Quadri v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1200
•13 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Quadri v Minister for Immigration and Citizenship [2025] FedCFamC2G 1200
File number(s): SYG 915 of 2021 Judgment of: JUDGE MARQUARD Date of judgment: 13 August 2025 Catchwords: MIGRATION-Decision of Administrative Appeals Tribunal – refusal of student visa – whether failure to consider evidence – whether findings legally unreasonable – impermissible merits review - application dismissed Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 29, 31, 45, 65, 359, 474, 476, 499
Migration Regulations 1994 (Cth) sch 2 cl. 500.212
Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Hamod v New South Wales [2011] NSWCA 375
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of hearing: 23 June 2025 Place: Sydney Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr J Djasmeini of MinterEllison Second Respondent: Submitting appearance save as to costs ORDERS
SYG 915 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMED IBRAS QUADRI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
13 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Citizenship.
2.The name of the second respondent is amended to Administrative Review Tribunal.
3.The application dated 25 May 2021 is dismissed.
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 Marquard
OVERVIEW
By way of application filed 25 May 2021, the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal) dated 2 May 2021. The Tribunal affirmed a decision of the first respondent, the Department of Immigration and Multicultural Affairs (the Department), dated 30 September 2019, not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa.
To succeed in the application, the applicant must demonstrate jurisdictional error in the decision of the Tribunal.
The first respondent opposes the application.
The application is dismissed for the reasons set out below.
BACKGROUND
The applicant is a citizen of India (Court Book (CB) 42).
He first arrived in Australia on 30 June 2017 on a Student (Class TU) (Subclass 500) visa (CB 129).
On 5 August 2019, the applicant applied for a further Student (Class TU) (Subclass 500) visa (CB 17-33).
In his application he stated that he held a Confirmation of Enrolment (CoE) (CB 17). He provided a ‘Statement of Genuine Temporary Entrant’ with his application (CB 38-41). In this statement he said that he was ‘pursuing Diploma leading to Advanced Diploma of Information Technology & Project Management from Strathfield College’ (CB 38). He provided information about his past study history, reasons for choosing his proposed course of study, information about difficulties in prior study, reasons for choosing the service provider and information about his visa background and character. He attached various financial documents and academic records including a reference letter from Strathfield College dated 6 August 2019.
On 30 September 2019, the Department refused to grant the student visa. The Department was not satisfied that the applicant satisfied cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 500.212 requires that the applicant is a genuine applicant for entry and stay as a student taking into account various considerations set out in cl 500.212(a) (b) and (c) of Schedule 2 to the Regulations. (CB 57- 62).
On 9 October 2019, the applicant applied to the Tribunal for review of the Department’s decision (CB 63-64).
On 17 October 2019, the Tribunal acknowledged the application and invited the applicant to provide material and written information (CB 65-67).
On 1 February 2021, the Tribunal invited the applicant to provide information pursuant to s 359 of the Migration Act 1958 (Cth) (Act) (CB 79-80). This included completing a Request for Student Visa Information form. The applicant responded to the Tribunal attaching a Request of Student Visa information form and a bundle of documents. He included a detailed ‘Statement of Genuine Temporary Entrant’ (CB 86–110).
On 5 March 2021, the Tribunal invited the applicant to a hearing to give evidence and present arguments relating to the issues arising in the review (CB 112- 115).
On 16 April 2021, the applicant attended a hearing of the Tribunal to give evidence and present arguments (CB 131-134).
On 2 May 2021, the Tribunal affirmed the decision of the Department dated 30 September 2019 (CB 141-149).
TRIBUNAL DECISION 2 MAY 2021 (CB 141- 149)
The Tribunal Decision is 15 pages long.
The Tribunal provided the background to the matter and the basis of the Department’s decision ([1] to [4] and [21] to [23] of the Tribunal Decision).
The Tribunal referred to evidence it had considered, including the Department file which contained the application and ‘2019 GTE Statement’ ([8] of the Tribunal Decision) and oral evidence from the hearing ([9] of the Tribunal Decision). The Tribunal recorded that it had considered documents provided by the applicant in response to the s 359(2) request by the Tribunal, including the ‘2021 GTE Statement’ ([5-6] of the Tribunal Decision). The Tribunal also recorded that it considered the Provider Registration and International Student Movement Services (PRISMS) records and the Movement Records (migration history) of the applicant ([6-7] of the Tribunal Decision). The Tribunal noted that it had provided the applicant with time to provide documents, and the applicant had provided documents ([10-11] of the Tribunal Decision).
