Pandey v Minister for Immigration and Multicultural Affairs - [2024] FedCFamC2G 1292

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pandey v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1292

File number(s): SYG 174 of 2020

Judgment of: JUDGE COULTHARD

Date of judgment: 29 November 2024

Catchwords: MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – judicial review – procedural fairness – whether the Tribunal had provided the applicant an opportunity to give evidence & present argument relating to the issues arising in relation to the decision under review under s360 of the Migration Act 1958 (Cth) (“the Act”) – whether the Tribunal had a statutory obligation under s 359AA or s 359A of the Act to give the applicant notice – whether the Tribunal complied with obligation to give reasons under s 368 of the Act – apprehended bias – whether the Tribunal identified a wrong issue – whether the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – unreasonableness – no jurisdictional error established – application dismissed.

Legislation:
Migration Act 1958 (Cth) ss 359A, 359AA, 360, 368

Migration Regulations 1994 (Cth) sch 2, cl 500.212

Ministerial Direction No 69

Cases cited:
ABV16 v Minister for Immigration and Border Protection [2017] FCA 184

Almomani v Minister for Immigration and Border Protection [2020] FCA 264

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 60

Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

CQG15 v Minister for Immigration and Border Protection [2016] 253 FCR 496 at

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1020

Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] 163 FCR 285

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister for Immigration and Multicultural Affairs v Lay Lat [2006] 151 FCR 214

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

Pabbi & Anor v Minister for Home Affairs & Anor [2019] FCCA 1750

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 42

SZBEL v Minister for Immigration and Multicultural Affairs [2006] 228 CLR 152

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZHKA v Minister for Immigration and Citizenship [2008] 172 FCR 1

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46

SZMDB v Minister for Immigration and Citizenship [2008] 105 ALD 499

SZRUI v Minister forImmigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Tumil-Ang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1824

VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 436 FCR 549

Division: Division 2 General Federal Law

Number of paragraphs: 164

Date of last submission/s: 23 August 2024

Date of hearing: 23 August 2024

Place: Brisbane

Solicitor for the Applicants: Mr Kramer - Kramer & Kramer

Solicitor for the Respondents: Ms Evans appeared on behalf of the First Respondent - Sparke Helmore. Submitting appearance for the Second Respondent, save as to costs.
ORDERS

SYG 174 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PRAGYA GAUTAM PANDEY

First Applicant

RAJAT PANDEY

Second Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE COULTHARD

DATE OF ORDER:

29 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The first applicant is to pay the first respondent’s costs, to be agreed between the parties within 14 days of the making of this order and failing that order of agreement to be assessed.

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 COULTHARD
INTRODUCTION

Before the Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (“the delegate”) to refuse to grant the first applicant a Student (Temporary) (Class TU) visa.
BACKGROUND
Application for a student visa and delegate’s decision
The applicants are citizens of Nepal. On 16 July 2016, the first applicant (“the applicant”) was granted a Graduate Work (Class VC) (Subclass 485) visa offshore as a dependant of her husband (the second applicant) (Court Book (“CB”) 60). That visa allowed the applicant to live, study and work in Australia temporarily. It was valid until 23 September 2017.
On 20 September 2017, the applicant applied for a Student (Temporary) (Class TU) visa (“the visa”), for the purpose of undertaking a course of study in Australia being a Certificate IV in Ageing Support which was to commence on 2 October 2017 and was due for completion by 31 March 2019 (CB 60). The second applicant applied for the visa as a member of the applicant’s family unit.
On 22 February 2018, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that she genuinely intended to stay temporarily in Australia (CB 58-65). Accordingly, the delegate found that the first applicant did not satisfy the requirements of cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Consequently, the delegate refused to grant the second applicant a visa on the basis that he did not satisfy the requirements of clause 500.311 in Schedule 2 of the Regulations.
Application for review in the Administrative Appeals Tribunal
On 27 February 2018, the applicants applied to the Tribunal for review of the delegate’s decision (CB 66-71). The applicants appointed a migration agent to assist them and act as their authorised recipient.
By letter dated 28 February 2018, the Tribunal acknowledged receipt of the application for review and told the applicants that if they wished to provide material or written arguments for the Tribunal to consider they should do so as soon as possible (CB 74-77).
By letter dated 8 October 2019 (the “s 359 request”), the Tribunal advised the applicants that as the visa had been applied for on the basis of undertaking a course of study in Australia, it was a requirement that the main applicant be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student (CB 78-84). The Tribunal further stated that the applicant would need to provide sufficient information to satisfy the Tribunal that she meets both of these requirements and invited her to give, in writing, all relevant information about the course(s) of study she was undertaking and her entry and stay as a student. The Tribunal provided a link to the Request for Student Visa Information Under s 359(2) of the Act (“RSVI Form”) which set out specific details about the information requested. The Tribunal also advised that in considering whether an applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to Ministerial Direction No. 69. A copy of Ministerial Direction No. 69 was attached to the letter.
On 22 October 2019, the applicants’ migration agent provided, a copy of the applicant’s current Confirmation of Enrolment (COE) for a Diploma of Leadership and Management (which course commenced on 22 April 2019 and was due for completion on 18 October 2020), documents evidencing that the applicant had completed a Certificate IV in Ageing Support in Australia, a statement of service from her employer, and the completed RSVI Form (CB 85-106).
By letter dated 27 November 2019, the Tribunal invited the applicants to appear at a telephone hearing to give evidence and present arguments relating to “the issues in your case” (the “hearing invitation”) (CB 109-111). The hearing invitation further stated that “The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any change in your circumstances, in providing documents and preparing for the hearing”. The applicants were also asked to provide, at least 7 days before the hearing date, a copy of the current COE and documents showing past studies in Australia. The Tribunal advised that it “may assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which attached”. A copy of Ministerial Direction No. 69 was attached. The applicants were also asked to complete and return the Response to Hearing Invitation – MR Division Form.
By email on 11 December 2019, the applicants’ migration agent emailed the Tribunal attaching the completed Response to Hearing Invitation – MR Division Form, current COE, current enrolment evidence and a letter from Australian Harbour International College dated 21 March 2019 certifying that on 17 March 2019 the applicant had completed a Certificate IV in Ageing Support which course had commenced on 2 October 2017 (CB 114-119). The current CEO does not appear in the Court Book as an attachment to that email but it is an attachment to the email to the Tribunal of 22 October 2019 (CB 90 and 92).
On 17 December 2019, the applicants’ migration agent provided copies of letters of offer of employment in Nepal for each of the applicants and stated this “evidence confirms the applicants’ intention to return back to Nepal after completion of her course of study” (CB 120-124).
The hearing before the Tribunal was held by telephone on 18 December 2019. The applicants and their migration agent attended the hearing (CB 125-127).
By decision made on 20 December 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the visas. The Tribunal gave written reasons for its decision (“Decision”) (CB 131-137).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue in the case was whether the applicant is a genuine temporary entrant and set out the terms of cl 500.212 in Schedule 2 of the Regulations (Decision [7]-[8]) as follows:
The applicant is a genuine applicant for entry and stay as a student:
a)having regard to:
i.the applicant's circumstances; and
ii.the applicant's immigration history; and
iii.if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and
b)because 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.
The Tribunal stated that in considering whether the applicant satisfies cl 500.212(a) of the Regulations, the Tribunal must have regard to the specified factors in Ministerial Direction No. 69 (Decision [9]). The Tribunal went on to state 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, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion (Decision [10]).
The Tribunal summarised the substance of evidence given by the applicant at the hearing as follows:
(a)She had read the delegate’s decision and understood that the issue for determination was whether she was a genuine temporary entrant (Decision [11]);
(b)She arrived in Australia on 3 July 2016 as the holder of a temporary graduate visa (Decision [11]);
(c)Her purpose in travelling to Australia was to meet her husband who was the holder of a temporary graduate visa and working full time (Decision [12]);
(d)She applied for a student visa on 20 September 2017 intending to study nursing but she needed the English exam (Decision [13]);
(e)She completed a Certificate IV in Ageing Support between October 2017 and March 2019 (Decision [13]);
(f)She is currently studying a Diploma of Leadership and Management which she commenced on 22 April 2019 and expects to complete on 18 October 2020 (Decision [13]);
(g)Her intention when she returned to Nepal was “to be a manager in the health sector” (Decision [13]);
(h)She could not undertake a diploma of leadership and management in Nepal (Decision [14]);
(i)She is currently employed in Australia in an aged care centre earning AU$32,000 – AU$35,000 per annum (Decision [14]);
(j)She estimated her income on return to Nepal with the qualifications obtained in Australia to be 60,000 Nepalese dollars (Decision [14]);
(k)Her immediate family in Nepal comprise her father and mother (Decision [17]);
(l)Her brother resides in Australia and is currently studying a Bachelor of Information Technology which he would complete in approximately one year (Decision [17]);
(m)She confirmed that her husband had held a ‘485’ visa which expired on 23 September 2017 and that she had applied for a student visa three days prior to the expiry of her husband’s visa (Decision [16]);
(n)Her husband had obtained a Bachelor of Information Technology from an Australian education institution in 2014 and that he was currently working as a cleaner earning approximately AU$30,000 per annum (Decision [16]);
(o)She had assets in Nepal comprising a property worth AU$793,000 (Decision [17]).
The Tribunal’s reasons record that the applicant confirmed to the Tribunal that she had written the responses to the questions from the Tribunal on 22 October 2019 and that it told the applicant that her responses to those questions would be taken into account (Decision [15]).
The Tribunal’s reasons then record that the applicant “declined an opportunity to add anything further to her application for review” (Decision [17]).
The Tribunal then referred to the evidence given by the second applicant. The Tribunal’s reasons record that the second applicant said that his wife wanted to study, that he wanted to provide emotional support and then they would return to Nepal (Decision [18]).
The Tribunal then referred to the letters of offer of employment which had been provided to the Tribunal on 18 December 2019 and stated that “curiously these documents were not adverted to by either applicant in the hearing” (Decision [19]). The Tribunal summarised the offers made to each of the applicants in those letters and observed that it was “unusual that an employer would offer full time employment which commences in two years” (Decision [19]). The Tribunal said the letters were given little weight (Decision [19]).
Having summarised the evidence, the Tribunal then went on to consider whether the applicant had met the genuine temporary entry criterion having regard to the factors in Ministerial Direction No. 69. The Tribunal stated that it had considered all the information provided with the visa application in weighing up those factors (Decision [27]).
The Tribunal’s considerations, by reference to the factors in Ministerial Direction No. 69 were, in summary:
(a)As to the applicant’s circumstances in her home country, the applicant had demonstrated ties to act as an incentive to return home at the completion of the proposed study, however, the Tribunal concluded that it was not satisfied, given the time the applicant had spent in Australia and the intended period of future stay in Australia, that there was a significant incentive for her to return to Nepal (Decision [21]);
(b)As to the applicant’s potential circumstances in Australia, the Tribunal observed that after residing for over 12 months in Australia she had decided to apply for a student visa and had done so three days prior to the expiry of her husband’s Subclass 485 visa. The proposed course would extend the applicant’s stay until October 2020. The Tribunal considered that this strongly suggested that the applicant was using the student visa system to prolong her stay in Australia without any genuine intention of being a temporary entrant and is studying for the purposes of staying in Australia (Decision [22]);
(c)As to the value of the course to the applicant’s future, including remuneration and career prospects in Nepal, the Tribunal said that it found the applicant was quite vague in her evidence in that regard and that the proposed course was asserted to have relevance to very vague future plans. The Tribunal said that it gave very little weight to that evidence (Decision [23]-[24]). The Tribunal said that it gave little weight to what it described as “the curious offers of employment in two years time” (Decision [23]);
(d)The Tribunal concluded that, considering the cost of the study and the qualifications the applicant already held, it was not satisfied that that the applicant had demonstrated that the proposed additional study had a realistic prospect of providing significant value to her (Decision [25]). In this regard, the Tribunal concluded that it was not satisfied that the applicant had demonstrated the value of the proposed course to her future (Decision [29]);
(e)The Tribunal also considered that the course in leadership and management was inconsistent with the applicant’s plans when she initially entered Australia, namely, to join her husband (Decision [24]);
(f)As to the applicant’s economic circumstances in Nepal relative to her potential circumstances in Australia, the Tribunal concluded that given the disparity in economic circumstance between Nepal and Australia it could not be satisfied that the applicant had significant incentive to return to Nepal. Specifically, the Tribunal said that the applicant had been unable to demonstrate substantial ties or personal assets in Nepal which diminishes the incentive to return to Nepal (Decision [28]);
(g)As to the applicant’s immigration history, the Tribunal noted that the applicant had spent substantial time in Australia and no time outside of Australia since her arrival on 3 July 2016. The Tribunal assessed the applicant’s incentive to return to Nepal to be minimal (Decision [30]);
(h)Further as to the applicant’s immigration history, the Tribunal recounted that she had resided in Australia for in excess of one year as a dependant of her husband and that she had lodged the application for a student visa three days prior to expiry of her husband’s visa. The Tribunal concluded that the applicant had commenced studying for the purposes of the visa application only in order to secure a further a stay in Australia, rather than due to a genuine interest in the area of study (Decision [31]);
(i)The Tribunal considered that there were no other relevant matters to be considered that may be beneficial or adverse to the applicant (Decision [26];[31]).

