Lkhagvasuren v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 1547
•23 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lkhagvasuren v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 1547
File number(s): SYG 3055 of 2020 Judgment of: JUDGE ELDERSHAW Date of judgment: 23 September 2025 Catchwords: MIGRATION – Application for Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the Tribunal was required to consider a substantial, clearly articulated claim – Whether the Tribunal had sufficient regard to relevant clauses contained in Ministerial Direction 69 – Whether the phrase “no adverse finding” amounts to a finding – Where jurisdictional error on the part of the Tribunal is established Legislation: Family Law Act (1975) Cth, s 60CC
Migration Act1958 (Cth), ss 474, 476, 499
Migration Regulations1994 (Cth), cl. 500.212
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Carrascalao v Minister for Immigration andBorder Protection (2017) 347 ALR 173
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1
DL v The Queen (2018) 266 CLR 1
Kaur v Minister for Home Affairs [2019] FCA 2026
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Sayed & Rehmannn [2025] FedCFamC1A 145
Division: General Number of paragraphs: 101 Date of hearing: 19 August 2025 Place: Sydney Counsel for the Applicants: Mr N. Poynder Solicitor for the Applicants: Northam Lawyers Counsel for the First Respondent: Mr T. Reilly Solicitor for the First Respondent: Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3055 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TSERENTOGTOKH LKHAGVASUREN
First ApplicantUUGANTSETSEG BADIA
Second ApplicantNOMUUN-ERDENE TSERENTOGTOKH
Third ApplicantULZIITOGTOKH TSERENTOGTOKH
Fourth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
23 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 11 December 2020 in Case Number 1826031.
3.A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 27 July 2018 according to law.
THE COURT NOTES THAT:
A.The exhibits in these proceedings are Exhibit R-1, being the Court Book filed 14 April 2021 and Exhibit C-1, being email correspondence between the Court and the parties concerning the scope of the review application between 21 August 2025 and 28 August 2025 inclusive.
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 typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04of the Rules.
REASONS FOR JUDGMENT
JUDGE ELDERSHAW
INTRODUCTION
The applicants are Mr Tserentogtokh Lkhagvasuren (primary applicant), who is a citizen of Mongolia, his wife and children.
By their application filed on 31 December 2020, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 December 2020 (Decision).
The Decision affirmed the decision of a delegate of the first respondent dated 20 August 2018 (Delegate’s Decision) which refused an application for a student visa because the primary applicant had not satisfied the genuine temporary entrant criterion imposed by clause 500.212(a) of Schedule 2 of the Migration Regulations1994 (Cth) (Regulations).
The applicants seek that the Decision be quashed, that a writ of mandamus directed to the Tribunal requiring it to determine the visa application according to law be issued, and costs. The Minister seeks that the application for judicial review be dismissed with costs.
DOCUMENTS
The applicants rely on their application filed on 31 December 2020 and written submissions filed on 11 August 2025. The Minister relies on his response filed 18 January 2021, Court Book filed 14 April 2021, written submissions and a list of authorities both filed 12 August 2025. The Court Book has been marked as Exhibit R-1.
In these Reasons, references to the Court Book are styled CB followed by the page number.
LEGAL FRAMEWORK
Section 476(1) of the Migration Act1958 (Cth) (Act) confers power on this Court to undertake judicial review of migration decisions where a writ of mandamus or prohibition, or an injunction is sought against a Commonwealth officer, subject to the limitations imposed by s 476(2). This Court’s power to review the Tribunal’s decision is limited to review for judicial error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The Court is not permitted to undertake a review of the merits of the application for a visa: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
Clause 500 of Schedule 2 of the Regulations sets out the criteria for the grant of subclass 500 student visas, which relevantly provides:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor – the intentions of the parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter;
[…]
Pursuant to s 499 of the Act, when considering whether the applicant satisfies clause 500.212(a) (genuine temporary entrant criterion), the Tribunal was required to apply Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications” (Direction). The Direction addresses various factors which guide the decision-making process relating to the genuine temporary entrant criterion.
BACKGROUND
The primary applicant is a citizen of Mongolia, where he was born on 4 April 1982. The primary applicant’s wife was also born in Mongolia. Their children were born in Australia. The primary applicant’s mother, siblings, and other extended family live in Mongolia.
The primary applicant first arrived in Australia on 4 August 2012 as a dependent on his wife’s then-student visa. That visa was granted in July 2012 and expired in July 2013, and was followed by further similar visas which expired in September 2015 and August 2018 respectively.
On 27 July 2018, the applicants applied to the Department of Home Affairs for the primary applicant to obtain a Student (Temporary) (class TU) Student (subclass 500) visa, with the wife and children as secondary applicants (visa application). At that time, the primary applicant was enrolled in a vocational project management course. The primary applicant included a “Genuine Temporary Entrant Statement” (First GTE Statement) in support of that application which read, inter alia:
I strongly believed that pursuing my further studies in Australia is an important path to set my career goals and is an ideal setting for refining my expertise in project management while also acquiring a broader, international viewpoint. Thus, to enhance my own expertise and professional abilities, I would like to have opportunity to study "Diploma and Advanced Diploma of Project Management" courses at SELC. My interest in Project Management goes way back to the time after the completion of my higher education. From my childhood I inspired in Science, especially interested in Chemistry. Therefore I pursued and completed my Bachelor, and Master degree in Science in Mongolia followed by research work in the field in Korea. Unfortunately, doing a lot of practical experiment in chemical laboratory with chemicals gave me allergy, can't pursue it anymore. For the medical reason I need to change my career. But I discovered that if I have project management skills, I can diverse my career to the management level of any business related to my previous qualification. During my previous studies I became more aware of the ever-changing reality of the importance of project management. I realised pursing a project management skills, besides my previous degree, would benefit me by allowing me to obtain the ability to effectively implement the projects. Thus, I decided to join SELC and realize that the quality of education and teaching method provided by SELC is exactly what I am looking for to pursue my Diploma and Advanced Diploma of project Management Courses.
[…]
After completing this degree, our family will back to our home country and put my effort and favor for my further career journey in Science of Mongolia. I believe that my Australian studies will be enhance my competencies for my future.
On 20 August 2018, the Delegate refused the visa application on the basis that the primary applicant had not satisfied the genuine temporary entrant criterion.
On 6 September 2018, the applicants lodged an application for review of the Delegate’s Decision in the Tribunal.
On 18 March 2020, the Tribunal wrote to the applicants and invited them to provide further information. The applicants provided a Request for Student Visa Information (Request for Information) to the Tribunal, which included a Genuine Temporary Entrant Statement from the primary applicant (Second GTE Statement).