The Tribunal identified that the issue before it was whether the applicant was a genuine temporary entrant ([13] and [15] of the Tribunal Decision). The Tribunal identified that it was required to have regard to Ministerial Direction No 69 and the evidence before it ([16] of the Tribunal Decision).
The Tribunal set out the applicant’s evidence ([19-20] of the Tribunal Decision).
In [26] to [64] the Tribunal set out its findings and reasons. The findings included that:
·There were too many inconsistences in the applicant’s evidence to accept his intentions and motives without his evidence being corroborated, being plausible or being against his own interests ([26] of Tribunal Decision).
·The Tribunal accepted the applicant could not cope with the workload in his courses, but did not accept his explanations for this ([29] of the Tribunal Decision).
·The applicant’s accounts of why he chose to study at Holmes were inconsistent ([30] – [31] of the Tribunal Decision).
·In the absence of medical reports, the Tribunal did not accept that the applicant was suffering from a depressive condition or anxiety disorder while enrolled in either of the two courses ([32] of the Tribunal Decision).
·The Tribunal did not accept that the applicant worked as a concierge on weekends to keep himself busy ([33] of the Tribunal Decision).
·The applicant did not identify what the family business was which made it difficult to evaluate the value of his courses ([37-41] of the Tribunal Decision). The Tribunal was not satisfied that the courses would add value to the family business ([42-48] of the Tribunal Decision).
·The applicant’s academic history was largely unproductive, and the courses were of doubtful utility ([50 -53] of the Tribunal Decision).
·The Tribunal did not accept the father’s statement as corroborative of the value of the course to the applicant’s future ([54] of the Tribunal Decision).
·The Tribunal did not accept the applicant’s projected monthly profit for the family business ([55] of the Tribunal Decision).
·The applicant was not a genuine student ([56] of the Tribunal Decision). He did not wish to undertake the courses for the reasons he had given ([57] of the Tribunal Decision).
·The applicant had family ties in India but not economic ties and he had some economic incentives to remain in Australia but no significant incentives to return to India ([58- 61] of the Tribunal Decision).
·There was no evidence that the applicant had breached his work condition in Australia, and he had also complied with visa requirements ([62] of the Tribunal Decision).
·There were no civil unrest, political or military concerns, but the applicant was aware of the impact of COVID-19 in India, which was taken into consideration ([63] of the Tribunal Decision).
·His work as a concierge was not related to his current studies or stated aspirations but he continued to work there even with poor academic progress ([59-60] of the Tribunal Decision).
The Tribunal concluded that the applicant was not a genuine temporary student and did not meet the criteria for the grant of the visa. The Tribunal affirmed the decision of the Department dated 30 September 2019 ([65-67] of the Tribunal Decision).
PROCEEDINGS IN THIS COURT
The applicant applied to this Court on 25 May 2021 seeking judicial review of the Tribunal Decision.
The applicant also filed an Affidavit deposed on 24 May 2021 attaching a copy of the Tribunal Decision.
On 14 May 2025, a Registrar of this Court ordered that the applicant file an amended application, any affidavit evidence and submissions by 9 June 2025. No further documentation was received by this Court.
The applicant appeared before this Court on 23 June 2025. Mr Djasmeini from MinterEllison appeared for the first respondent.
The following documents were before the Court – the initiating application for judicial review, the supporting affidavit of the applicant, a Court Book marked as Exhibit R1, and written submissions of the first respondent filed 6 June 2025 (first respondent’s written submissions). As the Tribunal Decision is in the Court Book tendered by the first respondent, there was no need to separately read the applicant’s affidavit into evidence.
A court has a duty to assist unrepresented litigants: Hamod v New South Wales [2011] NSWCA 375 (Hamod). The touchstone at all times remains that of fairness: Hamod at [313]. At [309] to [311] the court outlined the relevant principles as follows:
Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46 ; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94–95.
..
[310] However, the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337 ; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666 ; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]–[53].
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.
As the applicant was a litigant in person, at the hearing the Court provided a summary of the matter to date, and an overview of the processes of the Court. The Court also explained that the issue before the Court was whether the Tribunal had fallen into material jurisdictional error, noting that the Court cannot review the merits of the Tribunal Decision (in line with established authority, see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at [272]). The Court explained that jurisdictional error is a serious legal mistake. The Court also outlined some of the common categories of jurisdictional error.
