Rani v Minister for Immigration and Citizenship
[2025] FedCFamC2G 862
•23 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rani v Minister for Immigration and Citizenship [2025] FedCFamC2G 862
File number(s): SYG 484 of 2022 Judgment of: JUDGE MARQUARD Date of judgment: 23 June 2025 Catchwords: MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider cogent evidence – grounds not particularised- where contradictory evidence-no jurisdictional error-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: Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
ETA067 v Republic of Nauru (2018) 360 ALR 228
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Mazimbe v Minister for Immigration and Multicultural Affairs [2023] FedCFamC2G 1227
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
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 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 and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158.
NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth ofAustralia (2003) 211 CLR 476
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
VAAD v Minister [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 98 Date of last submissions: 28 May 2025 Date of hearing: 14 May 2025 Place: Sydney Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr J Pinder of Mills Oakley Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 484 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GEETA RANI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
23 JUNE 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 March 2022 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
Before the Court is an application filed on 25 March 2022, seeking judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) dated 1 March 2022. The Tribunal affirmed a decision of the Department of Immigration and Multicultural Affairs (Department), as delegate of the first respondent, dated 16 March 2020, to refuse to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa (Student 500 visa).
For the reasons that follow, the application is dismissed.
BACKGROUND
The applicant is a citizen of India (Court Book (CB) 23). She first arrived in Australia on 16 May 2018 as the holder of a Visitor (Class FA) (Subclass 600) visa. She was granted a further Visitor (Class FA) (Subclass 600) visa in 2019 (CB 11-12).
On 19 December 2019, the applicant applied to the Department for the Student 500 Visa (CB 1–17). She proposed studying a General English Starter to Advanced course of study at Duke College from 20 January 2020 to 17 January 2021 (CB 38).
On 19 December 2019, the same day the applicant lodged her visa application, the Department acknowledged the application and invited the applicant to log in to her Departmental account to view the documents required for her application (CB 42-43).
On 16 March 2020, the Department refused to grant the applicant the Student 500 Visa (CB 49 - 53). On the same date of the Department’s decision, the applicant was notified of the Department’s decision by way of email to her migration agent (CB 47 -48), the authorised representative, as nominated by the applicant in her visa application (CB 18 –20). The Department was not satisfied that the applicant met cl 500.212 of Schedule 2 of Migration Regulations 1994 (Cth) (the Regulations), which requires that the applicant is a genuine applicant for entry and stay as a student because the applicant genuinely intends to stay in Australia temporarily (CB 53).
On 1 April 2020, the applicant applied to the Tribunal seeking review of the Department’s decision (CB 54-55).
On 4 October 2021, the applicant wrote to the Tribunal by way of email requesting that the Tribunal direct all future correspondence to her. The applicant provided a Change of Contact Details Form to the Tribunal with her updated preferred contact details (CB 65 -66).
On 6 October 2021, the Tribunal wrote to the applicant notifying her that it was a requirement of the visa that the applicant be enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The applicant was invited to provide relevant information to satisfy the Tribunal that she met these requirements. An attached questionnaire titled, ‘Request for Student Visa Information under s 359(2) of the Migration Act 1958 (Cth) (Act) set out specific details about the information requested (CB 72 -73). The applicant was notified that the Tribunal was required to have regard to the Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student Visa and Student Guardian visa applications’ (Direction No 69), and a copy was provided.
The applicant provided a detailed response (CB 81-130).
On 12 January 2022, the Tribunal invited the applicant to attend a hearing. The hearing invitation confirmed that a Punjabi interpreter had been arranged at the request of the applicant (CB 150 -153).
On 28 January 2022, the applicant attended the hearing before the Tribunal to give evidence and present arguments (CB 157 -159).
On 1 March 2022, the Tribunal affirmed the decision under review (CB 162).
TRIBUNAL DECISION 1 MARCH 2022 (CB 162 -168)
The Tribunal summarised the background to the proceeding ([2-3] and [12] of the Tribunal Decision).
