a relationship with an Australian, or being sponsored by an Australian employer. In the absence of such circumstances it is anticipated the visa holder will eventually cease being a student and return to their home country to use the skills they acquired during their Australian studies.
The Tribunal then discussed the conditions attaching to student visas concerning maintaining enrolment and progressing in their studies.
The Tribunal then referred to an email sent to the applicant’s migration agent in 2018, which noted that the applicant had been residing in Australia on temporary visas since 2001 and that she had children in Australia, and asked the applicant to demonstrate the incentives she had to depart Australia upon the completion of her studies and return to Korea, and to provide evidence of her ties to Korea.
The Tribunal recorded the applicant’s response at [19], and included observations about those responses:
(a)The applicant stated that she had financial ties to Korea of land and an apartment, monthly superannuation which is only accessible from a Korean bank account, and life insurance and health care in Korea, which she maintains by monthly payments;
(b)The applicant stated that she had social ties comprised by sisters and friends, and intended to provide counselling services through a sister church (of her Sydney church) upon her return. That claim was supported by a reference from the pastor of her Sydney church;
(c)The applicant stated her circumstances in Australia, that she had a daughter and son in Australia on temporary visas and two sisters and a brother residing in Australia. The Tribunal interpolated that the presence of those family members in Australia acted as a strong incentive for her to remain in Australia. The Tribunal observed that the course the applicant was proposing to undertake would require her to remain onshore until December 2020, which would bring the applicant’s total time in Australia since her arrival on 25 April 1999 on temporary visas or associated bridging visas to over twenty-one years;
(d)The applicant provided a letter from the pastor of her church that she had served the church with counselling over many years and proposed to do that in future in Korea, to support the conclusion that the course she proposed to undertake was of value. The Tribunal said that the statement conflicted with the applicant’s previous claim that she was fully retired from work and business; and
(e)The applicant described the course as suitable because it was being delivered in Korean. The Tribunal observed that the applicant had not provided evidence why she could not undertake a similar course in Korea.
The Tribunal then recited some of the applicant’s immigration history, including her visitor visas, her temporary skilled visa associated with her nomination as a beauty therapist, a business owner visa, and a subsequent refusal of an application for a permanent business visa, after which the applicant held bridging visas whilst appealing and seeking ministerial intervention.
The Tribunal recorded that it had sent the applicant the request for information (at [20]), and set out a summary of the applicant’s responses (at [21]).
The Tribunal proceeded to address the applicant’s circumstances in her home country, observing at [22] that the applicant had been “resident” in Australia since 1999 as the holder of numerous temporary and bridging visas.
The Tribunal set out the findings of the delegate which acknowledged the applicant’s family and friends in Korea, but concluded that she had demonstrated through her travel and immigration history that those ties may not act as a sufficiently strong incentive for the applicant to depart Australia on completion of her studies.
At [24], the Tribunal said:
24.Whilst the applicant has provided to the Tribunal a s.359(2) written response she did not challenge the above findings of the delegate in any way. She has not outlined a flaw or error in the findings of the delegate. The Tribunal is not bound by the decision of the delegate. The review application is a de novo application. The Tribunal brings a new and independent mind to this review application. As outlined above the Tribunal has reviewed all available material on both the Departmental and Tribunal files, sought information from the applicant. The Tribunal does not have any evidence before it that suggests the above narrative of the delegate is incorrect. The Tribunal gives weight to the findings of the delegate.
The Tribunal continued, at [26]:
26.The Tribunal is of the view the applicant has demonstrated through her continuing residence in Australia, her continuing efforts to retain residence in Australia through multiple and different temporary visa applications over decades, her travel and immigration history that these ties do not act as a sufficiently strong incentive for the applicant to depart Australia on completion of her studies.
The Tribunal found (at [27]) there was insufficient evidence to conclude the applicant’s economic circumstances presented a significant incentive to return or not return to her home country.