On balance, the Tribunal concluded that it was not satisfied that the information the applicant had provided regarding her circumstances in Nepal, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters were sufficient to demonstrate that the first applicant is a genuine temporary entrant (Decision [31]). The Tribunal concluded that, on the contrary, those factors indicated that the first applicant appeared to have enrolled in the present course for the purpose of securing another student visa rather than due to a genuine interest in study and overall academic progress and appeared to be using the student visa programme as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily (Decision [32] and [34]).
The Tribunal concluded that it was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of the Regulations (Decision [35]). As the applicant had not met the criteria for the visa in clause 500.212 of Schedule 2 of the Regulations, the Tribunal found that the second applicant did not satisfy the requirements of clause 500.311 of Schedule 2 of the Regulations (Decision [37]).
Accordingly, the Tribunal affirmed the delegate’s decision (Decision [36]-[37]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced by application filed on 23 January 2020 pursuant to

s 476(1) of the Migration Act 1958 (Cth) (the “Act”). The applicants filed an affidavit by the first applicant in support of the application which annexes a copy of the Tribunal’s reasons for decision.
Before the hearing, several procedural orders were made with respect to the filing of an amended application, additional evidence, written submissions by the parties and a Court Book. The parties filed written submissions before the hearing. The first respondent filed and served a Court Book. The Court Book was made an exhibit in the proceedings.
On 14 January 2020, the applicants’ migration agent obtained from the Tribunal a copy of the audio recording of the Tribunal hearing pursuant to an FOI application (CB 142). On 19 February 2020, a Registrar of this Court made an order, by consent, that by 17 April 2020 the applicants file and serve any affidavit containing additional evidence relied upon, including a transcript of the Tribunal hearing. That order was not complied with.
On the morning of the hearing, the applicants’ solicitor, Mr Kramer, sought to tender as evidence a transcription that he told the Court he had made of an audio recording of the Tribunal hearing which audio recording he explained to the Court he had obtained from the Tribunal on 19 August 2024. Mr Kramer had not filed an affidavit explaining how the transcription was created or its accuracy nor explaining the delay in filing the transcription given the Court’s order on 19 February 2020.
The first respondent’s solicitor objected to the admission of the transcription on the grounds of delay (given the order made on 19 February 2020) and that it was inadmissible on the basis that it was not relevant to any issue before the Court. The first respondent’s solicitor also raised some issues as to its accuracy regarding attribution of speech and minor typographical errors.
The hearing proceeded but the applicants’ solicitor was ordered to file and serve an affidavit as to the manner in which the audio recording of the Tribunal’s hearing was transcribed and as to its accuracy and was ordered to provide written submissions as to relevance. The applicants’ solicitor filed an affidavit explaining how the transcription had been produced. The affidavit did not annex the transcription and did not address its accuracy beyond saying that the applicants’ solicitor had checked the transcription on 22 August 2024, that is, before the hearing. It does not seem that steps were taken after the hearing and before filing the affidavit to review the transcription and address the issues as to accuracy raised by the first respondent’s solicitor at the hearing. The first respondent accepts that nothing turns on the minor errors in transcription.
After the hearing, the applicants filed further written submissions on 6 September 2024 (“AFS”) addressing the relevance of the transcription to the facts in issue before the Court. The first respondent, in supplementary written submissions filed on 19 September 2024 (“FRSS”), states that it no longer opposes the admissibility of the transcription (FRSS [4]). The first respondent also expressed the view that the Court would be best assisted in having the transcription before it given the submissions that were made at the hearing by reference to it (FRSS [4]). The Court agrees. Accordingly, the transcription is admitted into evidence. To be clear, this is the document that was emailed to the Court by the applicants on 22 August 2024 and titled ‘Transcript of AAT proceedings 1805196’ (“TT”).
On 6 October 2024, the applicants filed written submissions in reply to the first respondent’s supplementary written submissions (“ARS”) addressing arguments concerning

ss 360 and 359A of the Act.
CONSIDERATION
For the applicants to be successful they must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error.
The applicants filed and served an amended application on 12 June 2024. The grounds of review in the amended application are identical to those in the application save for the addition of

ss 360, 424A and 425 of the Act to ground eight.
The grounds for judicial review set out in the amended application are (without alteration):
1.   The Second Respondent made a jurisdictional error by failing to provide natural justice and procedural fairness.
2.   The Second Respondent failed to take into account material questions of fact or integers of the claim.
3.   The Second Respondent identified a wrong issue.
4.   The Second Respondent did not adequately disclose determining factors so that the Applicants could make representations regarding them.
5.   The Second Respondent did not give the Applicants a reasonable opportunity to present their case.
6.   The Second Respondent ignored relevant materials submitted in support of his application for merits review and did not give the Applicants opportunity to make their case regarding these documents.
Particulars of jurisdictional error
1.   The following is a non-exhaustive list of issues that could each result in a jurisdictional error:
(a)By incorrectly considering the Second Applicant's previous study and current earnings in Australia.
(b)By placing too much weight on which the visa application was made, without considering or inviting the applicant to provide further evidence of an earlier intention to study.
(c)By placing too much weight on the First Applicant's change of course from nursing to management
(d)By failing to properly consider the First Applicant's ownership of an asset in their home country
(e)By failing to properly consider offer letters of employment for the First and Second Applicant.
2. The Second Respondent failed to comply with s 359A, 360, 424(A), 425 of the Migration Act 1958. The decision is therefore affected by jurisdictional error.
The applicants’ written submissions filed on 6 June 2024 (“AS”) do not separately address each of the grounds of review in the manner and order in which they are set out in the amended application. It would have been helpful had they done so. Instead, the submissions extract paragraphs (or, parts of paragraphs) from the Tribunal’s decision followed by an overarching submission that those extracts demonstrate that the Tribunal failed to ensure that the first applicant was afforded procedural fairness, ignored relevant material, relied on irrelevant material, failed to follow mandatory procedures, showed apprehend bias, and made an irrational and unreasonable decision (AS [13]). The submissions then go on to address how each identified extract from the Tribunal’s decision is said to demonstrate various categories of jurisdictional error (AS [14]-[32]).
The Court has taken the conventional approach of considering the grounds of review by reference to the grounds as set out in the amended application.
Grounds One and Eight: Failure to provide natural justice and procedural fairness and failure to comply with ss 359A, 360, 424A and 425 of the Act
Ground one of the amended application contends that the Tribunal failed to provide natural justice and procedural fairness. No particulars are provided. Nor is it explained how, in this matter, the concepts of natural justice and procedural fairness are different, if at all.
In ground eight, the applicants contend that the Tribunal failed to comply with ss 359A, 360, 424A and 425 of the Act. At the hearing, the applicants conceded that ss 424A and 425 of the Act do not apply to the Tribunal’s decision as those sections are to be found in Part 7 of the Act which is concerned with protection visas. At the hearing, the applicants abandoned s 359A of the Act as a ground of review but now seek to reinstate reliance upon it. This is returned to later in these reasons.
A failure to follow “mandatory procedures” is asserted in a number of paragraphs in the applicants’ written submissions (AS [15]; [16]; [18]; [21]; [26]; [28]; [29]; [30] and [32]). It is not clear whether the reference to “mandatory procedures” is to ss 360 and/or 359A of the Act in respect of the extracts of the Tribunal’s reasons being referred to in those paragraphs of the submissions and/or some other sections in Part 5 of the Act dealing with procedures.
Further, in oral submissions in reply, the applicants raised non-compliance with ss 359AA and 368 of the Act. Non-compliance with these sections is not pleaded as a ground of review in the amended application and is not addressed in any of the applicants’ written submissions. Whether the Tribunal failed to comply with those sections of the Act is also dealt with in these reasons as a particular of ground one.
In their written submissions filed before the hearing, the applicants also submitted (AS [15]) that the Tribunal showed apprehended basis because the hearing was “so brief”. The ground of bias is dealt with in these reasons as a particular of ground one.
Section 360 of the Act
Section 360 of the Act provides:
[360] Tribunal must invite applicant to appear
(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 Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)The applicant consents to the Tribunal deciding the review without the applicant appearing before it;
(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.
The Applicants’ submissions
It is common ground that the applicants received a written invitation from the Tribunal inviting them to attend a hearing (CB 109 – 111) and that they attended that hearing with their migration agent (CB 125-127).
The Court understands that the applicants’ complaint to be that the Tribunal failed to afford them procedural fairness as it did not give them a sufficient or meaningful opportunity to give evidence or make arguments about the ‘issues arising in relation to the decision under review’ because of the way in which the Tribunal conducted the hearing.
It is recognised that the requirement of s 360 of the Act will not be met if what is actually afforded to an applicant is not a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review (see e.g. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37] per Gray, Cooper and Selway JJ).
In their written submissions filed before the hearing (AS [27]), the applicants referred to the following passage from the decision of the Full Court of the Federal Court in Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) at [591]-[592] per Northrop, Miles and French JJ:
[591] …Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question…
In referring to that passage, the submission did not explain why this was a case which should be analysed through the prism of that statement of principle in Alphaone rather than by reference to the question of whether the Tribunal had discharged its statutory obligation in

