Ranabhat v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1147
•24 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ranabhat v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1147
File number: MLG 1156 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 24 July 2025 (and delivered by Judge Humphreys by telephone pursuant to s 210 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) Catchwords: MIGRATION – Student visa cancellation – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal considered irrelevant evidence or information – whether the Tribunal failed to consider evidence or information before it – whether the Tribunal failed to give appropriate weight to certain factors – whether the Tribunal erred in assessing the degree of hardship the applicant might have faced if her visa remained cancelled – whether the Tribunal failed to make findings in relation to the applicant’s exceptional circumstances – whether the Tribunal’s findings were illogical, irrational or legally unreasonable – whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Migration Act 1958 (Cth), ss 116, 357A, 359AA 360, 360A, 476 & 499 and Division 5 of Part 5
Migration Regulations 1994 (Cth), Condition 8202 in Schedule 8
Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14
AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Elara v Assistant Minister for Immigration and Border Protection [2017] FCA 1565
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 805
Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1107
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZNGI v Minister for Immigration and Citizenship [2010] FCA 154
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 109 Date of hearing: 16 April 2025 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr J Mintz Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1156 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARPANA RANABHAT
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application be 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 KENDALL:
BACKGROUND
Recent Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 26 March 2019 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time that the application for judicial review was filed (being on 17 April 2019), the Tribunal was 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 to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, the Court made an order (at the hearing of this matter on 16 April 2025) substituting the ART as the second respondent in this proceeding.
The applicant’s migration history
The applicant is a citizen of Nepal (Court Book (“CB”) 38 & 61). She arrived in Australia in January 2016 as the holder of a Student (Class TU) Higher Education Sector (Subclass 573) visa (granted offshore in December 2015) and was enrolled to study Diploma of Business and Bachelor of Business courses (CB 8 & 147).
The applicant’s enrolments in those courses were cancelled. The applicant’s enrolment in the Diploma of Business course was cancelled on 27 January 2017 because the applicant had “transferred to [a] course at another provider” and her enrolment in the Bachelor of Business course was cancelled on 30 January 2017 due to “[n]on-commencement of studies” (CB 6).
The applicant subsequently enrolled in a Bachelor of Professional Accounting which was scheduled to commence on 27 March 2017 and was due to be completed on 31 December 2019. However, that enrolment was cancelled on 7 November 2017 for “[n]on-payment of fees” (CB 6).
On 20 June 2018, the Department of Home Affairs (the “Department”) wrote to the applicant (by email) to request updated contact details (CB 3-4).
On 23 June 2018, the applicant provided the Department with updated postal and email addresses and a mobile phone number (CB 5).
On 16 July 2018, the Department sent the applicant a “Notice of Intention to Consider Cancellation” letter (the “NOICC”) under s 116 of the Act (CB 8-19). The NOICC was sent to the applicant by email and by registered post (CB 7 & 20). The NOICC referenced a breach of Condition 8202(2)(a) in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”), noting that the applicant had “not been enrolled in a registered course of study since 7 November 2017” (CB 9). The applicant was given five working days within which to provide a response to the NOICC (CB 11).
On 20 July 2018, the applicant provided a response to the NOICC (by email) (CB 21-27). That response included an “explanation” in relation to the NOICC (CB 22-26) and a medical letter in relation to the applicant’s father (dated 25 October 2017) (CB 27). The response stated that:
(a)the applicant’s father was a politician and had been beaten in the past resulting in multiple surgeries, a hospital stay of six months and risking his eyesight;
(b)whilst studying, the applicant was informed by her family that her father’s eyesight was getting worse and he required surgery which would cost 30 to 40 lakhs;
(c)the applicant chose to stop studying and worked to support her family and help to pay for her father’s surgery;
(d)her father’s health caused her stress, trauma and hardship which meant she was unable to focus on her studies or keep up with fee payments;
(e)her father’s health problems and his treatments took longer than anticipated and, ultimately, her father lost vision completely in one eye and only retained 50 percent vision in the other;
(f)the applicant accepted that she had breached her visa condition by discontinuing her studies but insisted that she was compelled to do so by her family situation; and
(g)the applicant asked the Department to consider not cancelling her visa due to circumstances which were out of her control.
On 27 July 2018, the applicant sent an email to the Department attaching an Overseas Student Confirmation-of-Enrolment document (“COE”) for a Graduate Diploma of Management (Learning) with a start date of 26 July 2018 and an end date of 26 July 2019 (CB 28-30).
On 19 September 2018, the applicant’s visa was cancelled by a delegate of the first respondent (the “Minister”) (CB 38-44). The delegate was satisfied that there was a ground for cancelling the applicant’s visa and that the grounds for cancelling the applicant’s visa outweighed the grounds for not cancelling it (CB 40 & 44).
On 20 September 2018, the applicant sought review of the delegate’s decision by the Tribunal (CB 47-48). With her review application, the applicant provided a copy of the delegate’s decision and associated notification letter (CB 49-60), a copy of her passport (CB 61-62) and a “Form 956 – Advice by a migration agent/exempt person of providing immigration assistance” document nominating a registered migration agent (the “representative”) to assist her with her review application (CB 63-65).