The Tribunal then turned to the applicant’s potential circumstances in Australia.
The Tribunal noted the applicant’s long period of residence in Australia, her family connections and her church connections, and her income from her superannuation assets in Korea that maintained her in Australia.
The Tribunal found that at critical junctures since her initial arrival into Australia, the applicant had the opportunity to return to her home country, but had instead sought another form of visa and considered that her application was a continuation of that approach.
The Tribunal then turned to the value of the course to the applicant, where it set out the delegate’s reasons, before addressing the applicant’s stated reasons for her proposed studies, regarding them as “general in the extreme”. At [39], the Tribunal said:
39.…The applicant has not addressed the particulars of his courses (except, of course to identify the utility of guidance and counselling to younger persons). She has not related the detail of this counselling study to possible similar activity in Korea. She has not addressed the availability, need or demand for this type of activity in Korea. She has not advised of offers of possible counselling activities in like fields in Korea.
The Tribunal concluded that it was not persuaded the applicant was sincere in her commitment to pursue counselling activities in Korea, given she had advised that she was retired. The Tribunal continued (at [40]-[41]):
40.…The applicant did not provide any information, material, documents or links to websites that suggest there is any particular demand for graduates of such courses at VET level in Australia. The applicant did not advise of any discussions or negotiations with like church or caring organisations in Korea that might have outlined the need for such services in that country.
41.The Tribunal is not persuaded there is anything but marginal gain in the course relating to counselling.
The Tribunal then moved on to deal with the applicant’s immigration history, setting out the delegate’s findings, which described the various visas and visa applications made by the applicant, dating back to 1993, and concluded with an absence of satisfaction that the applicant would return to Korea at the end of her proposed stay and was seeking to use the student visa program to prolong her stay.
The Tribunal expressed the view at [43], based upon its own review of the Departmental file, that the delegate’s description of that history was correct.
The Tribunal, continued, as follows:
44.The applicant has not challenged the above findings of the delegate in any way. She has not outlined a flaw or error in the findings of the delegate. The Tribunal does not have any evidence before it that suggests the above narrative of the delegate is incorrect. The Tribunal gives weight to the findings of the delegate.
45.The Tribunal is of the view the applicant is using the Student visa for maintaining ongoing residence in Australia.
46.On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Conclusion on cl.500.212
47.Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
48.Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
CONSIDERATION
Ground 4
Ground 4 is as follows.
1.The task of the Tribunal is to review the decision of the primary decision maker afresh.
a.The decision record of the Tribunal includes at least one passage which is copied from the decision of the primary decision maker.
b.In the one passage, the Tribunal has adopted the reasoning processes and findings of the primary decision maker as if they were its own. It includes material that was central to the decision of the Tribunal.
c.The Tribunal has erred by failing to exercise its function.
d.In the one passage, the Tribunal has adopted 2 findings of fact. There is no evidence for the 2 findings in the evidence which was before the Tribunal. The findings include material that was central to the decision of the Tribunal.
e.The Tribunal has erred by making a central finding without an evident and intelligible basis.
Applicant’s Submissions
The applicant contended that the Tribunal decision had copied evaluative material from the decision of the delegate. The passages upon which the applicant relies are set out below, albeit they are set out in their full context, with the parts of the delegate’s decision upon which the applicant relied appearing in bold. Those passages both appeared as dot point items at [19] of the Tribunal’s decision, the introductory part of which is set out below:
Tribunal Decision
Delegate’s Decision Record
19. The applicant responded to the invitation on 19 July 2018, 13 August 2018 and 24 August 2018, providing a statement addressing the genuine temporary entrant criterion alongside additional documentation in relation to this criterion.
The applicant responded to the invitation on 19 July 2018, 13 August 2018 and 24 August 2018 providing a statement addressing the genuine temporary entrant criterion alongside additional documentation in relation to this criterion.