The Tribunal set out the relevant legal and policy framework ([7 – 11] of the Tribunal Decision).
The Tribunal summarised the evidence ([13] of the Tribunal Decision).
The Tribunal identified that in considering whether the applicant satisfied cl 500.212 (a) of Schedule 2 to the Regulations, it must have regard to the factors specified in Direction No. 69, ‘Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications’, made under s 499 of the Act ([8- 9] of the Tribunal Decision). The Tribunal noted that the factors in Direction No 69 were not a checklist, referring to Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 ([10] of the Tribunal Decision). The Tribunal made the following findings and comments ([16 -32] of the Tribunal Decision):
(a)circumstances in applicant’s home country: the Tribunal considered the applicant's evidence in relation to her circumstances in India ([20-24] of the Tribunal Decision). The Tribunal accepted the applicant’s evidence about being a proud citizen of India. The Tribunal recorded that she regularly speaks with her parents and siblings in India. The Tribunal found that the applicant's family ties to India did not of themselves constitute a strong incentive for her to return to India ([24] of the Tribunal Decision). The Tribunal recorded the applicant’s evidence that she had no concerns about unrest in India ([21] of the Tribunal Decision) or of military service commitments ([22] of the Tribunal Decision). The Tribunal recorded the applicant’s evidence that she had not undertaken enquiries or investigations in relation to completing studies in India. The Tribunal found that she did not have reasonable reasons for undertaking studies outside of India ([23] of the Tribunal Decision).
(b)potential circumstances in Australia: the Tribunal considered the applicant's evidence regarding her family and assets in Australia. The Tribunal found that the applicant’s circumstances in Australia did not provide a substantial incentive to remain in Australia ([25 -26] of the Tribunal Decision).
(c)value of the course to the applicant's future: the Tribunal considered the applicant's evidence regarding her plans to start a human resource company upon returning to India. The Tribunal considered the applicant’s evidence about her prospective career trajectory and found that her plans were vague and not well-developed ([17] of the Tribunal Decision). The Tribunal noted its concerns that the applicant was unlikely to apply herself to the course. The Tribunal justified its concerns by outlining the evidence such as: the applicant’s inability to respond to questions such as how many units in her course, lack of course progress and the applicant’s education history ([16] of the Tribunal Decision). The Tribunal considered the applicant’s intentions to complete the Graduate Diploma in the future, however noted the applicant’s evidence that she was unsure what course she was studying as she had not checked the email from the education provider, and that she was due to commence a subject but deferred owing to ill health ([16] of the Tribunal Decision). The Tribunal noted its concerns and found that the primary purpose of the applicant’s further enrolments was to prolong her stay in Australia ([19] of the Tribunal Decision); and
(d)applicant’s immigration history: the Tribunal recorded the applicant’s immigration history and made no adverse findings in relation to her immigration history either in Australia or in other countries ([27] of the Tribunal Decision).
The Tribunal was not satisfied that the applicant was a genuine applicant. The Tribunal did consider that there may have been some utility for the applicant in improving her English language skills when remaining onshore in Australia ([29] of the Tribunal Decision).
The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily ([30] of the Tribunal Decision). Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student ([31] of the Tribunal Decision). The Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa had not been met by the applicant ([32] of the Tribunal Decision).
The Tribunal affirmed the delegate’s decision dated 16 March 2020 ([33] of the Tribunal Decision).
APPLICATION TO THIS COURT AND HEARING
The applicant applied to this Court for judicial review pursuant to s 476 of the Act on 25 March 2022. She stated that the grounds for her application were (reproduced without alteration):
1. Applicants claims that the adminstratative appeal tribunal made jurisdictional error when it did not consider the appeal from applicant to consider on the compassionate reason
2. Applicant stasify cl 500.212(a) and she claim she is genuine temporary entrant she currently doing study
3. AAT misunderstood matter did not grant her visa
The applicant filed an affidavit in support of her application for judicial review on 25 March 2022. The affidavit attached the Tribunal Decision.