On or about 20 December 2018, the Tribunal obtained a copy of the applicant’s Provider Registration and International Student Management System (“PRISMS”) records and associated COEs (CB 76-85).
On 4 February 2019, the Tribunal invited the applicant (via email and through her representative) to attend a hearing before it, scheduled to take place on 14 March 2019 (CB 86-96).
On or about 5 February 2019, the applicant provided a completed “Response to hearing invitation” form indicating that the applicant and her representative would attend the scheduled hearing, together with the applicant’s father’s treating doctor (by telephone) (CB 97-99).
On or about 25 February 2019, the applicant and her representative provided “submissions” outlining what they thought the delegate did wrong when deciding to cancel the applicant’s visa (CB 100-101).
On or about 4 March 2019, the applicant provided a further completed “Response to hearing invitation” form indicating that only the applicant and her representative would attend the scheduled hearing and asking that the Tribunal disregard the previous witness details provided in the completed response dated 5 February 2019 (CB 102-104).
On 14 March 2019, the applicant appeared at the Tribunal hearing to give evidence and present arguments in support of her review application (CB 105-107). The applicant was assisted at that hearing by her representative (CB 105). She also provided the Tribunal with a letter from Lifetime International Training College dated 11 March 2019 regarding her studies (CB 105 & 108).
At the conclusion of the hearing, the applicant (through her representative) sought additional time to provide further evidence in support of her review application and the Tribunal granted the applicant until 22 March 2019 within which to do so (CB 147 at [9]).
Later that same day (also on 14 March 2019), the applicant provided further evidence to the Tribunal (CB 109-142 & 147 at [9]).
On 26 March 2019, the Tribunal affirmed the delegate’s decision cancelling the applicant’s visa (CB 146-152).
On 17 April 2019, the applicant applied to the then Federal Circuit Court of Australia (the “FCCA”) for judicial review of the Tribunal’s decision (CB 156-161). The applicant filed an affidavit in support of that judicial review application which included further concerns that the applicant had with the Tribunal’s decision. The affidavit also annexed copies of the Tribunal’s decision and associated notification letters (CB 162-177).
THE TRIBUNAL’S DECISION
The application for judicial review is brought pursuant to s 476 of the Act. In order to succeed before this Court, the applicant must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is seven pages long and spans 36 paragraphs (CB 146-152). The final page contains extracts of relevant legislative provisions (CB 152).
The Tribunal began by explaining that the applicant had sought review of a decision made by a delegate of the Minister, on 19 September 2018, cancelling her visa. The Tribunal detailed that the applicant’s visa was cancelled because the delegate found that the applicant had not complied with a condition of her visa. The Tribunal confirmed that the applicant had appeared at a hearing before it on 14 March 2019 to give evidence and present arguments and that she was assisted by her representative at that hearing. The Tribunal explained that it had put information to the applicant regarding her enrolment (contained in her PRISMS records) at that hearing pursuant to s 359AA of the Act. It also put information to her from the Department’s file that the “applicant had been reported for working illegally”. The Tribunal explained that the applicant had been advised that the information was relevant because it suggested that she was not a genuine student. She was also advised that she could seek an adjournment or consult with her representative at any time. The applicant did not seek an adjournment but did seek additional time (through her representative) at the end of the hearing to provide further evidence to the Tribunal. The applicant was granted additional time to do so and that further evidence was received by the Tribunal on 14 March 2019 (at [1]-[9]).
The Tribunal identified that the issue before it was whether the applicant had breached Condition 8202 in Schedule 8 of the Regulations and, if so, whether the applicant’s visa should be cancelled pursuant to s 116(1) of the Act. The Tribunal set out the requirements under Condition 8202 in Schedule 2 of the Regulations and explained that the applicant’s visa in this case was cancelled on the basis that the applicant was not enrolled in a registered course of study. Further, the applicant confirmed at the hearing that her enrolment had been cancelled on 7 November 2017, that she had not been attending classes or paying her tuition fees and was working on a full-time basis at that time. The applicant did not dispute that she had breached a condition attached to her visa when her enrolment was cancelled and confirmed that she understood the delegate’s decision. The Tribunal noted that the applicant’s PRISMS records confirmed the cancellation of the applicant’s enrolment and found that she had not complied with Condition 8202(2) in Schedule 8 of the Regulations (at [11]-[15]).
The Tribunal then identified that it was required to consider whether to exercise its discretion to cancel the applicant’s visa and noted that there were no matters specified in the Act or Regulations that were required to be considered in exercising that discretion. The Tribunal confirmed that it had had regard to matters raised by the applicant as well as the policy and guidelines contained in the Departments Procedures and Advice Manual (“PAM3”) (at [16]).
The Tribunal outlined the applicant’s oral and written evidence in some detail (at [17]-[25]).
