Le v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 621
•6 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Le v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 621
File number(s): MLG 2461 of 2020 Judgment of: JUDGE FARY Date of judgment: 6 May 2025 Catchwords: MIGRATION - Application for judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not satisfy cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to Direction 69 – found no jurisdictional error on behalf of the Tribunal – Application dismissed. Legislation: Australian Constitution s 75(v)
Migration Act 1958 (Cth) s65(1), s 474, s 476 and s 499.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05.
Migration Regulations 1994 (Cth) 500.211 – 500.218.
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 43
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZUXN (2016) FCA 516
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 204
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of last submission/s: 17 April 2025 Date of hearing: 17 April 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mr Hutton, Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2461 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI THANH THUY LE
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
6 MAY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs, including any reserved costs, fixed in the sum of $5,000.
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 Fary
INTRODUCTION
By an Application filed in this Court on 13 July 2020 (Application), the Applicant seeks judicial review of the decision of Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 23 June 2020 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a Delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) Student (Subclass 500) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that she intended genuinely to stay in Australia temporarily for the Visa pursuant to cl 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
The hearing of the Application took place at the Melbourne Registry of the Court on 17 April 2025 (Hearing). The Minister was represented by a solicitor, while the Applicant was self-represented with a Vietnamese translator. At the conclusion of the hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 17 April 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal committed jurisdictional error during the Tribunal’s hearing on 10 October 2019 (Tribunal Hearing), by failing to take into account evidence in relation the Applicant’s intention to genuinely stay in Australia temporarily for the purposes of studying, pursuant to cl 500.212(a) of Schedule 2 of the Regulations (cl 500.212); i.e. the genuine temporary entrant criterion.
BACKGROUND
The Court has before it a Court Book with 111 pages filed by the Minister on 16 December 2020 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions, filed 30 August 2024 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [9]. The Court adopts those submissions with amendments as follows.
The Applicant is a citizen of Vietnam.
The Applicant arrived in Australia on 9 February 2008 as a holder of a Student (Temporary) (Class TU) (Subclass 572) visa. The Applicant subsequently help five student visas and a temporary graduate visa.[2]
[2] Court Book (CB) 1-19.
On 28 March 2018, the Applicant applied for the Visa (Visa Application).[3] The Visa Application included the Applicant’s: Vietnamese identity documents; financial documents; academic documents from her time in Australia; health cover and a Statement of Purpose. The Visa Application confirmed that the Applicant had previously studied in Australia and held a Subclass 572 Student Visa.[4]
[3] CB 1-19.
[4] CB 1-19.
On 31 May 2018, a Delegate of the Minister refused to grant the Applicant the Visa (Delegate’s Decision).[5] The Delegate was not satisfied that the Applicant met the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212(a). The Applicant was required to have ties back to her home country that were sufficient to meet the threshold in the Regulations during her stay in Australia.
[5] CB 42-47.
On 10 June 2018, the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application).[6] On 12 June 2018, the Tribunal acknowledged receipt of the Review Application and advised the Applicant that material or written arguments should be provided to the Tribunal as soon as possible.[7]
[6] CB 48-49.
[7] CB 54-57.
On 23 August 2019, the Tribunal wrote to the Applicant requesting her to provide evidence to demonstrate she is enrolled in a course currently.[8]
[8] CB 57-62.
Following this email correspondence from the Tribunal, the Applicant provided a completed Request for Student Visa Information form and Certificate of Enrolment (CoE) in a Graduate Diploma of Management at the Universal Institute of Technology.[9]
[9] CB 63-75.
On 18 September 2019, the Applicant was invited to attend a hearing before the Tribunal on 10 October 2019 (Hearing Invitation).[10]
[10] CB78-80.
On 10 October 2019, the Applicant attended the Tribunal hearing with the assistance of her Representative (Migration Representative), Mrs Thi Ngoc Anh Nguyen and a Vietnamese interpreter.[11] During the hearing, the Applicant tendered a document to the Tribunal, the documents being a Registration of a Certificate of Business and a Business Plan.[12]
[11] CB 92-94.
[12] CB 96.
On 24 June 2020, the Tribunal provided a written reasons of the Tribunal’s Decision to uphold the Delegate’s Decision.[13]
[13] CB 102-107.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 106 to 111 of the Court Book.
The Tribunal first outlined the background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [11] to [18].
