Thakur v Minister for Immigration and Citizenship - [2025] FedCFamC2G 850

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thakur v Minister for Immigration and Citizenship [2025] FedCFamC2G 850

File number(s): MLG 3355 of 2019

Judgment of: JUDGE FARY

Date of judgment: 12 June 2025

Catchwords: MIGRATION – application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not satisfy the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212 – whether Tribunal erred by failing to take into consideration the Applicant’s circumstances – parties invited to make further written submissions – found jurisdictional error on behalf of the Tribunal – application upheld – remitted to the Tribunal.

Legislation:
Evidence Act 1995 (Cth) s 56

Family Law Act 1975 (Cth) s 60CC

Migration Act 1958 (Cth) ss 360, 357A, 430, 476, 477, 499

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1, Pt 2 of Sch 2

Migration Regulations 1994 (Cth) Schedule 2, cll 500.212, 500.311

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593

Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR

CED15 v Minister for Immigration and Border Protection [2018] FCA 451

CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287

Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Hot Holdings Pty Ltd v Creasey (2002) 210 CLR 438

Kaur v Minister for Home Affairs [2019] FCA 2026

Kaur v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Home Affairs v DUA16 (2020) 271 CLR 550

Minister for Immigration & Border Protection v Tesic (2017) 251 FCR 23

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v MZYHS [2011] FCA 53

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

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

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1

NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456

Nathanson v Minister for Home Affairs (2022) 276 CLR 80

Oshlack v Richmond River Council (1998) 193 CLR 72

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1

Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

Sharma v Minister for Immigration and Border Protection [2017] FCFCA 227

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZMUF v Minister for Immigration and Citizenship [2009] FCA 182

SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445

Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 204

Waterford v Commonwealth (1987) 163 CLR 54

Division: Division 2 General Federal Law

Number of paragraphs: 185

Date of last submission/s: 6 June 2025

Date of hearing: 15 May 2025

Place: Melbourne

Applicants: In person

Solicitor for the First Respondent: Mr Mintz, Clayton Utz

Solicitor for the Second Respondent: Submitting notice, save as to costs
ORDERS

MLG 3355 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
RITIKA THAKUR

First Applicant

ANAND SINGH CHEEMA

Second Applicant

VIRAAJ SINGH CHEEMA

Third Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE FARY

DATE OF ORDER:

12 JUNE 2025

THE COURT ORDERS THAT:
1.The applicants have leave to amend their application to include orders as follows:
(a)A writ of mandamus directed to the Tribunal or Minister, requiring them to determine the applicant’s application according to law.

2.An order that the decision of the Tribunal on 18 September 2019 be quashed.
3.A writ of mandamus issue directed to the Tribunal requiring it to determine the applicants’ application according to law.
4.The first respondent pay the applicants’ costs of the proceeding, such costs to be agreed between the parties or fixed by me.
5.The parties have liberty to apply to seek an order fixing the amount of costs.
6.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