The Tribunal considered all of the applicant’s circumstances and evidence and determined as follows:
(a)the Tribunal was not satisfied, based on the applicant’s study and immigration history, that she had the motivation to undertake the courses she had enrolled in. The Tribunal noted, in particular, that the applicant had been in Australia for over three years and had only completed a very brief English course. Further, the applicant only enrolled in a new course of study after receiving the NOICC and advice from her representative (at [26]);
(b)evidence was provided that the applicant sent approximately $510 per month (sometimes twice monthly) to Nepal between October 2017 and July 2018. The Tribunal accepted that the applicant was concerned by her father’s illness, however, it noted that the purpose of a student visa was not to enable the visa holder to work in Australia to financially support family in their home country (at [27]);
(c)the applicant claimed that she no longer needed to support her parents and wanted to remain in Australia to complete her studies and seek employment as an accountant following the completing of her courses in late 2020. She also told the Tribunal that she did not want to disappoint her parents by returning without any qualifications (at [28]);
(d)the Tribunal noted that the applicant would experience emotional hardship confronting her parents and seeking financial support for further studies regardless of whether the visa was cancelled (at [29]);
(e)the Tribunal was unconvinced by the applicant’s claim to have been “too young and ignorant to accept responsibility or to comply with her visa conditions” and found it implausible that she did not discuss her work and visa situation with her brother (who lived in the same Australian city as she did);
(f)the applicant acknowledged (at the hearing) that the circumstances in which her visa were cancelled were not (in hindsight) beyond her control (at [30]);
(g)there was no information before the Tribunal to indicate that the applicant would not be granted a bridging visa to enable her to avoid immigration detention or that she had any reason to fear returning to Nepal (at [31]);
(h)the applicant was not enrolled in a course of study for over eight months and further breached her visa conditions by working full-time. The Tribunal found that the extent of the applicant’s non-compliance with her visa conditions was significant (at [32]);
(i)whilst the Tribunal acknowledged that the applicant had responded to the NOICC, it found that her behaviour and attitude towards her course provider and the Department did not weigh in her favour (at [33]);
(j)the Tribunal acknowledged that the applicant might experience emotional hardship should her visa be cancelled and may be subject to a period of exclusion from Australia (at [34]); and
(k)considering the applicant’s circumstances as a whole, the Tribunal found that the reasons to cancel the visa outweighed considerations in favour of not cancelling the visa (at [35]).
The Tribunal affirmed the delegate’s decision cancelling the applicant’s visa (at [36]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicant on 17 April 2019) contained ten “grounds of review”, as follows (without alteration) (CB 159-160):
1.The Tribunal failed to act according to substantial justice and merits of the case, and/or failed to act in a way that is fair and just.
2.The Tribunal misunderstood or misapplied the law or otherwise failed to rely on the relevant facts or information before it.
3.The Tribunal Member failed to understand, and I contend erred by failing to genuinely, properly and realistically consider the evidence presented which is of significance to my matter.
4.The Tribunal failed in its decision to properly consider the compelling circumstances that exist and the hardship that would result from my removal.
5.The Tribunal Member failed to consider whether the breach of the condition occurred due to the extenuating circumstances beyond my control.
6.The Tribunal Member failed to give appropriate weight to highly relevant facts such as the unique and compassionate circumstances involved in my case which include my father having rectal cancer and requiring eye surgery.
7.The Tribunal Member incorrectly assessed the purpose of my travel in Australia and instead focused on ‘necessary motivation’. This is evident by the Member stating that I have the necessary ability but that she does believe I have the necessary motivation to complete the intended course.
8.The Tribunal Member failed to consider my oral submissions and interest in pursuing an accounting degree and instead found that the purpose of a student visa is not to enable a visa holder to work in Australia to financially support family members back home. I never stated this. I accepted that I did do this due to the extenuating circumstances at the time, but I never excused it or said that that was my purpose for seeking to remain on a student visa.
9.The Tribunal Member erred in assessing the degree of hardship that may he caused as a result of the cancellation. The Tribunal Member instead of assessing the degree of hardship looked at the consequences of cancelling and the consequences of not cancelling and stated that the outcome would be the same. This is not an accurate assessment on the degree of hardship.
10.The Tribunal Member failed to make any factual findings on whether exceptional circumstances existed and whether they were beyond my control.
The applicant also filed an affidavit in support of the judicial review application. That affidavit outlined some background information and relevantly stated as follows:
9.I do not believe that the AAT gave me a fair hearing. This decision was unreasonable, and I feel that the Tribunal Member failed to act according to substantial justice and merits of the case and acted in a way that was unfair and unjust.
10.The AAT failed to consider or overlooked any claims made, or evidence given. In particular, the decision record demonstrates that the Tribunal failed to properly consider my claims that my father was gravely ill.
11.The Tribunal erred because it was more focussed on my cancelled enrolment from not attending classes and not paying tuition fees instead of the evidence that I provided. I accepted that I had breached the condition and asked the Tribunal to consider my extenuating circumstances. Despite this the Tribunal Member focussed on my failure to attend classes.
12.The Tribunal Member erred in taking into consideration my failure to communicate with my course provider. Or alternatively, the Tribunal placed too much weight on this. I do not see how this is a relevant consideration the focus should have been on the extenuating circumstances which resulted in my breach.
13.As submitted to the Tribunal I sought to obtain a qualification in accounting to return to my home country as a qualified accountant. The Tribunal Member failed to take this into consideration. The Member merely referred to my study ‘motivations’. This was despite me submitting to the Tribunal my study intentions and that I would applying for credits for the units I have already completed.