On 12 March 2025 a Registrar of this Court made procedural orders. These included an order for the applicant to file an amended application, additional evidence and submissions on or before 2 April 2025.The applicant did not avail herself of this opportunity and no further documents were filed.
On 14 May 2025 the applicant appeared before this Court. She was unrepresented and assisted by a Hindi interpreter. She confirmed that she could understand the interpreter and that she had received copies of the Court Book and the Minister’s written submissions.
The following documents were before this Court – the application for judicial review and the supporting affidavit of the applicant filed on 25 March 2022 (read at the hearing), a Court Book (numbering 182 pages and marked as Exhibit 1R) filed 27 June 2022, written submissions of the Minister filed on 16 April 2025 and supplementary submissions of the Minister filed on 28 May 2025.
As the applicant was unrepresented, the Court provided 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: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at [272]. It was explained to the applicant that the Court cannot review the merits of the Tribunal’s decision or decide to grant the applicant a visa.
The Court outlined some of the common categories of jurisdictional error (based on references in Craig v State of South Australia (1995) 184 CLR 163; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [207]-[208]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic). The Court also noted that this list of categories was not exhaustive: Mazimbe v Minister for Immigration and Multicultural Affairs [2023] FedCFamC2G 1227.
CONSIDERATION OF CLAIMED GROUNDS OF JURISDICTIONAL ERROR
Legal principles
The Tribunal was required to consider whether the applicant met the legislative criteria for a Student (Temporary) (Class TU) (Subclass 500) visa.
Section 29 (1) of the Migration Act 1958 (Cth) (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: ss 31 (1) and 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 the visa applied for by the applicant are set out in Clause 500.2 of the Schedule to the Regulations. Clause 500.212 requires that the applicant is a genuine applicant for entry and stay as a student, having regard to various factors.
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 ofAustralia (2003) 211 CLR 476.
The task of this Court in judicial review is not to undertake a general review, but to consider jurisdictional error and if found, to quash the decision of the Tribunal: Craig v State of South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The applicant has claimed that the Tribunal Decision fell into jurisdictional error. This Court has jurisdiction to determine this matter pursuant to s 476 of the Act.
The Court must review the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about the decision: Djokovic at [17].
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, 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].
Grounds alleged by the applicant
The applicant specified three grounds of jurisdictional error in her application to this Court.
The Court provided the applicant with an opportunity to provide written submissions and to file an amended affidavit and additional evidence by 2 April 2025, but she did not avail herself of the opportunity.
At the hearing, the Court invited the applicant to particularise her claims and make oral submissions on the grounds. She told the Court on a number of occasions, that she did not want to say anything.
The Court also referred to each of her grounds, as described in her application, and invited her to make submissions but she again said that she did not wish to say anything further.
The grounds in the application are referred to below.
Ground 1
The first ground in the application was:
Applicants claims that the adminstratative appeal tribunal made jurisdictional error when it did not consider the appeal from applicant to consider on the compassionate reason
This ground was no particularised, and there was no indication of what compassionate reasons the applicant claimed were not considered by the Tribunal. The Court asked the applicant at the hearing if she wished to provide further submissions on how the Tribunal fell into jurisdictional error as described in Ground 1. She said that she did not want to say anything.
The first respondent submitted that the Tribunal Decision demonstrated that the Tribunal understood the legislative provisions, considered the applicant’s evidence and made findings that were logically and rationally open on the evidence before it. The first respondent noted correctly that the Tribunal was not required to refer to ‘compassionate circumstances’ by cl 500.212 of Schedule 2 to the Regulations having regard to Direction No 69. The first respondent also submitted that it was unclear what compassionate reason the applicant claimed was not considered by the Tribunal.