At the hearing, the applicant was provided with an opportunity to tell the Court in his own words what errors he believed the Tribunal had made in accordance with principles in Hamod at [309] to [316] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 per Feutrill J at [22]. The applicant told the Court that he did not want to say anything further about the grounds specified in his application. The Court invited him to provide further particulars or submissions, but he said that he wished to rely on written submissions (Tp 4.20-5.44).
After the first respondent made submissions, the Court invited the applicant to respond. The applicant made submissions (Tp 7.21- 26), which are referred to later in this judgment.
CONSIDERATION – WAS THERE JURISDICTIONAL ERROR IN THE TRIBUNAL DECISION?
Relevant legal principles – student visas
The applicant applied to the Department for a Student (Temporary) (Class TU) (Subclass 500) visa. The Tribunal affirmed the decision of the Department not to grant the visa. The Tribunal was not satisfied that the applicant was a genuine temporary student and found that he did not meet cl 500.212 (a) of Schedule 2 to the Regulations.
Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Regulations prescribe the criteria for classes of visas: s 31(1) and s 31(3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a) (ii) of the Act.
The criteria for this type of visa are set out in Schedule 2 to the Regulations. Relevantly, Clause 500.212 of Schedule 2 to the Regulations requires that the applicant is a genuine applicant for entry and stay as a student, having regard to various factors (compilation date 19 April 2021 - 25 June 2021):
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) of the Act provides that a person or body (which would include the Tribunal) must comply with a direction given under s 499(1).
Direction 69 is a direction given by the Minister under s 499(1) of the Act concerning the assessment of the genuine temporary entrant criterion at cl 500.212(a).
Legal principles – judicial review
The applicant has applied for judicial review of the Tribunal Decision pursuant to s 476 of the Act. A privative clause as defined at s 474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The applicant must demonstrate jurisdictional error in the Tribunal Decision.
Jurisdictional error can arise in various ways and the categories are not clearly defined. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321, the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [2] and [3] (footnotes omitted):
[3] Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The Court must review the Tribunal decision by reference to the applicant’s complaints about the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [17]. In cases such as this, however, where the applicant is unrepresented, the Court should consider the applicant’s complaints and also be astute and alert to legal error: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 (MZAIB) per Mortimer J at [100].
It is well-established that the Court cannot review the merits of the Tribunal decision. In Wu Shan Liang, the High Court said at [272]:
.. any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
Although Wu Shan Liang was a case which considered a decision to refuse a refugee visa, the same principles apply in relation to judicial review of decisions to refuse student visas. It follows that disagreement with the merits of a decision, if any, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611 at [40].
Consideration of the grounds
The applicant set out six grounds for review in his application filed 25 May 2021. Each of these are considered below.
Ground one
The first ground contended by the applicant was that:
I provided to the Tribunal evidence for Advanced Diploma of Banking Services Management at the Western Sydney College that means I am currently enrolled in a registered course.
The applicant was asked at hearing if he wished to particularise this ground or make further submissions, but he said he did not wish to do so (Tp 4.24).
The first respondent submitted that this was not a ‘proper ground for review that asserts or establishes jurisdictional error’ but in any event the Tribunal had accepted that the applicant was enrolled in the course.
In the Court’s view although not clearly expressed, in this ground, it appears that the applicant is suggesting that his current enrolment was not considered by the Tribunal.
The Tribunal did however accept that the applicant was enrolled in the Advanced Diploma of Banking Services Management. At [11] of the Tribunal Decision, the Tribunal recorded that a Record of Results had been provided for this course and stated that ‘a course which he is currently undertaking at the Western Sydney College’. At [14] of the Tribunal Decision, the Tribunal acknowledged that ‘the applicant is currently enrolled in two such courses, namely the Advanced Diploma of Banking Services Management referred to earlier and a Graduate Diploma of Management both at the Western Sydney College’. The Tribunal then went on to say that the issue for consideration was whether the applicant meets the Genuine Temporary Entrant criteria. In other words, enrolment was not an issue for consideration, and the Tribunal accepted that he was enrolled at the time.
Ground one does not establish jurisdictional error.
Ground two
The second ground submitted by the applicant was:
I provided letter from Strathfield College dated 6 August 2019 being enrolled as a fulltime student since 15 April 2019. It is my belief that the Department as well the Tribunal failed to understand my commitment as a student and misunderstood my circumstances even though I have provided explanation yet proper explanation about my studies.
The applicant was asked at hearing if he wished to particularise this ground or make further submissions, but he said he did not wish to do so (Tp 4.30-39).