s 360 of the Act in inviting the applicants to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The point was taken up by the applicants in written submissions filed after the hearing in what was described as an alternative argument relation to s 360 of the Act. The applicants contended in those submissions (AFS [17]) that implied in s 360 of the Act is an obligation on the Tribunal to disclose to the applicants issues that arose in the review that were not obvious on the materials and that one such issue was the adverse inference the Tribunal drew from the fact that the first applicant applied for the visa three days prior to the expiry of her husband’s visa. In further written submissions in reply filed after the hearing (ARS [8]) reference is made to Alphaone in dealing with whether the timing of the applicant’s application for the visa and the issue of the timing of the offer of employment (that is, the offer was for a position starting in two years’ time) were ‘issues arising in relation to the decision under review’ (ARS [6]-[15]). The point was made that neither of these issues was ‘obvious’ on the material before the Tribunal.
In SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 (“SZBEL”) the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) (at [49]) did not close off the possibility that even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified in Alphaone and that it would neither be necessary nor appropriate to foreclose that possibility. SZBEL was not such a case. The Court does not understand the applicants to be making a submission that if the Court finds that the issues under review were properly identified to the applicants there is an alternative argument - arising under s 360 of the Act - that the applicants were not given a meaningful opportunity to give evidence and present arguments apart, from the separate submissions that were made in respect of the length of the hearing and apprehended bias. It seems to the Court that the applicants’ reliance on Alphaone goes to their submission that the ‘issues arising in relation to the decision under review’ were not ‘obviously open on the material’ and were not ‘put’ to the applicants at the hearing.
Accordingly, the Court has approached the matter by considering whether the Tribunal discharged its obligation of procedural fairness pursuant to s 360 of the Act by inviting the applicants to appear to give evidence and present arguments relating to “the issues arising in relation to the decision under review”. As the High Court said in SZBEL, the reference to those words is important in defining the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal (at [33]).
By reference to the applicants’ written submissions filed prior to the hearing and oral submissions at the hearing, the Court understands that the applicants articulate this ground of review as follows:
(a)The Tribunal asked the applicant what her intention was when she returned to Nepal to which the applicant replied, ‘to be like a manager in the health sector, like a CEO’ (Decision [13] and TT p 4). The Tribunal then went on to observe in its reasons, in relation to that answer, that the applicant “did not elaborate” (Decision [13]). The applicants submit that the Tribunal did not give the applicant an opportunity to elaborate on her future employment plans and was not made aware that this was ‘an essential integer of the decision’ and did not put the ‘importance of this claim’ to her or require her to ‘proffer information, evidence or an argument with respect to this finding’ (AS [15]; oral submissions at transcript p-28 lines 39-47).
(b)The Tribunal referred in its decision to the two letters of offer that the applicants’ migration agent had provided to the Tribunal prior to the hearing and which the agent stated confirmed the applicant’s intention to return to Nepal after completion of her study (CB 120-124). The applicants first point to the Tribunal’s observation in its reasons for decision that ‘curiously’ these letters were not ‘adverted to’ by either applicant in the hearing (Decision [19]). The applicants submit that the Tribunal did not raise the letters at the hearing in circumstances where it then went on to draw a negative inference from the applicants not adverting to them (AS [20]). The applicants then point to the Tribunal’s observations that it was unusual that an employer would offer full time employment which commences in two years time and its consequent decision to give the letters of offer little weight (Decision [19]). The applicants submit that the Tribunal did not raise the offers with them as an issue for comment or give them an opportunity to provide further evidence or arguments (AS [21]).
(c)The Tribunal asked the applicant to confirm that she had applied for the visa three days prior to the expiry of her husband’s Subclass 485 visa (Decision [16]; TT p 7). As to this fact, the Tribunal observed in its reasons that “After residing in Australia for over 12 months the applicant decided to apply for a student visa. This was done on 20 September 2017, three days prior to the expiry of her husband’s Subclass 485 visa” (Decision [22]). The Tribunal then went on to say that “This strongly suggests that the applicant is using the student visa system to prolong her stay in Australia without any genuine intention of being a temporary entrant.” (Decision [22]) and that “It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application on in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study” (Decision [31]). The applicants submit that the Tribunal should have put its concerns to the applicant and invited her to comment on the timing of her visa application (AS [18], [22], [24]; oral submissions at transcript p-24 lines 17-46).
(d)The Tribunal told the applicant at the hearing that it had read her written responses to questions from the Tribunal on 22 October 2019 (Decision [15]; TT p 6). The Tribunal told the applicant that her responses would be taken into account (Decision [15]; TT p 6). The applicants submit that the Tribunal failed to disclose to the applicant how those matters would be taken into account when making its determination to affirm the Department’s refusal decision (AS [16]).
(e)The Tribunal referred the applicant to her response to the s 359 request about assets in Nepal owned by her parents and the applicant confirmed the estimated value of that asset (Decision [17]; TT p 8-9). The applicants submit that the Tribunal failed to advise the applicant of the ‘materiality of this aspect’, inform her that the material provided by her was deficient in any way and did not give her the opportunity to provide further information (AS [19]).

In the applicants’ written submissions in reply to the first respondent’s supplementary submissions (“ARS”), the applicants made further submissions as to the requirements of

s 360 of Act in articulating what the applicants say is required of the Tribunal to hold a hearing at which an applicant is given an opportunity to give evidence and present arguments relating to the ‘issues arising in relation to the decision under review’. Those submissions were, in summary, that:
(a)The Tribunal’s obligation under s 360 of the Act goes ‘far beyond a mere requirement’ to notify the applicants of the dispositive issue which, it was accepted, was whether the applicant was a genuine temporary entrant. Such an interpretation would give s 360(1) of the Act no work to do as an applicant already knows what the dispositive issue is because they are, by default, aware of the delegate’s reasons (ARS [6]-[7]; SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 (“SZHKA”) at [7] per Gray J);
(b)The issues are ‘more particular’ than the dispositive issue. The Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case and thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision maker takes about the material before the Tribunal and will therefore be shaped by that person’s thought processes (ARS [7]; SZHKA at [7] per Gray J);
(c)The Tribunal’s error is that it did not put to the applicants the more ‘particular issues’ that (ARS [8]):
(i)the applicant had applied for the visa three days before the expiry of her husband’s visa;
(ii)the job offer for a position to commence in two years’ time.
(d)The Tribunal was required to put to the applicants its views about those particular issues so that the applicants could comment (ARS [7], [8], [13], [14], [15]; SZHKA at [7] per Gray J);
(e)Putting to the applicants those particular issues for comment did not involve requiring the Tribunal to engage in a running commentary with the applicants or expose its reasoning process but were particular issues the Tribunal was required to make known to the applicants (ARS [7], [15]; SZBEL at [38]-[39]).
Having regard to the applicants’ written and oral submissions, the Court has understood that in the end the applicants’ case with respect to s 360 of the Act was confined to an argument that the fact that the applicant had applied for the visa three days before the expiry of her husband’s visa and the job offer was for a position to commence in two years’ time were ‘issues’ arising in relation to the decision under review. The applicants do not appear to press the submission that a failure to disclose to the applicant how her responses to the s 359 of the Act request were taken into account was an issue arising in relation to the decision under review (AS [16]). Indeed, the submission does not identify what it is said arose from those responses was an issue arising in relation to the decision under review. Further, the applicants do not appear to press the submission that the evidence about assets in Nepal (AS [19]) was an issue arising in relation to the decision under review. In any event, the Tribunal accepted the applicant’s evidence as to the value of assets in Nepal (Decision [17]) and accepted it as evidence of financial ties to Nepal (Decision [21]).
The applicants also submitted that Tribunal did not comply with s 360 of the Act because:
(a)as the hearing lasted only 19 minutes this of itself did not afford the applicants a meaningful opportunity to present their arguments (AS [19]);
(b)there was a positive obligation on the Tribunal to offer to the applicants the opportunity to provide further information or comments after the hearing (AS [19]; oral submissions at transcript p-36 lines 39-45; p-37 lines 1 - 31).
It seems to the Court that the second of those submissions was really directed to

s 359A of the Act and not to s 360 of the Act. The Court has dealt with the submission on that basis.
The First Respondent’s submissions
In its written submissions filed before the hearing, the first respondent submitted that the Tribunal had complied with its obligations under s 360 of the Act because the applicant was ‘plainly alive’ to the issues arising on the review from the delegate’s decision, the