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 Fary
INTRODUCTION

By an Application filed in this Court on 3 October 2019 (Application), the applicants (Applicants) seek judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 13 September 2019 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision, the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the first applicant (Applicant) a Student (Temporary) (Class TU) Student (Subclass 500) visa (Visa) on the basis that the Applicant did not satisfy the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) (cl 500.212).
The hearing of the Application took place at the Melbourne Registry of the Court on 15 May 2025 (Hearing). The Minister was represented by a solicitor, Mr Mintz.
The Applicant and the second applicant appeared both in their own right and as joint litigation guardian of the third applicant. The Applicant made submissions on behalf of all of the Applicants. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 15 May 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal fell into jurisdictional error in relation to the Tribunal hearing on 2 August 2019 (Tribunal Hearing) or the Tribunal’s Decision.
BACKGROUND
The Court has before it a Court Book with 214 pages filed by the Minister on 17 March 2021 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions, filed 24 April 2025 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [12]. The Court adopts those submissions with amendments as follows.
The Applicants are citizen of India.
On 1 February 2018, the Applicant applied for a Visa with the assistance of Soz Migration Services (Migration Agent). The Applicant applied for the Visa with the intention to study commercial cookery and undertake a Diploma of Hospitality Management.[2]
[2] Court Book (CB) 1-24.
On 19 March 2018, a Delegate of the Minister refused to grant the Applicant’s Visa (Delegate’s Decision) on the basis that she did not satisfy the genuine temporary entrant criteria in cl 500.212 of Schedule 2 of the Regulations.[3] The second and third applicant’s application for a Visa was also refused.
[3] CB 39-45.
On 4 April 2018, the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application) with the assistance of her Migration Agent.[4]
[4] CB 39-45.
On 25 June 2019, the Tribunal wrote to the Applicant's Migration Agent seeking further information by completing a Request for Student Visa Information form.[5]
[5] CB 96-98.
On 1 July 2019, the Applicant’s Migration Agent provided to the Tribunal a completed Request for Student Visa Information form.[6]
[6] CB 105-118.
On 17 July 2019, the Tribunal wrote to the Applicant’s Migration Agent, inviting them to attend a hearing on 2 August 2019.[7]
[7] CB 119-123.
On 2 August 2019, the Applicant attended the Tribunal Hearing with her Migration Agent and with the assistance of a Hindi interpreter.[8]
[8] CB 140-142.
On 18 September 2019, the Tribunal notified the Applicants of the Tribunal’s Decision to uphold the Delegate’s Decision dated 13 September 2019.[9]
[9] CB 144-146.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 146 to 162 of the Court Book.
The Tribunal first outlined the background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [7].
The Tribunal reviewed the evidence provided by the Applicant, including, the Applicant’s visa history, study history in India and the amount of time she had spent in India since 2008, being 88 days in over 10 years.[10]
[10] CB 152-153.
The Tribunal noted that the Applicant had not provided a Genuine Temporary Entrant (GTE) statement but had provided the s 359 Response.[11]
[11] CB 153.
The Tribunal did not accept the Applicant’s reasons for not studying in India were genuine, also, she did not have significant incentives to return to India noting that her husband and two children (an apparent error) live in Australia. The Applicant did not provide objective evidence of her financial ties to India.[12]
[12] CB 154.
The Tribunal were not satisfied that the Applicant’s current course of study would further assist her career development or earning potential in light of the qualification she already holds; a Bachelor of Science.[13]
[13] CB 154.
The Tribunal found that the extent to which the Applicant had sought to change pathways was not consistent with the behaviour of a genuine student, given she had not demonstrated how those pathway changes would be beneficial to her in the future.
The Tribunal were not satisfied that the Applicant genuinely intended to stay in Australia temporarily and found the Applicant’s visa history demonstrated an intention to use the student migration program to maintain ongoing residence in Australia. The Tribunal further noted that the Applicant had spent over 10 years in Australia and had demonstrated only marginal success relating to course completion.[14]
[14] CB 155.
The Tribunal found that the Applicant did not meet cl 500.212(a) (i.e. the temporary entrant criterion), and therefore the second and third applicants did not satisfy cl 500.311.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 3 October 2019, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 22 January 2021, Orders were made by Registrar Carlton of this Court for the Applicants to file: written submissions, any amended application and any additional evidence, for the Respondent to file: a copy of the court book, written submissions and any additional evidence, for the first and second applicants to be appointed as joint litigation guardians of the third applicant, Viraaj Singh Cheema.
On 5 March 2025, Orders were made by Registrar Cummings of this Court for the First Respondent’s name to be amended to the Minister for Immigration and Multicultural Affairs, for the Second Respondent’s name to be amended to Administrative Review Tribunal, for the Applicant to file: written submissions, any amended application with proper particulars and any additional evidence, for the Respondent to file: a copy of the court book, written submissions and any additional evidence.
On 31 March 2025, Orders were made by Registrar Cummings of this Court vacating Orders 5 and 6 made previously on 5 March 2025 by Registrar Cummings. Further Orders were made for the Applicant to file: written submissions, any amended application with proper particulars and any additional evidence, for the First Respondent to file: a copy of the court book, written submissions and any additional evidence.
This matter was heard on 15 May 2025 at the Hearing. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicants to engage with the Court.
The Applicants relied upon the following documents:
(a)The Application filed 3 October 2019;
(b)The Affidavit of the Applicant sworn and filed 3 October 2019 (Applicant’s Affidavit);
(c)The Applicant’s Outline of Submissions filed 16 April 2025;
(d)The Amended Application filed 17 April 2025; and
(e)Further Outline of Submissions filed 26 May 2025.
(f)Reply Submissions dated 4 June 2025.
The Minister relied upon:
(a)The Response, filed 31 October 2019;
(b)The Minister’s Outline of Submissions filed 24 April 2025; and
(c)Further Outline of Submissions filed 2 June 2025.
Both parties relied on the Court Book.
The Application contains five (5) grounds of review (Grounds of Review):
Failure to Properly Consider the Applicant’s Genuine Temporary Entrant (GTE) Statement in Accordance with Clause 500.212 of the Migration Regulations 1994
1.    The Tribunal has failed to properly assess and give appropriate weight to the material evidence that I submitted in support of my application, resulting in a jurisdictional error. Specifically (Ground 1):