In the Request for Information:
(a)as to how and why the primary applicant chose the education provider(s) for the current or proposed course of study, the primary applicant said:
After undertaking necessary research online and after consulting with his spouse, he decided to choose the provider. The provider offered the course of his interest and had a good reputation for delivering this subject matter. The course is well designed and taught in a conducive manner by qualified teachers. The provider is also categorised as “Assessment level 1” thereby enhancing its credibility.
(b)as to whether there were similar courses available in his home country or region to the course(s) he is currently studying or proposes to study in Australia, the primary applicant said:
Although there are providers offering the same if not similar courses, they are not as effective as delivering the same level of education the applicant decided to stay in Australia. The quality of education and relevant (sic) of updated curriculum served as a key reason for undertaking this course. Furthermore, the credibility and worth of an Australian degree in Mongolia was another reason the applicant wanted to invest in this study.
Paragraph 9 of the applicants’ written submissions accurately summarised the Second GTE Statement, which I adopt:
9. On review, on 18 March 2020 the applicant was invited by the Tribunal to provide information addressing the genuine temporary entrant criterion, with reference to Direction 69 (CB 76-82). In response the applicant provided another genuine temporary entrant statement (CB 95-100) which relevantly made the following points:
(a) The applicant and his wife had another child at the end of 2019.
(b) The applicant said that his “journey so far has been extremely rewarding in term of acquiring the skills and knowledge needed to build career as project manager. I have learned from books, teachers and fellow class mates”. He went on:
My education experience cannot be compared to what it would have been if I had chosen to stay in Mongolia. I have been educated using the most updated curriculum by the most qualified teachers and in an environment where students are from different parts of the world. I feel like this experience has changed my way of thinking in ways that is better.
(c) The applicant said that, since coming to Australia he has had to stay away from any chemicals that caused his allergy, but he knew that he would never give up on science, and he “planned to do something related to chemistry project in Mongolia upon completion of my spouse's study”.
(d) The applicant had a causal job and, in 2015, he had a workplace accident which crushed two fingers. He said that it was not until 2018, after two major operations that he finally recovered and could use a pen. He found that he was unable to do any chemistry, involving tiny measurements, so he decided to find employment in managerial positions and to study a project management course “as there is good chance of becoming project manager, in Science in Mongolia”.
(e) Under the heading, “Reason for choosing Australia as my study destination” (CB 98) the applicant said that in Australia he had the chance to learn about the Australian education system through his wife, and that he also did “thorough research” to know about Australia. He went on:
I harboured interest and desire to avail myself the opportunity to study in a world class education system with wider opportunities that has been offered by the Australian Universities and Institutions. They also offer multicultural environment for better learning suitable environment, accommodation facilities, friendly staff and access to many research and work experience possibilities. Australia has become my prime study destination because of approximately 22,000 courses in 1,100 Institutions to choose from. Such wide range of courses is difficult to find in my hometown in Mongolia. We do have education providers offering similar courses but they are not the same standard and one does not obtain the same learning outcome for the courses there. This gives confidence to excel in career.
Furthermore, its best universal health care facilities to its safe deportation facilities make it a very liveable place. Rate of crime are very low and many students report that they generally feel safe. Besides this, Australia's multicultural environment and climate has best environment. It's a dream of any student to catch up in the globally recognised market in Australia which could help one to build up and develop their career in facilitated manner. This is one of the best places for learning new ideas, cultures and get involved so that I could build up my confidence and skills for my future goals.
(f) Under the heading, “Reason for choosing VET courses at SELC College”, the applicant said that his English score did not meet the admission requirement for a Masters of Project Management, so he decided to undertake a lower level Diploma and Advanced Diploma of Project Management.
(g) Under the heading, “Incentive to Return”, the applicant referred to his large family and strong associations in Mongolia and that he and his wife want their children to grow up in Mongolia. He added that his wife owned a property in Mongolia and that they had two family businesses being looked after by family members
The Request for Information also included a Confirmation of Enrolment, which recorded that the primary applicant was studying an Advanced Diploma of Project Management at SELC Australia.
On 22 June 2020, the Tribunal invited the applicants to attend a hearing by telephone to give evidence and present arguments in their case. On 29 June 2020, the applicants provided further supporting evidence.
The Provider Registration and International Student Management System (PRISMS) record accessed on 15 July 2020 records the following study history for the primary applicant:
Course Commenced Concluded Status General Intensive English (Beginner to Advanced) (4 to 52 weeks) 13 August 2018 21 December 2018 Finished General Intensive English (Beginner to Advanced) (4 to 52 weeks) 21 January 2019 8 March 2019 Finished Diploma of Project Management 23 April 2019 27 March 2020 Finished Advanced Diploma of Program Management 20 April 2020 26 March 2021 Cancelled – Non-commencement of studies Advanced Diploma of Program Management 20 April 2020 26 March 2021 Studying as at 15 July 2020
On 20 July 2020, the primary applicant and his wife attended the hearing before the Tribunal with the assistance of their migration agent and an interpreter in the Mongolian and English languages. The hearing was adjourned part-heard because the applicants contended that the interpreter did not translate their evidence accurately or in full.
By its letter dated 23 July 2020, the Tribunal invited the applicants to provided information in writing as to the details of any inaccurately or incompletely translated evidence. The applicant’s representative provided such details and said, inter alia:
The applicant said he chose Australia over Mongolia because the education here is relatively better and effective. He also provided a list of other countries that he considered but chose Australia (such as USA, UK etc) but chose the country due to the fact that it is safer and friendlier.
What that interpreter explained: The Australian Education to be the best and did not even provide the comparison between other countries.
On 6 August 2020, the hearing before the Tribunal resumed. The primary applicant and his wife appeared with their representative and the assistance of a different interpreter in the Mongolian and English languages.
Tribunal’s Decision and its Reasons
On 11 December 2020, the Tribunal affirmed the Delegate’s Decision.
The Minister’s written submissions conveniently summarise the effect of the Tribunal’s Decision, which I adopt:
9. The Tribunal set out the background to the matter and identified the evidence provided by the applicant in connection with the review ([1]-[6], [9]). The Tribunal identified that the determinative issue on review was whether the applicant intended to genuinely stay in Australia temporarily as a student and acknowledged that in considering cl 500.212, it must have regard to Direction 69 ([8]-[12]). The Tribunal identified that Direction 69 indicated that the factors specified should not be used as a checklist, but rather are intended only to guide decision makers when considering the applicant’s circumstances as a whole ([13]).
10. The Tribunal had specific regard to the applicant’s evidence at the first and second hearing, his submissions setting out the evidence he believed was not accurately translated, the information contained in his undated genuine temporary entrant statement, and the evidence provided by his wife and representative at the hearings ([15]-[45]).