In this ground the applicant is inferring that the Tribunal did not accept that he was currently enrolled as a fulltime student since 15 April 2019 (as stated in the letter from Strathfield College dated 6 August 2019). However, the Tribunal did accept that he had been enrolled since April 2019. The Tribunal referred to the reference letter from Strathfield College which it noted ‘confirmed that he had been enrolled as a full-time student in the DIT since 15 April 2019’ ([20] of the Tribunal Decision).
The applicant also argued in this ground that both the Department and Tribunal failed to understand his commitment as a student and misunderstood his circumstances.
This Court does not have jurisdiction pursuant to s 476 of the Act to review the decision of the Department.
Reading the ground broadly, the applicant may have been suggesting that the conclusions the Tribunal reached were legally unreasonable as the Tribunal misunderstood his circumstances.
The first respondent correctly contended that the Tribunal was not required to accept uncritically any and all claims made by the applicant nor have rebutting evidence available to it: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 per Perry J at [24]. The first respondent submitted that the Tribunal provided ‘cogent and comprehensive reasons for reaching its findings based upon a consideration of the evidence of the applicant, which included inconsistencies in the applicant’s evidence of his intentions and motives ([41–49] and [57] of the Tribunal Decision), claimed reasons for study movement ([29], [33], [51–53] of the Tribunal Decision) and the value of the courses to his future ([38-48] of the Tribunal Decision)’ (first respondent’s written submissions and Tp 6.23-7.5).
The Tribunal has provided detailed reasons for its findings that the applicant was not a genuine applicant for entry and stay as a student. The Tribunal made its findings about the applicant’s commitment and circumstances based on the evidence before it (which was referred to in the Tribunal Decision at [6-9], [11] and [20]). The Tribunal recorded that it considered all of the evidence before it ([17] of the Tribunal Decision). The Tribunal mentioned at [25] that it shared the concern of the Department that the applicant had applied for the visa for the purpose of maintaining residence rather than because of a genuine intention to study and progress academically. The Tribunal listed some of the concerns which led to this finding ([26 - 64] of the Tribunal Decision):
·Inconsistencies in relation to switching the course from Southern Cross to Holmes College ([30] of the Tribunal Decision);
·Lack of medical evidence or evidence from service providers about health issues leading to the applicant’s inability to cope with his studies ([32] of the Tribunal Decision);
·The fact that the applicant continued to work as a concierge while allegedly suffering from mental health issues ([33] of the Tribunal Decision);
·Differences in evidence about the family business and how his course would relate to it ([37 -45] of the Tribunal Decision);
·Lack of information about how his course would benefit the family business ([48] of the Tribunal Decision);
·His ‘largely unproductive’ academic history without satisfactory explanation (being in Australia for almost 4 years with only a short 6-month Diploma to show for it) ([50-51] of the Tribunal Decision)
·No reliable financial information regarding the family business ([55] of the Tribunal Decision);
·Lack of financial ties to India and lack of incentives to return to India ([63-64] of the Tribunal Decision).
In response to the first respondent’s submissions at hearing, the applicant acknowledged that he said in the 2019 GTE Statement that he went to Holmes based on a friend’s suggestion, and that in 2021 he said that he went to Holmes based on an agent’s recommendation. He said that he approached the agent based on his friend’s suggestion, to help him get into the college (Tp 7.28-35). This was new information, not before the Tribunal. It was open to the Tribunal to state that there was inconsistent information before it about the reasons he went to Holmes College, based on the evidence before the Tribunal at the time of the Tribunal Decision.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], the High Court observed ‘unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’. There was an evident and intelligible for the findings of the Tribunal, given that the Tribunal made detailed findings based on the evidence before it.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) per Crennan and Bell JJ at [133] it was stated that ‘the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it’. Their Honours further stated at [135] that:
While there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The majority in SZDMS at [130] stated: ‘Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case’.
There is, in this case, room for the Tribunal to have made the decision that it did, such that it cannot be said that the decision was illogical or irrational. The Tribunal correctly applied the law. The Tribunal identified that it was required to consider whether the applicant met the Genuine Temporary Entrant criterion set out in cl 500.212 of Schedule 2 to the Regulations ([13] and [15-16] of the Tribunal Decision). The Tribunal noted that it was required to consider the factors in Ministerial Direction No 69 as a guide ([16] of the Tribunal Decision). The Tribunal considered multiple factors in making its findings ([26 -64] of the Tribunal Decision), which broadly collated with the factors set out in Ministerial Direction No. 69. The Tribunal was not satisfied that the applicant met the genuine temporary entrant criteria based on consideration of these factors including lack of academic progress, and lack of connection to future plans in India. The Court is satisfied that the decision was not illogical or irrational.