…
Circumstances in Australia:
· The applicant has a daughter who resides in Australia on a Temporary Partner visa and a son who resides onshore on a Student visa granted on 01 November 2016, which is valid until 06 May 2019. The applicant has two sisters and a brother who also reside in Australia. While they have advised the Tribunal that they have ties to their home country, the applicant has demonstrated above that the presence of immediate family members acts as a strong incentive to remain in Australia. As such, this may affect their intention to reside in Australia temporarily. (applicant’s emphasis added)
…
I have considered the applicant's circumstances in Australia.
· The applicant has a daughter who resides in Australia on a Temporary Partner visa and a son who resides onshore on a Student visa granted on 01 November 2016 and valid until 06 May 2019. The applicant also has two sisters and a brother who reside in Australia. While they have advised us that they have ties to their home country, the applicant has demonstrated above that the presence of immediate family members acts as a strong incentive to remain in Australia which may affect their intention to reside in Australia temporarily.
Value of course:
· The applicant provided a letter from the pastor of the Doorae Church of Sydney stating they had served the youth at the church with their counselling and support for many years, and would like to continue with their contribution of this service to the Korean-based sister church upon their return to their home country. The applicant indicated that it was at the suggestion of the pastor that they “officially study counselling at a theological college” and “decided that studying counselling at a college would be helpful for me to learn how to better support the church community whether I decided to continue to do it just as a member of the church or professionally.” This statement contradicts with her previous claim that she is now fully retired from any work and business.
I have considered the value of the course to the applicant’s future.
· The applicant provided a letter from the pastor of the Doorae Church of Sydney indicating they had for many years served the youth at the church with their counselling and support and would like to continue with their contribution of this service to the Korean-based sister church of the Doorae Church upon their return to their home country. The applicant indicated that it was at the suggestion of the pastor that they “officially study counselling at a theological college” and “decided that studying counselling at a college would be helpful for me to learn how to better support the church community whether I decided to continue to do it just as a member of the church or professionally.” Given that the applicant had demonstrated their ability to provide counselling as a volunteer for many years, I am unable to place considerable weight on the suggestion required on the part of the applicant to undertake studies to acquire “professional skills and knowledge in counselling” to enable them to continue to provide these services to the sister church in Korea. Rather, enrolment into these courses would create a pathway for the applicant to continue to maintain residence in Australia. I note also the applicant stated: “I am now fully retired from any work and business.” That the applicant intends to undertake the course so that they may work professionally as a counsellor contradicts the applicant's statement that they are now fully retired from any work and business.
The applicant contended that in each case, the Tribunal’s finding closely resembled the delegate.
In that part of [19] of the Tribunal decision referring to the applicant’s “Circumstances in Australia”, the applicant contended, there was no logical answer to the question of what the Tribunal meant by “above” (in the passage “the applicant has demonstrated above…), and that indicated copying from the delegate’s reasons. The applicant contended that this passage, concerning the applicant’s incentive to remain in Australia, was of an evaluative character.
In the part of the Tribunal decision referring to “Value of course”, the applicant contended, the finding of “contradiction” by the Tribunal was an adverse credit finding which closely resembled the delegate’s finding. The finding contributed to the Tribunal’s ultimate decision, and the Court may be satisfied that the Tribunal copied without attribution.
The applicant called in aid the following paragraph within the Tribunal’s reasons which appeared in a section of the Tribunal’s reasons under the sub-heading “Applicant’s circumstances in her home country”:
24.Whilst the applicant has provided to the Tribunal a s.359(2) written response she did not challenge the above findings of the delegate in any way. She has not outlined a flaw or error in the findings of the delegate. The Tribunal is not bound by the decision of the delegate. The review application is a de novo application. The Tribunal brings a new and independent mind to this review application. As outlined above the Tribunal has reviewed all available material on both the Departmental and Tribunal files, sought information from the applicant. The Tribunal does not have any evidence before it that suggests the above narrative of the delegate is incorrect. The Tribunal gives weight to the findings of the delegate.