11. In considering the applicant’s circumstances in his home country, the Tribunal accepted that the applicant may have a range of possible opportunities to explore in Mongolia, but found that each of the opportunities referred to by the applicant were at an “idea stage” and it could therefore only afford little weight to the applicant’s business and employment options ([50]- [51]). The Tribunal accepted that the applicant and his wife had personal and financial ties to Mongolia, however found that they were unlikely to present as significant incentive for the applicant to return in circumstances where he had not worked or resided in Mongolia since November 2007 ([53]).
12. In relation to the applicant’s economic circumstances, the Tribunal considered the applicant’s previous employment history and prospective earning potential in Mongolia ([54]). The Tribunal ultimately did not make a finding that the applicant’s economic circumstances would present as a significant incentive not to return to his home country.
13. The Tribunal recorded that it had considered the applicant’s reasons for wanting to undertake study in Australia and made no adverse findings regarding cl 9(a) of Direction 69 ([56]). The Tribunal considered the applicant’s potential circumstances in Australia and recorded that the courses he is undertaking would extend his stay in Australia to approximately 8 years and 7 months ([57]). The Tribunal recorded that the applicant’s wife first arrived in Australia in January 2009 and has now resided in Australia for almost 11 years ([58]). Given the presence of the applicant’s family unit in Australia and the length of his stay in Australia, the Tribunal considered his ties to Australia presented as an incentive to remain in Australia and that given the length of time of time he has remained onshore without departing, that there was an intention to remain in Australia on a more permanent basis ([60]).
14. The Tribunal found that the applicant and his wife were using the student visa program to circumvent the intentions of the migration program to maintain ongoing residence in Australia, rather than having a genuine interest in obtaining the qualification or progressing academically ([61]-[62]). In this regard, the Tribunal recorded that the applicant’s application for the student visa was made approximately one week prior to the ceasing of his wife’s 485 visa to which he was a dependant. The Tribunal gave little weight to the applicant’s claim that he had intended to enrol in a course of study as early as 2015 ([64]). It accepted the applicant suffered a workplace injury in November 2015 and that he had received treatment up until at least August 2016 ([66]). However, it found there was no supporting evidence of his claim that he intended to commence studying in 2015, such as a CoE or any steps taken to enrol in a course of study. Further, the Tribunal found that the applicant’s employment history indicated that he would have been capable of commencing studying from at least February 2018 but did not do so ([67]). The Tribunal gave weight to the applicant’s circumstances which indicated that the applicant was using the student visa to maintain ongoing residence in Australia ([67]-[68]).
15. In considering the value of the applicant’s course to his future, the Tribunal accepted the applicant’s reasons for why he wished to obtain further education ([70]). However, it found that he had previous qualifications at a Bachelor and Masters level and was working towards a PhD, which raised concerns as to the consistency of his current studies with his existing level of education and the extent to which the courses would assist him in obtaining employment or improving his employment prospects ([71]). The Tribunal gave the applicant’s claim that he wanted to enrol in a Masters level course but was unable to due to his English language abilities, but gave this claim little weight as there was no supporting evidence that he had conducted any research into enrolling in Masters level courses ([72]).
16. The Tribunal considered the applicant’s evidence as to the business opportunities available to him after he completes his course ([73]). It found that the applicant had provided no supporting evidence as to an offer to work in his brother’s business and that his evidence about opportunities as a project manager within the scientific field to be vague ([75]-[76]). The Tribunal found the applicant had provided little objective evidence of job opportunities or expected remuneration and therefore was unable to place any weight of the applicant’s assertions as to the value of his current course to his future ([76]). Considering the applicant’s evidence as a whole, the Tribunal accepted that a qualification from Australia may provide some additional employment opportunities ([77]). However, the Tribunal found the Advanced Diploma would only provide incremental improvement when considered against his existing qualifications.
17. The Tribunal turned to consider the applicant’s immigration history. On the balance of the evidence, the Tribunal was not satisfied the applicant’s purpose for remaining in Australia was primarily for the purpose of study or that he intended to remain in Australia temporarily ([80]). The Tribunal recorded that the applicant’s progress in his studies was consistent with the behaviour of a genuine student ([82]). However, in considering all of the evidence before it, the Tribunal did not accept the applicant has enrolled in his courses of study primarily for the reasons claimed, but with the aim of maintaining ongoing resident ([83]).
18. Having considered all the information before it, the Tribunal found that the applicant appeared to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily ([86]). Accordingly, it was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 and affirmed the decision under review ([87]-[89], [95]).
Judicial Review Proceedings
On 31 December 2020, the applicants filed an application in this Court seeking judicial review. The applicants press only Ground One of their application, which reads:
In reviewing a decision of the First Respondent to refuse to grant the Applicants’ Class TU, Subclass 500 visas and purporting to determine whether the First Applicant satisfied cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth), the Second Respondent (Administrative Appeals Tribunal) misinterpreted and thus misapplied that provision and/or cl 9(a) and/or cl 11(e) of Direction No 69, thereby making a jurisdictional error.
Particulars
(a)On 18 April 2016, the First Respondent issued Direction No 69, pursuant to s 499(1) of the Migration Act 1958 (Cth). Direction No 69 commenced on 1 July 2016.
(b)Subsection 499(2A) of the Regulations [sic: Act] required the Tribunal to comply with Direction No 69 in determining whether cl 500.211(a) of Schedule 2 of the Regulations was satisfied.
(c)Subclause 500.212(a) of Schedule 2 of the Regulations contemplated that relevant information provided by an applicant [is] capable of going in favour or against the applicant. That contemplation is confirmed by cl 16 of Direction No 69, which provides that decision makers should consider information “that may be either beneficial or unfavourable to the applicant.”
(d)Subclause 9(a) of Direction No 69 provided that decision makers should consider “whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there.”
(e)At paragraph [56] of the Tribunals Decision Record, the Tribunal assessed clause 9(a) of Direction No 69 and that finding it made in that regard was simply that it made “no adverse findings regarding the factor in clause 9(a) of Direction No 69.”
(f)Paragraph [56] of the Decision Record evidences that the Tribunal misapprehended the factors set out in clause 9(a) of Direction No 69 and/or clause 500.212(a) of Schedule 2 to the Regulations as being capable of only going against satisfaction of clause 500.212(a) of Schedule 2 to the Regulations or being neutral in that regard.
(g)In other words, paragraph [56] of the Decision Record evidences that the Tribunal failed to appreciate that the factors set out in clause 9(a) of Direction No 69 and clause 500.212(a) of Schedule 2 to the Regulations were also capable of going in favour of satisfaction of clause 500.212(a) of Schedule 2 to the Regulations. This misapprehension amounted to jurisdictional error.
(h)Subclause 11(e) of Direction No 69 provided that decision makers should consider “the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider.”