a.     Disregard of My Genuine Temporary Entrant (GTE) Statement: I provided a detailed GTE statement explaining my genuine intention to return to India after completing my studies in Australia. This included personal circumstances such as the death of my brother and significant family health issues, which had an impact on my course changes. Despite this, the Tribunal failed to give adequate consideration to these circumstances, dismissing them without a thorough analysis of the context behind my decisions. This failure to consider my statement properly constitutes a clear jurisdictional error.
b.    Overlooking My Ties to India: I submitted substantial evidence of my strong familial, social, and financial ties to India, including the ownership of ancestral property and my mother’s residence. These ties are vital to understanding my intentions to return to India after my studies, yet the Tribunal dismissed them without giving them proper weight. The insistence on documentary evidence from India was unreasonable, especially considering my location in Australia and the challenges of obtaining such documentation from abroad.
c.     Failure to Properly Assess and Consider the Applicant's Financial Evidence in Compliance with Visa Assessment Criteria: I provided detailed evidence of my financial capacity, including bank savings, health insurance, and a financial plan to support myself and my family during our stay in Australia. The Tribunal did not adequately assess this evidence, which is a crucial factor in visa applications. By neglecting to properly consider my financial capacity, the Tribunal’s decision was flawed.
These failures to properly consider and evaluate the evidence amount to a jurisdictional error, and as such, the Tribunal’s decision must be overturned
2.    Erroneous Application of the Genuine Temporary Entrant (GTE) Criterion under Clause 500.212 of the Migration Regulations 1994
The Tribunal’s application of the Genuine Temporary Entrant (GTE) criterion under clause 500.212 of the Migration Regulations 1994 was flawed and constitutes a jurisdictional error. Specifically (Ground 2):
a.     Excessive Weight Placed on the Applicant’s Past Immigration History in Contravention of Relevant Legal Standards: The Tribunal placed undue weight on my previous immigration history, such as past course changes and visa cancellations, without adequately considering my explanations for these actions. I provided clear and reasonable explanations for these events, including personal and family-related factors. The Tribunal failed to assess the broader context of these actions and applied an overly simplistic view of my immigration history, which resulted in an unfair conclusion.
b.    Failure to Adequately Evaluate the Applicant's Current Circumstances in Accordance with Relevant Visa Criteria: The Tribunal failed to properly assess my current circumstances and the reasons for my decision to pursue my proposed course of study in Australia. I clearly explained how this course would assist my future career in India, yet the Tribunal disregarded these reasons without proper analysis. The failure to assess my current situation in light of the GTE criterion is a legal error.
c.     Misapplication of Ministerial Direction No. 69 in the Assessment of the Applicant's Genuine Temporary Entrant Status: The Tribunal did not apply Ministerial Direction No. 69 in a balanced and comprehensive manner. The Direction calls for a holistic approach when assessing a student’s intentions, including the applicant’s career prospects and ties to their home country. By not considering all relevant factors and failing to balance the various elements of the Direction, the Tribunal made an erroneous decision.
This flawed application of the GTE criterion resulted in an unlawful decision, and I request that the Tribunal’s findings be reviewed.
3.    Failure to Afford Procedural Fairness in the Decision-Making Process
The Tribunal’s decision was made in breach of the principles of procedural fairness, which constitutes a jurisdictional error. Specifically (Ground 3):
a.     Failure to Properly Consider and Respond to the Applicant's Submissions Regarding Return Intention and the Relevance of the Proposed Course: Despite submitting detailed and comprehensive evidence of my intention to return to India, including financial and familial evidence, the Tribunal did not properly address or respond to these submissions. This failure to engage meaningfully with my claims deprived me of a fair opportunity to present my case and clarify any doubts the Tribunal may have had.
b.    Failure to Provide an Opportunity to Respond to Concerns Raised by the Tribunal: The Tribunal raised concerns about my immigration history, course relevance, and temporary stay intentions without offering me an opportunity to respond to those concerns. This lack of opportunity to clarify my position or address the issues raised by the Tribunal is a breach of procedural fairness, as I was not give a chance to rectify any misunderstandings.
The failure to ensure procedural fairness was a serious flaw in the Tribunal’s decision-making process, and as such, the decision should be set aside.
4.    Unreasonableness of the Tribunal’s Decision in Contravention of Established Administrative Law Principles
The Tribunal’s decision was unreasonable in the legal sense, demonstrating a failure to properly exercise its decision-making powers and thus constituting a jurisdictional error. Specifically (Ground 4):
a.     Failure to Consider the Value of My Proposed Course of Study to My Career: The Tribunal dismissed my explanation regarding the value of my proposed course of study, which I explained would assist in my future career in India, particularly with my plans to open a food business. The Tribunal did not adequately assess the potential benefits of this course in the context of my career goals. This failure to consider the value of my proposed study renders the decision unreasonable.
b.     Excessive Focus on My Past Course History Without Consideration of My Current Circumstances: The Tribunal placed significant emphasis on my past course enrolments, labelling them inconsistent and not aligned with my prior education. The Tribunal failed to consider that my career goals had evolved over time, and the course I am currently pursuing is directly related to my future business aspirations in India. The Tribunal’s unbalanced focus on past courses, without considering my present intentions, is irrational and unreasonable.
The unreasonable nature of the Tribunal’s decision, due to its failure to properly assess my educational.
5.    Failure to Consider the Best Interests of the Child in Accordance with Section 60CC of the Family Law Act 1975
The Tribunal failed to adequately consider the best interests of my child, Viraaj Singh Cheema, which constitutes a jurisdictional error under section 60CC of the Family Law Act 1975. Specifically (Ground 5):
a.     Failure to Assess the Impact of the Tribunal’s Decision on My Child: The Tribunal did not properly consider the impact its decision would have on my child, who was born during the visa application process. The best interests of the child must be a primary consideration in any decision-making process, and the Tribunal’s failure to consider this factor is a serious legal oversight.
b.    Failure to Apply Relevant Legal Standards Regarding the Best Interests of the Child: The Tribunal did not consider the Family Law Act 1975, which requires decision-makers to prioritize the best interests of children when making decisions that affect them. This failure to apply the law regarding children’s interests further undermines the Tribunal’s decision.
The Tribunal’s failure to consider the best interests of my child is a significant jurisdictional error, and I request that the decision be reviewed in light of this omission.
(Ground numbers in bold added, otherwise as written).
APPLICANT’S SUBMISSIONS