14.I explained to the Member my extenuating circumstances; my father fell ill and required surgery. I commenced fulltime work as I wanted to assist in paying for this. Medical treatment is very expensive in Nepal and it difficult to obtain. The Tribunal Member failed to take this into account and instead focussed on my father’s eligibility for a pension.
15.The Tribunal Member focussed on my failure to visit my father while he was ill. I already have enough guilt hence why I was working to try and help him. This I believe is irrelevant.
16.The Tribunal Member focused on my lack of communication with my education provider. I believe that this is irrelevant.
17.The Tribunal Member similarly focused on the lack of communication with my brother. I believe that this is an irrelevant consideration.
18.The Tribunal Member placed significant weight on my behaviour and attitude towards my course provider. I similarly believe that this is an irrelevant consideration.
19.The Tribunal Member erred in apportioning weight to the considerations and failed to consider my extenuating circumstances altogether.
20.The Tribunal Member failed to acknowledge the social stigma that surrounds Nepalese people who do not complete their studies. It would be a huge embarrassment for my family.
21.I believe that the illogical conclusions based on irrelevant considerations and inappropriate weighing of facts has led to the Tribunal Members decision being made in error.
On 11 August 2021, procedural orders were made by Registrar van der Westhuizen of the then FCCA giving the applicant an opportunity to file an amended application, any supplementary Court Book and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court (by video link on 16 April 2025) without legal representation. Mr Jared Mintz from Clayton Utz (solicitor for the Minister) appeared on behalf of the Minister (also by video link). The Court asked the applicant to confirm that she had received copies of the CB and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 17 April 2019 (the affidavit being taken as read and in evidence at the hearing of this matter), a CB numbering 182 pages (marked as Exhibit 1 at the hearing) and written submissions filed on behalf of the Minister on 2 April 2025.
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or reinstate the applicant’s cancelled visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that she was not “properly guided by [her] lawyers or [her] seniors” and she was not given any chance to “make things right” or to “prove herself”. The applicant further explained that after her visa was cancelled, she “was just refused again”.
The applicant’s comments, to the extent that they point to any issue of jurisdictional error on the part of the Tribunal, will be addressed below.
CONSIDERATION
Noting that the applicant did not have any legal assistance, the Court will, in its duty to the applicant as an unrepresented litigant, review the Tribunal’s decision itself and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
Having reviewed the applicant’s judicial review application and supporting affidavit (both filed in the then FCCA on 17 April 2019) and having had regard to the applicant’s oral submissions to this Court at the hearing before it (on 16 April 2025), the Court considers the applicant to have raised the following issues for consideration:
(a)whether the Tribunal failed to afford the applicant procedural fairness;
(b)whether the Tribunal considered irrelevant evidence or information;
(c)whether the Tribunal failed to consider evidence or information before it;
(d)whether the Tribunal failed to give appropriate weight to certain factors;
(e)whether the Tribunal erred in assessing the degree of hardship the applicant might have faced if her visa remained cancelled;
(f)whether the Tribunal failed to make findings in relation to the applicant’s exceptional circumstances;
(g)whether the Tribunal’s decision or its findings were illogical, irrational or legally unreasonable; and
(h)whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal.
The Court will address each of these issues below.
Whether the Tribunal failed to afford the applicant procedural fairness
Insofar as the applicant suggested that the Tribunal failed to afford her procedural fairness, the Court disagrees for the reasons that follow.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 (and other similar matters), Division 5 of Part 5 of the Act (as was in force at the time of the Tribunal’s decision) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal was obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal did so in this matter and notes as follows:
(a)the Tribunal invited the applicant to attend a hearing before it and the applicant did so (CB 86-96 & 105-107). The applicant gave evidence at that hearing in support of her review application. Accordingly, the Tribunal complied with s 360 and s 360A of the Act;
(b)the Tribunal put adverse information to the applicant during that hearing in accordance with ss 359AA of the Act. The Tribunal explained (in its written reasons) that the applicant was advised that she could seek an adjournment or consult with her representative before responding to that information (or at any time during the hearing). The Tribunal also recorded that the applicant had not sought any adjournment;
(c)the dispositive issues before the Tribunal (being whether the ground for cancellation arose and, if so, whether discretion should be exercised to cancel the applicant’s visa) were the same as the issues before the delegate. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter;
(d)the Tribunal invited the applicant to provide “any additional documents or information that [she] wish[ed] to rely on during the hearing” by 7 March 2019 (CB 89). The applicant provided additional documents to the Tribunal prior to the Tribunal hearing, at the Tribunal hearing and following the Tribunal hearing and the Tribunal had regard to that information (CB 100-101 & 108-142); and
(e)the Tribunal questioned the applicant, listened to her responses and actively sought information from her about her circumstances and the circumstances which led to the cancellation of her visa (see, for example, paragraph [23] of the Tribunal’s reasons). There is nothing to suggest that the Tribunal was anything but impartial and unbiased in this case: SZRUI.