The Tribunal reviewed the evidence provided by the Applicant, finding that despite the Applicant’s claims that she was stressed for a significant period so did not undertake study in the 17 months prior to the hearing, the Applicant was able to engage in paid work and when the Tribunal approached her, the Applicant subsequently enrolled in another, materially different course of study.[14]
[14] CB 106.
The Tribunal found the Applicant did not have significant familial or financial incentive to return to her home country, having particular regard for the Applicant’s ties to Australia, including her 12 years residence and her close relationship with her sister in Melbourne.[15] The Tribunal was not satisfied that the Applicant’s course of study would enable her to return to Vietnam and take over the family business.[16]
[15] CB 106.
[16] CB 106.
The Tribunal found that the Applicant’s inconsistent evidence about her plans indicated that her plans were changed to support the grant of a further student visa.[17] The Tribunal was not satisfied with the evidence put forward by the Applicant that the relevance of her current course of study would assist her career prospects in Vietnam.[18]
[17] CB 106.
[18] CB 106.
The Tribunal was not satisfied that the Applicant intended to genuinely stay in Australia temporarily as per cl 500.212(a) of the Regulations.[19]
[19] CB 106.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 13 July 2020, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 2 December 2020, Orders were made by Registrar Carlton of this Court for the Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence.
On 2 August 2024, Orders were made by Registrar Cummings of this Court for the Applicant to file: written submissions, any Amended Application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence. For the First Respondent’s name to be amended to the Minister for Immigration and Multicultural Affairs.
This matter was heard on 17 April 2025 at the hearing. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
The Applicant relied upon the following documents:
(a)The Application filed 13 July 2020;
(b)The Affidavit of the Applicant sworn and filed 13 July 2020 (Applicant’s Affidavit); and
(c)Oral submissions during the hearing on 17 April 2025.
The Minister relied upon:
(a)The Response, filed 31 July 2020 and 31 July 2024;
(b)The Minister’s Submissions filed 30 August 2024;
(c)The Affidavit of Mr Jeremy Hutton sworn and filed 9 April 2025 (Jeremy Hutton’s Affidavit); and
(d)A List of Authorities filed 15 April 2025.
Both parties relied on the Court Book.
The Application contains four (4) grounds of review (Grounds of Review):
1. The Tribunal Member failed to give consideration to and ignored critical evidence when assessing whether I am a genuine temporary entrant. (Ground 1).
a. The Tribunal failed to engage with the value of the course of study.
b. The Tribunal failed to consider and/or did not give the appropriate weight to the reasons why I did not complete my interpreting course.
c. The Tribunal Member failed to engage with my submissions on my career path change.
d. The Tribunal failed to engage with my career plan following from pressure from my parents.
e. The Tribunal failed to engage with cultural reasons for returning home.
f. The Tribunal failed to consider my submissions and provide me with a meaningful review.
2. The Tribunal Member made highly speculative and illogical inferences:
a. At paragraph 17, the Tribunal Member implied that I owned a car and that it is a financial incentive for me to remain in Australia. Despite the fact that the car is registered in my sister's name and I merely have access to it
b. At paragraph 19, the Tribunal Member states that despite my education, I have not sought to take advantage of my qualifications with employment either in Australia or Vietnam.
c. At paragraph 19, the Tribunal Member stated that I only enrolled in the Diploma of Interpreting because my visa was coming to an end. Within the same paragraph the Tribunal Member stated that I sought to enrol in another course because of the hearing.
d. At paragraph 20, the Tribunal Member accepted that any form of tertiary qualification has the prospect of advancing employment or renumeration prospects. However, within the same paragraph the Tribunal Member further accepted that plans changed but then inferred that my plans had only changed to support a grant of a student visa.
e. At paragraph 26, the Tribunal Member concluded that the fact that I live with my sister and her family in Melbourne shows that I have relatively weak attachments to my home country. (Ground 2).
3. The Tribunal misunderstood, misapplied the law or misdirected itself:
a. The Tribunal Member found that I was using the student visa program to maintain residence in Australia as opposed to being here to further my education.
b. At paragraph 21, the Tribunal concluded that because I have been here for over 12 years and live with my sister, it cannot be satisfied that I have enrolled in my most recent course to enable myself to return to my home country to take over my family business. (Ground 3).