The Applicant (who spoke for all of the Applicants) submits that the Court should remit the matter back to the Tribunal for reconsideration and for the Minister to pay costs.
The Applicant raised 5 grounds in their submissions, these being:
Ground 1
The Applicant submits that the AAT failed to properly consider her GTE statement and give proper weight to the Applicant’s strong familial, social and financial ties to India. Particularly, her ancestral property and her responsibility for her mother’s wellbeing.
The Applicant further submits that the Tribunal made an unreasonable insistence that she obtain documentary evidence from India while in Australia, a task which was unattainable.
Ground 2
The Applicant submits that the Tribunal misapplied the GTE criterion under clause 500.212 of the Regulations by placing excessive emphasis on the Applicant’s past immigration history and course changes without taking into consideration the reasonable explanations for these instances.
The Tribunal failed to consider the Applicant’s current circumstances, and the legitimate reasons provided for pursuing hospitality studies in Australia.
Ground 3
The Applicant submits that the Tribunal’s decision-making process failed to meet the requirements of procedural fairness. Particularly, the Tribunal failed to properly consider the Applicant’s submissions in relation to her intention to return to India.
The Applicant further submits that the Tribunal raised concerns about the Applicant’s immigration history without offering her an opportunity to respond to these issues before rendering its decision.
Ground 4
The Applicant submits that the Tribunal’s Decision was unreasonable, irrational and failed to consider the potential value of her proposed course of study to her career in India.
The Tribunal placed disproportionate emphasis on the Applicant’s past enrolments and failed to recognise her career goals have evolved over time.
Ground 5
The Tribunal failed to consider the best interests of the first and second applicant’s child, the third applicant, Viraaj Singh Cheema, a contravention of section 60CC of the Family Law Act 1975 (Cth). The Tribunal did not adequately assess how the decision would impact the third applicant’s wellbeing.
Further Submissions
On 26 May 2025, the Applicants filed further submissions pursuant to my Orders dated 19 May 2025.
As per my Orders dated 19 May 2025, the Applicants have indicated that the Application before this Court did not originally include a request for a writ of mandamus; this being an unintentional oversight. The Applicants seek to amend their Application accordingly.
The Applicant re-submits that the jurisdictional errors relied upon in this Application include:
(a)Misapplication of the GTE criterion;
(b)Failure by the Tribunal to afford procedural fairness;
(c)Unreasonableness of the Tribunal’s decision; and
(d)Material factual error regarding the Applicant’s date of arrival in Australia.
The Applicants seek to rely upon Maazuddin v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1349 (Maazuddin), where it was held that the Tribunal had erred in its decision-making methodology, that went beyond isolated errors, causing systematic issues in the decision. The Applicants submit that similar flaws are evident in the Tribunal’s decision-making process and these facts are before the Court.
The Applicant notes that the Tribunal erroneously stated that the Applicant “has been in Australia since 2008” and spent “over 10 years in Australia” ([24], [31], [32]). The Applicants submit that this directly contradicts the Applicant’s response[15] and demonstrates jurisdictional error.
[15] CB 110, qn 7.
The Applicants submit the Tribunal’s decision should be set aside and a writ of mandamus be issued.
RESPONDENT’S SUBMISSIONS
The Minister submits that the Tribunal did not err on any of the above grounds, and if the Applicants fail to satisfy any one of the elements set out in Clause 500.212, the Tribunal need not continue its inquiry.
Ground 1
The Minister submits that the Tribunal considered both the Applicant’s immigration history, study history, and the Tribunal correctly observed that the Applicant did not provide a GTE statement in support of her review Application but had provided information via her s 359 Response.
The Applicant also suggests that the Tribunal failed to consider her personal circumstances in relation to the recent death of her brother and her mother’s severe health condition. However, the Minister submits that this information was not the subject of any substantial claims, and the Tribunal properly considered the Applicant’s relationship with her mother, and that she visited India periodically due to death or illness in her family.
The Tribunal considered the Applicant’s stated reasons for pursuing the proposed course, her long term business goals, and all the Direction 69 factors which were the subject of substantial claims and correctly applied the GTE criterion in cl 500.212.
The Minister submits that this ground should be dismissed.
Ground 2
The Minister submits that insofar as the Applicants assert a breach of procedural fairness, the Tribunal complied with the procedural fairness obligations in Division 5 of Part 5 of the Migration Act (as in force at the time).
The substance of ground 2 conflicts with ground 1, wherein the Applicants assert the Tribunal failed to consider the Applicant’s immigration and study history. The Minister submits that there is nothing to suggest the Tribunal’s weighing of the evidence was unreasonable or illogical.
The Applicant’s claim that the Tribunal’s Decision was unreasonable should be rejected. The Minister submits that the Tribunal’s Decision was not unreasonable, irrational or illogical.
The Tribunal properly considered the Applicant’s stated intention of owning a food business in India, and the Tribunal was entitled to find it was not satisfied of the value of the proposed course on the Applicant’s future. This finding was made in the context of the Tribunal’s finding that the Applicant has undertaken a significant number of courses which were inconsistent with her previous education. The Minister submits that the Applicant’s behaviour suggested her primary intention of enrolling in further courses was to circumvent the student migration program to remain in Australia permanently.
Ground 3
The Minister submits that it was at the Tribunal’s discretion to determine how to weigh the Applicant’s evidence, and there is nothing to suggest the Tribunal’s subsequent weighing of the evidence was unreasonable or illogical.
The Tribunal considered the Applicant’s incentives to return to India, and found she did not have significant incentives to return given her husband and two children lived in Australia. The Applicant also failed to provide objective evidence of her financial ties to India.
Ground 4
The Minister submits that this ground does not assert jurisdictional error and should be dismissed.
Ground 5
In the Applicant’s written submissions, the Applicants press an additional ground not raised in the Application, that the Tribunal failed to consider the best interests of the third applicant, being the child of the Applicant and the second applicant.
The Minister submits that the Family Law Act 1975 (Cth) does not apply to the Tribunal’s review and the best interests of the third applicant were not a relevant consideration before the Tribunal.
The Minister submits this ground should be dismissed.
Further Submissions
On 2 June 2025, the Minister filed further submissions pursuant to my Orders dated 19 May 2025 and in response to the further submissions.
The Minister does not oppose the Applicant’s request in their further submissions to amend their Application to include seeking a writ of mandamus order against the Administrative Review Tribunal (ART).
The Minister submits that no jurisdictional error arises or can be discerned from the Tribunal mistakenly stating that the Applicant arrived in Australia on 8 January 2008.
The Minister submits that the decision in Maazuddin, which the Applicant seeks to rely on in their further submissions, does not assist the Applicant’s case. Judge Gostencnik held that the Tribunal erred by:
(a)Failing to bring an independent mind to consider the decision under review on the basis that the Tribunal copied sections of the Delegate’s Decision; and
(b)Failing to put to the Applicant information from the Delegate’s Decision as per s 359A of the Migration Act.
The Minister submits that the Tribunal brought an independent mind to its review and the reliance to the Applicant having arrived in Australia in 2008 is a mere factual error that does not go to a jurisdictional error made by the Tribunal. The Tribunal considered the Applicant’s study history which post-dated the Tribunal Hearing and her oral evidence. The Minister asserts that the errors put forward by the Applicant do not give rise to the kind of errors identified in Maazuddin.