The Court is satisfied that the applicant correctly identified the relevant legislative criteria ([7- 11] of the Tribunal Decision), outlined the evidence considered ([13] of the Tribunal Decision) and made findings on the evidence ([16-32] of the Tribunal Decision.
The applicant did not identify what compassionate reasons she contended were not considered by the Tribunal. Without further particulars, the Court has been unable to identify any compassionate reasons which were not considered by the Tribunal. The Tribunal made reference to the applicant’s evidence ([14-27] of the Tribunal Decision). The Tribunal referenced her claim that she had not commenced a second subject due to ill-health ([16] of the Tribunal Decision). Despite being invited to provide further submissions at the hearing of this matter, the applicant has not identified any other compassionate factors which she claims were not considered by the Tribunal. The Court is not persuaded that the Tribunal did not consider compassionate reasons, as no reasons have been identified.
Ground 1 does not disclose jurisdictional error.
Ground 2
The second ground in the application was:
Applicant stasify cl 500.212(a) and she claim she is genuine temporary entrant she currently doing study
Ground 2 was not particularised. At the Court hearing, the applicant was asked if she wished to particularise or provide submissions in support of this ground. She said that she did not want to say anything.
The first respondent submitted that the ground failed to allege any error on part of the Tribunal and went no further than cavilling with the Tribunal’s findings in respect of the genuine temporary entrant criteria.
To the extent that this ground refers to disagreement with the Tribunal’s decision, the Court cannot engage in merits review as this is the role of the Tribunal: Wu Shan Liang at [272] per Brennan, Toohey, McHugh and Gummow JJ.
The ground could also be broadly interpreted as a claim that the Tribunal did not consider that the applicant was currently studying. The first respondent submitted that the issue of her current study was not the dispositive issue in respect of cl 500.212(a) of Schedule 2 to the Regulations.
It is a criterion for the visa that the applicant be currently enrolled: cl 500.211 of Schedule 2 to the Regulations. This clause was not considered separately by the Tribunal as the Department found that the applicant did not meet clause 500.212 (CB 49-53). Current enrolment of the applicant was not an issue in dispute.
However, the Tribunal considered current study in respect of the question of whether the applicant was a genuine applicant for entry and stay as a student ([13], [16], [18] and [19] of the Tribunal Decision). In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [69] the majority found that the Tribunal was required to provide a statement setting out findings on material questions of fact and if matters were not mentioned in the decision, it could demonstrate an error of law, such as failing to take into account relevant considerations. The Tribunal had regard to the various factors set out in cl 500.212 and Direction 69 and completed the task enunciated in Yusuf of setting out findings on questions of fact it considered to be material to the decision and the reasons it had for reaching that decision ([20-28] of the Tribunal Decision). This included consideration of current study ([13], [16], [18] and [19] of the Tribunal Decision).
To the extent that the applicant is claiming that the Tribunal should have given more weight to current study, the weight to be attributed was a matter for the Tribunal: NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11]. The decision made was lawfully and reasonably open to the Tribunal. The Tribunal relied on various factors which were logically capable of informing the decision that the Tribunal was not satisfied that the applicant intended to stay temporarily in Australia ([12 - 27] of the Tribunal Decision).
Ground 2 does not disclose jurisdictional error.
Ground 3
The third ground in the application was:
AAT misunderstood matter did not grant her visa
This ground was not particularised. The applicant was provided with an opportunity to provide submissions on this ground at the hearing. She told the Court that she did not want to say anything.
The first respondent submitted that the applicant had not identified what misunderstanding there was. This is correct, as the onus is on the applicant to prove error: VAAD v Minister [2005] FCAFC 117 at [44]-[45]. This ground is liable to be dismissed for want of particularisation: see NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].
However, as the applicant was unrepresented, the Court has nonetheless considered whether the Tribunal Decision was unreasonable in the sense that the Tribunal did not understand the evidence, if this is what was being contended by the applicant.
