Kular v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 422
•2 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kular v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 422
File number: MLG 233 of 2020 Judgment of: JUDGE FORBES Date of judgment: 2 April 2025 Catchwords: MIGRATION – student visa refusal – decision of the Administrative Appeals Tribunal – where Tribunal not satisfied applicant is a genuine temporary entrant – whether Tribunal failed to consider evidence – whether Tribunal was unreasonable – whether Tribunal had apprehended bias – where Tribunal’s reasons contain erroneous findings –application dismissed Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1995 (Cth) sch 2 cl 500.212
Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2
Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41
Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
CRI026 v Republic of Nauru [2018] HCA 19
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
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
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
R v Watson; Ex parte Armstrong [1976] HCA 39
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23
SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109
SZRUI v Minister for Immigration & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of hearing: 24 March 2025 Place: Melbourne Representative for the Applicant: Ms Sujithkumar Solicitor for the Applicant: Flyworld Migration Lawyers Representative for the First Respondent: Mr Orchard Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 233 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IQBAL SINGH KULAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
2 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Application filed on 22 January 2020 be dismissed.
3.The Applicant and the First Respondent each bear their own 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 FORBES
INTRODUCTION
On 20 December 2019, the Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Class TU) (Subclass 500) visa (visa). The decision of the Tribunal was given orally after the hearing conducted that day and a written record of the reasons for the refusal was produced on 13 January 2020. By an application filed on 22 January 2020, the applicant seeks judicial review of the Tribunal’s decision.
In his application for judicial review the applicant sought to impugn the Tribunal’s decision on seven grounds. Those grounds which allege various species of jurisdictional error are interrelated and somewhat overlapping. In essence, the applicant contends that plainly erroneous findings in the reasons demonstrate that the Tribunal failed to consider critical evidence, misunderstood the evidence before it, drew illogical and unreasonable inferences and failed to discharge its statutory task, including in its application of Ministerial Direction Number 69 (Direction 69).
Moreover, in written and oral submissions made to the Court, the applicant contended that the errors made by the Tribunal were so obvious and so lacking as to give rise to a reasonable apprehension that the Tribunal was predisposed against the applicant (as a member of a particular class of visa applicants) and did not bring an open mind to its consideration of the application.
The Tribunal’s written reasons do contain erroneous findings and convey an impression that they were written in a rushed fashion and without the attentiveness one might ordinarily expect. In circumstances where the application was orally dismissed after a relatively brief hearing and then followed up with imperfect reasons, it is understandable that the applicant suspects that his application and his evidence in support of it were not given full and fair consideration.
Nonetheless, read fairly and as a whole, I am not persuaded that the Tribunal’s reasons disclose jurisdictional error. The errors identified by the applicant reveal carelessness in the production of the written record of the reasons, rather than any misunderstanding on the part of the Tribunal about its statutory task or any failure to properly consider and weigh the evidence before it. The applicant’s submissions fall well short of establishing the allegation of apprehended bias.
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant was born in 1988 and is a citizen of India. He completed his primary and secondary education in India and until 2018 primarily worked on his father’s farm. The applicant stood to inherit the family farm.
In 2017, the applicant travelled twice to Australia as a tourist. He has a sister who lives in Australia.
The applicant most recently entered Australia in October 2018, again on a visitor visa. After his arrival, the applicant claims to have changed his migration intentions and decided that he should study here in order to improve his employment prospects for the betterment of his family.
On 19 November 2018, the applicant applied for a student visa, at that time proposing to study for a Certificate IV in Business between 15 January 2019 and 19 July 2019, a Diploma of Business between 5 August 2019 and 7 August 2020 and an Advanced Diploma of Business between 24 August 2020 and 27 August 2021[1].
[1] Court Book (CB) 1-41
On 15 March 2019, a delegate of the Minister refused the visa application. The delegate was not satisfied that the applicant genuinely intended to remain in Australia on a temporary basis. The delegate was not satisfied that the genuine temporary entrant criterion in clause 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) was satisfied after taking into account the considerations required by MD 69, a direction made pursuant to section 499 of the Migration Act 1958 (Act).