The Court also notes that, as outlined above, the applicant gave evidence to the Tribunal that “she ha[d] completed only one very short course of study … during her three years stay in Australia”, “acknowledged that she was not enrolled in any course of study for over seven months” and “acknowledged that she knew she was supposed to study while on a Student visa” (see paragraphs [17], [19] & [25] of the Tribunal’s reasons). The Tribunal also granted the applicant additional time, after the Tribunal hearing, to provide additional information and the applicant did so. Further, there is no evidence before this Court to suggest that the applicant was not able to properly present her case to the Tribunal.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness and no jurisdictional error arises in this regard.
Whether the Tribunal considered irrelevant evidence or information
The applicant also suggested that the Tribunal considered or had regard to irrelevant evidence or information.
Before addressing the information the Tribunal considered that the applicant suggests was irrelevant, it is useful to first outline the case law in relation to what amounts to a “relevant consideration” or an “irrelevant consideration”.
This Court recently did so in Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 805. The analysis provided in Khan applies equally in this case and is repeated (with some minor amendments and additions) below.
In this regard, the Court notes the summary provided by the Federal Court in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1107 as follows:
23.A number of grounds of review assert error on the part of the Tribunal by either failing to take into account relevant considerations or taking into account irrelevant considerations. Before considering those and other grounds in more detail, it is convenient to identify the metes and bounds of that kind of alleged error going to the exercise of jurisdiction. It has been commonplace to refer to these two grounds as mandatory relevant considerations and forbidden irrelevant considerations. The addition of the words “mandatory” and “forbidden”, is something of a public law tautology, because that concept is built into the meaning of “relevant” and “irrelevant” in a public law sense, as the lengthy quote from Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 in the following paragraph demonstrates. But the deployment of that tautology is a useful way of emphasising that the issue is not one of relevance in the sense used in ordinary parlance, but rather whether a decision-maker is required in the exercise of jurisdiction to have regard to a particular consideration, or required not to have regard to a particular consideration.
24.One of the most commonly cited, and clearly expressed, explanations of relevant and irrelevant considerations is by Mason J in Peko-Wallsend at 39-41 (omitting only citations and quotes; emphasis in original):
(a)The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision…
(b)What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. …
(c)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision …
(d)The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned …
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power … I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.
25.It follows that in order to succeed upon a ground of failure to take into account a relevant consideration, or a ground of taking into account an irrelevant consideration, more than an assertion of general relevance or general irrelevance in the evaluative sense is required. That lesser degree of consideration or non-consideration is a matter for the decision-maker, subject to the general requirement to consider claims that are in fact made and submissions that are in fact advanced. For relevant or irrelevant considerations, what must be shown by the express words of the legislative scheme, or some particular feature of it, or by necessary implication, is that the element of compulsion or proscription is present.
26.The considerations that are relevant or irrelevant to a decision made under the Migration Act, in the sense of being mandatory or forbidden, are primarily, perhaps even entirely, determined by reference to that Act (including aspects of Direction 90 because it is made under s 499 of that Act), rather than by the particular facts of the case under consideration: see Applicant M185 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 230 at [8]-[10], and the cases cited and quoted of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [73]-[74] and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [123] per Allsop J (as the Chief Justice then was, with Moore and Tamberlin JJ agreeing).
27. The now Chief Justice also observed in NADH:
(a)at [10], that reviewable error “by reason of failing to take into account relevant considerations, or taking into account irrelevant considerations, is an error that arises as a matter of law, rather than an error that is centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts” and;
(b)at [11], that the weight to be given to matters regarded as material by a Tribunal is a matter for it to determine.
Essentially, in order to establish that a decision-maker had regard to an irrelevant consideration, an applicant must establish that the consideration in question is extraneous when viewed in light of the provisions, subject-matter, scope or purpose of the relevant statutory scheme: Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [20] and Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40.
It is important to remember that an irrelevant consideration ground is not centrally concerned with the process of making particular findings of fact upon which a decision-maker acts; it is instead concerned with whether a decision-maker has properly applied the law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [74] and Elara v Assistant Minister for Immigration and Border Protection [2017] FCA 1565 at [43] (citing SZNGI v Minister for Immigration and Citizenship [2010] FCA 154 at [22]).
However, in order for jurisdictional error to be established on the basis of taking into account an irrelevant consideration, such an error must still be material.
The applicant here claimed that the Tribunal considered the following irrelevant information:
(a)the applicant’s failure to visit her father whilst he was ill;
(b)the applicant’s lack of communication with
(i)her education provider; and
(ii)her brother; and
(c)the applicant’s attitude towards her behaviour and attitude towards her course provider.
The Court notes that, as correctly identified by the Tribunal, there are no matters in the Act or Regulations which were required to be considered by the Tribunal in relation to the exercise of that discretion. The Tribunal was, however, required to have regard to the matters raised by the applicant as to why she believed that her visa should not have been cancelled. The Tribunal also confirmed that it had had regard to government policy and the PAM3 guidelines which provided guidance in relation to what a decision maker should do when deciding whether to cancel a visa under s 116 of the Act. The PAM3 guidelines suggested that a decision maker have regard to nine factors, including (but not limited to) the circumstances in which the ground of cancellation arose, the extent of the applicant’s compliance with visa conditions and any other relevant matters (such as matters raised by the applicant which did not fall within the other eight categories).