s 359 of the Act request, the hearing invitation and the Tribunal’s questioning at the hearing (FRS [23]). The first respondent otherwise submitted that the applicant was given the opportunity to give evidence which she did and declined the opportunity to add anything further at the hearing. The first responded concluded that it was for the applicant to provide her evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts (FRS [23]; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214).
The first respondent submitted that the fact that the hearing went for 19 minutes did not of itself amount to a failure to comply with s 360 of the Act (FRS [23]).
The first respondent’s written submissions did not otherwise engage with the applicants’ written submissions as to the Tribunal’s asserted failure to give the applicants the opportunity to give evidence and present arguments relating to the ‘issues’ arising in relation to the decision under review.
In oral submissions, the first respondent made submissions in response to the applicants’ oral submissions on s 360 of the Act and referred the Court to several authorities. The first respondent was ordered to file supplementary written submissions dealing with those authorities. Those submissions were filed after the hearing on 19 September 2024 (“FRSS”). In summary, having regard to both the oral and the supplementary written submissions, the first respondent’s additional submissions with respect to ‘issues arising in relation to the decision under review’ are:
(a)Pursuant to ss 360(2)(a) of the Act, the requirement to invite an applicant to a hearing invitation need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Being invited to a hearing meant that the applicant attended the hearing knowing that the Tribunal could not decide the review in her favour on the material before it. This was submitted to be the starting point for examining the context of the hearing (FRSS [6]). So, unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing the application will identify the issues that arise in relation to that decision (oral submissions transcript p-54 lines 34-47; SZBEL at [36]);
(b)This is not a case where there were new issues or different issues of which the applicant was not given notice. The issues are not as ‘granular’ as the applicants submit. The issue on review was the dispositive issue which was whether the applicant was a genuine temporary entrant by reference to the factors in Ministerial Direction No. 69. This was the same issue that was considered by the delegate (CB 58-65), and of which the applicant was informed on numerous occasions including, the Department’s request for further information (CB 28-32); the Tribunal’s s 359 request (CB 78-84); the Tribunal’s hearing invitation (CB 110-111); and, at the Tribunal hearing when the member said to the applicant – “you understand the issue is whether you are a genuine temporary entrant” (TT p-2; FRSS [8]); oral submissions transcript p-55 lines 32-46; p-56 lines 1-12);
(c)In determining what the ‘issues’ are, analogy with cases on s 425 of the Act as to the dispositive issue are unhelpful and can be distinguished on the basis of the fundamentally different issues arising in such matters (FRSS [8]);
(d)In a fair hearing before the Tribunal, it is for the applicant to advance whatever argument or evidence the applicant wishes to. The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an applicant for an elaboration which the applicant does not choose to embark on (FRSS [9]; oral submissions transcript p-58 lines 32-35; p-59; SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at [36]) per Graham J);
(e)The Tribunal is not required by s 360 of the Act to identify the significance of the questions it puts to the applicant or the ultimate matter or issue to which those questions go. That is an attempt to import into s 360 of the Act the requirements of s 359A of the Act (FRSS [10]; oral submissions transcript p-61-62; Minister for Immigration and Multicultural and Indigenous Affairs v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]) per Emmett, Weinberg and Lander JJ);
(f)The Tribunal is not required by s 360 of the Act to give the applicant a running commentary upon what it thinks about the evidence and to do so could run the risk of conveying an impression of prejudgment (FRSS [11]; SZBEL at [48]);
(g)Even if the ‘issues’ are as ‘granular’ as the applicant submits, the issue of the timing of the application for the visa (three days before the expiry of her husband’s visa) and the issue of there being no job offer on return to Nepal were raised as issues in the delegate’s decision (FRSS [12]; oral submissions transcript p 57 lines 1-3).
A review of the authorities
It is helpful to provide a review of what has been said in the authorities as to the Tribunal’s obligation to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review and to which the Court was referred by the parties.
Before doing so, something needs to be said about what seemed to be a disagreement between the parties as to what reliance can be placed on decisions involving s 425 of the Act which is the mirroring provision of s 360 of the Act in the context of a Part 5 review. The Court does not understand the first respondent to be submitting that the principles to be drawn from those cases are not relevant to s 360 of the Act. Indeed, the first respondent relies on those authorities in its submissions. However, the Court understands the point the first respondent is making is that fundamentally different issues arise in protection visa cases where questions of credibility and implausibility of detailed accounts of particular events arise such that it is not helpful to draw an analogy on the facts of those cases in identifying what an issue arising in relation to a decision under review is in a student visa case where the dispositive issue is whether the applicant meets the genuine temporary entrant criterion (FRSS [8]; oral submissions transcript p-77 lines 5-20). The Court agrees. What the issues are arising in relation to the decision under review is to be determined by reference to the principles outlined by the High Court in SZBEL but what the issues are in any given matter will depend on the particular matter which encompasses the differences arising in the context of different types of visas.
In SZBEL, the High Court in considering what is encompassed by ‘issues arising in relation to the decision under review’ in s 425 of the Act said:
(a)The issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language ‘issues arising in relation to the decision under review’ is more particular (at [34]);
(b)The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker but also to the fact that the Tribunal is to review the particular decision, for which the decision-maker will have given reasons (at [34]);
(c)The Tribunal is to identify the issues that arise in relation to the decision (at [35]);
(d)If the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’ (at [35]);
(e)The point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision (at [35]);
(f)Unless some additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant (at [35]);
(g)The invitation to an applicant to appear before the Tribunal is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, the review commences with the applicant knowing that the Tribunal is not persuaded by the material already before it to decide the review in the applicant’s favour. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to the decision (at [36]).
In SZBEL, the High Court recounted that the appellant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal member began the proceedings by telling him that on reading all of the material, she was not able to be satisfied that the appellant qualified for a protection visa. The Tribunal member then asked the appellant questions that elicited from him the same description of events as he had given in his statutory declaration in support of his application for a visa. At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three aspects of the account given in his statutory declaration. The Tribunal found his account to be implausible in those three aspects. In finding that the appellant was not aware of the issues arising in relation to the decision under review, the High Court said that the first the appellant knew of the suggestion that his account of events was implausible was when the Tribunal published its decision (at [3]). Only one of the three aspects of his account had not been accepted by the delegate and nothing in the delegate’s reasons for decision indicated that those other aspects of his account were in issue (at [43]). The Tribunal had not identified these aspects of his account as important issues and did not challenge what the appellant said or say anything to him that would have revealed to him that these were live issues (at [43]). Based on what the delegate had decided, the appellant would, and should, have understood that the central and determinative question on the review was the nature and extent of his Christian commitment (at [43]). The appellant on that basis had provided a statutory declaration to the Tribunal directed wholly to demonstrating his commitment to Christianity (at [14]) because the delegate had concluded that he was not satisfied that the appellant had a genuine commitment to Christianity (at [13]) and the Tribunal did not identify the other aspects of his account as important issues (at [43]).
The High Court in SZBEL went on to make three further general points. The third point is that discussed above with respect to Alphaone.
The first of those further general points was that the High Court said that there may be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to the applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. The proceedings are not adversarial, and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should not be accepted (at [47]).
The second of those further general points was that the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision (at [48]).
In Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 (“Applicant A125”), the applicant argued that the Refugee Review Tribunal (“the RRT”), in affirming the delegate’s decision not to grant him a protection visa, had failed to identify the significance of the questions that were asked of him regarding the timing of his leaving Nepal and that he could not reasonably have anticipated that matter to be a critical issue in the proceedings. The applicant therefore argued that the RRT had failed to comply with the requirements of s 425 of the Act by not allowing him to give evidence and present arguments regarding the date on which he had left his home. On appeal, the Full Court of the Federal Court said that, put simply, the applicant’s argument was that the RRT had failed to identify the significance of the questions it put to him regarding the timing of his leaving Nepal and that he could not reasonably have anticipated that matter to be a critical issue in the proceeding ([80]). In support of that argument, the applicant pointed to the fact that the delegate had not made any comment about the applicant’s statements, in his visa application, that he had continued to reside at his family home until a particular date. The applicant relied upon the passage in SZBEL (at [47]) in which the High Court said that where there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. The Full Court held that SZBEL does not require the Tribunal to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go (at [88] per Emmett, Weinberg and Lander JJ).
In SZHKA the applicants’ application for a protection visa had been rejected by the delegate and affirmed by the RRT. The matters were remitted back to the RRT on review. The member who heard the remittal did not hold a hearing and relied on the record of the earlier hearing before the RRT. The member affirmed the delegate’s decisions. The issue on appeal was whether s 425 of the Act required the particular member who heard the review to invite the applicants to attend a hearing. Gray J held that, in the terms of s 425 of the Act, a hearing was required because the only exceptions to the right to be invited to attend a hearing arise where the Tribunal can reach a decision favourable to the applicant without a hearing, the applicant consents to a decision without a hearing, or the applicant fails to respond to a written requires from the Tribunal for further information, or to an opportunity to comment in writing on information (at [4]). In reaching that conclusion, Gray J referred to the aspect of s 425 of the Act that the evidence and arguments an applicant is invited to give are to relate to the issues arising in relation to the decision under review and set out the points his Honour said emerged from what the High Court said in SZBEL at [33]-[40] as follows ([7]):
[7] … First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at [38]-[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.