Satisfaction of clause 500.212 is a condition for the grant of the relevant visa. Pursuant to that clause, an applicant will be regarded as a genuine applicant for entry and stay in Australia as a student where:
(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.
Direction 69 - “Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications” sets out a number of factors which must be taken into account when assessing the genuine temporary entrant criterion referred to in clause 500.212(a). The Ministerial Direction mandates that a decision-maker in relation to a student visa must have regard to factors including:
(a)the applicant’s circumstances in their home country, including the applicant’s economic situation, political and civil unrest in the applicant’s home country, the extent of the applicant’s personal ties to their home country, whether the applicant has sound reasons for not studying in the home country if a similar course is available , and military service commitments that would present as a significant incentive for the applicant not to return to their home country;
(b)the applicant’s potential circumstances in Australia, including the extent that the applicant’s ties with Australia present as a strong incentive to remain in Australia, evidence that the student visa program may be used to circumvent the intention of the migration program, whether the Student visa or the Student Guardian visa is being used to maintain ongoing residence, the applicant’s knowledge of living in Australia, and whether the primary or any secondary applicants have entered into a relationship of concern;
(c)the value of the course to the applicant’s future, including the course’s consistency with the applicant’s current education level, whether the course will assist the applicant to gain employment in their home country, relevance of the course to the applicant’s past or future employment in their home country or a third country, and remuneration and career prospects in the applicant’s home country or a third country to be gained from the course;
(d)the applicant’s immigration history, including visa and travel history for Australia and other countries, previous visa applications for Australia and other countries, and previous travels to Australia or other countries;
(e)if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
(f)any other matter relevant to the applicant’s intention to stay in Australia temporarily.
Administrative Appeals Tribunal
On 28 March 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
Once the Tribunal was seized of the review, the applicant was invited to provide additional information, including evidence that he was enrolled in a course of study and evidence that he was a genuine temporary entrant. The applicant responded to the invitation by providing a completed Request for Student Visa Information questionnaire and written submissions on various documents in support of his response.
On 3 December 2019, the applicant was invited to attend a hearing before the Tribunal on 20 December 2019. The applicant attended that hearing without representation but had the assistance of a Punjabi interpreter. The Tribunal’s Migration Hearing Record records that the hearing commenced at 1:58pm and concluded at 4:15pm, but suggests that there was a significant adjournment for over an hour during that time.
The Tribunal’s Migration Hearing Record indicates that its decision was made orally at 3:54pm with oral reasons given between 3:54pm and 4:15pm.
The applicant subsequently requested a written statement of the decision and reasons. On 13 January 2020, the Tribunal provided those reasons.
Tribunal decision
In an Outline of Submissions filed in relation to the judicial review application, the Minister summarised the critical elements of the Tribunal’s decision. In particular, at [7]-[12] of the outline, the Minister set out a summary of the Tribunal’s consideration of the genuine temporary entrant criterion, including by reference to the considerations expressly required by Direction 69. I am satisfied that the Minister’s summary fairly and accurately reflects the Tribunal’s findings:
[7] The Tribunal found, in considering the applicant’s circumstances his home country, that (CB 168):
(a) The provided reasonable reasons for undertaking the proposed course of study in his home country ([16(a)]).
(b) He had family ties in India, being his parents, his obligation to care for them as the only son and an expected inheritance. However, given the period of time he had been in Australia, his intentions on travelling to Australia, the residence of his sister in Australia and the financial support from his family while studying in Australia, the Tribunal found that these circumstances did not demonstrate a significant incentive for the applicant to return ([16(b)]).