The applicant submitted that the Court may be satisfied that the Tribunal used the delegate’s decision to write its own decision in a way that showed it failed to bring an independent mind to bear to its task, and thereby failed to discharge its statutory task in the sense discussed in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; [2015] FCAFC 133 (MZZZW).
The first respondent contended that [19] of the Tribunal’s reasons contained background, and its reasoning commences after [22] of its decision, and it is clear that the Tribunal’s reasons are its own.
Correct approach to consideration of the ground
When considering a ground alleging that copying by a Tribunal of material from another source reveals jurisdictional error, the task of the Court is to examine not just whether the Tribunal has copied from another source, or the extent of the copying, but also its nature, context and degree. Ultimately, the Court must decide not whether and how much the Tribunal member has copied some material from another source, but whether, by doing so, the Tribunal has failed to discharge its statutory function of bringing its own mind to bear on what would be the correct or preferable decision on the review: MZZZW at [31]. The statutory task of Tribunal members is non-delegable. It may not be performed by merely adopting the views of another person; ibid at [57].
The parties were not at odds about the proper approach. Rather, the contest between them was whether, on a proper reading of the Tribunal’s reasons, it should be found to have fallen into such error.
Application of correct approach
I am satisfied that the Tribunal copied from the delegate’s decision in passages in [19] of its reasons that are set out above. The passages in the Tribunal decision contain sections that are substantially identical to the corresponding passages in the delegate’s decision and follow introductory words in [19] that also appear in the delegate’s decision. Those words introduced a summary of the material provided by the applicant, prior to the delegate’s decision.
Had the Tribunal confined itself to adopting (for convenience) material in the delegate’s decision setting out the applicant’s visa and travel history, family and community connections, or the information she had provided, that would have been unexceptionable. However, as the analysis below shows, the Tribunal went much further than simply relying on the delegate’s summaries of fact.
Circumstances in Australia
Under the heading “Circumstances in Australia” in [19], the Tribunal has obviously copied the delegate’s description of the applicant’s family connections in Australia. None of that was controversial. The applicant did not take issue with the description of the applicant’s visa and travel history that appeared in both the delegate’s decision and the Tribunal decision.
However, under that heading, the Tribunal went further than merely adopting for convenience some uncontroversial background. The Tribunal member reproduced, in nearly identical language, the conclusion that the applicant had demonstrated that the presence of immediate family members in Australia had acted as a strong incentive to remain, and that that may affect her intention to remain in Australia.
Whilst the Tribunal was directed by 11(a) of the Direction to consider whether the applicant’s ties in Australia (including family and community ties) would present as a strong incentive to remain, the finding in the above terms contained a conclusion about what the evidence had proven, and an inference about the applicant’s likely future intentions. Those findings were undoubtedly open to a decision-maker given the applicant’s history, but the identity between the delegate’s and the Tribunal’s expression of those conclusions, without attribution or explanation, indicates the Tribunal did not reach those conclusions independently. That was not simply the Tribunal adopting a short cut method of drafting, as the Minister contended. Rather, without acknowledgment, it adopted the findings from the delegate’s reasons about matters that were important in the evaluation of the applicant against cl 500.212.
The Tribunal separately addressed the “Applicant’s potential circumstances in Australia” in its reasons at [31] to [34]. At [33], the Tribunal engages in the original reasoning that the applicant had opportunities at critical times since her arrival in Australia to return to Korea and has not done so, but instead sought some other form of temporary visa. That analysis did not appear in the delegate’s decision.
Nonetheless, the Tribunal’s concluding paragraph in that section was, save for pronoun change, all but identical to the conclusion in the delegate’s reasons in respect of this question.
Tribunal Decision
Delegate’s Decision Record
34. The Tribunal finds it most difficult to reconcile the applicant’s extensive proposed stay onshore with her claim she is a genuine temporary resident. Rather, the significant period of time the applicant has spent in Australia notwithstanding the applicant’s regular departure offshore suggests the applicant’s potential circumstances in Australia outweigh any incentive she has to depart.
