Masood v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1240
•6 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Masood v Minister for Immigration and Citizenship [2025] FedCFamC2G 1240
File number(s): MLG 2078 of 2019 Judgment of: JUDGE FARY Date of judgment: 6 August 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 failed to satisfy cl 500.212(a) of the Regulations – whether Tribunal failed to take into account relevant considerations – found no jurisdictional error on behalf of the Tribunal – application dismissed. Legislation: Australian Constitution s 75(v)
Migration Act 1958 (Cth) s 47(1), s 65(1), s 375, s 357A, s 360, s 363, s 368(1), s 376, s 430(1), s 474, s 476, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 Pt 2 Sch 2
Migration Regulations 1994 (Cth) reg 2.05(1) cll 500.211-500.218
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
BXD17 v Minister for Immigration and Border Protection [2018] FCA 765
DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 83 AAR 226
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12
Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046
Gjonej v Minister for Immigration & Anor [2014] FCCA 2113
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 12
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 2
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640
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 SZLSP (2010) 187 FCR 362; [2010] FCAFC 108
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 SGLB (2004) 207 ALR 12
Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 149
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 513
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZQBN v Minister for Immigration and Border Protection [2014] FCA 686
Virk v Minister for Immigration and Citizenship [2025] FCA 630
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Division: Division 2 General Federal Law Number of paragraphs: 124 Date of last submission/s: 1 August 2025 Date of hearing: 1 August 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mr O’Shannessy, Mills Oakley Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 2078 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KIBRIA MASOOD
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
6 AUGUST 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $6,000.
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 way of Application filed on 1 July 2019 (Application), the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 11 June 2019 (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 did not satisfy the intention to genuinely 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 21 July 2025 and 1 August 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of an Urdu interpreter. 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 21 July 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant genuinely intends to stay temporarily in Australia as a student.
BACKGROUND
The Applicant is a citizen of Pakistan.
On 22 April 2014, the Applicant arrived in Australia as the holder of a Higher Education Sector (Subclass 573) visa valid until 30 September 2017.[2] Since the Applicant’s arrival, he has held either a student visa or associated bridging visas.[3]
[2] Court Book (CB) 34.
[3] CB 34.
On 28 September 2017, the Applicant applied for the Visa, the subject of these proceedings.[4] The Applicant proposed to undertake a Certificate III and IV in Commercial Cookery and Diploma of Hospitality Management.[5]
[4] CB 1-23.
[5] CB 34.
On 8 December 2017, a Delegate of the Minister refused to grant the Applicant the Visa (Delegate’s Decision) on the basis that the Applicant did not satisfy cl 500.212(a) of the Regulations, an intention to genuinely stay in Australia temporarily.[6]
[6] CB 28-37.
On 28 December 2017, the Applicant applied to the Tribunal for review (Review Application).[7]
[7] CB 38-39.
On 29 December 2017, the Tribunal wrote to the Applicant acknowledging receipt of the Application.[8]
[8] CB 40-46.
On 8 April 2019, the Tribunal wrote to the Applicant and invited him to provide information by way of a Request for Student Visa Information form by 23 April 2019.[9] The letter advised the Applicant that it was a requirement of the Visa that the Applicant be enrolled in a registered course of study.
[9] CB 47-54.
On 17 April 2019, the Applicant’s representative (Applicant’s Representative) wrote to the Tribunal and attached an appointment of representative form and requested an extension of time to provide information.[10]
[10] CB 55-57.
On 30 April 2019, the Tribunal granted an extension of time until 14 May 2019.[11]
[11] CB 58-60.
On 13 May 2019, the Applicant’s Representative wrote to the Tribunal with a completed information form, three Confirmation of Enrolment (CoE) codes and a copy of the Applicant’s passport attached.[12]
[12] CB 61-77.
On 21 May 2019, the Tribunal wrote to the Applicant’s Representative and invited the Applicant to attend a hearing on 11 June 2019.[13]
[13] CB 78-86.
On 29 May 2019, the Applicant’s Representative wrote to the Tribunal and requested that the hearing be postponed. Attached to the email was a ‘GP Mental Health Care Plan’ based on an assessment conducted on 21 May 2019.[14]
[14] CB 87-94.