(c) He was supported financially during his study in Australia and his living expenses were likely to be less in India but he had chosen to remain in Australia without working since October 2017, which did not demonstrate a significant incentive for him to return ([16(c)]); and
(d) There were no military service commitments, evidence of political and civil unrest or relevant evidence regarding the applicant’s circumstances in his home country relative to others ([16(d)-(f)]).
[8] The Tribunal found, in relation to the applicant’s potential circumstances in Australia, that (CB 169-170):
(a) He had ties to Australia through friendships and his social and emotional connections which provided a strong incentive to remain ([25(a)]). His pattern of enrolment, change from visitor to student, academic progression and enrolment in alternative courses extending his period of residence in Australia was evidence the student visa program was being used to circumvent the intentions of Australia’s migration program ([25(b)]).
(c) He was using the student visa primarily to maintain ongoing residence in Australia given his period of time in Australia, change in migration intentions, academic progression and changes to enrolment in different but related fields of study ([25(c)]).
(d) He had a good knowledge of living in Australia and a basic knowledge of his proposed course, education provider, current study and living arrangements ([25(d)]).
[9] The Tribunal found, in considering the value of the proposed course to the applicant’s future, that (CB 170):
(a) His proposed course of study was a progression from his high school education, would provide him with additional skills and qualifications and would assist him in obtaining employment or improving employment prospects ([29(a)-(b)]);
(b) The remuneration he could expect to receive in India was speculative but was more than he earned in Australia given he was not engaged in paid employment and was prevented from doing so by a work restriction on his visa ([29(c)]); and
(c) There was no evidence as to comparative renumeration utilising the qualifications he sought to obtain ([29(d)]).
[10] The Tribunal found, in considering the applicant’s immigration history, that (CB 171):
(a)Other than the matters set out in the delegate’s decision record and the Tribunal’s reasons, he had not otherwise applied for any visas to Australia ([34(a)]).
(b)Other than a Canadian tourist visa refusal in 2018, there were no other instances where visa applications were undecided or considered for refusal or cancellation ([34(b)]).
(c)Prior to travelling to Australia in 2018, he had travelled to Australia as a visitor ([34(c)]).
(d) He had not held a visa that had been cancelled or considered for cancellation and had not otherwise travelled to Australia from countries other than India or travelled to other countries since his arrival in Australia ([34(d)]).
(e) He travelled to Australia in 2018 for a short visit for tourism, changed his migration intentions and applied for the visa, did not complete the courses for which he sought the visa, and obtained alternative enrolment in a different but related field which would extend his period of temporary residence. The Tribunal found the applicant was enrolling in the courses for the primary purpose of maintaining residence in Australia ([34(e)]).
(f) He had not travelled to countries other than Australia and India ([34(f)]).
(11) The Tribunal found that it was not necessary to consider the intentions of the applicant’s parent, legal guardian or spouse as he was not a minor and there were no other relevant matters raised at the hearing (CB 171, [35]-[36]); and
(12)The Tribunal, having regard to all the factors in Direction 69 and considering the applicant’s circumstances as a whole, was not satisfied that he intended genuinely to stay in Australia temporarily and found that he did not meet cl 500.212 (CB 171-172, [37]-[38]).
JUDICIAL REVIEW
The application for judicial review, filed on 22 January 2020, advanced seven grounds of judicial review. Verbatim, those grounds are:
1. The Tribunal failed to act according to substantial justice and merits of the case and/or failed to act in a way that is fair and just.
2. The Tribunal failed to consider and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information.
a. My parents are in India and as the only son, I stand to inherit the family farm.
b. I intend to return to India to work as a business development manager.
c. I changed my course path slightly on 21 October 2019, to secure study in a Diploma of Business (without the need to complete the Certificate IV in Business).
d. The Tribunal Member failed to consider that my enrolment in a Diploma of Business was in fact evidence of my study progression.
e. The Tribunal Member failed to have regard to close family and financial ties to my home country.
f.The Member failed to engage with my submissions and failed to have regard to the evidence presented.