4. The Tribunal failed to give genuine consideration to the factors set out in Direction 69. (Ground 4).
(Words in bold added, otherwise as written).
APPLICANT’S SUBMISSIONS
The Applicant made oral submissions at the hearing on 17 April 2025. She was assisted by a Vietnamese language interpreter, although participated in some parts of the hearing without utilising the interpreter.
RESPONDENT’S SUBMISSIONS
The First Respondent submits that the Applicant’s Application fails to establish any jurisdictional error and must be dismissed.
The First Respondent seeks the Application be dismissed with costs fixed in the amount of $5,000.
Ground 1
The Minister submits that the Tribunal considered the value of the course of study, the Applicant’s oral and written evidence.
Given the above, the Tribunal made findings open to it on the evidence provided. The Tribunal was otherwise not required to expressly refer to each and every piece of evidence provided by the Applicant or make findings regarding each piece of evidence.[20]
[20] Minister for Immigration and Multicultural Affairs v Yusuf (2001)206 CLR 323 at [67]–[68], [73]–[74],[77], [89] and [91].
The Minister submits that Ground 1 should be dismissed.
Ground 2
A finding of unreasonableness, illogicality or irrationality in reasoning is a high bar and requires more than emphatic disagreement with a Tribunal’s decision and Ground 2 should be dismissed.[21] The test is whether the decision is one at which no rational or logical decision maker could arrive on the same evidence[22] or, put another way, whether it was “open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did on the material before it”.[23] To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”.[24]
[21] Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [124], [129] (Crennan and Bell JJ);
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [126] (Gummow J).
[22] Ibid at [130].
[23] Ibid at [133], [135].
[24] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [59]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 1 at [30].
The Minister submits that the Applicant has failed to demonstrate how the Tribunal’s reasons are illogical. The Minister submits that the Tribunal did not “only” find that the Applicant had weak attachments to her home country because she lived with her sister, but rather found she did not have a significant incentive to return home because of her ties to the Australian community in her 12 years of residence and her close relationship with her sister (see paragraph 2.3), which was open to it for the reasons that it gave.
Ground 3
The Minister argues that the findings of the Tribunal were on the basis of its assessment of the Applicant’s evidence which were clearly open, and Ground 3 is nothing more than a request for impermissible merits review.
Ground 4
In light of the Court’s decision in Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646, Direction 53 and 69 are guidelines and the Tribunal does not need to make findings about each factor, only those which are relevant to the Application before it in light of the Applicant’s evidence and submissions.[25]
[25] Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 at [108].
The Minister submits that Ground 4 cannot succeed, as the Tribunal made findings in relation to factors that were relevant on account of the Applicant’s evidence and claims in the case.
CONSIDERATION
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[26]
[26] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[27]
[27] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[28] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[29] Different kinds of error may overlap.[30] The categories are not closed.[31] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[32]
[28] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[29] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[30] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[31] LPDT at [3].
[32] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[33] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[34] It has been described as an “undemanding” standard.[35]
[33] LPDT at [7].
[34] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[35] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Student Visas
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cl 500.211 to 500.218 in Schedule 2 of the Regulations.
Clause 500.212 of Schedule 2 of the Regulations provides:
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
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. because of any other relevant matter.
Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) of the Migration Act provides that a person or body (which would include the Tribunal) must comply with a direction given under s 499(1).[36]
[36] See Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209 at [65]
Direction 69 is a direction given by the Minister under s 499(1) of the Migration Act concerning the assessment of the genuine temporary entrant criterion at cl 500.212(a).
Ground 1
Ground 1 is that:
1. The Tribunal Member failed to give consideration to and ignored critical evidence when assessing whether I am a genuine temporary entrant.
a. The Tribunal failed to engage with the value of the course of study.
b. The Tribunal failed to consider and/or did not give the appropriate weight to the reasons why I did not complete my interpreting course.
c. The Tribunal Member failed to engage with my submissions on my career path change.
d. The Tribunal failed to engage with my career plan following from pressure from my parents.
e. The Tribunal failed to engage with cultural reasons for returning home.
f. The Tribunal failed to consider my submissions and provide me with a meaningful review.
The dispositive issue in relation to the Tribunal’s Decision was whether the Tribunal was satisfied in relation to the genuine temporary entrant criterion in cl 500.212(a). This question required the Tribunal to consider not only the Applicant’s stated intention, but “the Applicant’s circumstances”, “the Applicant’s migration history”, and “any other relevant matter”.[37]
[37] Clause 500.212.