On 31 May 2019, the Tribunal wrote to the Applicant and advised that the hearing would proceed as scheduled.[15]
[15] CB 95-99.
On 4 June 2019, the Applicant wrote to the Tribunal with a letter of course attainment issued by Australian Education Academy Pty Ltd on 4 June 2019 attached.[16]
[16] CB 100-102.
On 10 June 2019, the Applicant’s Representative advised the Tribunal that the Applicant would attend the hearing by himself.[17]
[17] CB 103.
On 11 June 2019, the Applicant attended the hearing on his own behalf with the assistance of an Urdu interpreter.[18] The Tribunal affirmed the decision under review and oral reasons were provided on date same.[19]
[18] CB 104-106.
[19] CB 107-113.
On 11 June 2019, the Applicant wrote to the Tribunal and requested that written reasons be provided.[20] The Applicant followed up with this request again on 19 June 2019.[21]
[20] CB 114.
[21] CB 115.
On 25 June 2019, the Tribunal provided written reasons for the Tribunal’s Decision made on 11 June 2019.[22]
[22] CB 122-128.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 124 to 128 of the Court Book.
The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [3] to [7].
The Tribunal identified the critical issue on review as being whether the Applicant was a genuine applicant for entry and stay as a student.
In support of his application before the Tribunal, the Applicant produced CoE codes which indicated that he was enrolled in a Certificate III course at the time of the hearing. The Tribunal was satisfied that the Applicant met cl 500.211 of the Regulations, pertaining to current enrolment.[23]
[23] CB 126 [12].
However, in considering the Applicant’s circumstances, and visa history to date, the Tribunal found that the Applicant failed to satisfy the critical primary criterion pursuant to cl 500.212 of the Regulations.[24] The Tribunal found that the Applicant was not a genuine applicant for entry and stay as a student in Australia. The Tribunal noted concerns with the Applicant’s visa history and previous student visa which had been granted on the basis that the Applicant would complete a number of courses over the granted three and a half year period. According to the Applicant’s own evidence, he completed only an English course lasting 12 weeks and proceeded to remain in Australia without successfully attaining further qualifications.[25]
[24] CB 126 [12]-[15].
[25] CB 127 [18]-[21].
The Tribunal upheld the decision of the Delegate.[26]
[26] CB 128.
PROCEEDINGS IN THIS COURT
On 1 July 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 14 May 2025, Orders were made by Registrar Chapman of this Court for the First Respondent’s name to be amended to the Minister for Immigration and Citizenship. For the Second Respondent’s name to be amended to the Administrative Review Tribunal. For the Applicant to file: written submissions, any amended application with proper particulars and any additional evidence. For the First Respondent to file: a copy of the Court Book, written submissions and any additional evidence. That the First Respondent file and serve on the Applicant a copy of the Court Book by no later than 28 May 2025.
The matter was listed for Final Hearing on 21 July 2025 before me, which I adjourned to 1 August 2025. The Applicant submitted orally on 21 July 2025 that he was “overseas in emergency” due to the admission of his mother to hospital in Pakistan.
On 1 August 2025, the Hearing resumed before me. The Applicant participated by video with the assistance of a series of three Urdu interpreters.
The Applicant relied upon the following documents:
(a)The Application filed 1 July 2019; and
(b)The Affidavit of the Applicant sworn and filed 1 July 2019 (Applicant’s Affidavit).
The Minister relied upon:
(a)The Responses, filed 30 July 2019 and 19 May 2025; and
(b)The Minister’s Outline of Submissions filed 7 July 2025.
Both parties relied on the Court Book.
The Application contains the following grounds of review (Grounds of Review):
1. The Department made a procedural error by not correctly assessing information relevant to the applicant’s particular circumstances.
Particulars: The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition was not considered. (Ground 1).
2. The applicants were not afforded natural justice.
Particulars: I believe that I wasn’t provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs did not provide the decision record for their decision which clearly depicts an error. (Ground 2).