In this matter, the applicant’s failure to communicate with, and her attitude towards, her education provider arguably contributed to the cancellation of the visa. The applicant gave evidence to the Tribunal that she “never approached her course providers in person, by letter or email, even as a matter of courtesy, to excuse her absences, explain her circumstances, or seek advice of deferral” of her studies. Instead, the applicant “simply stopped attending [classes] and [stopped] paying tuition fees”. In the circumstances, the Court is satisfied that the applicant’s lack of communication with her education provider and her attitude in that regard were relevant considerations and the Tribunal was correct to have regard to the applicant’s evidence in that regard.
Insofar as the applicant raised issues with the Tribunal’s consideration of her failure to visit her father, the Court notes that the applicant raised this in her response to the NOICC (CB 22-26). Relevantly, the applicant first stated that she had “decided to book a ticket and go back home immediately” upon learning that her father was unwell but her “family insisted [that she] not” and encouraged her not to “[m]ake any decision in haste” (CB 22). Later in her response, the applicant also stated that she had “decided to return” to visit her father but was of the view that she “would not be able to help [her] family anyway” and instead decided to remain in Australia and worked “to support [her] family” (CB 23).
As can be seen from the extracts above, the applicant deciding to remain in Australia (instead of returning to her home country to visit her ill father) was a matter raised by the applicant. As such, it was open to the Tribunal to consider the applicant’s evidence in that regard and it did so.
To the extent that the applicant raised concerns with the Tribunal’s consideration of her failure to communicate with her brother, the Court again notes that the applicant gave evidence about her brother to the Tribunal. She told the Tribunal that he ‘live[d] in Brisbane” and had “also come to Australia on a Student visa” and was working full-time. She also told the Tribunal that her brother had been “unable to support her [parents] in Nepal financially because he ‘had bills to pay’ and was not as concerned about their father”.
In circumstances where the applicant gave evidence in her response to the NOICC that she stopped studying as she needed to work to support her family and that “any reasonable person” would have done the same thing to “save [their] family and parents”, it was relevant for the Tribunal to consider that she had another family member (her brother) in a similar situation in Australia that she could have reached out to for help with assisting their family or for support and advice in relation to her studies and visa situation.
The Court is satisfied that the issues considered by the Tribunal (as outlined above) were relevant and that the Tribunal’s findings were open to it on the evidence before it.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to consider evidence or information before it
The applicant claims that the Tribunal failed to consider various matters, including:
(a)her claim that her father was “gravely ill”;
(b)her “extenuating circumstances” or “compelling circumstances” that were beyond her control, particularly relating to her father’s illness and the high cost of medical treatment for her father in Nepal;
(c)the medical documentation provided in relation to her father;
(d)the “social stigma” and embarrassment to the applicant’s family if she did not complete her studies;
(e)the hardship that would result from the applicant’s removal; and
(f)the fact that the applicant sought to obtain a qualification in accounting and to return to her home country as a qualified accountant.
These claims fail at a factual level and the Court is satisfied that the Tribunal took this information into account in making its findings.
To the extent that the applicant claims that the Tribunal failed to consider the ill health of her father (including the impact that the applicant claimed it had on her studies and including the medical documentation provided), the Court notes that it did so in some detail as follows:
18.The applicant claimed at hearing that she came to Australia for the purpose of obtaining qualifications in accounting, and that she did in fact attend some classes ‘at the beginning’. She claimed she had to drop out and work full-time to support her father financially, including paying for his surgery. She advised that from late 2016 she was too worried about her father’s health to be able to concentrate on her studies.
…
21.The applicant confirmed that she has one sibling, a brother, who also lives in Brisbane, who also came to Australia on a Student visa; who studied cookery; who is ‘not yet’ a permanent resident; who is on a 457 visa; and who is working full-time. She said that her brother was unable to support her father and mother in Nepal financially because he ‘had bills to pay’ and was not as concerned about their father because he was not as close to him as she was. She claimed her father had been unable to support her financially in Australia, as originally intended, because he had to leave his employment when he fell ill, and sell his property.
22.Evidence was provided in the form of a letter from a doctor in a hospital in Nepal, signed on 25 October 2017, that her father had undergone surgery for rectal cancer. No information was provided about when this surgery occurred. In a written statement provided on 25 February 2019 the applicant stated that she learned in October 2016 that her father’s eyesight was deteriorating and he needed eye surgery, which the family could not afford; that she became distraught at this news; and that from this she time was unable to concentrate on her studies and decided to work full time.
23.The Tribunal asked the applicant why she had not returned home to her family when her father became ill, as her father could no longer support her financially, and she was not in any event attending her classes. The applicant claimed that her mother advised her not to return home; to concentrate on her studies. The Tribunal asked the applicant why she did not return home at least during a scheduled semester break to see her father. The applicant did not respond to the question. Later in the hearing she claimed she didn’t return home because she didn’t want to see her father in his situation of grave ill-health. The Tribunal notes that in her written submission of February 2019 the applicant described an intense love and attachment to her father, and claimed that ‘seeing my face makes him smile more’. She then claimed ‘if I go back, despite of seeing my face, I don’t expect to see that bright smile on his face. If I go back, there will be no one to look after him, to support him financially.’