The applicants rely on that passage from SZHKA in their submissions to submit that the level of particularity as to the issues arising required the Tribunal here to put to the applicant its concerns about why the applicant had applied for the visa three days before the expiry of her husband’s visa and to comment on the fact that the job offer was for a position to commence in two years’ time. In particular, the applicants highlight that part of the passage in which Gray J said that the Tribunal ‘will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case’ (ARS [7]). To the extent that that statement might be seen as inconsistent with what the Full Federal Court said in Applicant A125 (at [88]) to the effect that the Tribunal is not required to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go, the applicants submit that SZHKA prevails as it post-dates Applicant A125 (ARS [13]). The Court makes two observations about that. First what the High Court said in SZBEL at [47] was:
[47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Secondly, Applicant A125 was followed in a later decision of the Full Court of the Federal Court in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (at [92] per McKerracher, Griffiths and Rangiah JJ). The Full Court held that SZBEL makes clear that the Tribunal is not obliged to set out at the hearing its thought processes or preliminary reasons for comment by the applicant (at [93] per McKerracher, Griffiths and Rangiah JJ).
Any apparent inconsistency between SZHKA and Applicant 125 aside, the applicants submit that the ‘problem’ is not only the significance of what was put to the applicant but the ‘anterior problem’ that no question in relation to the timing of the application for the visa or the fact that the job offer was for a position to commence in two years’ time was put to the applicant (ARS [13]).
In ABV16 v Minister for Immigration and Border Protection [2017] FCA 184, the Tribunal conducted a hearing on the basis that the Chinese government had a policy by which there were barriers to the registration of children born out of wedlock. The applicant claimed to have been born out of wedlock. The Tribunal – fairly at the time of the hearing – invited no evidence or submissions on the status of that policy or its application to the applicant. After the hearing, the Tribunal came to know that the policy was no longer in force. On that basis, the Tribunal found against the applicant. Bromberg J, applying SZBEL and SZHKA said that the Tribunal was obliged by s 425(1) of the Act to give notice to the applicant that the status of the policy was now in issue, and to invite him to present evidence and make submissions at a hearing because the application of the policy of the Chinese government was an ‘issue’ giving rise to a prima facie obligation on the Tribunal to hear the applicant (at [31]; [33]). Bromberg J agreed with the reasoning in Applicant A125 that the asking of questions, framed generally, was sufficient to put a visa applicant on notice of the issue and discharge the obligation in s 425(1) of the Act. In contrast to Applicant A125, no questions were asked by the Tribunal about the ongoing applicability of the Chinese government policy as at the time of the hearing as it was not then in issue (at [31]; [51]).
The issues arising in relation to the decision under review in this matter
It is clear from SZBEL that the starting point for determining the issues arising in relation to the decision under review is the reasons given by the delegate (CB 58-65). As noted above, the hearing invitation (CB 109-111) stated that, in providing documents and preparing for the hearing, the applicants should have regard to the reasons for the decision made by the department as to why the applicants did not meet the criteria for the grant of the visa.
The delegate stated that they were not satisfied that cl 500.212 in Schedule 2 of the Regulations, known as the genuine temporary entrant criterion, was satisfied by reference to the factors set out in Ministerial Direction No. 69. The delegate’s reasons for decision summarised those factors.
The delegate stated that having considered the applicant’s circumstances, immigration and study history they had encountered unfavourable information, which did not support the application and that they had serious concerns about the applicant’s true intention in Australia. The delegate went on to say that having considered all the information available, they were not satisfied that the applicant intended to stay in Australia temporarily and there are concerns that she was using the Student Visa Programme as a means of maintaining ongoing residence. The delegate specifically stated, inter alia, the following in their reasons (italicised parts without alteration):
(a)As to the value of the applicant’s proposed course to her future, the delegate referred to the applicant’s (then) employment as a cleaner and noted that this employment was unrelated to the previous and proposed course of study. The delegate went on to say “Given her ongoing employment history in Australia, no future job offer to return to Nepal, further strengthens my assessment that the applicant’s desire to live in Australia is motivated by remuneration as a result of her employment has very little to do with studies. I am not satisfied that the course was selected to improve her educational outcomes or further her career.”
(b)The delegate then made a further comment related to the value of the applicant’s proposed course to her future saying “It is also noted that the applicant has no future job offers and she has not provided any evidence that this course is required in order to further her career” and followed that observation by stating that it is reasonable to infer that the applicant had only re-commenced studies and applied for a Student visa for the purpose of prolonging her stay in Australia rather than due to a genuine interest in study and overall academic process.
(c)The delegate said that, on balance, they were not satisfied the applicant was a genuine temporary entrant for a further stay as a full time Student. In that regard, the delegate said “Furthermore, I note that the applicant enrolled in her course and lodged this visa application three (3) days before her graduate Work Visa (VC-485) expired and did not commenced studying until after the expiration her VC485”.
It is clear from the delegate’s decision that the dispositive issue was whether the applicant satisfied the genuine temporary entrant criterion in clause 500.212 of Schedule 2 of the Regulations having regard to the factors set out in Ministerial Direction No. 69.
In the s 359 request, the Tribunal advised the applicant that it was a requirement of the visa that the main applicant be a genuine applicant for entry and stay as a student and said that in considering whether the applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No. 69 and attached a copy (CB 78-84). The RSVI Form, which the applicant completed, asked questions about the applicant’s visa history, enrolment and study in Australia, and employment plans at the completion of the proposed study and how the courses related to the applicant’s future plans and the remuneration the applicant could expect to receive in her home country, or a third country, using the qualifications she would gain from the proposed study (CB 93-106).
The hearing invitation (CB 109-111) invited the applicants to appear to “give evidence and present arguments relating to the issues in your case”. The invitation then asked the applicant to provide all documents she intended to rely on to establish that she meets the criteria for the visa and stated that the applicant should have regard to the reasons for the decision made by the department in providing documents and preparing for the hearing. The invitation hearing went on to state that the Tribunal “may assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached”.
At the commencement of hearing, the Tribunal the member asked the applicant if she had read the delegate’s decision to which she replied ‘yes’ (TT p.2). The member then said to the applicant “You understand the issue is whether you are a genuine temporary entrant?” to which the applicant responded “Yes” (TT p.2).
As the High Court said in SZBEL ([35]), unless some additional issues are identified by the Tribunal, it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant and that unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to the decision ([36]).
The applicant was in no doubt that the issue on review was whether she satisfied the genuine temporary entrant criterion in clause 500.212 of Schedule 2 of the Regulations which would be assessed by reference to the factors set out in Ministerial Direction No. 69. The delegate’s reasons for decision set out why the delegate was not satisfied that the applicant met that criterion by reference to those factors. Accordingly, the applicant came to the hearing knowing that she would need to persuade the Tribunal as to why she satisfied the criterion on the information before the Tribunal and thereby persuade it to set aside the delegate’s decision.
This is not a case, unlike SZBEL, in which the Tribunal proceeded to determine the review on issues which had been accepted in the applicant’s favour by the delegate and which the applicant could therefore have assumed – unless told otherwise by the Tribunal – were not a live issue before the Tribunal. In that circumstance, the Tribunal was required to identify to the applicant the issues in his account of events which the delegate had accepted but which the Tribunal might not accept on the information before it.
The delegate’s reasons for decision here identified the factors in Ministerial Direction No. 69 which led the delegate to not being satisfied that the applicant was a genuine temporary entrant. The delegate was not satisfied as to the value of the applicant’s proposed course to her future career plans and expressly referred to the absence of any job offer on return to Nepal. The delegate also referred to the timing of the applicant’s visa application (three days before the expiry of the Graduate Work Visa) as a reason why they were not satisfied that the applicant was a genuine temporary entrant for a further stay as a full-time student. As already noted, both the s 359 request and the hearing invitation referred the applicant to the delegate’s reasons. So, the applicant knew that the timing of her visa application and her future career plans were matters which the delegate had considered in determining the dispositive issue, that is, whether the applicant was a genuine temporary entrant. Indeed, so far as the applicant’s future career plans were concerned, prior to the hearing the applicant’s migration agent provided to the Tribunal a copy of a letter from a hospital in Nepal offering her employment as an assistant manager which employment was to commence in two years’ time (CB 122).
The applicants argue that the issue arising in relation to the decision under review requires more than identifying the dispositive issue as to whether the applicant meets the genuine temporary entrant criterion by reference to the factors in Ministerial Direction No. 69 as this is something the applicant already knows because she is aware of the delegate’s reasons. That only serves to underline what the High Court said in SZBEL. The starting point is the delegate’s reasons. The Tribunal was not required to identify issues beyond those in the delegate’s reasons unless the Tribunal intended to decide the matter having regard to other issues not identified in the delegate’s reasons because, for example, the issues have undergone change (as they might) during the course of the Tribunal’s conduct of the review. The applicants did not point to how the review underwent change so as to require the Tribunal to identify issues that did not arise in the delegate’s reasons. That is because there were no new issues.
The applicants submit that the particular issue of the timing of the visa application was not put to the Applicant by the Tribunal and was not ‘obvious’ on the materials before the Tribunal (ARS [8]). The applicants also submit that the fact that the s 359 request was silent on any issues arising ‘from those three days’ make it even less obvious that it was an issue arising in the review (ARS [8]). This submission ignores that the delegate’s reasons, as noted above, specifically raised the timing of the visa application. It was not a new issue in determining whether the applicant met the genuine temporary entrant criterion.
As to the timing of the visa application, the exchange at the hearing was as follows (TT p. 6-7):
Member: Has your husband’s 485 visa … Sorry, I will start again. What visa did your husband have?
Applicant: 485.
Member: When did it expire?
Applicant: It’s like 23^rd of September, 2017.
Member: Three days before you applied for the student visa, correct?
Applicant: Yes.
The Tribunal did not ask the applicant any further questions about the timing of her visa application. Instead, the Tribunal proceeded to ask the applicant about her husband’s work, remuneration and study in Australia. The applicants’ argument is that at this point in the hearing what the Tribunal was required to do – in order to discharge its obligations under