The first respondent submitted that the Tribunal applied the relevant legislative provisions correctly. The Court agrees, for the reasons set out below.
The task of the Tribunal was to consider whether the applicant was a genuine applicant for entry and stay as a student because she intended to stay in Australia temporarily having regard to the applicant’s circumstances, immigration history, record of compliance with visa conditions, stated intention to comply with visa conditions and any other relevant matters: cl 500.212 of Schedule 2 to the Regulations. The Tribunal was required to have regard to the factors outlined in Direction No. 69, ‘Assessing the genuine temporary entrant criterion for student visa and student guardian applications’ issued under s 499 of the Act.
The Tribunal identified the relevant law and principles ([8-11] of the Tribunal Decision).
The Tribunal then considered whether the applicant was a genuine applicant for entry and stay as a student because she intended to stay in Australia temporarily ([12-31] of the Tribunal Decision), having regard to the applicant’s circumstances, including lack of higher-level study in India and Australia, lack of course progress, inability to name her courses, future plans, conditions in her home country, enquiries about studying at home, family in India and pride in her country, family and work in Australia, travel and visa compliance ([12-31] of the Tribunal Decision). This consideration broadly corresponded with the factors specified in Direction No. 69.
The test of unreasonableness must be ‘necessarily stringent’: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] (per Kiefel CJ).
The characterisation of a decision as legally unreasonable is not easily made out: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551 [11], 564 [52], and 586 [135] and other decisions,
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’.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 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.
As the Tribunal considered the applicant’s evidence in light of the legislative and policy principles, it was open to the Tribunal to engage in the process of reasoning it did, and the decision had an evident and intelligible justification.
Evaluation of the evidence and weight given to the evidence were matters for the Tribunal. The Court cannot engage in impermissible merits review Wu Shang Liang at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
No jurisdictional error is disclosed in Ground 3.
Other issues
It is common for unrepresented applicants to be unfamiliar with legal principles. The Court has been alert to potential legal error, in accordance with the principles set out in the decision in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158.
As a result, the Court raised two further issues with the first respondent at the hearing. On application of the first respondent, orders were made for filing of further submissions by the applicant on 21 May 2025 and further submissions of the first respondent and affidavit of the transcript of the Tribunal hearing by 28 May 2025.
No further submissions were filed by the applicant.
On 28 May 2025 the first respondent provided post-hearing submissions and an affidavit of Usipua Talele Soliola, a paralegal from Mills Oakley, the solicitors for the first respondent dated 28 May 2025. Ms Soliola affirmed that she had listened to a copy of the electronic audio file from the Tribunal relating to the applicant’s hearing before the second respondent on 28 January 2022. She affirmed that she had prepared and attached a transcript of the audio recording (Tribunal Hearing Transcript).
At [18] of the Tribunal Decision, it was stated that:
The applicant’s study does not appear to be related to any of her previous study or employment. It is not consistent with her level of education in the sense that she does not appear to have ever graduated from any course, aside from her English studies…
In a ‘Statement of Purpose’ submitted by the applicant to the Department (CB 21-22) the applicant stated that she had completed an Advanced Diploma in Software Technology and Systems Management from National Institute of Computer Technology in India. The statement of the Tribunal at [18] of the Tribunal Decision appeared contradictory to this information. Further, in an undated submission to the Tribunal (CB 91-99) the applicant refers to finishing secondary school with ‘good grades and states that she was ready to start further education and was very excited about this and was interested in business and management studies and was thinking of doing the same.’ She then discusses financial hardship, which she says prevented her from undertaking any further education (CB 91).
This was the first issue raised by the Court.
In post-hearing submissions, the first respondent noted that in the Tribunal Hearing Transcript at page 10 the applicant said that she did not do any further study after school. Furthermore, in a submission undated of the applicant to the Tribunal (CB 91-99), the applicant did not refer to any further study after secondary school, instead stating that she was not able to commence further education (CB 91). It was submitted that it was open to the Tribunal to accept later evidence, even if contradictory.