The Minister accepts that the Tribunal’s reasons do not reflect the Applicant’s s 359 Response in relation to her arrival date, however, the Minister submits the Tribunal does not make a jurisdictional error if it merely misunderstands the evidence or makes an incorrect finding of fact.[16] The Minister further submits that the Tribunal’s reliance on the 2008 date does not materially alter the consideration or lead to a broader misunderstanding of her claims and evidence.
[16] Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; Minister for Immigration and Citizenship v MZYHS [2011] FCA 53.
The Minister submits that, contrary to the Applicant’s Further Submissions (AFS) at [6], the duration of the Applicant’s stay in Australia did not form the basis of the Tribunal’s Decision, it was merely a singular factor. The Tribunal’s Decision was formed on the basis that the Applicant failed to satisfy the genuine temporary entrant criterion in cl 500.212(a) of the Regulations. The factors considered adverse to the Applicant by the Tribunal include that the Applicant:
(a)Had only returned home on three occasions since arrival in Australia;
(b)Lacked incentives to return to India;
(c)Lacked sound reasons for not studying in India;
(d)Had incentives to remain in Australia on a more permanent basis, as her husband and child were in Australia;
(e)Enrolled in a course which the Tribunal was not satisfied would support her future career goals or remuneration;
(f)Had not undertaken any significant research about her proposed course;
(g)Had taken a significant number of courses which the Tribunal deemed to be inconsistent with her previous education and a “step down” from her Bachelor degree;
(h)Attempted to circumvent the intention of the student migration program and remain in Australia on a more permanent basis; and
(i)Did not satisfy the Tribunal of the value of her proposed course of study, noting that the Applicant did not provide any evidence of her proposed business venture.
The Minister contends that the onus falls on the Applicants to demonstrate that the Tribunal fell into error and that the said error was material.[17] In the alternative, the Minister submits that any error (if found) would not be material.
[17] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12.
The Minister accepts that the Applicant arrived in Australia on 14 April 2014 and has therefore been in Australia for 5 years, 4 months, and 30 days at the time of the Tribunal’s Decision, excluding the 88 days the Tribunal found that the Applicant spent in India. The Minister submits the lack of time spent in India by the Applicant weighed adversely against her.
The Minister contends that there is no realistic possibility that the Tribunal’s reasoning and decision would have been different, considering the limited time the Applicant has spent in India since arrival, the genuine temporary entrant criterion or substituting the correct arrival date of 2014, as opposed to the 2008 arrival date.
Affidavit
In the Affidavit, the Applicant asserts the Tribunal’s Decision was “totally based on prejudice”. The Minister submits that there is no basis to impugn the Tribunal’s Decision with actual or apprehended bias and this assertion should be dismissed.
The Minister seeks that the Application should be dismissed and the first and second applicants pay the Minister’s costs fixed in the amount of $7,467, being the historical scale amount.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[18]
[18] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002 v Commonwealth).
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither considers the merits of the decision nor remakes it.[19] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[20]
[19] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, per Allson CJ, Besanko and O’Callaghan JJ at [17].
[20] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[21] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[22] Different kinds of error may overlap.[23] The categories are not closed.[24]
[21] Plaintiff S157/2002 v Commonwealth.
[22] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[23] Yusuf at [82].
[24] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[25] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[26] It has been described as an “undemanding” standard.[27]
[25] LPDT at [7].
[26] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[27] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 (Nathanson) per Kiefel CJ, Keane and Gleeson JJ at [33].
Student Visas
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cl 500.211 to 500.218 in Schedule 2 of the Regulations.
Clause 500.212 of Schedule 2 of the Regulations provides:
The applicant is a genuine applicant for entry and stay as a student because:
a.     the applicant intends genuinely to stay in Australia temporarily, having regard to:
i.the applicant’s circumstances; and
ii.the applicant’s immigration history; and
iii.if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
b.    the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
i.the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
ii.the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
c.     because of any other relevant matter.
CONSIDERATION
Failure to seek relief
The Application for judicial review filed by the Applicants only sought Orders to quash the Tribunal’s Decision but did not seek a writ of mandamus or prohibition or an injunction as provided for in s 75(5) of the Constitution.
While the Application uses the word “quash”, I take this to be a reference to a writ of certiorari, which, while not referred to in s 75(v) of the Constitution, has been held to be available to the Court on the basis that “the conferral of jurisdiction to issue writs of prohibition and mandamus implies ancillary or incidental authority to the effective exercise of that jurisdiction”.[28]
[28] Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at [14] per Gaudron and Gummow JJ; Plaintiff S157/2002 v Commonwealth at [80] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
In FRA18 v Minister for Home Affairs & Anor[2019] FCCA 2287, Judge Driver held (at [15]) that an application which did not seek that relief failed to properly invoke the jurisdiction under s 476(1) of the Migration Act.
In Singh v Minister for Immigration, Citizenship and Multicultural Affairs[2022] FedCFamC2G 889, Judge Kendall held (at [44]–[51]) that the court had power to allow an amendment to the application to include that relief. The Minister did not oppose that Order.
Given that the Application does not seek a writ of mandamus or prohibition or an injunction and noting that the writ of certiorari is “ancillary or incidental” to such relief, a question arises as to whether the Court’s jurisdiction is properly invoked.
I have been mindful of the guidance set out in decisions like SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 concerning the Court’s obligation to act in a procedurally fair manner when dealing with self-represented litigants; in particular, the requirement to put an unrepresented litigant in a position to make an effective choice about how to conduct his or her case.
After judgment was reserved, I made directions as follows:
(a)The applicants are directed to file and serve short submissions of no more than 5 pages addressing the following matters:
(i)Whether the applicants seek orders amending their application to include orders seeking a writ of mandamus against the Administrative Review Tribunal (noting that the second box on page 2 of their application was not checked).[29] See FRA18 v Minister for Home Affairs & Anor[2019] FCCA 2287 at [15] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs[2022] FedCFamC2G 889 at [44]–[51], Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at [14] and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [80]); and
(ii)Any further submissions concerning the applicant’s claim that the Tribunal made a jurisdictional error in relation to the finding that the applicant arrived in Australia in 2008 (at [24], [31] and [32]), noting the discrepancy between the date of arrival as recorded in the Delegate’s Decision[30] and the date of arrival as recorded in the applicant’s response under Question 7[31] by 4 p.m. on Monday 26 May 2025;
(b)The first respondent file and serve submissions on the matters set out in Order 1 by Monday, 2 June 2025, including whether he opposes any application by the applicants to amend the application; and
(c)The applicants file and serve submissions in reply by Monday, 9 June 2025.
[29] CB 166.
[30] CB 43.
[31] CB 110.