The Tribunal concluded (at [22]) that it was not satisfied that the Applicant intended to stay in Australia temporarily having regard to various matters, but particularly those at [19] - [21]. Ground 1 involves an attack on the fact-finding process of the Tribunal, in particular alleged failure to consider or give “appropriate weight” to specified evidence or to consider or “engage with” specified submissions, when making findings of fact.
As to the role of the court and principles to be applied on judicial review where a challenge is made to the decision maker’s reasoning, findings of fact or conclusion:[38]
[38] Noting that different kinds of error may overlap: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
(a)In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ confirmed that the proper role of the court on a judicial review was not to review the merits of the administrative decision-maker.[39]
[39] See also Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54].
(b)Kirby J stated (at p 291) that:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the propsect that a verbal slip will be found warranting inference of an error.
(Emphasis added) (Footnotes omitted)
(c)In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held (at [69]) that s 430 of the Migration Act obliged the Tribunal to set out findings on material questions of fact to the conclusion it reached. It does not require the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make.
(d)In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593, the Full Court of the Federal Court (French, Sackville and Hely JJ) stated:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(Emphasis added)
(e)In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ stated:
In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
(Emphasis added)
(f)In Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SZJSS), French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ held (at [33]) that the weighing of evidence was a matter for the Tribunal.
(g)In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court of the Federal Court (Kenny, Griffiths and Mortimer JJ) stated:[40]
[40] At [49] – [50].
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made ... Representing as it does what the Tribunal itself considered important and material, what is present – and what is absent – from the reasons may in a given case enable a Court on review to find jurisdictional error ...
... The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
(Emphasis added)
(h)In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, Robertson J held (at [77] and [111]) that the question of whether a failure to consider evidence gives rise to jurisdictional error:
… is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error… the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.
(Emphasis added)
(i)In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), Hayne, Kiefel and Bell JJ stated:
The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
(Emphasis added)
(j)In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J stated:
As Robertson J put it in Minister for Immigration and Citizenship v SZRKT(2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22–23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
…The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137–138 [151]–[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]–[62].
Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598–599 [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].
(Emphasis added)
(k)In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Allsop CJ (with whom Wigney J agreed) stated:
11. The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
12. Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
13. The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
(Emphasis added)
(l)In Minister for Home Affairs v DUA16 (2020) 271 CLR 550, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ stated:
A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".
(Footnotes omitted) (Emphasis added)
(m)In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, Kiefel CJ, Keane, Gordon and Steward JJ stated:
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker’s reasons disclose that the decision maker ignored, overlooked or misunderstood relevant facts and materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
(Footnotes omitted)
I am not satisfied that the Tribunal erred by failing to “engage with” and “consider” the matters referred in Ground 1. To the contrary, the Tribunal reasons demonstrate that it did “engage with” and “consider” the value of the course of study (at [20]), the reasons for failing to complete the interpreting course (at [19]), and submissions in relation to change of career path (at [15(g)]). Further, the Tribunal did not rely on its findings concerning returning home (at [15](c)) in a way that was adverse to her case.
It appears to me that the Applicant’s real complaint with these matters is that the Tribunal reached conclusions contrary to her case. As the court held in SZJSS, the weighing of evidence was a matter for the Tribunal.[41] The role of the court on a judicial review is not to review the merits of the Decision.[42] Further, the Tribunal was not required to expressly refer to each and every piece of evidence provided by the applicant or make findings regarding each piece of evidence.[43]
[41] SZJSS at [33]. Compare Li at [72].
[42] Liang at 272.
[43] WAEE at [46].
Having regard to the whole of the Tribunal’s Decision, I consider that the claim that the Tribunal failed to consider the Applicant’s submissions and provide her with a “meaningful review” is not made out.
I am not satisfied that jurisdictional error is made out by reference to Ground 1.