24.The applicant claimed she never told her mother, father or brother in Australia that she was not attending her classes and was working as a waitress in a hotel restaurant to pay for her father’s surgery. When the Tribunal asked the applicant where her mother thought the money was coming from, she responded that she only sent around $500 to her family every three weeks, so her mother thought the funds were from her part-time earnings. The Tribunal expressed surprise that her father, who was a politician in Nepal, was not in receipt of any sort of government support or pension; she advised that ‘it took a lot of time’ to process such things in Nepal.
The Tribunal ultimately accepted that the applicant had been sending money home to her family while working in Australia (in lieu of studying) and also accepted that the “applicant was concerned by her father’s illness and frailty”. However, the Tribunal noted that the purpose of a student visa was “not to enable a visa holder to work in Australia … to financially support family members” (at [27]).
Insofar as the applicant claimed that the Tribunal failed to consider the “social stigma” and embarrassment to the applicant’s family if she did not complete her studies, this fails on a factual level. In fact, the Tribunal expressly had regard to those issues as follows (emphasis added):
28.The applicant claimed at hearing that she no longer needs to support her parents in Nepal, and now wants to remain for the purpose of completing the courses that she came to Australia to study. She said she plans to seek employment as an accountant after completing these courses in late 2020. She said she didn’t want to disappoint her parents by returning home without the qualifications she came here to obtain. Her representative advised that there is social stigma attached to returning to Nepal in such circumstances.
29.When the Tribunal asked the applicant how she would explain to her parents taking a further two years in Australia to obtain her qualifications, as her visa would have expired in any event early in April 2019 and they would be anticipating her return, the applicant stated that she intends to tell them ‘the truth’ regarding her enrolment and visa cancellations. The Tribunal notes that the applicant would experience emotional hardship confronting her parents and seeking financial support for her further studies whether or not the visa is cancelled.
…
31.Should the applicant’s visa be cancelled she would be without a visa and subject to a period of exclusion from applying for further visas. There is no information before the Tribunal to indicate that the applicant would not be granted a Bridging E visa to enable her to stay out of detention while organising her departure. There is no information before the Tribunal to indicate that the applicant has any reason to fear or not want to return home, apart from her claim that her parents would be disappointed if she returns without any overseas qualifications, and that she can earn more in Australia.
…
34.The Tribunal has considered that the applicant might experience emotional hardship through disappointing her parents by returning without an Australian qualification, and might experience hardship from being subject to a period of exclusion from Australia.
As can be seen from the passages above, the Tribunal had regard to the potential for embarrassment and/or the social stigma which might arise if the applicant returned to Nepal without completing any qualifications.
The passages above also highlight the Tribunal’s consideration of any possible hardship that the applicant might experience (at [29] & [34] of the Tribunal’s written reasons).
The Tribunal’s consideration of the applicant’s evidence that she sought to obtain a qualification in accounting and to return to her home country as a qualified accountant can also be seen from the passages above (at [28] of the Tribunal’s written reasons).
Whilst the applicant may not agree with the Tribunal’s findings in relation to the matters set out above, it cannot be said that the Tribunal failed to consider any of those issues.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to give appropriate weight to certain factors
The applicant also claimed that the Tribunal failed to give appropriate weight to certain factors or particular evidence before it.
To the extent that the applicant takes issue with the weight given to factors, it is well established that the Tribunal is entitled to accept, reject or give such weight to the evidence submitted as it deems appropriate in the circumstances: Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464 at [27]. Further, the degree of weight to be given to the evidence is a factual question for the decision maker alone: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33] and Abebe v Commonwealth of Australia [1999] HCA 14 at [197].
Based on the authorities outlined above, the Tribunal was entitled to give such weight to the evidence before it as it deemed appropriate. Whilst the applicant may not agree with the weight given to a particular matter (or matters) by the Tribunal, or any findings made in that regard, disagreement does not amount to any error on the part of the Tribunal.
No jurisdictional error arises in this regard.
Whether the Tribunal erred in assessing the degree of hardship the applicant might have faced if her visa remained cancelled
The applicant also claimed that the Tribunal erred in its assessment of hardship.
As correctly submitted by the Minister (at [27] in written submissions filed in this Court on 2 April 2025), the Tribunal did not find that the outcome of cancellation versus non-cancellation would be the same as a general proposition. In oral evidence before the Tribunal, the applicant asserted that she intended to tell her parents “the truth” about her enrolment status and visa cancellation. In response, the Tribunal observed that the applicant would experience emotional hardship through that experience and as a result of seeking financial support for further studies, whether or not the visa was cancelled (at [29] in its written reasons).
Read fairly and with an eye not keenly attuned to error, the Tribunal’s observation was that it would be a difficult experience for the applicant to confess to her parents the circumstances surrounding the cancellation, regardless of the outcome of the Tribunal’s review. The Court is of the view that there was nothing unreasonable or illogical about that finding.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to make findings in relation to the applicant’s exceptional circumstances
The applicant also suggested that the Tribunal failed to make findings in relation to whether exceptional circumstances existed and whether those circumstances were beyond the applicant’s control.