3. Tribunal misconstrued condition cl.500.212 of Schedule 2 to the Regulations. The clauses were wrongly assessed and the tribunal failed to assess cl 500.212 and rather than assessing this clause the cl 200.111 was assessed. My genuine intentions to studies was denied by the tribunal and mis constituted as non-genuine applicant of visa
Particular: The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion. They refused the case on different basis.
Tribunal failed to give weight to the findings and contradicted their own findings in Ground 18 of the decision.
The tribunal agree that I provided the reasons to return back to home country and that is the main concerns the immigration department had. On the basis of these findings my case would be approved.
Tribunal failed to consider that I would face significant loss in finances as I have given a large amount of money and time for my studies in Australia and returning with refusal will be a drawback in my application. (Ground 3).
4. Despite of the repeated request the member did not provide any time to provide the documents. (Ground 4).
5. Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact. (Ground 5).
6. The appellant’s application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again. (Ground 6).
7. Substantial justice was not provided and that’s the reason I want to apply in Federal Circuit Court of Australia. (Ground 7).
(Words in bold added, otherwise as written).
APPLICANT’S SUBMISSIONS
The Applicant did not file written submissions.
The Applicant made oral submissions during the Hearing.
During the Hearing, the Applicant sought to tender in evidence a certificate to show that he had recently completed a Diploma in Engineering. I ruled that the document was irrelevant to the issues in the judicial review and rejected the tender. I also ruled against an adjournment to allow the Applicant to procure screenshots and messages between him and a mentor. The Applicant’s purpose in seeking that tender was to establish that he was a genuine student. I ruled against the adjournment on the basis that those documents were also irrelevant and inadmissible on judicial review, and hence an adjournment would not serve a useful purpose.
The Applicant stated that he had been “going through a very hard situation”. He said that he needed “one chance” and that his future depended on his Visa.
In relation to Ground 2, the Applicant submitted that he “felt like I was not given the opportunity to respond properly” and that the Tribunal “were basically cutting my words”. The Applicant said that he had been “cut off” once or twice, but it was difficult to recall, because the hearing had taken place 5 to 6 years ago. He stated that he could not recall exactly what happened. The Applicant stated that he was cut off concerning “a mental health issue” and that he “was trying to say things related to [his] mental health”. The Applicant and the Minister both agreed that for the purpose of determining this ground, I should listen to the recording of the Tribunal hearing.
In relation to Ground 3, the Applicant submitted that the Tribunal member should have given some weight to, and taken into account, his mental health issues.
In relation to Grounds 4 and 5, the Applicant’s contended that the Tribunal ought to have adjourned the hearing to allow him time to obtain documents and because of his mental health issues that he was suffering from at the time of that hearing.
The Applicant said that he had been working 20 hours as a taxi driver because he needed to eat and to pay his rent despite “being anxious and depressed”. The Applicant claimed that “when he came to the country [Australia]” he “met people that were not good for him”. He further claimed that if he was not a genuine student, he “wouldn’t have completed two studies”.
RESPONDENT’S SUBMISSIONS
The Minister submits that the Tribunal did not err on any of the above grounds and that the Applicant fails to establish jurisdictional error in respect to the Tribunal’s Decision.
Ground 1: Failure to consider previous immigration history
Ground 1 alleges that the Delegate of the Minister made a procedural error by not ‘correctly assessing information’ relevant to the Applicant’s matter.
The Minister submits that the Applicant cannot challenge the Delegate’s Decision on this review. In accordance with Ministerial Direction 69 (paragraph 14), the Tribunal relevantly had regard to factors it considered relevant when considering the Applicant’s immigration history.
The Minister contends that the Tribunal had sufficient regard to the Applicant’s previous immigration history and visa compliance. In its decision, the Tribunal had regard to the Applicant’s previous student visa and observed that the Applicant “did not effectively achieve anything that he was supposed to in accordance with the conditions of his student visa”.
To the extent that the Tribunal did not expressly refer to the Applicant’s compliance with other visa conditions, the Minister notes that the Tribunal recorded the Applicant’s “appalling history” of non-compliance with visa conditions.
As such, the Minister submits that this ground is without merit.
Ground 2: No opportunity to provide oral evidence
The Minister notes that the Applicant gave evidence for over an hour at the hearing before the Tribunal.[27]
[27] CB 105.