(i)At paragraph [69] of the Tribunals Decision Record, the Tribunal assessed clause 11(e) of Direction No 69 and that finding it made in that regard was simply that it made “no adverse findings regarding [the First Applicant’s] knowledge of living in Australia, or of his course or education provider”.
(j)Paragraph [69] of the Decision Record evidences that the Tribunal misapprehended the factors set out in clause 11(e) of Direction No 69 and/or clause 500.212(a) of Schedule 2 to the Regulations as being capable of only going against satisfaction of clause 500.212(a) of Schedule 2 to the Regulations or being neutral in that regard.
(k)In other words, paragraph [69] of the Decision Record evidences that the Tribunal failed to appreciate that the factors set out in clause 11(e) of Direction No 69 and clause 500.212(a) of Schedule 2 to the Regulations were also capable of going in favour of satisfaction of clause 500.212(a) of Schedule 2 to the Regulations. This misapprehension amounted to jurisdictional error.
The hearing of the judicial review application occurred on 19 August 2025 and judgment was reserved. Having regard to the applicants’ counsel’s written and oral submissions and authorities upon which he relied, wherein the issue of “failure to consider” was articulated, on 21 August 2025, the Court enquired of the parties as follows:
Having regard to the applicants' counsel's oral submissions at the hearing and paragraphs 31 and 32 of his written submissions, it appears that a ground of review that Her Honour is being asked to decide is "failure to consider" clause 9(a) and/or 11(e) of the Direction.
However, the ground of review which is expressed in the application filed 31 December 2020 is concerned with ''misinterpretation and misapplication" of those clauses of the Direction.
Are the parties ad idem that the issue of "failure to consider" is to be regarded as a discreet ground of review for determination? If so, please communicate such a position by joint correspondence to chambers.
By email correspondence from the Minister’s legal representative and with the consent of the applicants on 26 August 2025, such enquiry was answered thus:
The applicant’s formulation of the error as pleaded in Ground 1 of the originating application and argued before the Court is that the Tribunal “misinterpreted and thus misapplied” subclauses 9(a) and/or 11(e) of Direction No 69 by failing to consider information that was beneficial to the applicant. The applicant’s oral argument focussed on the failure of the Tribunal to consider beneficial information provided in accordance with subclause 9(a); namely, the applicant’s reasons for not undertaking his study in Mongolia where a similar course was already available there, including whether such motives were reasonable.
In oral argument the applicant’s counsel conceded that there was “not much” in the claim that the Tribunal “misinterpreted and thus misapplied” subclause 11(e), and that the case really relied on the failure to consider the factors required by subclause 9(a).
On 28 August 2025, in response to a further enquiry by the Court, the Minister’s legal representative confirmed that her client did not need to make any further submissions about the Ground as further particularised by the 26 August 2025 email.
For convenience, I have marked the email correspondence between Chambers and the parties between 21 August 2025 and 28 August 2025 as Exhibit C-1.
SUBMISSIONS
Applicants
The applicants’ counsel submitted in writing:
31. Clause 1 of Direction 69 cautions decision makers not to use the factors referred to in the direction as a “checklist”. Nevertheless, the Tribunal is required to consider all matters “which have been the subject of substantial, clearly articulated claims made by the visa applicant”: Kaur v Minister for Home Affairs [2019] FCA 2026 at [31] (Steward J). As indicated by clause 28 of Direction 69, this will include whether the information in the claim may be “beneficial or unfavourable” to the applicant.
32.In the present case the applicant made “substantial, clearly articulated claims” in relation to the issue of whether he had “reasonable reasons for not undertaking the study” in Mongolia or any other country or region. The applicant’s reasons, articulated in his genuine temporary entrant statements, were that Australia provided “the most updated curriculum by the most qualified teachers and in an environment where students are from different parts of the world”; that Australia offered a “suitable environment, accommodation facilities, friendly staff and access to many research and work experience possibilities”, that in Australia there were “approximately 22,000 courses in 1,100 Institutions to choose from”, such a range of courses being difficult to find in Mongolia, which does not offer the same standard and same learning outcome. He also claimed that Australia in general has universal health care facilities, low rates of crime, a multicultural environment and the best climate. In the hearing he added that Australia is highly regarded, and that he had compared Australia, the UK and the USA for their opportunities to study, health systems, education and social security, and that he had decided to come to Australia.
33. The above factors were all obviously favourable to the applicant, yet for some reason the Tribunal at [56] made “no adverse findings” which, in the context of the evidence, was really no finding at all. The Tribunal abrogated its duty to decide whether that factor was favourable or unfavourable to the applicant and, in doing so, it failed to make a finding on a factor which was obviously in the applicant’s favour. This amounted to jurisdictional error.
In oral submissions, the applicants’ counsel said:
(a)The genuine temporary entrant criterion must be satisfied at the time of the Tribunal’s decision and the Direction guides that consideration.
(b)The Tribunal was required to comply with the Direction pursuant to s 499A(2A) of the Act.
(c)The primary applicant made a substantial, clearly articulated claim which engaged clause 9(a) of the Direction (Clause 9(a) Claim), as demonstrated by First and Second GTE Statements, the Request for Information, and the main applicant’s oral evidence (which is recorded at paragraphs 23 and 27 of the Decision).
(d)The Tribunal was required to consider the Clause 9(a) Claim but failed to do so. Paragraph 56 of the Decision asserts that the Tribunal “considered” said claim. However, the Tribunal “does anything but” sift the evidence.
(e)Paragraph 56 of the Decision comprises the totality of the engagement with clause 9(a) of the Direction, and the reasons it gives are inadequate.
(f)The applicant’s potential circumstances in Australia engage clause 11 of the Direction. Counsel for the applicants said that the error which his clients allege regarding clause 9(a) is more powerful than the case relating to clause 11(e). Paragraph 69 of the Decision relates to clause 11(e) of the Direction, namely the applicant’s knowledge of living in Australia and intended course of study and proposed education provider. It also uses the expression “no adverse finding”. However, counsel for the applicants acknowledged that the subject matter of clause 11(e) was not the subject of a clearly articulated claim.
(g)As to the words “no adverse finding” at paragraphs 56 and 69 of the Decision, the applicants’ counsel said that one must look at what the Tribunal did not do, contrary to the principle in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, which is to read, identify, evaluate, and sift the evidence. All the Tribunal said was that it made “no adverse findings”. It did not “consider” the substantial and clearly articulated claim for reasons to study in Australia, which should be reviewed favourably.