To the extent that the applicant is disagreeing with the conclusions reached in the Tribunal Decision, the Court notes that it cannot consider the merits of the decision: Wu Shan Liang at [272].
There is no jurisdictional error disclosed in ground two.
Ground three
The third ground set out in the application was:
Contrary to the decision by the Tribunal I confirm that I am a genuine student and have genuine intention to study and progress academically.
The applicant was asked at hearing if he wished to particularise this ground or make further submissions, but he said he did not wish to do so (Tp 4.41-5.1-4).
The first respondent submitted that this ground amounted to no more than a statement of disagreement with the Tribunal’s findings: Wu Shan Liang at [272].
To the extent that the applicant claims that the findings were illogical or irrational or unreasonable, earlier this Court has found above that the conclusions reached by the Tribunal were not legally unreasonable and there is no jurisdictional error on that basis.
In essence this claim appears to be an argument that factually the findings of the Tribunal were wrong. The Court does not have jurisdiction to reach a different finding based on the evidence. The authorities in this regard were outlined by His Honour Judge Lucev in Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060 (Ludgero) at [23-24]:
[23] The Court has no jurisdiction to engage in merits review, and the Tribunal's fact-finding is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 (NADR) at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (Wu Shan Liang), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[24] …Mere assertion of jurisdictional error as a cloak for mere disagreement with the Tribunal Decision cannot succeed, because mere disagreement with the Tribunal Decision does not amount to jurisdictional error: Re Minister for Immigration & Multicultural Affairs; ex parte s20/2002 [2003] HCA 30 … [and] are no more than a request for impermissible merits review.
There is no jurisdictional error revealed in ground three.
Ground four
The fourth ground contended by the applicant in his application was:
The Tribunal misunderstood and failed to accept my oral evidence and failed to accept that I am genuine student and I have strong incentive to return back to India where I will start a business.
The applicant was asked at hearing if he wished to particularise this ground or make further submissions, but he said he did not wish to do so (Tp 5.6-14).
The first respondent submitted that in respect of enrolment, the ground failed at a factual level in that the Tribunal accepted that he was currently enrolled (Tp 6.18-23). This issue has already been discussed in this judgment in relation to grounds one and two. There is no doubt that the Tribunal accepted that the applicant was enrolled at the time of decision.
It appears that in this ground the applicant again takes issue with the conclusions reached by the Tribunal, in that the Tribunal did not accept that he was a genuine student and had strong incentives to return to India where he would start a business.
The Court has found earlier that there is no jurisdictional error on the basis of legal unreasonableness in the Tribunal’s findings. It was open to the Tribunal to engage in the process of reasoning which it did, and to make the findings it did on the material before it (SZMDS per Crennan and Bell JJ at [133]). The Tribunal provided detailed reasons for its findings on the evidence.
To the extent that the applicant is requesting that the Court reach a different decision to that reached by the Tribunal, the Court cannot engage in merits review. (Wu Shan Liang at [272], Ludgero at [23] and [24]).
There is no jurisdictional error disclosed in ground four.
Ground five
The fifth ground argued by the applicant in his application was:
The Tribunal is wrong by concluding that the completion of courses will not add value to my future in the family business.
The applicant was asked at hearing if he wished to particularise this ground or make further submissions, but he said he did not wish to do so (Tp 5.16-24). He did comment, in relation to ground six, that his study at the time would have helped him have better business strategies in terms of accounting and keeping track of profit and loss. He said that was one of the reasons he enrolled in the course. He also hoped to start his own business at some point (Tp 8.8-16).
The Minister submitted that this ground amounted to no more than a statement of disagreement with the Tribunal’s findings: Wu Shan Liang at [272].
As referred to earlier in this judgment, the Tribunal’s findings of fact were open to it on the evidence. In respect of the findings about the family business, the Tribunal recorded the applicant’s oral evidence to the effect that his father had been manufacturing and supplying fabric to local retailers for the past 30 years, that his business was owned by his father and other relatives and they had a lease on some premises. The Tribunal recorded that the applicant had worked in the family business for a couple of months and had limited involvement from Australia ([37] of the Tribunal Decision).