As to the particular of this ground, the Minister confirms that the record of the Delegate’s Decision was sent to the email address provided by the Applicant, that the Applicant then provided a copy of this to the Tribunal, and the written record of the Tribunal’s Decision was sent to the email address provided to the Applicant. The Minister notes that the Applicant further annexed a copy of the Delegate’s Decision to his Affidavit.
The Minister submits that Ground 2 cannot succeed.
Ground 3: Misconstruction of the Regulations
The Minister contends that there is no indication in the Tribunal’s decision record that the Tribunal assessed the wrong visa criteria.
As to the final particular of Ground 3, the Applicant asserts that the Tribunal failed to consider that the Applicant would “face significant loss in finances”, and “returning with refusal will be a drawback in my application”.
The Minister contends that it is implicit in the Tribunal’s findings that regard was had to the financial impact on the Applicant. Nonetheless, this did not outweigh the Applicant’s “appalling history” of non-compliance with visa conditions.
The Minister notes that the particulars of Ground 3 otherwise invite the Court to engage in merits review of the Tribunal’s Decision, which is impermissible.
Grounds 4 and 5: Procedural unfairness
The Minister notes that the Tribunal granted the Applicant an extension of time to its request to respond to information. The Applicant’s Representative responded to the Tribunal’s request on 13 May 2019 with three CoE codes, and on 4 June 2019 with a ‘Statement of Attainment’. The Tribunal considered each document separately. The Minister notes the ‘Statement of Attainment’ was referred to by the Tribunal as an ‘academic transcript’.
The Minister submits that these Grounds cannot succeed.
Grounds 6 and 7
The Minister submits that these Grounds do not give rise to any proper basis of review.
PRINCIPLES
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.[28]
[28] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“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.[29] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[30]
[29] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[30] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82] (per McHugh, Gummow and Hayne JJ).
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[31] 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”.[32] Different kinds of error may overlap.[33] The categories are not closed.[34]
[31] Plaintiff S157/2002.
[32] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[33] Yusuf at [82].
[34] LPDT at [3].
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.[35] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[36] It has been described as an “undemanding” standard.[37]
[35] LPDT at [7].
[36] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[37] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Student Visa (Subclass 500)
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.[38]
[38] See Regulation 2.05(1).
Clause 500.211 of Schedule 2 of the Regulations provides:
a. the applicant is enrolled in a course of study;
b. if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;
c. if the applicant is a Foreign Affairs student-the applicant has the support of the Foreign Minister for the grant of the visa;
d. if the applicant is a Defence student-the applicant has the support of the Defence Minister for the grant of the visa.
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
iv.any other relevant matter; and
b. the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
i.the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
ii.the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
c. because of any other relevant matter.
CONSIDERATION
Ground 1
Ground 1 is that:
The Department made a procedural error by not correctly assessing information relevant to the applicant’s particular circumstances.
Particulars: The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition was not considered
Section 476(2)(a) of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to a “primary decision”, which is defined to include privative clause decisions or purported privative clause decisions, reviewable under Part V, which includes the Delegate’s Decision.
The Court does not have jurisdiction with respect to Ground 1.
Ground 2
Ground 2 is that:
The applicants were not afforded natural justice.
Particulars: I believe that I wasn't provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs did not provide the decision record for their decision which clearly depicts an error. (Ground 2).
In oral submissions, the Applicant submitted that in the Tribunal hearing, he “felt like I was not given the oppy to respond properly” and that the Tribunal “were basically cutting my words”. The Applicant said that he had been “cut off” once or twice, but it was difficult to recall, because the hearing had taken place 5 to 6 years ago. He said that he could not recall exactly what happened. He said that he was cut off concerning “a mental health issue” and that he “was trying to say things related to [his] mental health”.
The requirement of procedural fairness is a fair hearing and not a fair outcome.[39] Hence, the enquiry is directed to the Tribunal’s processes and not its decision.[40] The test is essentially practical; the law’s concern being to avoid practical injustice.[41]
[39] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [25].
[40] SZBEL at [25].
[41] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37].