It would have been clearer if the Tribunal had referred to all the evidence before it in the Tribunal Decision, including the evidence at (CB 21-22) and explained how particular evidence was preferred. However, the Court accepts that the bulk of the evidence, and the more recent evidence, was that the applicant had not studied after secondary school, even though her evidence at (CB 21-22) stated that she had completed an Advanced Diploma. Considering that the applicant clearly told the Tribunal at hearing that she did not study after secondary school, it was open to the Tribunal to accept this more recent evidence and make the findings that it did at [18] of the Tribunal Decision.
Although the Tribunal did not refer to her evidence about prior study (CB 21) or wanting to study but being unable to do so (CB 91) this does not mean that the evidence or an issue raised by it was not considered by the Tribunal: ETA067 v Republic of Nauru (2018) 360 ALR 228 (ETA067) at [13] per Bell, Keane and Gordon JJ. There is no obligation on the Tribunal to cite all evidence considered: ETA067 at [13]. The Tribunal has indicated that it took the submissions into consideration ([13] of the Tribunal Decision).
It was a matter for the Tribunal to determine the weight to be given to the evidence: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 (Tran) at [4] to [5] per Nicholson J (Kiefel J and Downes J agreeing). The Tribunal was entitled to accept or reject or give such weight to the evidence proffered as it thought appropriate in the circumstances: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J.
There was no jurisdictional error disclosed in the findings in [18] of the Tribunal Decision.
The second issue raised by the Court at hearing was that at [23] of the Tribunal Decision, it was stated:
The applicant’s evidence was such that she had not made enquiries or investigated studying at home. As such, I do not consider she has reasonable reasons for not undertaking study in her home country.
At (CB 95), the applicant stated in a submission to the Tribunal under the heading ‘Reason for Not Choosing India for further study’:
I searched for many colleges in India but did not find any of those who provide more practical and in-depth knowledge of business management than Australian standards.
The statement at (CB 95) appeared to contradict the finding in [23] of the Tribunal Decision.
In post-hearing submissions the first respondent’s solicitor referred to page 11 of the Tribunal Hearing Transcript when the applicant was asked if she had investigated studying in India at all. She said that she had not enquired.
The Court accepts that it was open to the Tribunal to accept this later evidence at the Tribunal hearing that the applicant had not made any enquiries about studying in India. Although it would have been clearer and fairer to explain in the Tribunal Decision why the Tribunal had preferred the later evidence, it was not an error to prefer one piece of evidence over another, or not to cite the earlier evidence: ETA067 at [13] per Bell, Keane and Gordon JJ. It was a matter for the Tribunal to determine the weight to be given to the evidence: Tran at [4] – [5] per Nicholson J (Kiefel J and Downes J agreeing).
The Court is satisfied that no jurisdictional error was demonstrated in the findings in [23] of the Tribunal Decision.
AMENDMENTS TO THE ACT AND CHANGES OF NAME
The Act was amended on 14 October 2024 after 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) (the Consequential Act).
This judgment concerns a decision of the former Administrative Appeals Tribunal. References in this decision to the Act are to the Act at the time of the Tribunal's decision, unless otherwise stated.
Pursuant to Item 10 of Schedule 16 of the Consequential Act, the ART is substituted as a party in all pending proceedings. Item 25 further provides that pending proceedings are to continue under the new legislative regime.
In the circumstances, this Court has made an order substituting the ART as the second respondent in this proceeding.
On 13 May 2025 by Administrative Arrangements Order the Act is to be administered by the Department of Home Affairs. The newly named portfolio of Department of Immigration and Citizenship forms part of the Department of Home Affairs.
In these circumstances the Court will make an order substituting the Minister of Immigration and Citizenship as the first respondent in this proceeding.
CONCLUSION
As none of the grounds raised by the applicant establish jurisdictional error, it follows that the application for judicial review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 23 June 2025
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