s 360 of the Act – was put to the applicant questions in respect of the timing of her visa application so that she could proffer an explanation for that timing or persuade the Tribunal that nothing turned on that timing relevant to the genuine temporary entrant criterion (AFS [8]; [13]). The Court disagrees. The Tribunal’s proceedings are not adversarial but inquisitorial. The Tribunal is not to take on the role of cross examiner nor is it obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at [36] per Graham J and the cases cited there).
As to the relevance of the proposed course to the applicant’s career plans, the exchange at the hearing was as follows (TT p 4-5):
Member: What is your intention when you return to Nepal?
Applicant: My intention is to be like a manager in the health sector, like a CEO.
The Tribunal did not ask the applicant about the offer of a job as assistant manager at a hospital in Nepal commencing in two years’ time. As noted, the Tribunal made some observations about the job offer in its reasons. Referring to the letters of offer to the applicant and her husband, the Tribunal stated that “curiously these documents were not adverted to by either applicant in the hearing” (Decision [19]). The Tribunal observed that it was “unusual that an employer would offer full time employment which commences in two years” (Decision [19]). The Tribunal said it gave little weight to the letters (Decision [19]). The Tribunal otherwise said as to the value of the course to the applicant’s future, including remuneration and career prospects in Nepal, that the applicant was quite vague in her evidence in that regard and that the proposed course was asserted to have relevance to very vague future plans. The Tribunal said that it gave very little weight to that evidence (Decision [23]-[24]).
The applicants’ submission is that it was not until the Tribunal published its reasons that they knew that the Tribunal considered the job offers were not genuine (ARS [14]). The Tribunal did not make a finding that the job offers were not genuine. It gave them little weight.
The issue of future employment was a matter that the delegate considered in their reasons. As already noted, the delegate referred to the fact that the applicant had no future job offers and had not provided any evidence that the proposed course is required in order to further her career. The delegate followed that observation by stating that it is reasonable to infer that the applicant had only re-commenced studies and applied for a visa for the purpose of prolonging her stay in Australia rather than due to a genuine interest in study and overall academic process. The applicants submit that this is beside the point because it says nothing of the ‘more particular’ issue arising in the review which was whether the offer’s timing made it implausibly genuine (ARS [15]). The applicants say that it was implicit in the delegate’s decision that it was the existence of a job offer that was important (ARS [15]).
The applicant knew that future employment was a ‘live issue’ and that it was relevant to the factor about the relevance of the course to the applicant’s future. That is clear from the fact that, prior to the hearing, the applicant provided to the Tribunal the letters of offer of future employment in Nepal. The applicant’s argument is that what the Tribunal was required to do – in order to discharge its obligations under s 360 – was invite comment from the applicant on the timing of the job offer (AFS [14]-[15]).
The Court agrees with the first respondent’s submission that s 360 of the Act does not require that degree of granularity or particularity. The delegate’s reasons disclose that future career prospects in Nepal and the relationship between the proposed course of study and future career plans was considered in determining whether the applicant met the genuine temporary entrant criterion.
In conclusion, this is not a case (unlike SZBEL) in which there were specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt requiring the Tribunal to ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Brevity of hearing
The applicants also submitted that as the hearing lasted for only 19 minutes this of itself meant that they were not afforded a meaningful opportunity to give evidence and present arguments arsing in relation to the decision under review.
It is not in dispute that the hearing was only 19 minutes long. This is evidenced by the Tribunal’s hearing record (CB 125-127). The hearing record shows that the ‘slot’ allocated to the matter was two hours.

There is no minimum statutory time limit for hearings before the Tribunal and brevity alone is not indicative of a denial of procedural fairness (Pabbi & Anor v Minister for Home Affairs & Anor [2019] FCCA 1750 at [54] per Kendall J).
Whilst a hearing that lasts only 19 minutes might seem unusually brief, whether the applicants were denied procedural fairness because of the brevity of the hearing depends upon whether, having regard to how the hearing was conducted, it can be said that the applicants were not provided with a real and meaningful opportunity to provide evidence and present arguments. What can be gleaned from the transcription of the Tribunal hearing is that:
(a)The member commenced the hearing by telling the applicant that if she did not understand a question she must say so immediately (TT p. 2);
(b)The member then confirmed with the applicant that she had applied to the tribunal for review of a decision refusing her application for a student visa to which the applicant responded ‘yes’ (TT p. 2);
(c)The member then told the applicant that the tribunal “will have a fresh look at your application, but must apply the same law” and asked the applicant if she followed this to which the applicant responded ‘yes’ (TT p. 2);
(d)The member asked the applicant if she had read the delegate’s decision and understood that the issue was whether she is a genuine temporary entrant to which the applicant responded ‘yes ’ (TT p.2);
(e)The member then asked the applicant a number of questions to which the applicant gave answers (TT p. 2- 9);
(f)The member then said to the applicant “I have no more questions, Ms Pan (sic). Is there anything further you would like to say?” to which the applicant replied “No, thank you” (TT p. 9).
The applicants were assisted at the hearing by their migration agent.
The transcription indicates that the applicant understood the process, understood that the dispositive issue was whether she met the genuine temporary entrant criterion and did not appear to have any difficulty understanding the questions being asked and in giving her answers. The transcription does not indicate that the member cut off the applicant whilst she was trying to give her answers or otherwise prevent her from speaking.
In those circumstances, the Court is not satisfied that the brevity of the hearing was such that the applicant was not provided with a meaningful and real opportunity to give her evidence and present arguments.
Apprehended bias
The applicants also submit that “the fact the hearing was so brief in itself is sufficient to draw an apprehension that the Member was biased and had made his decision with respect to the outcome of the application prior to seeking Ms Pandey’s input on factors relied upon in the Member’s decision to affirm the Department’s decision” (AS [15]). No authorities were cited in support of this submission. During oral submissions, the applicants’ solicitor referred the Court to the High Court’s decision in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (“Jia Legeng”). That decision was concerned with actual bias.
In oral submissions, the applicants’ solicitor submitted that as well as the brevity of the hearing it was the brevity of the questioning and the fact that the member would ask a question, obtain an answer and then move on that demonstrated apprehended bias (Transcript p 28 lines 20-47; p 29 lines 9-14; p 30 lines 41-45).
An allegation of bias is one that must be distinctly made and clearly proven. As was recently said in this Court (Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 60 at [61] per Kendall J), an applicant must establish that:
(a)The Tribunal, in the case of actual bias was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented (Jia Legeng at [71]-[72]); or
(b)The Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case (SZRUI v Minister forImmigration Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32]).
The Court is satisfied that there is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The applicants were given an opportunity to provide additional information before the hearing which they did. They attended a hearing at which they were asked and responded to questions put to them by the Tribunal. As already noted, there was nothing in the transcription that indicates that the member did not allow the applicants to respond to questions or otherwise present their arguments. The Tribunal’s decision demonstrates that it assessed the material before it including the applicants’ responses to the questions at the hearing. There was nothing in that process or the way in which it was conducted that would support a finding of apprehended bias.
In conclusion, the Court finds that the Tribunal complied with its obligations under

s 360 of the Act. No jurisdictional error is established on this ground of review.
Section 359A
Section 359A of the Act provides:
Information and invitation given by ART
(1)Subject to subsection (2), the ART must:
(a)give to the applicant, in the way that the ART considers appropriate in the circumstances, clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on it.
(2)If the information or invitation is given to the applicant in writing, the information and invitation must be given:
(a)except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non - disclosable information; or
(d)that was included, or referred to, in the written statement of the decision that is under review; or
(e)that is prescribed by regulation for the purposes of this paragraph.
(4A) The ART is not required to give particulars of information mentioned in subsection (4) to the applicant before making a decision on the application under section 105 of the ART Act or section 349 of this Act.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 368C(6).
The applicants’ written submissions set out the text of s 424A (which mirrors s 359A) of the Act and refer to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (AS [28]). However, in the numerous paragraphs in those submissions in which the applicants submitted that the Tribunal had failed to follow “mandatory procedures”, the applicants did not identify the ‘information’ it was said the Tribunal was required to give clear particulars of pursuant to the obligation in s 359A. At the hearing, the Court asked the applicant’s solicitor to assist it by identifying the information particulars of which it was said the Tribunal had to provide to the applicants. The applicant’s solicitor was unable to do so and told the Court that the applicants were not pressing s 359A of the Act as a ground of review (Transcript p-23 lines 1-4; line 45).
The hearing proceeded on that basis.
The applicants now seek to reinstate s 359A of the Act as a ground of review given the arguments that were made in support of the relevance of the transcription to a fact in issue being the timing of the applicant’s visa application (AFS [11]-[14]). In support of being granted leave to reinstate reliance on s 359A of the Act the applicants say that leave should be granted in the interests of justice (AFS [16]). First, they say that s 359A of the Act is not being relied upon for the first time as it was a ground of review in both the originating and amended application such that no prejudice to the first respondent is apparent. Secondly, that the Court has already had the benefit of arguments on s 359A of the Act to ‘a significant extent’. Thirdly, the abandonment of reliance on s 359A of Act was made ‘on the spot’.
The Court disagrees that there is no prejudice to the Minister. The applicants’ written submissions did not articulate the information that it was said the Tribunal was required to give particulars of pursuant to s 359A of the Act. The Court asked the applicants’ solicitor in the hearing for this to be articulated but the applicants’ solicitor was unable to do so and at that point abandoned reliance upon s 359A of the Act. It is therefore not true to say that the Court had the benefit of arguments on s 359A of the Act to a ‘significant extent’ nor that abandonment of reliance was made ‘on the spot’. The applicants have articulated their argument on

s 359A of Act for the first time in their further submissions in dealing with the relevance of the transcription (AFS [13]-[14]) and in their submissions in reply filed after the hearing on 6 October 2024 (ARS [16]-[20]). The first respondent has not had the benefit of replying to applicants’ submissions in reply but has been put in the position of having to make submissions based upon what the applicants addressed in their further submissions dealing with the relevance of the transcription.
Nevertheless, the Court has on balance decided to give leave to the applicants to reinstate their reliance on s 359A of the Act as a ground of review. The ground was pleaded in the original and amended application and the first respondent had the opportunity to make submissions on

