Noan v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1446
•5 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Noan v Minister for Immigration and Citizenship [2025] FedCFamC2G 1446
File number(s): BRG 136 of 2025 Judgment of: JUDGE EGAN Date of judgment: 5 September 2025 Catchwords: MIGRATION LAW – Whether there was sufficient evidence before the Tribunal to enable it to make its findings – where there was evidence upon which the Tribunal’s findings were open – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), s. 65
Migration Regulations 1994 (Cth) Clause 802.214 to Schedule 2
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of last submission/s: 26 August 2025 Date of hearing: 22 August 2025 Place: Brisbane Counsel for the Applicant: Mr W. Hall of Counsel Solicitor for the Applicant: Riverwood Migration Solicitor for the Respondents: Ms C. White, Sparke Helmore ORDERS
BRG 136 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DANIEL SALKIMUT KANAWI NOAN
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The Amended Application for Review filed on 18 July 2025 be dismissed.
2.The Applicants pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $8,371.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of the Independent State of Papua New Guinea who was born in December 1998.
On 17 July 2019, the applicant applied for a Child (Residence) (Class BT) Subclass 802 Visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (the Act).
On 27 January 2021, a delegate of the Minister refused to grant the visa application because the delegate was not satisfied that the applicant had met the study requirement criterion as set out in cl. 802.214 of schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), which regulation relevantly provided as follows:
802.214
(1) If the applicant has turned 18:
(a) the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b) the applicant is not engaged in full - time work; and
(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full - time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child .
The criteria as set out in cl. 802.214 (1) (a) and (b) were not relevantly in issue in this matter.
The applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal)
The applicant appeared before the Tribunal on 14 and 29 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, sister and step-father.
By its written reasons dated 30 January 2025, the Tribunal affirmed the decision of the delegate.
On 4 March 2025, the applicant filed an Originating Application for Review of the decision of the Tribunal in the registry of this Court.
Grounds of Review at the Time of the Hearing
On 18 July 2025, the applicant filed an Amended Application for Review, the grounds of which were as follows:
Ground 1
The 2025 decision of the Administrative Review Tribunal to uphold the Minister’s 2021 decision to refuse the application to grant the Applicant a Child Residence (Class BT) Subclass 802 visa under section 65 of the Migration Act 1958 (Cth) (the Decision) was made in jurisdictional error because a central or critical step in making the decision, was based on no evidence or material.
Ground 2
Further, or alternatively, the Decision was made in jurisdictional error as being irrational and/or illogical because the Tribunal’s reasoning process was grounded on a factual conclusion where there was no evidence before the Tribunal to support that conclusion.
Both grounds of review were founded upon the claim that there was no evidence before the Tribunal justifying its decision to refuse the visa application. Specifically, the applicant submitted that the finding of the Tribunal that there would have been other courses locally available for the applicant to study was a finding without any factual basis. The applicant relied upon the judgement of Allsop CJ in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [46] where His Honour held:
The making of the findings, without any material to found them, given their central importance in the reasoning, is a sufficient basis to conclude that there has been jurisdictional error.
The Court does not accept either claim as set out in the Grounds of Review.
At [13] – [24] inclusive of its reasons, the Tribunal comprehensively analysed the evidence before it relating to the applicant’s study regime from February 2019 until December 2024.
At [25] – [31] inclusive of its reasons, the Tribunal weighed up the evidence before it, and concluded that it was not satisfied that the applicant had met the cl. 802.214(1)(c) full-time study criteria for the period between April 2022 and December 2024. The Tribunal found that it was not satisfied that such break in study was due to the unavailability of courses, limited finances or the applicant’s poor mental state. Such findings were open on the evidence before the Tribunal. Its reasons were as follows:
25. In oral evidence during the first hearing, the applicant stated that he has not undertaken any study between April 2022 and December 2024 because most courses involved apprenticeships and he was not allowed to work. He also stated that he did not want to do other courses and 'gave up'.
26. The applicant told the Tribunal that after completing the Certificate Ill, he looked for other courses but they were not suitable. Some were for high school students, some were not in Cairns and some required an apprenticeship. Other courses required an international student fee which the family could not afford. The applicant states that he had very limited options.