Minister
At paragraphs 20 and 21 of his written submissions, counsel for the Minister said:
20. Ground one claims the Tribunal misinterpreted cl 9 and 11(e) of Direction 69. The ground and the applicant’s submissions claim that the Tribunal erred at [56] in making “no adverse findings” against the applicant in relation to cl 9(a) of the Direction (CB 90). The applicant points out that the Direction provides in cl 16 that information provided may be either beneficial or unfavourable to an applicant, and claims that the Tribunal erred by allegedly failing to make a finding on a matter in the applicant’s favour, being his reasons for not undertaking his study in Mongolia.
21. The Tribunal’s reasons must be read fairly and as a whole: Plaintiff M64-2015 v MIBP (2015) 258 CLR 173 at [59-60], and the Court should not be concerned with mere looseness of language or unhappy phrasing: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 271-272. So read, the Tribunal at [56] can be taken as accepting that the applicant did have reasonable reasons for not undertaking his study in Mongolia, as required by cl 9(a). An “adverse finding” would necessarily be that he did not have such reasons. Having made no such adverse finding the Tribunal at [56] has simply accepted that having considered the applicant’s evidence cl 9(a) was satisfied. No misconstruction of cl 9(a) is apparent.
In oral submissions, the Minister’s counsel accepted that the primary applicant made a clearly articulated claim regarding clause 9(a) of the Direction and that the Tribunal needed to consider that evidence and submissions. He submitted that:
(a)although the applicant made submissions about why he wanted to study in Australia, these were “fairly anodyne”. The Tribunal mentioned the applicant’s oral evidence to that effect at paragraphs 23 and 27(a) of the Decision and the Tribunal does not need to set out at length every detail of the applicant’s submissions as found at CB98 (i.e. the “Reasons for choosing Australia as my study destination” in the Second GTE Statement).
(b)At paragraph 56 of the Decision, the Tribunal said it had regard to the Second GTE Statement, the applicant’s oral evidence, the submissions about the interpreting service at the first session of the hearing, all of which say the same thing. The natural reading of the Decision is that the Tribunal accepted the main applicant’s evidence as far as it goes and there is nothing to suggest that the finding relating to clause 9(a) was other than in the applicant’s favour.
(c)on fair reading of the Decision, it is apparent that the Tribunal accepted the applicant’s submissions as to why he wanted to study in Australia. The words “no adverse finding” contains the logical possibility of neutrality. However, in context, the form of words represents mere looseness of language or unhappy phrasing, about which the court should not be concerned.
(d)The Tribunal did not say that it was not prepared to consider the evidence nor give such evidence any weight. In context, the words “no adverse finding” is understandable.
CONSIDERATION
There is no issue that the Tribunal was required to comply with the Direction in determining whether the genuine temporary entrant criterion was satisfied.
Clause 9(a) of the Direction sets out one of the factors pertaining to an applicant’s circumstances in their home country as follows:
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
(a)whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives by the applicant.
Paragraph 56 of the Decision which purports to engage with clause 9(a) reads as follows:
The Tribunal has considered the applicant’s reasons for wishing to undertake the study in Australia rather than in his home country, including those set out in his GTE statement, his oral evidence and the submissions in relation to the interpreting services at the first hearing, and makes no adverse findings regarding the factor in clause 9(a) of Direction No 69.
(Emphasis added)
Clause 11(e) of the Direction sets out of the applicant’s potential circumstances in Australia as follows:
11.In considering the applicant’s potential circumstances in Australia, Decision makers should have regard to the following factors:
[…]
(e) the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Paragraph 69 of the Decision which purports to engage with clause 11(e) reads as follows:
The Tribunal notes the length of time that applicant has resided in Australia and acknowledges the completion of his General English course and Diploma of Project Management, and accordingly makes no adverse findings regarding his knowledge of living in Australia, or of his course or education provider.
(Emphasis added)
In these Reasons, “Clause 9(a) Claim” means the primary applicant’s representation about the reasonableness of his reasons for not undertaking the study in his home country or region (noting that the applicant conceded in his Second GTE Statement that similar courses were available in Mongolia). The “Clause 11(e) Claim” means the primary applicant’s representation as to his knowledge of living in Australia and his intended course of study and associated education provider.
It is convenient to approach the Ground as a series of Issues:
Issue 1(a) Was the Tribunal required to consider the Clause 9(a) Claim? Issue 1(b) Was the Tribunal required to consider the Clause 11(e) Claim? Issue 2 If the Tribunal was required to consider the Clause 9(a) and/or Clause 11(e) Claim, did it do so? Issue 3 Did clause 500.212(a) of Schedule 2 of the Regulation contemplate that relevant information provided by the applicants could favour or go against them because of the words “[t]his includes information that may be either beneficial or unfavourable to the applicant” in clause 16 of the Direction? Issue 4(a) Are the words “no adverse finding” no finding at all such that the Tribunal abrogated its duty to make a finding that it was required to make by the Direction? Issue 4(b) If the words “no adverse finding” is a finding, then did the Tribunal misapply the Direction by erroneously limiting the scope of the decision maker’s evaluation about the factors in clause 9(a) and 11(e) of the Direction from a range bounded by positive (“beneficial”) to negative (“unfavourable”) to a range instead bounded by neutral (“no[t] adverse”) to negative Issue 5 Did the Tribunal fail to make a finding that was “obviously in the applicant’s favour”, and if so, ought it have done so? Issue 1(a): Was the Tribunal required to consider the Clause 9(a) Claim?
The applicants contend that the main applicant made a substantial and clearly articulated claim which engaged the subject matter of clause 9(a). The Minister’s counsel did not cavil with that proposition. In any event, I find that such a claim was made, as demonstrated by the Second GTE Statement, especially in the first paragraph at CB96, and under the headings “Reason for choosing Australia as my study destination” and “Reason for choosing VET courses at SELC College at CB98 to CB99; and the main applicant’s oral evidence, as recorded at paragraphs 23 and 27(a) of the Decision.
As to the other evidence of the Clause 9(a) Claim, the primary applicant provided further evidence in the Request for Information in answer to the two questions appearing at the top of CB89 about the choice of course provider and the reasons for not undertaking study in the main applicant’s home country or region. These answers were essentially replicated in the Second GTE Statement (e.g. first paragraph of CB98). The applicants’ migration agent’s submission to the Tribunal (addressing inaccurate or incomplete translation of evidence at the first part of the hearing) related to this issue, although added nothing to the Second GTE Statement or the primary applicant’s oral evidence as recorded at paragraph 23 of the Decision. The statements in the First GTE Statement relating to the Clause 9(a) Issue are essentially replicated in the Second GTE Statement in the first paragraph at CB99 and the second paragraph at CB100. In light of this duplication, I can confine myself to the Second GTE Statement and the oral evidence and submissions as evidence of the fact that the applicants made the Clause 9(a) Claim.