In determining the requirements of procedural fairness, it is of “critical importance” to consider the statutory framework within which the decision-maker exercises power.[42]
[42] SZBEL at [26].
The requirements of natural justice in relation to the Applicant’s hearing before the Tribunal were codified by Division 4 of Part 5 of the Migration Act.
Section 357A of the Migration Act provided (at the date of the Tribunal’s Decision):
1. This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
2. Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
3. In apply this Division, the Tribunal must act in a way that is fair and just.
Section 360 of the Migration Act provided (at the date of the Tribunal’s Decision):
1. The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
2. Subsection (1) does not apply if:
a.the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
b.the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
c.subsection 359C(1) or (2) applies to the applicant.
3. If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 360 of the Migration Act and the other statutory procedural fairness provisions are directed to providing an applicant with a meaningful opportunity to be heard. In an extreme case, limitations placed on an applicant’s submissions or evidence at a Tribunal hearing might be such as to deny them a meaningful opportunity to be heard.[43]
[43] Gjonej v Minister for Immigration & Anor [2014] FCCA 2113; SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 per Flick J at [45].
The Applicant and the Minister both agreed that for the purpose of determining this ground, I should listen to the recording of the Tribunal hearing. That recording was provided to me after the Hearing. I will treat the recording as having been tendered by the Minister and have marked it “Exhibit 1M”. The Applicant declined my invitation extended at the hearing to make submissions about that recording.
Having listened to the recording of the Tribunal hearing, I am satisfied that the Applicant was provided a meaningful opportunity to be heard. Despite the presence of an Urdu interpreter, the Applicant largely participated in the hearing in English and gave meaningful responses in English. I note that the Applicant had the assistance of the interpreter at certain points (e.g. 11:44, 13:38, 15:30 and 28:33) when it became apparent that the Applicant required that assistance.
As to the allegation of being “cut off”, there is an exchange (from 18:50), where the Tribunal member intensively questioned the Applicant as to “what were you doing with your life” for a three year period. At certain points in that exchange, the Tribunal member might be said to have “cut off” the Applicant from responding; but, in context, I consider that the interventions were directed to eliciting a responsive answer from the Applicant. Having regard to the whole of that exchange, I am not satisfied that the Tribunal’s interventions were such as to deny the Applicant a meaningful opportunity to be heard and present his case.
Fortifying my conclusion (of meaningful opportunity), immediately prior to the delivery of reasons, the Tribunal asked the Applicant (30:02) “is there anything else you want to tell me”. The Applicant proceeded to advise the Tribunal member about mentoring or life coaching sessions undertaken as corroboration of his allegation of mental health issues and his genuine intention for entry and stay as a student. The Applicant also advised the member about a mental health plan prepared by a GP and there was discussion about that issue.
As to the allegation that the AAT and Department “did not provide the decision record for their decision which clearly depicts an error”, the Tribunal’s Decision is annexed to the Applicant’s Affidavit sworn 1 July 2019 and the Delegate’s Decision was provided to the Applicant by way of letter dated 8 December 2017.[44]
[44] CB 29.
The Tribunal Decision provided:[45]
The applicant’s case in this respect is not assisted by what he did after his student visa application on review was refused. After it was refused in late 2017 the applicant had an opportunity to demonstrate that he was a genuine student by getting enrolled and making satisfactory progress. So for the entire 2018 year while he was awaiting this pending revied before the Administrative Appeals Tribunal he could have enrolled in and studied. That would have gone some way to demonstrate to the tribunal’s satisfaction that he was indeed a genuine student but he chose not to do so. He said he was depressed but he still chose to work 20 hours per week. It defies belief that he chose not to study to demonstrate a genuine intention to remain in Australia as a student. And so on this basis it is very difficult to discern.
[45] CB 127 [24].
I am not satisfied that jurisdictional error is made out by reference to Ground 2.
Ground 3
Ground 3 is that:
Tribunal misconstrued condition cl.500.212 of Schedule 2 to the Regulations. The clauses were wrongly assessed and the tribunal failed to assess cl 500.212 and rather than assessing this clause the cl 200.111 was assessed. My genuine intentions to studies was denied by the tribunal and mis constituted as non-genuine applicant of visa
Particular: The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion. They refused the case on different basis.