27. The Tribunal does not accept the applicant's evidence. The Tribunal does not accept that all courses required an apprenticeship (even if the applicant was not able to complete an apprenticeship due to his visa restrictions and the Tribunal has not considered whether an apprenticeship equates to full-time employment for the purpose of a Child visa). The applicant did complete a number of courses - in particular, health-related courses – which did not require an apprenticeship and there were, undoubtedly, other courses available at TAFE and other institutions that would not have required the applicant to complete an apprenticeship.
28. Neither does the Tribunal accept that the applicant did not have other study options. There would have been some courses available locally, including those courses that the applicant did enrol in and was able to complete, and there may also have been some courses available online. The Tribunal is mindful that in December 2024 the applicant was able to enrol in a suitable course. He told the Tribunal that this course was recommended by his migration agent and they did not know about that course provider earlier. The fact that the applicant was able to enrol in December 2024 also suggests that appropriate courses were available earlier.
29. The applicant told the Tribunal that they were desperate for him to do a course and his mother had to pay the international student fees. The applicant's mother Ms Sheena Towle told the Tribunal that there were limited courses available for a year and they then had to wait for a further year before enrolling. Ms Towle told the Tribunal that she had spent a lot of time searching for appropriate courses but some, such as the university course, were very expensive. Mr Towle told the Tribunal that during Covid he was laid off and there was no financial support and the family's finances affected the applicant's ability to study. The applicant's sister Ms Sian-Tia Noan Towle told the Tribunal that she sees her mother and brother struggling mentally and financially. She referred to her brother's help and protection when she needed it. She states that the lawyers advised him that the applicant was not able to work and there were misunderstandings over the years. The Tribunal acknowledges that evidence.
30. The Tribunal has considered the claim that the family was not financially able to support the applicant's study. The Tribunal is mindful that there is no documentary evidence regarding the family's financial situation or other options that may have been available to the applicant (for example, he refers to having a payment plan with the current institution. It is unknown whether there may have been a possibility of a student loan). The Tribunal also notes the evidence that other family members had been able to engage in employment and there is no documentary evidence to indicate whether some of this income could have been used towards the applicant's tuition fees.
31. The applicant has not satisfied the Tribunal that between April 2022 and December 2024 there were no other study options. The applicant has not presented evidence of what courses may have been available and what the fees may have been and whether there were different payment options such as payment by instalment or other forms of financial support offered to students. There is no documentary evidence about the family's financial circumstances and even if the family had limited income, there is no probative evidence to satisfy the Tribunal that the family's income would have been insufficient to support the applicant's study in some course, or to support other activities relevant to study. On the limited evidence before it, the Tribunal is not satisfied that the applicant failed to engage in study between April 2022 and December 2024 due to financial hardship.
At [28] of its reasons, the Tribunal identified that there would have been some courses available locally, including those courses that the applicant did enrol in and was able to complete. When making such finding, the Tribunal had already set out at [23] of its reasons those courses which had been completed by the applicant. There was nothing exceptional about the Tribunal making such finding. This was a post COVID period about which it ought to be inferred the Tribunal was in possession of institutional knowledge on point. Further, it is trite that the Tribunal does not have to specify each and every basis upon which a decision has been made by it. The Tribunal was quite entitled to look at the applicant’s TAFE enrolments both before and after the period of non-study for the purpose of making findings about whether study options were available during the identified non-study period. Ground 1 is without merit.
Ground 2 relies upon the same claim that there was a lack of evidence sufficient to ground the findings made by the Tribunal. For similar reasons as in respect of Ground 1, Ground 2 has not met the high bar required for the making of such claim based upon illogicality and irrationality grounds, and is without merit.
It could not be said that the decision of the Tribunal was clearly unjust, arbitrary, capricious or unreasonable in the sense that no other reasonable decision maker could have arrived at the Tribunal’s decision. As was held by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
The applicant has failed to establish that there was any extreme illogicality on the part of the Tribunal. The claims made about the Tribunal’s reasons were claims made with an eye too keenly attuned to error. [1]
[1] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR
593 per French, Sackville and Healy JJ
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The grounds of review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 5 September 2025
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