3. The Tribunal Member misdirected itself in finding that my arrival on a tourist visa cast doubt on my intentions.
a.I arrived in Australia on a visitor visa in July 2017. After my visit I returned to India. I arrived in Australia on a visitor visa on 31 October 2018. It was on this second visit I sought a student visa.
b. The Member found that I had been in Australia since October 2017 without working.
c. The Tribunal Member emphasised my lack of travel to my home country.
d.The Member misdirected itself in considering previous travel history and my stated intentions
e.The Member failed to have regard to the directions which provide that a persons migration intentions may change overtime.
f.The Tribunal failed to take a reasonable and balanced approach and the finding is illogical and unreasonable.
4. The Tribunal Member misdirected itself in finding that I had not evidenced reasonable academic progression during my stay.
a. Evidence submitted demonstrated that I had achieved 6 units of competency in my Certificate IV in Business.
b. I altered my enrolment to a Diploma of Business and Advanced Diploma of Leadership and Management in October 2019.
c. I secured enrolment in the Diploma of Business without the need to complete my Certificate IV in Business.
d. I therefore progressed academically.
5. The Tribunal Member drew illogical and unreasonable inferences.
a. The Member emphasised my lack of travel to my home country after being in Australia for a period of approximately one year.
b.The Member stated that I lacked inventive to return to India as I have remained in Australia since October 2017 without working.
c.The Member failed to acknowledge that I did not have work rights on a visitor visa. Further I arrived in October 2018.
6. The Tribunal failed to make findings as required in the Directions.
7. The Tribunal Members decision was otherwise illogical and unreasonable.
Orders made by a Judicial Registrar afforded the parties an opportunity to file written submissions prior to the hearing. The applicant was required to file a written outline of submissions no later than 28 days prior to the hearing, but he did not do so. The Minister filed a written outline of submissions on 11 March 2025 which addressed the seven grounds set out in the application.
On 18 March 2025, after having had the benefit of considering the Minister’s submissions, an outline of submissions was filed by the applicant’s solicitors. Although the applicant has not filed an amended application, the outline filed on behalf of the applicant had the effect of reorienting the application around a principal allegation of apprehended bias, framed as follows:
The applicant would like to press the following ground for the review of the matter in the Federal Circuit Court.
Apprehended Bias: - we would like to submit that the tribunal decision to affirm the decision of the Minister not to grant the visa was affected by apprehended bias, by reason of the Tribunal’s apparent closed mind to evidence and also errors made regarding the applicants stay in Australia on multiple occasions while making the decision. A well-regarded approach to the evidence and facts of the case wouldn’t have impacted the Tribunal’s written decision with wrong dates and findings about applicants continuous stay in Australia without having work rights. In Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41, the full federal court unanimously allowed the appeal from the former Federal Circuit of Australia and determined that the decision of the Tribunal was vitiated by Apprehended bias.
In support of this principal allegation of jurisdictional error, the applicant’s written submissions refer to and broadly rely upon Grounds 1, 2 and 3 of the original application for review. In short, the applicant appears to submit that the assertion of apprehended bias is supported by:
(a)the Tribunal’s failure to have regard to the merits of the application and its failure to act in a way that was just and fair. This is said to be evidenced by the Tribunal’s misunderstanding of the dates of arrival and a subjective approach to the applicant’s intention to stay in Australia genuinely as a temporary entrant;
(b)the Tribunal’s failure to have regard to factors relevant to the application when considering the applicant’s evidence and submissions; and
(c)that the Tribunal adopted a prejudicial approach by wrongly and unfairly imputing to the applicant a predetermined intention to stay in Australia, notwithstanding he entered Australia as a tourist. The applicant contends that the Tribunal had closed mind and was not open to evidence that the applicant changed his migration intention from tourist to student after he entered the country.
The application for judicial review was heard on 24 March 2025. Ms Sujithkumar, a solicitor, appeared on behalf of the applicant. The Minister was also represented by a solicitor advocate, Mr Orchard.