Tribunal failed to give weight to the findings and contradicted their own findings in Ground 18 of the decision.
The tribunal agree that I provided the reasons to return back to home country and that is the main concerns the immigration department had. On the basis of these findings my case would be approved.
Tribunal failed to consider that I would face significant loss in finances as I have given a large amount of money and time for my studies in Australia and returning with refusal will be a drawback in my application.
Where a decision maker is required to make a decision by reference to a single specified criterion and, in error, addresses the wrong criterion “the decision maker's error will be a jurisdictional error – a failure to exercise the jurisdiction of deciding the question according to the applicable criterion – regardless of whether one can say that, if properly directed and having determined the application by reference to the correct criterion, the decision maker would have been bound to make the same decision.”[46]
[46] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 per Nettle J.
In Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 83 AAR 226, Allsop CJ stated (at [8] and [9]):
It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: "a genuine applicant for entry and stay as a student". This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause.
The expression is followed by the word "because" and a list of various matters in subcll (a)(i)-(iv), (b)(i)-(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise. That said the width of subcll (a)(iv) and (c) are to be recognised: that is "any other relevant matter". Such a wide frame of reference is, of course, limited by reference to the subject matter, scope and purpose of cl 500.212: Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505.
There is no indication in the Tribunal’s Decision that it “wrongly assessed” cl 500.212 of Schedule 2 of the Regulations. The Tribunal correctly noted that “The criteria for a subclass 500 student visa are set out in part 500 of Schedule 2 of the Regulations. The primary criteria in clauses 500.211 to 500.218 must be satisfied by the Applicant.” The Tribunal correctly identified elements (a) and (b) specified in cl 500.212 of the Regulations in its reasons.[47]
[47] CB 126 [13]-[14].
After identifying the requirement as to whether “The applicant is a genuine applicant for entry and stay as a student”, the Tribunal then assessed the evidence in respect of that matter.[48] The Tribunal noted the Applicant’s statement that “upon completing these courses he intends to depart Australia”.[49] However, the Tribunal was not bound to accept the Applicant’s evidence uncritically. The Tribunal’s Decision includes a detailed assessment of the evidence, followed by the conclusion that “the tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia as a student”.[50]
[48] CB 126-127 [15]-[27].
[49] CB 126 [16].
[50] CB 128 [28].
I am satisfied that the Tribunal Decision has traversed the matters it was required to by cl 500.212 of Schedule 2 of the Regulations. I do not consider that the Tribunal’s reasons were required to expressly refer to “significant loss in finances as I have given a large amount of money and time for my studies in Australia” or that “refusal will be a drawback in my application”. Further, the Tribunal did address one matter that the Applicant emphasised in oral submissions, namely that depression affected his ability to progress his studies during the three year period that he was questioned about.[51]
[51] CB 127 [21].
Ground 3 would appear to be an invitation to the Court to review the merits of the administrative decision-maker’s decision, which is not permissible.[52] The task of weighing evidence is a matter for the decision maker and the decision maker alone.[53]
[52] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at p 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]–[54].
[53] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ held at [33].
I am not satisfied that jurisdictional error is made out by reference to Ground 3.
Grounds 4 and 5
Ground 4 is that:
Despite of the repeated request the member did not provide any time to provide the documents.
Ground 5 is that:
Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact.
The nub of Grounds 4 and 5 is that the Tribunal acted unreasonably in not adjourning the Tribunal hearing. While critical particulars are missing, it would appear that the Applicant’s complaint is directed to the refusal of the Tribunal to adjourn a hearing fixed for 11 June 2019 pursuant to a request that was made for adjournment by the Applicant on 29 May 2019.
Section 363(1)(b) of the Migration Act (in force at the date of the Tribunal’s Decision), for the purpose of a review, stated that the Tribunal “may… (b) adjourn the review from time to time”. This confers both a power and a discretion on the Tribunal. There is a presumption, that “a discretionary power, statutorily conferred, will be exercised reasonably”.[54]
[54] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [47] and [63].
In Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640, Wigney J summarised the principles relating to legal unreasonableness in the context of decisions made by the Tribunal to refuse adjournment applications by reference to the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 in the following terms:
a. The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
b. Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
c. Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or "plainly unjust": Li at [28], [110]; Singh at [44].
d. In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
e. Regard can also be given to the outcome of the decision: whether the "decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law": Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
f. The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
g. There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
h. The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
i. It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that "enough is enough": Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
j. Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The Tribunal is not required to indefinitely defer its decision making process.[55]
[55] Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617.
Legal unreasonableness is a “demanding standard” and a court is not entitled to interfere simply because the court disagrees with the decision under review.[56]
[56] Virk v Minister for Immigration and Citizenship [2025] FCA 630 per Hill J held at [31].
The test for legal unreasonableness is assessed at the time of the decision and on the basis of circumstances known to the decision maker.[57]
[57] Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26]; DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 per Kiefel CJ, Gageler, Gordon and Steward JJ at [21].
In Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12, Gleeson CJ stated (at [19]):
Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this Court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the Tribunal, apprehending that the respondent might be disadvantaged by "memory or other difficulties", of its own motion, and with the respondent's agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The Tribunal was not then obliged to embark upon an open-ended investigation of the respondent's psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage. It was not suggested in the letter of 30 July that anything the respondent said at the hearing of 26 June, or in his later affidavit, was unreliable. Two things were suggested. The first was that, if the respondent was suffering from PTSD, that would explain the inconsistencies in his earlier information. The Tribunal was willing to accept that, and not hold those inconsistencies against him. The second, which was rejected, and is not now pursued, is that a further assessment might have provided evidence that he had in fact been seriously harmed before he came to Australia.
In BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 (BXD17), Thawley J said that where adjournment is sought on medical grounds:
The critical question is whether the applicant was prevented from attending court or participating effectively in a court hearing. Where an applicant’s case is that she is unable to attend or participate meaningfully in a hearing by reason of a medical condition, such an applicant must provide some basis for the court to conclude that the medical condition does indeed prevent her attendance or effective participation. The most obvious way to do so is to furnish medical evidence to the effect that the relevant medical condition exists and has the effect of preventing the attendance or effective participation of the applicant. The weight to be afforded such evidence depends on its particular content. A report which explains why the relevant medical practitioner holds the opinion that the medical condition prevents the applicant attending or participating is likely to be afforded more weight than a report which contains mere ipse dixit [i.e. no evidence at all]. A report which just states a conclusion, if admissible, may be of little or no weight. The report in the present case did not state that the applicant was unable to attend, and nor did it state that she was unable to participate meaningfully at a hearing. It follows that it also did not explain why the applicant would not be able to attend or participate meaningfully.
I turn then to the question of whether the Tribunal’s Decision made on 31 May 2019 not to “postpone” the hearing and to proceed with it on 11 June 2019 were unreasonable.
The following chronology puts the Applicant’s application to adjourn in its proper context:
(a)On 8 April 2019, the Tribunal sent to the Applicant an invitation to provide information.
(b)On 17 April 2019, the Applicant requested an extension of time to provide information.
(c)On 30 April 2019, the Tribunal advised the Applicant that it had agreed to grant an extension of time for the provision of information to 14 May 2019.[58]
[58] CB 60.
(d)On 13 May 2019, the Applicant’s representative provided a completed ‘Request for Student Visa Information under s.359(2) of the Migration Act 1958’ form.[59] Attached to the form was three confirmation of enrolments.
[59] CB 62-74.
(e)On 21 May 2019, the Tribunal wrote to the Applicant inviting his to appear to give evidence and present arguments relating to the issues in his case.[60] A hearing was arranged for 11 June 2019 commencing at 9:30 a.m. The letter also sought information.
[60] CB 80.
(f)On 29 May 2019, the Applicant sent an email to the Tribunal which advised that he was sick and requested that the hearing date be rescheduled.[61]
[61] CB 87
(g)The email attached a “GP Mental Health Care Plan dated 21 May 2019. The plan included information concerning “Main Problems/Diagnosis”.
Current problems: Depression and Anxiety
Most of his symptoms have been present since his migration to Australia. Main factors he feels are being single/isolated lack of friendship groups and support network as well as some financial and career stressors.