In further submissions dated 21 May 2025, the Applicants sought leave to amend their Application, to include an order for a writ of mandamus requiring the Tribunal to determine their Application according to law. In responsive submissions dated 2 June 2025, the Minister submitted that they did not oppose the Applicants’ Application to amend the Application.
Having regard to the substance of both the Application and affidavit in support, I consider that it is sufficiently clear that the Applicants sought to invoke the jurisdiction of the Court to seek a Constitutional writ. I note in particular that the Applicant’s affidavit in support complained that the Tribunal “should have look into this case in new perspective” and that they wanted a “review”. This, coupled with the claim for ancillary relief in the form of certiorari, was a sufficient indication that the Applicants were seeking a Constitutional writ.
In these circumstances and having regard to the Minister’s position on the matter, I am prepared to grant the Applicants leave to amend their Application to seek an order for mandamus requiring the Tribunal to consider the matter according to law. I address the substance of that Application later in these reasons.
Fresh evidence
During her submissions, the Applicant sought to tender in evidence the following documents which I marked for identification:
(a)Certificate of Della International College Pty Ltd that the Applicant has fulfilled all the requirements for Certificate IV in Business Administration dated 15 May 2016 (MFI1A);
(b)Record of Results from Bright College Australia in respect of the Applicant bearing “Completion Date” 1 February 2022 (MFI2A);
(c)Certificate of Bright College Australia that the Applicant has fulfilled the requirement for Diploma of Hospitality Management issued 1 February 2022 (MFI3A);
(d)Record of Results from Bright College Australia in respect of the Applicant bearing “Completion Date” 1 February 2022 (MFI4A);
(e)Certificate of Acumen Education that the Applicant has fulfilled the requirements for Certificate III in Commercial Cookery issued 7 January 2020 (MFI5A);
(f)Course Completion Letter from Acumen Education that the Applicant has fulfilled the requirements for Certificate III in Commercial Cookery (with start date 30 July 2018 and successful completion on 17 July 2019) undated (MFI6A); and
(g)Statement of Attainment of Acumen Education in respect of the Applicant issued 7 January 2020 (MFI7A).
The Applicant sought to tender the documents to demonstrate that the Tribunal’s findings concerning courses undertaken and completed (at [16]) and courses enrolled in and not completed (at [17]) were erroneous.
The Minister opposed the documents being tendered in evidence on the basis that this was inconsistent with judicial review. The Minister noted that most of the documents postdated the decision of the Tribunal.
After marking the documents, I indicated that I would receive the documents provisionally and rule upon the tender in my judgement.
In Waterford v Commonwealth (1987) 163 CLR 54, Brennan J said (at 77–78):
A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding” but only “on a question of law”. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.
In MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912, Gordon J stated (at [10]–[11]):
The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v Commonwealth (1987) 163 CLR 54 at 77–78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385–386 (per Spender J); Phillips v Cmr for Superannuation [2005] FCAFC 2 at [29]–[31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration & Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 546 at [15] and [21]–[22] (per Selway J); M211 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration & Multicultural Affairs (1998) FCA 1088 at [15] –[16] (per Weinberg J).
In Minister for Immigration & Border Protection v Tesic (2017) 251 FCR 23, the Full Court held (at [55]) that it was not open to the primary judge to admit the document as fresh evidence and make findings of fact which contradicted those of the decision-maker.
The purpose of the tender was to challenge the findings of the Tribunal of fact (concerning courses undertaken and completed and courses enrolled in but not completed) so as to demonstrate factual error. Having regard to the authorities set out above, I consider that the documents sought to be tendered are irrelevant to the issues that are raised in this Application for judicial review. Pursuant to s 56(2) of the Evidence Act 1995 (Cth), evidence that is not relevant is inadmissible. The Minister’s objection to the tender of them in evidence is upheld.
Ground 1
Ground 1 is that:
1.    Failure to Properly Consider the Applicant's Genuine Temporary Entrant (GTE) Statement in Accordance with Clause 500.212 of the Migration Regulations 1994
The Tribunal has failed to properly assess and give appropriate weight to the material evidence that I submitted in support of my application, resulting in a jurisdictional error. Specifically (Ground 1):
a.     Disregard of My Genuine Temporary Entrant (GTE) Statement: I provided a detailed GTE statement explaining my genuine intention to return to India after completing my studies in Australia. This included personal circumstances such as the death of my brother and significant family health issues, which had an impact on my course changes. Despite this, the Tribunal failed to give adequate consideration to these circumstances, dismissing them without a thorough analysis of the context behind my decisions. This failure to consider my statement properly constitutes a clear jurisdictional error.
b.    Overlooking My Ties to India: I submitted substantial evidence of my strong familial, social, and financial ties to India, including the ownership of ancestral property and my mother’s residence. These ties are vital to understanding my intentions to return to India after my studies, yet the Tribunal dismissed them without giving them proper weight. The insistence on documentary evidence from India was unreasonable, especially considering my location in Australia and the challenges of obtaining such documentation from abroad.
c.     Failure to Properly Assess and Consider the Applicant's Financial Evidence in Compliance with Visa Assessment Criteria: I provided detailed evidence of my financial capacity, including bank savings, health insurance, and a financial plan to support myself and my family during our stay in Australia. The Tribunal did not adequately assess this evidence, which is a crucial factor in visa applications. By neglecting to properly consider my financial capacity, the Tribunal’s decision was flawed.
These failures to properly consider and evaluate the evidence amount to a jurisdictional error, and as such, the Tribunal’s decision must be overturned
Ground 1 claims that the Tribunal erred by failing to properly consider the Applicant’s GTE statement. The Tribunal Decision records that the Applicant did not provide a GTE statement in support of her review (at [19]). Instead, the Applicant relied upon her response to a request (Response)[32] to provide information and the Applicant’s oral evidence and submissions, which was material considered by the Tribunal.
[32] CB 107.
The specific matters that the Tribunal is said to have failed to consider are:
(a)The Applicant’s personal circumstances;
(b)The Applicant’s ties to India;
(c)The death of the Applicant’s brother and the Applicant’s mother’s heath issues; and
(d)The “financial evidence” relied upon by the Applicant.
The Applicant also contended that the Tribunal made factual errors:
(a)As to courses undertaken and completed;
(b)As to the number of children that the Applicant had; and
(c)As to the year of arrival in Australia.
Given that the Applicants are self-represented, I have not applied an overly technical approach to the Grounds of judicial review.
I am satisfied that the Tribunal did consider the Applicant’s personal circumstances and her ties to India in the Tribunal’s Decision. The matters considered include her study history (at [13], [14] and [16] – [18] and [30]), her circumstances in India (at [20]) (including her reasons for not wanting to study in India, her wish to return home after completion of study and her personal ties to India and her return visits), her personal circumstances (including husband and children) (at [26]) and her future plans in India (at [29]).