The applicant
The applicant’s representative principally relied upon the written submissions which had been filed on behalf of her client, but gave brief oral submissions to focus the areas of jurisdictional error.
The applicant’s grounds of error are interrelated in the sense that the applicant submits that the errors in the reasoning reveal a failure by the Tribunal to understand the statutory task, a failure to have regard to the evidence before it and an inference to be drawn from those failures that the Tribunal did not bring an impartial or open mind to its consideration of the applicant’s claim.
The applicant pointed to two plainly incorrect findings made by the Tribunal.
First, at [16(a)] of its reasons the Tribunal found:
the applicant provided reasonable reasons for undertaking the proposed course of study in his home country.
The applicant submits that finding is erroneous and there was no evidence upon which such a finding could have been made. The applicant did not provide any reasons for seeking to undertake business management studies in India. Indeed, his evidence was all directed to his reasons for wanting to do so in Australia.
Secondly, at [16(c)] of its reasons the Tribunal found:
The applicant is supported financially during his study in Australia by his family and he told the Tribunal he does not work in Australia. The applicant previously held employment in a family-owned farm but does not intend to return to that occupation. The applicant told the Tribunal he anticipates earning approximately AUD1000 per month. The Tribunal accepts the applicant’s living expenses in India are likely to be less than those in Australia however the applicant has chosen to remain in Australia without working since October 2017. In considering these matters as a whole, the Tribunal considers these circumstances do not demonstrate a significant incentive for the applicant not to return home to India. (Emphasis added)
The applicant submits that the Tribunal plainly erred in finding that the applicant had resided in Australia continuously since October 2017 and that he had not worked during that period as he enjoyed financial support from his family. The applicant concedes that the Tribunal was correct to find that he had not worked in Australia but says that it fundamentally erred in believing that he had been in the country since October 2017. It is submitted that the error resulted either from a misunderstanding of, or failure to consider the evidence and/or a misapplication of the matters which the Tribunal was required to consider under Direction 69. The applicant submits that the error was material and therefore jurisdictional because it was fundamental to the reasoning which led to the visa refusal.
The applicant submits that the errors in the Tribunal’s reasons cannot be dismissed as mere “typos” or lack of perfection. Rather, put simply, the applicant submits that the Tribunal’s careless and cursory written reasons, which includes at least two materially incorrect findings, reveals such inattention and predisposition against the application as to give rise to an inference of apprehended bias.
The Minister
Mr Orchard submitted that it is for the applicant to demonstrate jurisdictional error. It is not for the Minister to demonstrate perfection in the Tribunal’s written reasons.
The Minister submitted that when assessing the Tribunal’s reasons for jurisdictional error, the reasons should be read fairly and as a whole and not with an eye attuned to error. The Minister contends that the grounds of review advanced by the applicant involve him seizing upon minor inconsequential typographical errors in the Tribunal’s decision as a basis for inviting the Court to engage in impermissible merits review.
The Minister concedes that the Tribunal’s reasons fall well short of perfect. Notwithstanding, the Minister submits that read fairly, it is self-evident from the reasons that the Tribunal did not proceed on an incorrect footing and that erroneous dates and findings can be put down to typographical errors and inattention.
An obvious example of a typographical error is at [16(a)] of the Tribunal’s reasons. There the Tribunal found that the applicant had provided reasonable reasons for undertaking the proposed course of study in his home country. The Minister accepts that finding is incorrect and not supported by the evidence. However, the Minister submits that it is clear from [12] of the Tribunal’s reasons that in accordance with Direction 69 the Tribunal correctly assessed whether the applicant had provided reasonable reasons for not undertaking the study in his home country. In other words, having regard to the Tribunal’s approach to its assessment of the application as a whole, the obvious and only error in its finding at [16(a)] was the omission of the word “not”.