I find it difficult to reconcile the applicant's extensive proposed stay onshore with their claim they are a genuine temporary resident. Rather, the significant period of time the applicant has spent in Australia notwithstanding the applicant's regular departures offshore suggests the applicant’s potential circumstances in Australia outweigh any incentive they have to depart.
Value of Course
The Tribunal also (in [19]), where it considered the “Value of Course” adopted the delegate’s language of “contradiction” in respect of the applicant’s desire to undertake her study in counselling, where it considered the value of the course to the applicant.
The applicant had stated in the GTE statement she provided to the delegate that she had “decided that studying counselling at a college would be helpful for me to learn how to better support the church community whether I decided to continue to do it just as a member of the church or professionally”.
The delegate expressed the finding as follows:
That the applicant intends to undertake the course so that they may work professionally as a counsellor contradicts the applicant's statement that they are now fully retired from any work and business.
The Tribunal said (at [19]) (without any attribution to the delegate):
19.…This statement contradicts with her previous claim that she is now fully retired from any work and business.
The Tribunal also set out in full the delegate’s findings, including the section concerning the contradiction, at [36] of its reasons where it addressed the value of the course. Apart from identifying the passages as taken from the delegate’s reasons, the Tribunal does not otherwise comment on the delegate’s findings, or explain their relevance to the Tribunal’s task. It is not clear what the Tribunal makes of the “contradiction” finding, as in [40] the Tribunal says: “The Tribunal does not refer to work-related activities in Korea because the applicant advised that she has retired from work”.
Under a previous heading “Applicant’s circumstances in her home country”, the Tribunal had described its task as follows (at [24]):
24.Whilst the applicant has provided to the Tribunal a s.359(2) written response she did not challenge the above findings of the delegate in any way. She has not outlined a flaw or error in the findings of the delegate. The Tribunal is not bound by the decision of the delegate. The review application is a de novo application. The Tribunal brings a new and independent mind to this review application. As outlined above the Tribunal has reviewed all available material on both the Departmental and Tribunal files, sought information from the applicant. The Tribunal does not have any evidence before it that suggests the above narrative of the delegate is incorrect. The Tribunal gives weight to the findings of the delegate.
The first respondent characterised this passage as an accurate description of the Tribunal’s statutory role. I do not accept that characterisation of the paragraph when read as a whole. It is impossible to reconcile the statement that the Tribunal brings a new and independent mind to its review with the conclusion that the Tribunal has given “weight” to the delegate’s findings. The observation that the applicant had not outlined a flaw or error in the delegate’s findings suggests the Tribunal’s task was other than an independent review in which the Tribunal was to determine the correct or preferable outcome, but rather, a review directed to the identification of an error below. It was of course open to the Tribunal to reach the same conclusion as the delegate, even for similar reasons. However, the latter statement must be understood as the Tribunal finding particular conclusions persuasive, not because after weighing the evidence itself it also reached those conclusions, but because they had been reached by the delegate, and had not been impeached by the applicant. Given the description in [24] was in general terms as to the Tribunal’s task, I do not regard the approach the Tribunal describes there as limited to the section in which that paragraph appears, concerning the applicant’s circumstances in her home country.
In the absence of any explanation for the reproduction of the delegate’s reasons at [36], I am satisfied that the Tribunal took the same approach as it described in [24] when it addressed the question of the “Value of the Course” and treated the delegate’s reasons as a makeweight in its reasoning.
That conclusion about the Tribunal’s approach is supported when the Tribunal’s reasons at [42] to [46] are analysed.
At [42] the Tribunal commences its discussion under the heading “Immigration history”. The Tribunal then sets out the four paragraphs of the delegate’s findings regarding the applicant’s immigration history. That history was that the applicant initially arrived in Australia in 1993, held numerous visitor visas and a temporary skilled visa associated with a nomination as a beauty therapist, and sought permanent residence through a sponsored business owner visa, after the rejection of which application she held a series of bridging visas whilst she sought ministerial intervention.