The Tribunal noted that in the 2019 GTE Statement the applicant said that his father was recently retired and about to start his own business ([38] of the Tribunal Decision). Given this differing evidence, it was open for the Tribunal to find that it could not assess in any meaningful way what value the courses may have to his future in the business ([41] of the Tribunal Decision). Furthermore, it was open to the Tribunal to find that the applicant had not satisfactorily demonstrated how VET banking management courses would be of tangible benefit to him in a trading business or help grow the business. Whether or not the Court agrees with these findings, they were findings that were open to the Tribunal based on the evidence before it. These findings were not illogical or irrational: ‘while there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker’ (SZMDS per Crennan and Bell JJ at [135]).
To the extent that the applicant is requesting that the Court reach a different decision to that reached by the Tribunal, the Court cannot engage in merits review. (Wu Shan Liang at [272], Ludgero at [23] and [24]).
There is no jurisdictional error disclosed in ground five.
Ground six
The sixth ground is:
The Tribunal's conclusion that I am not a genuine student is not based on probative evidence. Rather it is on assumptions.
The Minister submitted that the ground should be dismissed as it was unparticularised, citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J.
At the hearing, the Court asked if the applicant could particularise this ground. He said that he did not wish to do so (Tp 5.32-36). After hearing the first respondent’s submissions, he said that he did explain to the Tribunal about his father owning multiple businesses. He said that his study at the time would have helped him have better business strategies in terms of accounting and keeping track of profit and loss. He said that was one of the reasons he enrolled in the course. He also hoped to start his own business at some point (Tp 8.8-17). The Court has considered ground six in relation to this particular, as no other particulars were provided.
The making of ‘unwarranted assumptions’ in finding a claim to be implausible may establish that a finding is illogical, irrational or not founded on any probative evidence: BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 (BZD17) at [36]; BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 (BOH17) at [7] (citing Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45]).
A party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the finding is not one that a reasonable decision-maker could make based on the material before it and nor it is one that the decision-maker could have made drawing on their personal or specialised knowledge about the subject matter: BOH17 at [8]; Djokovic at [39] (citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [17] - [21]).
The applicant has not specified what the unwarranted assumption is. If the applicant is suggesting that the assumption relied on by the Tribunal was that a banking management course would not be of value to a family business, the Court is of the view that this conclusion was not in effect an assumption and was a finding of fact based on the facts in this case specifically. An assumption is ‘something that you accept as true without question or proof’.[1] The Tribunal has explained how it was uncertain what kind of business the family business was ([37] to [41] of the Tribunal Decision) and therefore could not evaluate in any meaningful way what value the courses would be to the business. The Tribunal also recorded that the applicant had not demonstrated that the courses would be of value ([42]-[46] of the Tribunal Decision). The Tribunal was not satisfied for these reasons that completion of the courses would add value to the business. There were no assumptions made based on the nature of the courses, but rather the conclusions were based on the uncertainty of what kind of business it was, and the lack of evidence about the value.
[1] Cambridge Dictionary, < ASSUMPTION | English meaning - Cambridge Dictionary>.
The Court has found earlier that there is no jurisdictional error based on legal unreasonableness. The characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicant must do more than merely disagree with the reasoning or finding: SZMDS at [124] per Crennan and Bell JJ.
Engaging in a process of reasoning that is illogical or irrational is taken to refer to ‘extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal’: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148]. It was open to the Tribunal to reach the conclusion it did, based on the evidence before it.
There is no jurisdictional error disclosed by this ground.
NAME CHANGES
On 20 February 2025 orders were made by Registrar Lindsay of this Court, that the name of the first respondent be amended to the Minister for Immigration and Multicultural Affairs.
Since then, following the election in May 2025 there have been further portfolio name changes. The name of the first respondent is now the Minister for Immigration and Citizenship. In these circumstances the Court will make an order that the name of the first respondent has been changed accordingly.
The Act was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (ART) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Consequential Act).
This judgment relates to a decision of the Tribunal which predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal's decision (or as at the date of any relevant matter referenced in this judgment).
The Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party in pending proceedings. Item 25 of the Consequential Act relates to any proceeding in a court that is not finalised before the transition time and provides that proceedings continue in accordance with the new law.
In the circumstances, this Court will make an order substituting the ART as the Second Respondent in this proceeding.
CONCLUSION
The Court is satisfied that the Tribunal Decision is not affected by jurisdictional error. The decision is a privative clause decision. Absent jurisdictional error, the application to this Court must fail.
The application filed on 25 May 2021 is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 13 August 2025
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