Ground 2
Ground 2 is that:
1. The Tribunal Member made highly speculative and illogical inferences:
a. At paragraph 17, the Tribunal Member implied that I owned a car and that it is a financial incentive for me to remain in Australia. Despite the fact that the car is registered in my sister's name and I merely have access to it
b. At paragraph 19, the Tribunal Member states that despite my education, I have not sought to take advantage of my qualifications with employment either in Australia or Vietnam.
c. At paragraph 19, the Tribunal Member stated that I only enrolled in the Diploma of Interpreting because my visa was coming to an end. Within the same paragraph the Tribunal Member stated that I sought to enrol in another course because of the hearing.
d. At paragraph 20, the Tribunal Member accepted that any form of tertiary qualification has the prospect of advancing employment or renumeration prospects. However, within the same paragraph the Tribunal Member further accepted that plans changed but then inferred that my plans had only changed to support a grant of a student visa.
e. At paragraph 26, the Tribunal Member concluded that the fact that I live with my sister and her family in Melbourne shows that I have relatively weak attachments to my home country.
The reference to “speculative and illogical inferences” would appear to be an allegation of jurisdictional error by reason of irrationality, illogicality or unreasonableness.
Before considering Ground 2, it is worth noting that the question was whether the Tribunal was satisfied as to the genuine temporary entrant criterion. This question required the Tribunal to consider not only the Applicant’s stated intention, but “the Applicant’s circumstances”, “the Applicant’s migration history”, and “any other relevant matter”.[44]
[44] Clause 500.212 of Schedule 2 of the Regulations.
I am not satisfied that the Tribunal erred by making “highly speculative and illogical inferences” as alleged in Ground 2, or that the matters referred to otherwise demonstrate irrationality, illogicality or unreasonableness in the Decision or decision making process:
(a)I am not satisfied that the Tribunal’s finding concerning car ownership (at [17]) was relied upon it in the manner contended for by the Applicant. The Tribunal merely noted that the answer given by the Applicant was different to her written response to the Tribunal. That finding does not feature in the core reasons at [19] and [20].
(b)The Tribunal’s finding (at [19]) that the Applicant “did not seek to take advantage of” the Bachelors degree or MBA in Australia or Vietnam, combined with the other evidence, was logically supportive of the conclusion of lack of satisfaction that the Applicant genuinely intended to stay in Australia temporarily (at [22]). It is a matter that the Tribunal was required to have regard to by reason of clause 25 of Ministerial Direction 69.
(c)The Tribunal found that “it was only when the seventh temporary Visa’s term was coming to an end that the Applicant sought to enrol in the Diploma of Interpreting” (at [19]). There is no error in that statement of fact. Nor is it inconsistent with the Tribunal’s finding that “when the hearing of this Application approached, the applicant sought to enrol in another, materially different, course of study” (at [19]). Each of those findings was logically probative of the conclusion reached at [22]; noting that the question of weight is generally[45] a matter for the decision maker.[46]
(d)The findings that “any form of tertiary qualification has the prospect of advancing a person's overall employment or remuneration prospects” and “plans and circumstances change” but that “the Applicant’s plans have changed only to support the grant of a further student visa” in [20], are not inconsistent. They demonstrate a commendable degree of nuanced reasoning in the Tribunal Decision.
(e)The reference to the Applicant’s “close relationship with her sister and family in Melbourne” at [21] (not [26]), in the context of her ties to the Australian community, again, are matters that are relevant to the Tribunal’s conclusion concerning the Applicant’s stated intention. It is a matter that the Tribunal was required to have regard to by reason of clause 24 of Ministerial Direction 69.
[45] Compare Li at [72].
[46] SZJSS at [33].
I am not satisfied that jurisdictional error is made out by reference to Ground 2.
Ground 3
Ground 3 is that:
2. The Tribunal misunderstood, misapplied the law or misdirected itself:
a. The Tribunal Member found that I was using the student visa program to maintain residence in Australia as opposed to being here to further my education.
b. At paragraph 21, the Tribunal concluded that because I have been here for over 12 years and live with my sister, it cannot be satisfied that I have enrolled in my most recent course to enable myself to return to my home country to take over my family business.
I am not satisfied that the Tribunal “misunderstood, misapplied the law or misdirected itself” as alleged in Ground 3:
(a)The Tribunal’s finding that it was not satisfied that “the Applicant seeks to study this most recent course so as to enable her to return to Vietnam to take over the family business” (at [21]), was a finding along the way to the Tribunal’s conclusion of lack of satisfaction that the Applicant intends genuinely to stay in Australia temporarily (at [22]). The latter question arises directly from clause 500.212. It is a matter that the Tribunal was required to have regard to by reason of clause 25 of Ministerial Direction 69.