The Minister also concedes an ambiguous, if not erroneous, finding at [16(c)] of the Tribunal’s reasons. But again, the Minister submits that on a fair and balanced reading of the reasons as a whole, it should be self-evident that the Tribunal did not erroneously conclude, contrary to the evidence, that the applicant had continuously resided in Australia and not worked since October 2017.
To demonstrate the Tribunal’s proper assessment of the applicant’s presence in Australia and his working history, the Minister pointed to the following findings and considerations:
(a)that the applicant first arrived in Australia on 5 July 2017 and that he has been in Australia as the holder of a Visitor (Class FA) (Subclass 600) visa from 31 October 2018[2];
(b)that the applicant had worked as a dairy farmer in a family business from 2009 to 2018[3];
(c)that the applicant told the Tribunal that he does not work in Australia and that he has no work condition on his current visa[4];
(d)that the applicant returned to India in 2017 and arrived again in Australia on 31 October 2018[5];
(e)that the Tribunal accepted the applicant’s immigration history as set out in the delegate’s decision record (which records his most recent arrival as being in October 2018)[6];
(f)that the applicant most recently travelled to and arrived in Australia in 2018 and has not departed since that time[7].
[2] CB 167, reasons at [10]
[3] CB 167, reasons at [13]
[4] CB 167, reasons at [14]
[5] CB 167, reasons at [15]
[6] CB 171, reasons at [30]
[7] CB 171, reasons at [33]
The Minister submitted that the use of the date “2017” in paragraph [16(c)], rather than “2018”, must be put down to a simple typographical error in the production of the reasons. There was no misunderstanding of the evidence regarding the applicant’s arrival in Australia.
The Minister submits that the applicant’s claims of jurisdictional error cannot be made out no matter what species of error is used to impugn the Tribunal’s decision. The Minister submits that when the reasons are read as a whole and corrected for these obvious typographical errors or slips, the applicant does not come close to scaling the high bar necessary to establish unreasonableness, illogicality or irrationality in reasoning, let alone for inferring apprehended bias.
LEGAL PRINCIPLES
As previously mentioned, the applicant’s grounds assert various species of jurisdictional error. It is uncontroversial that on judicial review the applicant assumes the burden of persuading the Court to make the finding of jurisdictional error, for which he contends[8].
[8]SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 (‘SZDXZ’) at [25]; Minister for Immigration and Citizenship vSZGUR (2011) 241 CLR 594 (‘SZGUR’) at [67]
Failure to consider evidence
If review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the visa applicant, that may give rise to jurisdictional error.
However, it is well settled that the reasons of the Tribunal must be read fairly and as a whole and not “with an eye keenly attuned to the perception of error”[9]. Whether the Tribunal is obliged to consider particular evidence will depend upon the cogency of that material and the place of that material in the assessment of the applicants’ claims. The Tribunal’s consideration of such evidence need only reflect the length, clarity and degree of relevance of the material put before it. The Tribunal is not required to record generally “what it did” in conducting its review, nor is it required to describe every step taken or refer to every piece of evidence in conducting is review.
[9] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)
Where it is apparent that a decision-maker has read a document in the course of a review, the inference that he or she has overlooked or not properly considered a particular part is difficult to draw[10].
[10] See SZDXZ at [27]; SZGUR at [73]
Unreasonableness, illogicality and irrationality
An allegation of unreasonableness must be assessed according to the statutory scheme. Whether the decision in a particular case meets the required standard of reasonableness (and is therefore within power) must be decided by the Court on review based upon a consideration of the facts of the particular case[11]. That is, a finding of legal unreasonableness is invariably fact dependent.
[11] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [61], [70] (Gageler J), [84] (Nettle and Gordon JJ) and [140]-[141] (Edelman J); Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437 at [42]
An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making a decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn[12]. Factual findings must be rationally made and based on probative material and logical grounds[13].
[12] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ)
[13] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [40]‑[55]
While factual findings and associated reasoning in administrative decisions are subject to review for jurisdictional error on the grounds of irrationality, true irrationality must be shown[14].