Having regard to the Second GTE Statement and the oral evidence, the main applicant’s Clause 9(a) Claim may be summarised as:
(a)his education experience in Australia had involved the most up-to-date curriculum by the most qualified teachers where students are from different parts of the world. This had changed his way of thinking for the better;
(b)while Mongolian education providers offer similar courses, they are not to the same standard nor have the same learning outcomes as in Australia;
(c)Australian universities and institutions offer a multicultural environment for better learning, accommodation facilities, friendly staff, access to research and work experience opportunities;
(d)there are approximately 22,000 courses in 1,100 institutions from which to choose in Australia. Such a wide range of courses is not available in the main applicant’s hometown in Mongolia;
(e)Australia has universal health care and safe “deportation facilities” (which I take to mean “transportation facilities”), low rates of crime, a safe, friendly and multicultural environment, and a good climate;
(f)Australia is one of the best places for learning new ideas, culture and to “get involved” so that he can build confidence and skills for his future goals;
(g)the applicant compared the opportunities for study in Australia with the United States and United Kingdom, also looking at the health system, education and social security systems, and preferred Australia; and
(h)obtaining qualifications in Australia is highly regarded.
Where a substantial, clearly articulated claim has been made, the principles in Kaur v Minister for Home Affairs [2019] FCA 2026 at [29] to [31] per Steward J are engaged wherein his Honour said:
29.I respectfully disagree with Mr Aleksov’s submission. In my view, He is distinguishable because the language and context considered in that case is different from that used in Direction No. 69. What the Tribunal must ultimately do in a case concerning an application of cl 500.212(a) is make a finding of fact about whether an applicant does or does not intend genuinely to stay in Australia temporarily. For that purpose, it must apply the four factors prescribed in cl 500.212(a) of the Regulations (set out above).
30.Then, for the purpose of applying those factors, the Minister has made a Direction which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a “guide” in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a “checklist”; rather they are to guide a decision-maker “when considering the applicant’s circumstances as a whole”. In other words, a decision-maker is not required to check each identified factor in the Direction. In my view, this language is inconsistent with the first appellant’s contention that every factor must be considered as a mandatory consideration. It is also inconsistent with the function and purpose of Direction No. 69 as a guide to assist in applying cl 500.212.
31.In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v. Minister for Immigration and Multicultural andIndigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v. Minister for Home Affairs [2019] FCAFC 135; SZSSC v.Minister for Immigration and Border Protection (2014) 142 ALD 150 at 172-176 [75]-[81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v. Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v. Minister for Immigrationand Border Protection (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ.
I find that the Tribunal was required to consider the Clause 9(a) Claim because it was a substantial, clearly articulate claim, as demonstrated by the Second GTE Statement and applicant’s oral evidence.
Issue 1(a) is answered in the affirmative.
Issue 1(b): Was the Tribunal required to consider the Clause 11(e) Claim?
The applicants’ counsel conceded that clause 11(e) was not the subject of a substantial clearly articulated claim and that the aspect of the Ground of review addressing clause 11(e) was not strong.
The applicant’s representations about his knowledge of living in Australia, intended course of study and associated education provider are found in his Second GTE Statement at CB98 and are co-extensive of his Clause 9(a) Claim.
Absent a substantial clearly articulated claim about clause 11(e), I am not persuaded that the Tribunal was required to consider it within the meaning of Plaintiff M1/2021. Furthermore, the requisite level of engagement with representations must occur within bounds of rationality and reasonableness: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at 407. I find that it was reasonable for the Tribunal to apply little effort to the Clause 11(e) Issue in circumstances where the claims relating to clause 11(e) were subsumed within the representations which engaged clause 9(a) of the Direction.
Issue 1(b) is answered in the negative.
Issue 2: If the Tribunal was required to consider the Clause 9(a) and/or Clause 11(e) Claim, did it do so?
Issue 2 is now limited to the Clause 9(a) Claim. I turn to whether the Tribunal in fact considered the Clause 9(a) Claim. It is well established that “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant statutory criteria: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at [11] per Gummow J.
Consideration of a claim requires engagement in an active intellectual process: Carrascalao v Minister for Immigration andBorder Protection (2017) 347 ALR 173 at [45] per Griffiths, White and Bromwich JJ.
The extent and nature of this requirement was explained by the High Court in Plaintiff M1/2021 at [24]-[27] thus:
[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26] Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Peko-Wallsend, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, 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 former visa holder, that may give rise to jurisdictional error.
As identified at paragraph 24 of Plaintiff M1/2021, the decision maker is not obliged to “make actual findings of fact as an adjudication of all material claims” made by the applicant: Viane at 407. Further, the Tribunal did not need to formulaically traverse every piece of evidence: Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 at [106] per Logan, Derrington and Thawley JJ, and a factor may be so insignificant that a failure to take it into account could not materially affect the outcome: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [15] per Mason CJ. Axiomatically, the Direction is a guide and not a checklist.
I turn to what the Tribunal said about the Clause 9(a) Claim. Paragraph 56 of the Decision records the totality of the Tribunal’s purported consideration of it.
The applicants contend that the Tribunal failed to consider the Clause 9(a) Claim as evidenced by the absence of any sifting of the representations or engagement with the representations.
The Minister submitted that the Clause 9(a) Claim was “fairly anodyne”; that the Tribunal did not say that it was not prepared to consider, or give weight to the evidence about, the Clause 9(a) Claim; and that a natural reading of the Decision is that the Tribunal accepted the applicant’s representations about the Clause 9(a) Issue so far as they went.
I do not agree with the Minster’s counsel’s characterisation of the representations as “fairly anodyne”. While there is necessarily some level of evaluation of a representation by the Tribunal for the purpose of determining what matters need to be considered within the meaning of Plaintiff M1/2021, the Minster has conceded that the applicant made a substantial clearly articulated claim about the subject matter of clause 9(a). Once that threshold has been passed, the obligation on the Tribunal to consider the claim is enlivened.
Further, the Minister’s submission that the Tribunal did not say that it would not consider the Clause 9(a) Claim does not assist me. The Tribunal positively asserted that it did consider the Clause 9(a) Claim in paragraph 56 of the Decision.
I have reviewed the whole of the Decision for the purpose of identifying whether the Tribunal gave proper, genuine and realistic consideration to the Clause 9(a) Issue from the context and totality of the Tribunal’s reasoning. I regret to say that I cannot.
It is apparent that the Tribunal read and had regard to the representations and appreciated by whom the representation was made. However, I can find nothing in the Decision that directly or inferentially demonstrates that the Tribunal brought its mind to bear on the facts stated in the representations and the arguments and opinions put forward, nor that the decision maker has sifted the representations, nor engaged in an active intellectual process about the Clause 9(a) Issue.
Instead, the Tribunal moved directly from an assertion of consideration of the Clause 9(a) Claim to a finding about it, with no demonstrable engagement with the representations between those two points.