s 359A of the Act in its supplementary submissions albeit not an opportunity to respond to the applicants’ reply submissions.
The Applicants’ submissions
The Court understands the applicants’ submissions on s 359A of the Act to be as follows:
(1)The “information” for the purposes of s 359A of the Act is the Tribunal’s conclusion drawn or taken from the materials (AFS [13]; ARS [17]);
(2)Those conclusions were the conclusions the Tribunal drew from those materials as to:
(a)the temporal proximity between the expiry of the previous visa and the date of lodgement of the student visa application (AFS [13]; ARS [17]); and
(b)the job offer being for employment in two years’ time (ARS [17] referring to the ‘Timing issues’ which was defined in ARS [4] to include the timing of the job offer).
(3)The exception in s 359A(4)(b) of the Act does not apply as the conclusion drawn or taken from the materials, instead of the materials themselves, was not given by the applicants for the purpose of the application for review (AFS [13]);
(4)The “information” was a step towards affirming the decision under review which suffices to distinguish this matter from SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 “SZBYR” (a case relied upon by the first respondent) and, in any event, the conclusion drawn from the materials did contain a rejection, denial or undermining of the applicants’ claims (AFS [13]).
The First Respondent’s submissions
The Court understands the first respondent’s submissions to be as follows:
(a)The date on which the applicant applied for the visa and the letter about future employment were not ‘information’ for the purposes of s 359A of the Act because information must contain ‘in its terms a rejection, denial or undermining of the applicant’s claims’ and the timing of the visa application and letter of offer do not do that. The date upon which the applicant applied for the visa is merely a date. The same can be said of the letter offering employment which, if anything, supported the applicant’s claims (FRS [24]; FRSS [18]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ);
(b)The Tribunal’s finding that the applicant was not a genuine temporary entrant was as a result of the Tribunal’s synthesis of the evidence before it (FRSS [19]; Almomani v Minister for Immigration and Border Protection [2020] FCA 264 at [7] per Kenny J; Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1020 at [68] and [71] per C.E. Kirton KC J);
(c)If the fact that the applicant had only lodged her student visa application three days before the expiry of her previous visa was ‘information’ for the purposes of s 359A (which is not conceded) it was information that the applicant gave for the purpose of the review as it was contained in the delegate’s decision which the applicant attached to her application for review (FRSS [16]; Tumil-Ang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1824 at [13]-[14] per Jackson J). The same analysis applies to the letter offering employment which the applicant gave to the Tribunal before the hearing (FRSS [16]).
The first respondent’s supplementary submissions do not engage with the applicants’ argument – as the Court understands it – that it is the Tribunal’s conclusion drawn from the material before the Tribunal that is the information for the purposes of s 359A of the Act.
The requirement in s 359A in the present matter
In the present matter, the Tribunal referred to two factual matters which formed part of the Tribunal’s reasoning as to why (amongst other matters) it was not satisfied that the applicant met the genuine temporary entrant criterion. The first was the fact that the applicant had applied for the visa three days prior to the expiry of her husband’s visa. The second was that the letter offering the applicant employment in Nepal was for a position to commence in two years’ time. The relevant passages of the Tribunal’s decision dealing with each of those factual matters are as follows:
a.   On 18 December 2019 the applicants provided evidence of future employment in Nepal in respect of each of them. Curiously these documents were not adverted to by either applicant in the hearing. Nonetheless the first was an offer of employment for the primary applicant from a hospital in Nepal as an "Assistant Manager starting on 9 February 2021 with a salary of 60,000 Nepalese dollars. This document is dated 12 December 2019. The second is in respect of the secondary applicant and is dated 5 November 2019. It is an offer of employment from an information technology firm in Nepal starting on 22 February 2021. It is unusual that an employer would offer full time employment which commences in two years. These letters are given little weight. (Decision [19]);
b.   The Tribunal does not place weight on the value of the course to the applicant's future, including remuneration and career prospects in the applicant's home country. She is quite vague in her evidence in that regard. The Tribunal gives her evidence little weight. Further, as stated above, the curious offers of employment in two years' time are also given little weight (Decision [23]);
c.   “After residing in Australia for over 12 months the applicant decided to apply for a student visa which application was made three days before the expiry of her husband’s Subclass 485A visa. This strongly suggests that the applicant is using the student visa system to prolong her stay in Australia without any genuine intention of being a temporary entrant. The proposed study would extend the applicant's stay until at least October 2020. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend her stay in Australia by utilising the student visa programme.” (Decision [22]);
d.   On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia it is noted that the applicant applied for a student visa having resided in Australia for in excess of one year as a dependant of her husband. The applicant lodged her application for a student visa three days prior to expiry of her husband's visa. Her husband had been residing and studying in Australia and completed a Bachelor of Information Technology in August 2014. Thereafter he had lived and worked in Australia pursuant to a Subclass 485 visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. (Decision [31]).
There are number of well-established principles concerning s 359A of the Act (and its mirroring provision s 425A) as to what information the Tribunal is required to give clear particulars of to a review applicant which are helpfully set out in Almomani v Minister for Immigration and Border Protection [2020] FCA 264 (at [38]-[42] per Kenny J):
(a)The particulars that must be provided are particulars of ‘information’. The obligation to give particulars does not extend to particulars of ‘subjective appraisals, thought processes or determination’ or the ‘existence of doubts, inconsistencies or the absence of evidence’ (VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 436 FCR 549 (“VAF”) at [24] and SZBYR at [18]);
(b)The information must be information that ‘would be the reason, or part of the reason, for affirming the decision that is under review’ (SZBYR at [17]). This requirement is directed not to the prospective reasoning process of the Tribunal, or the Tribunal’s published reasons, but rather to the criteria found in the Act or the Regulations for the making of the decision (SZBYR at [17]). The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of the section is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case (SZBYR at [17]; Plaintiff M174/2016 v Minister for Immigration and Border (2018) 264 CLR 217 at [9]);
(c)Further, the information in question should ‘in its terms’ contain a ‘rejection, denial or undermining’ of the review applicant’s claim. That is to say, the information must be in its terms of such significance as to lead the decision maker to consider in advance of reasoning on the facts of the case that the information of itself ‘would’ as distinct from ‘might’, be the reason or part of the reason for refusing to grant the visa (Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [9]).
The first respondent’s submission is that the timing of the visa application and the offer of future employment are “not in its terms” information that contains a rejection, denial or undermining of the applicant’s claims and so are not information for the purposes of s 359A (FRSS [18]; SZBYR at [17]). The Court agrees. The information is neutral. In fact, the letter offering the applicant employment is arguably supportive of the applicant’s claim that the proposed course is of value to her future (FRSS [18]). In saying that the Court is, of course, not suggesting that the Tribunal should have come to that conclusion. The Court is not engaging in merits review. The point is made to draw attention to the nature of the information to which s 359A of the Act is directed.

The applicant’s submission is that ‘information’ includes the conclusions drawn or taken from the materials before the Tribunal (AFS [17]). So, the submission is that s 359A of the Act required the Tribunal to provide particulars of those conclusions to the applicant (ARS [17] – [18]). The Court does not agree. The Tribunal’s views are not ‘information’ for the purposes of s 359A. The information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and not its subjective appraisal or thought processes. If the Tribunal’s thought processes are as they are because of the perceived importance of the some piece of information or knowledge that has come to or be gained by the Tribunal, those thought processes may reveal the relevance of the information for the purposes of determining that the information would be a reason or part of the reason for affirming the decision (Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [95] per Allsop J cited with approval in VAF at [27]). However, that does not mean that the information that has come to be gained by the Tribunal is information for the purposes of