The Applicant contended that the Tribunal failed to refer to her brother’s death in 2015, and her month’s ill health, in the course of its decision. While the Tribunal Decision did not make reference to the death of the Applicant’s brother in 2015, this is unsurprising given that it occurred around four years prior to the hearing. Similarly, the Tribunal did not make specific reference the Applicant’s mother’s health. The only reference to either of those matters in the material before the Tribunal was the Response[33] in answer to questions concerning “Reason for Travel”. In neither case is there evidence before me that the matters were clearly articulated[34] before the Tribunal and hence it is unsurprising that the matters are not referred to in the Tribunal’s Decision. I do not consider the omission to be in error.
[33] CB 110, qn 8.
[34] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [27].
The Applicant contends that the Tribunal failed to “adequately assess” the Applicant’s financial capacity, including bank savings, health insurance, and a financial plan to support herself and her family during her stay in Australia, I am not satisfied that these matters were of sufficient importance to warrant specific findings by the Tribunal. In this regard, I note that the dispositive issue was the genuine temporary entrant criterion in cl 500.212 and not the financial capacity criterion in cl 500.213.
As noted above, the Applicant contended the Tribunal’s findings concerning courses undertaken and completed (at [16]) and courses enrolled in and not completed (at [17]) were erroneous. I have already ruled that seven documents she relied upon in support of that contention are inadmissible. The Delegate’s Decision reveals that the source of the course information recorded at [16] and [17] was the Provider Registration and International Student Management System (PRISM), updated by the information provided by the Applicant. The Applicant had the opportunity before the Tribunal to challenge that information, but there is no evidence before me that she did so, despite being on notice by the Delegate’s Decision. I am not satisfied that the Tribunal erred in making the findings at [16] and [17].
The Applicant also contended that the Tribunal erred by referring (at [24]) to her two children, when she has one child. Given that the decision record correctly refers to three applicants in the heading (including one child, the third applicant), and to two dependant applicants (at [38]), I can only conclude that the reference to two children was a slip. In any event, the error is not material to the reasoning of the Tribunal or the conclusion on the genuine temporary entrant criterion. To the extent that the Tribunal made an error in its Decision, nothing turns on it.
The alleged failures are characterised in various ways, including; failure to give “adequate consideration”, to give “proper weight”, to “adequately assess” and to perform “thorough analysis”. Many of these matters go to questions of weight, which, subject to requirements of reasonableness and rationality, is a matter for the Tribunal.[35] It is trite to note that the court is not permitted to engage in merits review.[36] Save for the matter that follows, I am not satisfied that the Tribunal’s reasoning, fact finding or conclusion were unreasonable.[37]
[35] SJSS at [33].
[36] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54].
[37] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [130].
The Applicant also claimed that the Tribunal’s finding that she arrived in 2008 was erroneous, when in fact she had arrived in 2014. The relevant Tribunal findings are as follows:
(a)“Since arriving in Australia in 2008, the applicant has returned home to India for a total of 88 days” (at [15]); and
(b)“The applicant’s visa history and study history indicate that the applicant has spent over 10 years in Australia, during which time she has demonstrated only marginal success relating to course completion….” (at [32]).
These findings were preceded by the following finding in the Delegate’s Decision:[38]
Furthermore, I note since the applicant initial arrival in Australia on 08 January 2008 the applicant has only departed Australia for 88 days.
[38] CB 43.
The Delegate’s Decision recorded that the Applicant was granted a Higher Education Higher Education Sector (Subclass TU-573) visa on 27 February 2014 to study University English Bridging course, a Diploma of Management and Master of Business Administration.[39]
[39] CB 71.
The Applicant’s Response[40] recorded that the Applicant holds or has held a Student Visa (Subclass TR-485) (Temporary Graduate Visa) which allows international students to live, study and work after they have finished studies.[41] Presumably this visa was issued at some point after the Applicant completed one of her Australian courses.
[40] CB 107.
[41] CB 111 qn 11.
The Applicant’s Response also recorded the following (at question 7):[42]
[42] CB 110.
The month of arrival would appear to have been omitted.
The Response was signed by the Applicant who declared that the information provided on the form was true and correct.[43]
[43] CB 118.
Therefore, the Tribunal had conflicting information before it on the question of the Applicant’s arrival date in Australia:
(a)The Delegate’s Decision which recorded an arrival date of 8 January 2008; and
(b)The Applicant’s Response by which she stated an arrival date of 2014.
The apparent inconsistency between these two dates is not identified in the Tribunal’s Decision, and therefore the reasons do not reveal why the date recorded in the Delegate’s Decision was preferred by the Tribunal. Nor does there appear to be documentary evidence which corroborates either date, although the 2014 date derives limited support from the fact that the Applicant was granted a Higher Education Sector (Subclass TU-573) visa on 27 February 2014 ([13]).
The relevant error is best characterised as a failure by the Tribunal to evaluate the conflicting evidence as to date of arrival. The reason for that failure is because the discrepancy appears to have been overlooked. I consider that the Tribunal erred because the Tribunal’s Decision did “disclose[s] no process of weighting evidence and preferring some over the other”.[44] The Applicant’s response to question 7,[45] constituted a “clearly articulated claim” concerning the date of arrival; alternatively, the issue of date of arrival was one that “clearly emerged” from the material before the Tribunal. I say that even though the Applicant does not appear to have specifically identified the discrepancy in the dates or drawn it to the Tribunal’s attention.
[44] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431at [50]
[45] CB 110.
Whether the error is a jurisdictional one, depends upon whether it was “material”. That depends upon whether there is a “realistic” possibility that the decision that was made “could” have been different, but for the error.[46] This requires consideration of the error in the context of both the findings that flow from it and the decision as a whole.
[46] LPDT at [7].
The finding that the Applicant arrived in 2008 is the basis for the somewhat strident finding (at [32]) that “the applicant has spent over 10 years in Australia, during which time she has demonstrated only marginal success relating to course completion.” The Tribunal found this to be inconsistent with a person who intends to live in Australia temporarily.
However, this was not the only evidence that the Tribunal relied upon, basing the conclusion on a number of other matters including incentive to remain in Australia on a more permanent basis (at [21]), undertaking a significant number of courses, and a step-down from existing qualifications (at [22]), the “sheer volume of courses” (at [26]), change of pathway (at [27]), and the value of the course to her future (at [28] and [30]) and lack of business plans (at [29]).
This evidence was the basis of the Minister’s submission, put in the alternative, that if error be found, that error would not be material because “in the context of the factual matrix before the Tribunal”, it is “fanciful or improbable” to suggest that the Tribunal could have realistically made any other decision assuming an arrival date of 2014.
In LPDT, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ stated (at [7]):
In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non‑compliance.
(footnotes omitted)
Their Honours stated, that in the case of an error constituted by a breach of an express or implied condition of the conferral of authority, two questions arise “has an error occurred; and, if so, was that error material.” Those questions are “wholly backward-looking”, and “answered by reference to the decision that was made” and, depending on the error, how it was made.[47]
[47] LPDT at [9].
Their Honour stated (at [15]):
What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision.