In the forgoing, I find that the Tribunal did not “consider” the Clause 9(a) Claim. As such, a jurisdictional error is demonstrated given s 499(2A) of the Act required the Tribunal to apply the Direction. In this case, and for the reasons given about Issue 1(a), such application included a consideration of the factor specified in clause 9(a) of the Direction.
Issue 2 demonstrates jurisdictional error.
Having determined that the Decision demonstrates a jurisdictional error for the Reasons set out above, the application filed on 31 December 2020 succeeds. However, if I am wrong about Issue 1(a) and 2, I turn to Issues 3, 4, and 5.
Issue 3: Did clause 500.212(a) of Schedule 2 of the Regulation contemplate that relevant information provided by the applicants could favour or go against them because of the words “[t]his includes information that may be either beneficial or unfavourable to the applicant” in clause 16 of the Direction?
Clause 500.212(a) to (d) of Schedule 2 of the Regulation 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 the parent, legal guardian or spouse of the applicant.
(iv) any other relevant matter; and […]
Clause 2 of the Direction provides that:
Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
(a) considering the applicant against all factors specified in the Direction; and
(b)considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
(Emphasis added).
Clauses 6 and 7 of the Direction, having regard to their position immediately below the heading “The applicant’s circumstances”, are definitional in character and identify that the circumstances to which the decision maker should have regard are the applicant’s circumstances in their home country (clauses 9 and 10), the applicant’s potential circumstances in Australia (clause 11), and the value of the course to the applicant’s future (clause 12). These matters correspond to clause 500.212(a) of Schedule 2 of the Regulations. The subject matter of clause 500.212(b) of Schedule 2 of the Regulations, finds expression in clauses 13 and 14 of the Direction. The subject matter of clause 500.212(c) finds expression in clause 15 of the Direction.
Clause 500.212(d) of Schedule 2 to the Regulation relates to “any other relevant matter.” That subclause finds its expression in clause 16 of the Direction thus:
Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
(Emphasis added)
On a plain reading, the “factors specified in the Direction” for the purpose of clause 2(a) of the Direction do not include “any other relevant matter”, being the subject matter of clause 16. This is evidenced by the fact that clause 2(b) of the Direction separately addresses the subject matter of clause 16. On this basis:
(a)clause 500.212(a), (b) and (c) of Schedule 2 of the Regulation find expression in clause 2(a) of the Direction as “all the factors specified in the Direction” i.e., clauses 9 to 15 inclusive (specified factors); whereas
(b)clause 500.212(d) of Schedule 2 of the Regulation finds its expression in clause 2(b) and clause 16 of the Direction (other relevant matters).
I accept the applicant’s analysis although am not attracted to the basis on which it is expressed in paragraph (c) of the Particulars. In its terms, paragraph (c) conflates clause 500.212(a), (b) and (c) of Schedule 2 of the Regulation/clause 2(a) of the Direction (and its sequalae) with clause 500.212(d) of Schedule 2 of the Regulation/clause 2(b) of the Direction. That is because clause 16 of the Direction is not engaged by clause 500.212(a) of Schedule 2 of the Regulation. Rather, clause 16 of the Direction is engaged by clause 500.212(d) of Schedule 2 of the Regulation.
However, I do accept that, consistent with the usual approach to statutory construction, one looks for cohesion within the text. While the Direction does not identify the range of findings which may attach to the factors specified in it, it does evince its intention with respect to clause 16. There is nothing in the text of the Direction to suggest that any different range of findings ought to apply to “specified factors” as compared to “other relevant matters”.
For this reason, I accept the substance of the proposition expressed in paragraph (c) of the Particulars to Ground One and find that the range of findings expressed in clause 16 relating to “other relevant matters”, namely “which may be either beneficial or unfavourable”, applies to the “specified factors”.
Issue 3 is answered in the affirmative.
Issue 4(a): Are the words “no adverse finding” no finding at all such that the Tribunal abrogated its duty to make a finding that it was required to make by the Direction?
Having established via Issue 3 that the range of findings about clauses 9(a) and 11(e) “may be either beneficial to unfavourable”, I now turn to whether the expression “no adverse findings” applied that range of alternatives when dealing with the Clause 9(a) and Clause 11(e) Issues at paragraphs 56 and 69 of the Decision respectively.
The substance of the applicant’s submission is captured by Issue 4(a).
The Minister’s counsel submits that the words “no adverse findings” contained the logical possibility of neutrality and that a natural reading of the Decision is that the Tribunal accepted the applicant’s evidence as far as it went and there was nothing to suggest that the finding was other than favourable to the applicant. Furthermore, the court should not be concerned with loose language or unhappy phrasing: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 and should read the Decision fairly and as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [60].
In Wu Shan Liang at 271 to 272, Brennan CJ and Toohey, McHugh and Gummow JJ identified the role of the court on judicial review thus:
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic Enterprises Pty Ltd. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The court continued:
The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
Before turning to the expression “no adverse findings”, it is useful to examine the text of clause 16 of the Direction. The words used are: “may be either beneficial or unfavourable to the applicant”. On a prescriptive grammatical approach, the co-ordinating conjunction of “either … or …” is limited to two alternatives. Normal usage, however, permits the use of the conjunction to present a choice of two or more alternatives.
The Minister’s counsel submitted that the words “no adverse finding” naturally included the logical possibility of neutrality. The applicants’ contention at Particulars (g) and (k) of Ground One is that the factors were “also” capable of favouring the applicant, wherein “also” adds to “against satisfaction” or “being neutral”. That is, both parties have approached the range of possible findings as inclusive of a neutral third option.
Based on common usage, I agree with the approach taken by the parties that “either … or” permits more than the two alternatives of “beneficial” (positive) and “unfavourable” (negative) but also accommodates a neutral finding.
I now turn to the words “no adverse findings”. Plainly, the Tribunal has discarded a negative or unfavourable outcome in relation to the Clause 9(a) Issue. However, there is no guidance in the Decision, be it at paragraph 56, 69 or elsewhere, as to whether the Tribunal made a finding that was beneficial to the applicants or merely neutral.
I ought not minutely and finely construe the Decision with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 9, nor be concerned with looseness of language and unhappy phrasing: Wu Shan Liang. That said, there is a difference between loose language from which a meaning can be contextually discerned, and ambiguous language.
In Sayed & Rehmann [2025] FedCFamC1A 145 (21 August 2025) at [38]-[39], McClelland DCJ summarised established appellate principle, from which judicial review of administrative decisions draws certain analogy, thus:
38. Additionally, appellate intervention may be required in circumstances where a trial judge fails to provide adequate reasons “sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied:” Douglass v The Queen (2012) 290 ALR 699 (French CJ, Hayne, Crennan, Kiefel and Bell JJ) at [8]. The adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the relevant statutory criteria and their significance to the course of the trial.