[14] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ
To demonstrate jurisdictional error on the basis that the decision maker engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds, it is not sufficient to show that the question of fact was one in respect of which reasonable minds might differ[15]. A finding of unreasonableness or illogicality or irrationality in reasoning is a high bar and requires more than emphatic disagreement with a Tribunal’s decision.
[15] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Apprehended bias
The test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Tribunal member might not bring a fair, impartial and independent mind to the determination of the matter on its merits[16].
[16] ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] (Allsop CJ, Kenny and Griffiths JJ) citing R v Watson; Ex parte Armstrong [1976] HCA 39; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41
In ALA15v Minister for Immigration and Border Protection [2016] FCAFC 30 at [36] the Full Court explained that:
(i)there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii)there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits.
More must be shown than a mere predisposition of the Tribunal to a particular view and it is necessary to show that a decision-maker’s mind is not open to persuasion[17]. The test “…is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required.”[18] In other words, apprehension of bias must be firmly established: it must be distinctly made and clearly proved.
[17] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [71]-[72] (Gleeson CJ and Gummow J).
[18] Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 at [90] per Kirby J
The test for apprehended bias must consider the context of whether the decision-maker is curial or non-curial. Where the decision-maker is a Tribunal, one must make allowance for the fact that their role is inquisitorial and that the Tribunal:
“…must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”[19]
[19] SZRUI v Minister for Immigration & Citizenship [2013] FCAFC 80 at [24] citing NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [19]
CONSIDERATION
The written reasons of a decision-maker are the window through which jurisdictional error is to be found. The reasons will usually recite the evidence and other material which the Tribunal considers relevant and important to the findings made. These windows not always clear, indeed are sometimes very opaque. Reasons are not always perfect and some form of error can find its way into even the best of decisions. What is present and what is absent in reasons may in a given case, but will not always, reveal jurisdictional error[20].
[20] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [44], [69]
Errors in decision-making fall across a wide spectrum. At one end there are typographical errors, spelling mistakes, missing words and other errors in written reasons which reflect characteristics of the human condition, such as inadvertent oversight, lack of attention to detail, haste, tiredness, laziness and the like. It is difficult to point to the reason for errors of this kind, but they are often identifiable where there is an obvious inconsistency between the reasons as a whole and a finding. Often these errors stand out as something which the decision-maker clearly would not have intended taking into account the pathway of reasoning. Errors which fall into this category will not usually be amenable to successful jurisdictional challenge where the reasons otherwise reveal a sound performance of the statutory task.
Further along the spectrum are those errors which reveal a misunderstanding of the evidence, a failure to consider evidence, consideration of irrelevant matters, a failure to properly engage with the evidence or the law, unreasonable, illogical or irrational decision-making and so on. There are an infinite variety of these cases and they form a wide spectrum themselves. But where they differ is that it is more difficult to attribute such error to a mere slip or mistake.
Errors which, in the context of the reasons as a whole, tend to demonstrate that there is a more fundamental error in the decision-making process are more likely to be jurisdictional. These errors may reveal that the wrong law was used, relevant considerations were not applied, evidence was overlooked or the reasoning process was significantly out of bounds. It is not possible to describe how these errors will present in any given case, but they will often be found not in what the decision-maker said but in what the decision-maker left out.
Somewhere further along the spectrum lies denial of procedural fairness and apprehended bias. Here, the question is whether the decision-maker has exercised its statutory task at all. Where it is established that a person has been denied procedural unfairness or an unbiased hearing, the decision making task is incomplete and jurisdictional error will be established.
In the present case, the applicant alleges that the Tribunal fell into error at the more serious end of the spectrum whereas the Minister concedes error at the other end. The applicant submits that the decision was affected by apprehended bias, alternatively by a suite of serious jurisdictional errors such as those described above. The Minister on the other hand submits that when the reasons are read fairly and as a whole and without an eye unreasonably attuned to error, any mistakes by the Tribunal in the presentation of its written reasons are obvious, unintended and easily corrected for.