s 359A of the Act if that information does not ‘in its terms’ contain a ‘rejection, denial or undermining’ of the applicant’s claim.
The Court understands that the applicants do not submit that the fact that the applicant applied for the visa three days before the expiry of her husband’s visa and the job offer were information for the purposes of s 359A of the Act. If that were the submission, and those facts were information for the purposes of s 359A(1) of the Act – because in its terms it involves a rejection, denial or undermining of the applicant’s claim – the information would fall within the exception in s 359A(4)(b) of the Act as information provided by the applicant for the purposes of the review. The delegate’s reasons were attached to the application for review (CB 67). The letter of offer was provided to the Tribunal by the applicant prior to the hearing (CB 120-123).
No jurisdictional error is established as there was no failure by the Tribunal to comply with s 359A of the Act.
Section 359AA
In oral submissions in reply, the applicants’ solicitor referred the Court to s 359AA of the Act. Section 359AA was not identified in ground eight of the amended application as a ground of review nor addressed in the written submissions filed before the hearing. The applicants’ solicitor did not develop a submission on s 359AA of the Act at the hearing and it is not dealt with in the written submissions filed after the hearing.
Sections 359A and 359AA of the Act are complementary provisions (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46). The Tribunal is not obliged to comply with s 359A of the Act if the Tribunal gives clear particulars of the information to the applicant and invites the applicant to comment on or respond to the information under s 359AA of the Act, that is, orally at a hearing (s 359A(3)). Section 359A of the Act provides that the Tribunal may orally give to the applicant particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. In the event that the Tribunal does so, s 359AA of the Act sets out what the Tribunal must do to give the applicant the opportunity to comment or respond.
Having decided that the Tribunal was not obliged to comply with s 359A of the Act for the reasons stated above, there can be no breach of s 359AA of the Act. No jurisdictional error is established on this ground.
Section 368
In oral submissions, the applicants’ solicitor referred the Court to s 368 of the Act. This was not pleaded as a ground of review in the amended application or raised in the written submissions filed before the hearing.
The applicants’ solicitor submitted that in its written decision the Tribunal failed to set out the findings on material questions of fact and stated that the written submissions set out ‘how that occurs’. The written submissions do not identify what material facts were not set out in the reasons for decision or otherwise how the Tribunal did not set out its findings in relation to those facts. The Court has not been able to discern any deficiency in the Tribunal’s decision with respect to the requirements of s 368 of the Act.
No jurisdictional error is established on this ground.
Grounds Two and Six (in part): Failure to take into account material questions of fact or integers of the claim and ignoring relevant materials submitted in support of their application for merits review
Grounds two and the first part of ground six are related in contending a failure on the part of the Tribunal to take facts and materials into account.
The amended application does not provide any particulars of the material questions of fact or identify the integers of the claim or, indeed, what ‘claim’ is being referred to. Neither have the applicants particularised the relevant materials it is said that the Tribunal ignored.
The applicants submitted that the Tribunal failed to take into account the applicant’s written responses of 22 October 2019 or disclose how those matters were taken into account (AS [16]). The applicants did not identify in those written submissions or in oral submissions what part of the applicant’s written responses were not taken into account by the Tribunal. The Tribunal said in its reasons that it had taken the applicant’s responses into consideration (Decision [15]; [31]). The Tribunal’s reasons for decision do not refer to every fact which the applicant provided in her response to the Tribunal’s request for information. It is not necessary for it to do so nor is it required to provide reasons that might be expected of a Court (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184).
The applicants further submitted that the Tribunal did not take into account completion by the applicant of studies in Australia, the assets of the first applicant’s family in Nepal, and the job opportunities in Nepal (AS [17]). A fair reading of the Tribunal’s reasons for decision is that each of these matters was considered by the Tribunal (Decision [13]; [17]; [19]; [21]; [23]; [28]).
The applicants further submitted that the Tribunal did not take into account a number of factors that were in the applicant’s favour: the applicant’s compliance with conditions attached to previous visas; the support she receives from her parents; her present employment as carer; her prospects of employment in Nepal beyond the letter of offer; her close relationship with her family, relatives and friends in Nepal; the information about her parents’ property ownership; her academic transcripts; successful completion of relevant studies; and that she is unable to secure a job without further qualifications (AS [23]). The Tribunal’s reasons for Decision demonstrate that it took each of these matters into account:
(a)The support the applicant receives from her parents (Decision [21]);
(b)The applicant’s present employment as carer (Decision [14]);
(c)The applicant’s prospects of employment in Nepal beyond the letter of offer (Decision [13]);
(d)The applicant’s close relationship with her family, relatives and friends in Nepal (Decision [21]);
(e)The information about the applicant’s parents’ property ownership (Decision [17]);
(f)The applicant’s academic transcripts and successful completion of relevant studies (Decision [13]).
The Tribunal’s reasons do not refer to the fact that the applicant was unable to secure a job without further qualifications. The applicants’ submissions do not identify where the applicant’s response to the Tribunal says this. Nevertheless, the Tribunal did refer to the applicant’s employment prospects and the value of the proposed course to her future (Decision [23]; [25]; [29]).
The Tribunal’s reasons do not expressly refer to the applicant’s compliance with the conditions attached to her previous visa. However, that it was on balance not satisfied that the applicant was a genuine temporary entrant, the Tribunal referred to the applicant’s ‘immigration history’. That the Tribunal did not expressly refer to the applicant’s compliance with the conditions attached to her previous visa does not demonstrate jurisdictional error on the part of the Tribunal.
In conclusion, the Court considers that a reading of the Tribunal’s reasons for decision does not reveal any failure by the Tribunal to take into account material questions of fact or that it ignored relevant materials.
No jurisdictional error is established on either of these grounds.
Ground 3: Identifying a wrong issue
This ground was not particularised in the amended application and was not addressed in the written submissions.
At the hearing, the Court asked the applicants’ solicitor to identify the wrong issue it was said that the Tribunal had identified in making its decision. The applicants’ solicitor submitted that the wrong issues were the timing of the applicant’s application for the visa, that is, three days prior to the expiry of the second applicant’s visa and that the job offers were for employment two years hence because they were irrelevant to the factors in Ministerial Direction No. 69 (Transcript p-52 lines 14- 31).
The issue for the Tribunal was whether the applicant was a genuine temporary entrant having regard to the factors set out in clause 500.12 in Schedule 2 of the Regulations and Ministerial Direction No. 69. The Tribunal correctly identified that issue in its reasons for decision (Decision [8]-[9]).
The matters that the applicants identify as wrong issues are more properly put as a submission that the timing of the visa application and the fact that the job offer was for employment in two years time, were considerations irrelevant to determining whether the applicant was a genuine temporary entrant. The Court disagrees. Having regard to the factors in Ministerial Direction No. 69, the timing of the visa application was relevant to considering whether the applicant was using the student visa to maintain ongoing residence and the offer of prospective employment was relevant to considering whether the course would assist the applicant to obtain employment. As to the offer of employment, this was evidence that the applicant provided to the Tribunal to demonstrate her intention of returning to Nepal after the completion of the proposed course of study. It seems that the applicant’s complaint is really one of the way in which the Tribunal considered the job offer. That does not reveal a basis for judicial review but invites the Court to engage in merits review.
No jurisdictional error is made out on ground three.
Ground four: not adequately disclosing determining factors so that the applicant could make representations regarding them
This ground of review is not particularised in the amended application.
It appears to traverse the same territory as ground one and eight. Accordingly, the Court has not dealt with it as a separate ground of review.
Ground five and ground six (in part): not giving the applicants a reasonable opportunity to present their case and not giving the applicants opportunity to make their case regarding these documents
Ground five traverses the same territory as ground eight with respect to the submissions made about s 360 of the Act. Accordingly, the Court has not dealt with it as a separate ground of review.
So far as the second half of ground six contends that the applicants were not given the opportunity to make their case regarding ‘these documents’, the amended application does not identify what documents in respect of which it is said the applicants were not given the opportunity to put their case. Accordingly, the Court is unable to deal with this ground of review. In any event, so far as the ground is about whether the applicants had a meaningful opportunity to put their case, this has been dealt with in the reasons with respect grounds one and eight and in particular s 360 of the Act.
Ground 7: particulars of jurisdictional error
In ground seven, the applicants set out what is described as ‘a non-exhaustive list of issues that could each result in jurisdictional error’. There are five particulars given:
Incorrectly considering the Second Applicant's previous study and current earnings in Australia
At paragraph [16] of its reasons for decision, the Tribunal set out the applicant’s evidence as to her husband’s current employment as a cleaner, his earnings from that employment and that he had obtained a Bachelor of Information Technology from an Australian education institution in August 2014. The applicants do not identify how they say the Tribunal ‘incorrectly’ considered those matters. If the submission is that the matters were irrelevant, the Court does not agree. They were matters relevant to the Tribunal’s assessment of whether the applicant was using the student visa process to maintain ongoing residence in Australia.
Placing too much weight on which [sic] the visa application was made, without considering or inviting the applicant to provide further evidence of an earlier intention to study
The Tribunal did consider the applicant’s earlier intention to study (Decision [13]).
Otherwise, the ground of review goes to the weight that the Tribunal gave to matters and how it weighed one matter against another. This invites the Court to engage in impermissible merits review.
Placing too much weight on the First Applicant's change of course from nursing to management
This is an invitation to the Court to engage in impermissible merits review.
Failing to properly consider the First Applicant's ownership of an asset in their home country
The Tribunal did consider the applicant’s ownership of assets in Nepal (Decision [16]) and noted that the applicant had, inter alia, given evidence of financial ties to her home country (Decision [21]). The Tribunal concluded that considering the applicant’s circumstances in her home country, she was able to demonstrate ties to act as an incentive to return at the completion of the proposed study. The Tribunal said that, however, given the time the applicant has spent in Australia and the intended period of further stay in Australia, it was not satisfied that there is a significant incentive for the applicant to return to Nepal (Decision [21]). A complaint that the Tribunal did not ‘properly’ consider the applicant’s ownership of assets in Nepal is an invitation for the Court to engage in impermissible merits review.
Failing to properly consider offer letters of employment for the First and Second Applicant
The Tribunal did consider the letters offering the applicants employment in Nepal (Decision [19];[23]). A complaint that the Tribunal did not ‘properly’ consider the letters offering employment is an invitation for the Court to engage in impermissible merits review.
No jurisdictional error is established on any of the limbs of ground seven.
Additional grounds of review not pleaded in the amended application
In their written submissions (filed on 6 June 2024), the applicants raised grounds of review that were not pleaded in the amended application, and which have not been addressed in the reasons above.
Irrelevant consideration: applicant’s full-time work
In their written submissions the applicants submit that the Tribunal relied on irrelevant material (AS [13] and [33]) and at AS [14] submit that the Tribunal’s reliance on the applicant’s full-time work was irrelevant. In oral submissions, the applicants’ solicitor said it was not probative as to whether the applicant was likely to return home because the applicant had work rights under the existing visa (Transcript p-26, lines 1-47; p-27, lines 1-25).
The Tribunal stated in its reasons for decision that the applicant told the Tribunal that her husband was the holder of a temporary graduate visa and working ‘full-time’ (Decision [12]). That seems to be a reference to the applicant’s husband working full-time given the following exchange at the hearing (TT p. 3-4):
Member: What was your purpose in travelling to Australia?
Applicant: My husband was here, so I had to come here.
Member: And what was he doing here?
Applicant: He was in the Temporary Graduation Visa, working full-time
Member: And what was he doing?
Applicant: He was working …
Member: Can you tell me what he was doing?
Applicant: He was working, like a full-time, and so I just had to support him emotionally as well, so I came here.
Accordingly, the Court finds that the Tribunal was referring to the applicant’s evidence that her husband was working full-time. The Tribunal did consider the applicant’s employment in an aged care centre and her earnings in that employment (Decision [14]). That was relevant to the Tribunal’s consideration of the factors in Ministerial Direction No. 69 as to the applicant’s circumstances.
No jurisdictional error is established on this ground.
Unreasonableness
In written submissions (AS [13]), the applicants submit that “from the paragraphs extracted above, it is apparent that the Tribunal … made an irrational and unreasonable decision”. This is a reference to extracts from each of paragraphs 12, 13, 15, 16,7, 19, 21, 26, 31 and 33 of the Tribunal’s decision. No submission is made as to how those parts of the Tribunal’s decision either separately or together demonstrate that the Tribunal’s decision was irrational and unreasonable. No oral submission was made in support of this ground of review. The Court has proceeded on the basis that this ground is not pressed.
In any event, the Court agrees with the first respondent’s submission (FRS [38]) that the decision of the Tribunal was not legally unreasonable. The decision is not one which no rational or logical decision maker could have arrived at on the material before it.
No jurisdictional error is established on this ground.
CONCLUSION
For the reasons given no jurisdictional error is established.
The application is dismissed.

I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.
Associate:
Dated: 29 November 2024

File number(s):	SYG 174 of 2020
Judgment of:	JUDGE COULTHARD
Date of judgment:	29 November 2024
Catchwords:	MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – judicial review – procedural fairness – whether the Tribunal had provided the applicant an opportunity to give evidence & present argument relating to the issues arising in relation to the decision under review under s360 of the Migration Act 1958 (Cth) (“the Act”) – whether the Tribunal had a statutory obligation under s 359AA or s 359A of the Act to give the applicant notice – whether the Tribunal complied with obligation to give reasons under s 368 of the Act – apprehended bias – whether the Tribunal identified a wrong issue – whether the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – unreasonableness – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 359A, 359AA, 360, 368 Migration Regulations 1994 (Cth) sch 2, cl 500.212 Ministerial Direction No 69
Cases cited:	ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 Almomani v Minister for Immigration and Border Protection [2020] FCA 264 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 60 Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 CQG15 v Minister for Immigration and Border Protection [2016] 253 FCR 496 at Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1020 Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] 163 FCR 285 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] 151 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 Pabbi & Anor v Minister for Home Affairs & Anor [2019] FCCA 1750 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 42 SZBEL v Minister for Immigration and Multicultural Affairs [2006] 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZHKA v Minister for Immigration and Citizenship [2008] 172 FCR 1 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 SZMDB v Minister for Immigration and Citizenship [2008] 105 ALD 499 SZRUI v Minister forImmigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 Tumil-Ang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1824 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 436 FCR 549
Division:	Division 2 General Federal Law
Number of paragraphs:	164
Date of last submission/s:	23 August 2024
Date of hearing:	23 August 2024
Place:	Brisbane
Solicitor for the Applicants:	Mr Kramer - Kramer & Kramer
Solicitor for the Respondents:	Ms Evans appeared on behalf of the First Respondent - Sparke Helmore. Submitting appearance for the Second Respondent, save as to costs.

SYG 174 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	PRAGYA GAUTAM PANDEY First Applicant RAJAT PANDEY Second Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE COULTHARD
DATE OF ORDER:	29 NOVEMBER 2024