(b)The Tribunal’s findings (at [21]) that the Applicant had “over nearly 12 years of residence” and had a “close relationship with her sister and her family” (at [21]), were also findings along the way to the Tribunal’s conclusion of lack of satisfaction. It is a matter that directly arises under clause 500.212. It is a matter that the Tribunal was required to have regard to by reason of clause 24 of Ministerial Direction 69.
(c)For completeness I should add that I am not satisfied that the matters relied upon by the Applicant demonstrate irrationality, illogicality or unreasonableness in the reasoning or findings of the Tribunal.
I am not satisfied that jurisdictional error is made out by reference to Ground 3.
Ground 4
Ground 4 is that:
3.The Tribunal failed to give genuine consideration to the factors set out in Direction 69.
Ministerial Direction 69 sets out a number of factors that are intended to “guide decision makers when considering the Applicant’s circumstances as a whole, in reaching a finding about whether the Applicant satisfies the genuine temporary entrant criterion”.
The factors include:
(a)The Applicant’s circumstances.
(b)The Applicant’s circumstances in their home country.
(c)The Applicant’s potential circumstances in Australia.
(d)Value of the course to the applicant’s future.
(e)The applicant’s immigration history.
(f)Any other relevant matters.
A decision maker must comply with a written direction made pursuant to s 499.[47]
[47] See s 499(2A) and Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 204 at [19].
In Kumar v Minister of Immigration and Border Protection (2020) 274 FCR 646; 274 FCR 646 (Kumar), Derrington and Thawley JJ explained how a failure to comply with a Ministerial Direction might give rise to jurisdictional error:
29.If there is a failure to comply with Direction 53 in reaching an adverse state of satisfaction under cl 572.223(1)(a) which is sufficiently material to the formation of that state of satisfaction, and consequently upon the state of satisfaction in s 65(1) of the Act then, depending on the nature of the non-compliance, jurisdictional error may be established. An example of such jurisdictional error is as follows. If Direction 53 required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated if the applicant established that he or she was thereby deprived of the possibility of the repository of power forming a favourable state of satisfaction: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]–[31] (Keifel CJ, Gageler and Keane JJ) and [72] (Edelman J); Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421 at [45]–[48] (Bell, Gageler and Keane JJ) and [84]–[95] (Nettle and Gordon JJ). Although the decision-maker was, in fact, not satisfied that the visa applicant had met the relevant criteria, that actual state of mind was reached through a “material” non-compliance with statutory requirements prescribed for that decisional process. Accordingly, the state of non-satisfaction was not of the kind upon which the legislature conditioned the exercise of power under s 65(1)(b).
Their Honours found (at [96]) that Direction 53 did not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality and, less still, was there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.
Direction 69 provides in paragraph 1, that it “is only to guide decision makers”, and identifies facts the decision maker “should have regard to”. In contrast, Direction 53 (which was the subject of the decision in Kumar) is expressed in terms that the decision maker “have regard to” the factors set out in that direction.
The principles set out in Kumar were applied by Sarah C Derrington J in the context of Direction 69 in Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385.
Ground 4 involves an unparticularised allegation of failure to give “genuine consideration” to the matters set out in Ministerial Direction 69.
I am not satisfied that the matters identified in Grounds 1 to 3 constitute a failure to give “genuine consideration” to the matters set out in Ministerial Direction 69. I have not otherwise identified any failure to give “genuine consideration” to those matters.
I am not satisfied that jurisdictional error is made out by reference to Ground 4.
Other Matters
The Applicant was self-represented in the hearing before me.
I have been mindful of the guidance set out in decisions like SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 concerning the Court’s obligation to act in a procedurally fair manner when dealing with self-represented litigants; in particular, the requirement to put an unrepresented litigant in a position to make an effective choice about how to conduct his or her case.
Having noted these matters, I have not otherwise identified any arguable jurisdictional error in the Tribunal’s Decision that I have not specifically addressed above.[48]
[48] Noting the comments of Mortimer J (as the Chief Justice was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, the Application for review must be dismissed.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that that the application succeeded or was dismissed. In the event that the Application was dismissed, the Minster sought costs in the sum of $5,000 being an amount less than the scale amount.[49] I am satisfied that costs ought to follow the event,[50] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[51]
[49] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[50] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[51] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate: MC
Dated: 6 May 2025
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