It is regrettable that the Tribunal’s written reasons contain errors. Understandably, those errors give rise to a concern on the part of the applicant that his case had been dealt with hastily and without careful consideration and thus invited an application for judicial review.
Nonetheless, I am satisfied for the reasons advanced by the Minister, that the identified errors do not reveal jurisdictional error. The errors are, in my view, obvious ones and most likely a product of oversight and failure to proof read. It is possible to correct for those mistakes by reading the reasons as a whole.
The Tribunal clearly spelt out the statutory task it was required to perform and identified the evidence and considerations it was required to take into account by reason of the Regulations and the Ministerial Directive. The reasons of the Tribunal were carefully structured around those considerations and the pathway of reasoning was logical.
The Tribunal’s decision reveals that it had regard to the applicant’s evidence and made findings that were plainly open to it on that evidence and based on its express consideration of the relevant factors in Direction 69. It is settled that Direction 69 is a guideline and the Tribunal did not need to make findings about each factor, only those that which were relevant to the application before it considering the applicant’s evidence and submissions[21].
[21]Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [108]
The finding in [16(a)] is so obviously inconsistent with the evidence that it can, in my view, only be attributed to a mistake - that mistake being the inadvertent omission of the word “not”.
Similarly, the implied finding in [16(c)] that the applicant had remained continuously in Australia since October 2017 was a mistake. The Tribunal was plainly aware that the applicant had arrived in Australia in October 2018[22]. All the evidence and all the Tribunal’s consideration was premised on the applicant most recently entering Australia in October 2018. The applicant’s migration history as recounted by the delegate and as found by the Tribunal acknowledged that the applicant had travelled in and out of Australia during 2017.
[22] CB 167, [15]; 171, [34(e)]
With respect to the Tribunal’s reference to the applicant not working since October 2017, the Minister submits that this was another typographical error which did not result in an error in its reasoning process. The Tribunal was aware that the applicant had worked in India as a dairy farmer between 2009 and 2018 but had not worked in Australia and had a no work condition on his visa[23]
[23] CB 167, [13]-[14]; 170, [29(c)]
Again, these errors in [16(c)] are so obvious, and so plainly at odds with other relevant factual findings, that they fall into the category of slips and mistakes. The mistakes in the written reasons do not reveal error in the Tribunal’s reasoning process[24].
[24] CRI026 v Republic of Nauru [2018] HCA 19 at [57]
Corrected for these errors, the Tribunal’s reasons otherwise reveal an orthodox and satisfactory consideration of the student visa application, including assessment of the genuine temporary entrant criterion. I do not accept that the reasons, so corrected, are affected by jurisdictional error.
There is no basis for finding that the Tribunal’s consideration of the application was affected by apprehended bias. The applicant has not properly articulated this claim, other than to allege that by dismissing his application in relatively short order the Tribunal had predetermined that he was another tourist looking to stay in Australia. Much more is required than a sense of unease or an uncomfortable feeling. It is necessary to show that the Tribunal’s mind was not open to persuasion. The applicant has failed to do so.
DISPOSITION
For the reasons set out above, the application for judicial review of the Tribunal’s decision must be dismissed.
As I have observed during the course of these reasons, the presence of errors, even of a minor kind, can give rise to a perception on the part of a visa applicant that the case has not been the subject of careful and fulsome consideration. Errors of the kind I have identified create unnecessary doubts about the validity of decisions and should be avoided. That observation is not intended to level undue criticism at the feet of Tribunal members and I am mindful of the heavy workload, time constraints and limited resources available to deal with the huge volume of migration applications. However, the application for judicial review was not altogether surprising given the mistakes in the written decision and the Minister might take that fact into account when considering the question of costs.
I will hear that parties on the question of costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 2 April 2025
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