The final paragraph of the delegate’s reasons, which was set out in full in [42] of the Tribunal’s reasons was as follows:
42.…
The length of time spent in Australia over the last twenty years brings into question their intention to genuinely return to their home country. When taking this into consideration in conjunction with other aspects set out in this decision record, I am unable to be satisfied that the applicant will return to their home country at the end of their proposed stay and is seeking to use the Student visa program to prolong their stay in Australia.
(emphasis added)
The final paragraph of the delegate’s reasons set out at [42] of the Tribunal’s reasons did more than simply recite matters of fact. It contained the delegate’s conclusion about the applicant’s intentions and genuineness drawn from both the history recited immediately prior, and “other aspects set out in this decision record”. It is not clear from that language whether the delegate is referring to all other aspects of the decision record, or some other aspects of the decision record.
The Tribunal states at [43] that it reviewed the applicant’s Departmental file and was satisfied that “information” was correct. That paragraph may be understood as referring to the chronological account of the applicant’s travel to Australia and the visas she held and sought, and not the final evaluative paragraph of the delegate’s reasons which is set out above.
The Tribunal then said, at [44]:
44.The applicant has not challenged the above findings of the delegate in any way. She has not outlined a flaw or error in the findings of the delegate. The Tribunal does not have any evidence before it that suggests the above narrative of the delegate is incorrect. The Tribunal gives weight to the findings of the delegate.
By its use of the word “findings”, and not “information” (as it used in [43]), it is apparent that the Tribunal is referring to the delegate’s conclusion set out at [42], and not merely to the applicant’s visa and travel history. Notwithstanding the Tribunal’s earlier acknowledgement that it was required to conduct a de novo review, the above passage, following the reproduction of the delegate’s reasons, indicates that the Tribunal approached the matter on the basis that the applicant was expected to demonstrate a flaw or error in the delegate’s reasoning, and gave the delegate’s conclusions some presumptive force. Combined with the Tribunal’s statement that it gave “weight” to the delegate’s findings, when the delegate’s finding was partly premised on unidentified parts of the decision record, the conclusion that emerges is that the Tribunal gave improper deference to the views of the delegate in the conduct of its own review, or gave the delegate’s findings independent weight in support of its conclusions, rather than reaching its own conclusions based upon its independent consideration of all of the evidence.
The Tribunal member did indeed set out some independent reasoning in the course of the decision, and also indicated he had reviewed all of the available material and sought information from the applicant. In reading the Tribunal’s reasons, they must be read fairly, and allowance must be made for infelicity in expression or poor drafting by the Tribunal. However, even when such allowance is made, the Tribunal’s unattributed copying from the delegate’s reasons (at both [19] and in [34]), its reproduction of the delegate’s reasons without explanation, its observations about the applicant’s failure to demonstrate error in the delegate’s findings, and most particularly, its apparent according of “weight” to the delegate’s findings, lead to the conclusion that the Tribunal failed to discharge its statutory function of making its own independent assessment of the material before it to arrive at the correct or preferable decision on the applicant’s visa application, based on the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, per Bowen CJ and Deane J at [68] – [71].
The error was fundamental to the Tribunal’s approach to its task, and the potential for it to have had an effect on the decision is manifest. The error is of the same character as those discussed by the High Court in LPDT at [6]. Given the indication in the reasons that the delegate’s findings operated as a makeweight in reaching the Tribunal’s conclusions, it is impossible to be satisfied that, without such error, the Tribunal would have reached the same conclusion. The error is therefore jurisdictional.
Ground 4 of the Amended Application is made out.
It is unnecessary in the circumstances to determine the further grounds.
I will direct the issue of writs quashing the decision and remitting it for reconsideration, with costs and will hear the parties as to costs.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 30 June 2025
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