(h)The email attached a referral letter from the Applicant’s treating GP to Dr Imran Ali, also dated 21 May 2019 seeking “expert review and management”.
Thank you for seeing Kibria, aged 27 yrs, for opinion and management. I have prepared a MHCP for him today for depression and anxiety relating to social; isolation. Would appreciate your expert review and management.
(i)On 31 May 2019, the Tribunal sent an email the Applicant’s migration agent regarding the “request for postponement”. The letter provided:
On 21 May 2019 we sent a letter inviting you to attend a hearing at the Tribunal on 11 June 2019 to give evidence and present arguments relating to the issues in your case. On 29 May 2019 the Tribunal received a request that the hearing be postponed. The Presiding Member has considered the request carefully but has decided not to postpone the hearing.
(j)The letter confirmed that the hearing would proceed on 11 June 2019 at 9:30 a.m.
(k)On 4 June 2019, the Applicant provided a ‘Statement of Attainment’ issued by Australian Education Academy Pty Ltd.[62]
(l)On 10 June 2019, the Applicant’s agent sent an email to the Tribunal advising that the Applicant would attend the hearing himself. The email provided “He has not booked me for assistance”.[63]
(m)On 11 June 2019, the Tribunal hearing was conducted. The Applicant attended the hearing in person.[64] The hearing completed at 10:46 a.m. The Tribunal made an oral decision at the completion of the hearing.
(n)On 25 June 2019, a written statement of decision and reasons was emailed to the Applicant.[65]
[62] CB 101-102.
[63] CB 103.
[64] CB 104.
[65] CB 123.
A critical shortcoming with the medical evidence that was given by the Applicant in support of his application to postpone the hearing was that it did not address the critical question of whether he was prevented from attending the Tribunal hearing or effectively participating in that hearing. The mental health plan did little more than identify “depression and anxiety”, which, in and of themselves, were not enough to justify adjournment.
Having regard to the shortcoming in the evidence relied upon by the Applicant, I am not satisfied that the Tribunal’s Decision made on 31 May 2019 not to “postpone” the hearing and to proceed with it on 11 June 2019 was unreasonable.
I am not satisfied that jurisdictional error is made out by reference to Grounds 5 and 6.
Ground 6
Ground 6 is that:
The appellant’s application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked [sic looked over] again.
The question before the Court is not whether the Applicant has raised an arguable case, rather it is whether the Tribunal made a jurisdictional error.
An obligation to give a written statement of reasons requires that the decision-maker “must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.[66]
[66] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [55].
In Liang, Brennan CJ, Toohey, McHugh and Gummow JJ said (at [31]) 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.
Non-compliance with ss 368(1) or 430(1) of the Migration Act does not, of itself, establish jurisdictional error.[67] But, non-compliance, such as non-compliance with the obligation to refer to evidence or other material on which the decision is based, may evidence jurisdictional error, for example, a constructive failure to exercise a review function.[68]
[67] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J (at [70]).
[68] Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 per Kenny J (at [98]).
In Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108, Kenny J stated (at [98]):
Where the tribunal fails to comply with the requirements of s 430(1) and it is not possible to be satisfied that its written statement had a proper basis, the Court can infer, safely, that the tribunal constructively failed to exercise its function of review.
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:[69]
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)
[69] At [49]–[50].
Without more, brevity does not give rise to jurisdictional error. I consider that the Tribunal’s reasons adequately deal with the “issues arising in relation to the decision under review.”
I am not satisfied that jurisdictional error is made out by reference to Ground 6.
Ground 7
Ground 7 is that:
Substantial justice was not provided and that’s the reason I want to apply in Federal Circuit Court of Australia.
Ground 7 would again appear to be an invitation to the Court to review the merits of the administrative decision-maker’s decision, which is not permissible.[70]
[70] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at p 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]–[54].
I am not satisfied that jurisdictional error is made out by reference to Ground 7.
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[71] the Application for review must be dismissed.
[71] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $6,000 being less than the scale amount.[72] I am satisfied that costs ought to follow the event,[73] 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.[74]
[72] 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.
[73] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[74] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate: HA
Dated: 6 August 2025
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