39. Reasons will not be adequate where the appellate court is required to guess or speculate as to what a judge, at first instance, may or may not have meant, particularly on an important issue: Boyle (a pseudonym) v The Queen [2022] SASCA 50 at [119]. In that context, reasons must clearly state the primary judge’s findings upon material questions of fact and provide an explanation for those findings: DL v The Queen (2018) 266 CLR 1 at [32]–[33].
At [48]-[49], his Honour addressed the term “consider” with respect to evidence that attached to the mandatory statutory criteria contained in s 60CC of the Family Law Act1975 (Cth) as to the best interests of a child, inter alia:
48. The term “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant statutory criteria: Lovett & McGregor (2019) FLC 93-935 at [67]–[72] referring to Khan v Minister for Immigration and Ethnic Affairs (“Khan”) (1987) 14 ALD 291 at [11] per Gummow J. That is not to say that the decision-making process needs to be weighed down by the necessity for the trial judge to engage in a ritualistic incantation of the relevant statutory criteria. In that respect, a factor might be so insignificant that the failure to take it into account could not materially affect the outcome of the case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 15] per Mason CJ. But that was not the situation here. In the circumstances of this case – where the mother alleged the father engaged in a pattern of coercive and controlling behaviour, underpinned by specific acts of physical violence – it was incumbent upon the trial judge to give “proper, genuine and realistic consideration” to the mother’s allegations and his reasons should demonstrate that he has done so.
49.In an otherwise careful consideration of relevant s 60CC best interests considerations, the primary judge’s reasons do not make it clear as to whether he accepted any of the allegations of family violence made by the mother, as summarised at [56]. This is because the statement by the primary judge that “the Court is not prepared to just accept the Mother’s narrative about the Father as set out above” at [57] of his reasons is ambiguous. Specifically, it is unclear whether the primary judge’s adverse findings of the mother’s credibility resulted in his rejection of the totality of her allegations or only some of the allegations. It remains, at best, a matter of speculation which in turn demonstrates a deficiency in reasons.
(Emphasis added)
In the context of the Clause 11(e) Claim, which was not the subject of a substantial clearly articulated claim, and the contention relating to it in this review were faintly pressed, I need not be concerned by the looseness of language in paragraph 69 of the Decision as on the applicants’ case, little if anything turns on it.
However, the Clause 9(a) Claim was the subject of a substantial clearly articulated claim, for which reason the Tribunal was required to consider it in the sense enunciated in Plaintiff M1/2021; and to clearly state the findings upon material questions of fact and provide an explanation for those findings: DL v The Queen (2018) 266 CLR 1 at [32]–[33]. The statement “no adverse findings” is ambiguous and left unclear what persuasive quality and weight was attributed to that claim by the Tribunal. This matters because the Tribunal was required, by clause 2 of the Direction, to assess the specified factors and other relevant information “on balance”. Unless the balance is understood by reference to factors that operated in favour, operated against favour, or were neutral, then the reasons of the Tribunal will be deficient.
I find that the ambiguity created by the statement “no adverse findings” was constructively no finding at all and thus an abrogation of the Tribunal’s duty to decide whether clause 9(a) favoured the applicants as required by the Direction.
Issue 4(a) demonstrates jurisdictional error.
Issue 4(b) If the words “no adverse finding” is a finding, then did the Tribunal misapply the Direction by erroneously limiting the scope of the decision maker’s evaluation about the factors in clause 9(a) and 11(e) of the Direction from a range bounded by positive (“beneficial”) to negative (“unfavourable”) to a range instead bounded by neutral (“no[t] adverse”) to negative
If I am wrong about Issue 4(a), I turn to whether the Tribunal misapplied the Direction by erroneously limiting the scope of the decision maker’s evaluation about the factors in clause 9(a) and 11(e) of the Direction from a range bounded by positive (“beneficial”) to negative (“unfavourable”) to a range instead bounded by neutral (“no[t] adverse”) to negative (inferentially “negative”).
I am not satisfied that the Tribunal made the error for which the applicants contend. The words “no adverse finding” do not necessarily import such a restriction when the Decision is read fairly and as a whole.
At paragraph 48 of the Decision, which concerned the applicants’ circumstances in their home country, the Tribunal said:
48.The Tribunal accepts that the applicant's wife has an apartment in Mongolia and notes the recent registration (2018) of this property. The Tribunal also accepts that the applicant's wife has a business involving toys and educational products for young children, which is currently being operated by her mother. Although the applicant has not provided any supporting evidence of his brother's sock manufacturing business in Mongolia, the Tribunal is also willing to accept that the applicant's brother has such a company.
At paragraph 77 of the Decision, which concerned the value of the course to the primary applicants’ future, the Tribunal said:
77. Considering the evidence as a whole, the Tribunal accepts that a qualification from Australia, in a different field from his existing qualifications may provide some additional employment opportunities. However, the Tribunal also considers that the qualification he will obtain (an Advanced Diploma) may only provide incremental improvement when considered against his existing qualifications, which include a Bachelor degree and a Masters degree.
At paragraph 78 of the Decision, concerning the applicant’s immigration history, the Tribunal said:
78. The applicant's immigration history refers to both his travel and visa history. There is no evidence that the applicant has previously been refused a visa application or that he has breached the conditions of his visas while in Australia, and the Tribunal takes these factors into account in assessing his circumstances as a whole.
At paragraph 82 of the Decision, concerning the applicant’s academic progress, the Tribunal said:
82. The applicant provided information to the Tribunal demonstrating that he has successfully completed his English course, the Diploma of Project Management and is now on track to complete the Advanced Diploma of Project Management in March 2021. The Tribunal considers this progress with his studies is consistent with the behaviour of a genuine student, and the Tribunal takes this into account in assessing the applicant's circumstances as a whole.
These passages demonstrate that the Tribunal employed various forms of words which were positively disposed to the applicant. It is thus apparent that the Tribunal was aware of the possibility that it was open to it to make a finding that was beneficial to the applicants.
Issue 4(b) is answered in the negative and discloses no jurisdictional error.
Issue 5: Did the Tribunal fail to make a finding that was “obviously in the applicant’s favour”, and if so, ought it have done so?
The first limb of this question, which arises from the final paragraph of the applicants’ counsel’s written submission, invites me to engage in an impermissible merits review of the applicant’s claim on the issue of the reasonableness of his reasons for not undertaking study in his home country or region if a similar course is already available there.
Issue 5 goes no further, and no error is established by reference to it.
FINAL DISPOSITION
For the reasons given, jurisdictional error has been demonstrated and I make the following orders.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 23 September 2025
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