The Tribunal’s reasons clearly show that the Tribunal had regard to the applicant’s claims and circumstances (including those circumstances relating to the applicant’s father’s illness and the impact that had on the applicant’s studies, as set out by the Court above). Those matters were taken into account by the Tribunal and the Tribunal weighed the relevant factors for and against cancellation as it was required to do.
The Tribunal also considered whether the circumstances were beyond the applicant’s control and noted the applicant’s own evidence that, in hindsight, the circumstances were not beyond her control (at paragraph [30] of the Tribunal’s written reasons).
As correctly submitted by the Minister (at [29] in written submissions filed in this Court on 2 April 2025), because there were no prescribed circumstances that the Tribunal was required to consider (under s 116 of the Act), the Tribunal was not required to make any express findings. All that was required was that the Tribunal weigh the relevant factors. The PAM3 guidelines relevantly stated that the “weight applied to each of the matters [was] at the discretion of the [decision maker]” and “each matter must be apportioned a weighting”.
The Court is satisfied that the Tribunal apportioned such weight in this matter (as it was required to do) and no jurisdictional error arises in this regard.
Whether the Tribunal’s decision or its findings were illogical, irrational or legally unreasonable
The applicant also appeared to suggest that the Tribunal’s decisions or its findings were “illogical, irrational or unreasonable”.
It is useful to first set out some of the relevant authorities in relation to illogicality, irrationality and legal unreasonableness. This Court recently looked at those authorities in its decision of AVH24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 98. That analysis applied equally here and is repeated below.
As explained by the High Court of Australia in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogicality. Ultimately, the fact that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence will not be sufficient to establish error: SZMDS at [131] per Crennan and Bell JJ.
Legal unreasonableness is case specific and the facts of each matter should be examined and determined based on the circumstances and evidence in that particular case: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [10].
As previously set out by this Court in CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688, the principles in relation to legal unreasonableness were clearly summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
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(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Here, it cannot be said that the Tribunal’s determinations were illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [52] per McKerracher J. On the contrary, the Tribunal:
(a)accurately summarised all relevant legislative provisions as they related to the issue before the Tribunal (being whether the applicant complied with Condition 8202 in Schedule 8 of the Regulations) (at [11]-[12]) and demonstrated a thorough understanding of those legislative provisions;
(b)summarised the applicant’s evidence given at the Tribunal hearing (at [17]-[25]);
(c)considered whether it should exercise its discretion to cancel the applicant’s visa by weighing all of the evidence and information before it (at [26]-[35]); and
(d)ultimately concluded that the reasons to cancel the visa outweighed the considerations in favour of not cancelling the visa and affirmed the delegate’s decision cancelling the applicant’s visa (at [35]-[36]).
It cannot be said that the Tribunal acted in a way that was irrational, illogical or unreasonable. The Tribunal’s conclusions were based on the evidence presented by the applicant herself, either in the applicant’s response to the NOICC (provided to the Department), in submissions provided to the Tribunal prior to the hearing, oral submissions from the applicant and her representative at the Tribunal hearing or information provided by the applicant after the Tribunal hearing.
It cannot be said here that the Tribunal’s decision demonstrates a failure to attend “conscientiously and appropriately to its statutory obligations”: SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 at [10] per Allsop J (as His Honour then was). Nor can it be said that the Tribunal made findings or employed a process of reasoning that no logical or rational decision-maker could have made on the facts of this case.
No jurisdictional error arises in this regard.
Whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal
In oral submissions before this Court, the applicant arguably raised concerns with the conduct of her “agent” – claiming that she was not “properly guided by [her] lawyers or [her] seniors”. The applicant did not elaborate on this claim or provide any context for the assertion above.
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (and other similar matters) (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process.
The CB suggests that the applicant’s representative assisted the applicant throughout the Tribunal review process. It appears as though the applicant’s representative provided pre-hearing submissions to the Tribunal (CB 101), attended the Tribunal hearing to assist the applicant (CB 105) and made submissions at that hearing on the applicant’s behalf (see, for example, paragraph [28] of the Tribunal’s written reasons). The applicant’s representative also sought an extension of time (at the Tribunal hearing) to provide further evidence to the Tribunal and did so (see paragraph [9] of the Tribunal’s written reasons and CB 109-142).
On the material before this Court, it cannot be said that the conduct of the applicant’s representative amounted to fraud. Negligence, incompetence or bad advice (to the extent that that is what is suggested here) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
An applicant’s recourse for negligence, incompetence or bad advice (and the Court makes no findings about the applicant’s representative in that regard) is to the appropriate regulatory authority – the Office of the Migration Agents Registration Authority – or, in some circumstances, via a civil claim filed elsewhere.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit (both filed by the applicant in the then FCCA on 17 April 2019), together with the applicant’s oral submissions to this Court (at the hearing on 16 April 2025) have failed to identify any jurisdictional error on the part of the Tribunal.
The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 July 2025
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