They warned (at [15]):
Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.
In CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97, Needham said (at [38]) that even where a finding of fact is made in error, the error needs to be material to establish jurisdictional error, referring to Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 and LPDT. Here, I am not in a position to resolve the question of whether there is an error in the finding concerning the Applicant’s date of arrival. What is apparent is that there was a failure to evaluate conflicting evidence on this question.
Ultimately, while there is a significant body of other material and evidence upon which the Tribunal was entitled to conclude that the Applicant was not a genuine temporary entrant, assuming that the 2014 date was correct, the error in the present case leads to the conclusion that the decision “could” have been different, but for the error,[48] and hence satisfying the “undemanding”[49] materiality standard. I note the prominence of the arrival date in the Tribunal’s reasons, and the significant difference between an arrival date of 2008 as opposed to 2014. It will be for the Tribunal to resolve the question of the Applicant’s date of arrival in Australia, and to otherwise determine the merits of her claim.
[48] LPDT at [7].
[49] Nathanson per Kiefel CJ, Keane and Gleeson JJ (at [33]).
For completeness, I do not regard the Tribunal as having made an error of the type considered by the court in Maazuddin. I do not accept the Applicants’ submission that there were “systematic” issues in the Tribunal’s Decision or that the Tribunal failed to engage with evidence before it,[50] save in the limited respect that I have identified.
[50] Applicant’s Reply Submissions at [5].
I am satisfied that jurisdictional error has been demonstrated by reference to Ground 1.
Ground 2
Ground 2 is that:
2.    Erroneous Application of the Genuine Temporary Entrant (GTE) Criterion under Clause 500.212 of the Migration Regulations 1994
The Tribunal’s application of the Genuine Temporary Entrant (GTE) criterion under clause 500.212 of the Migration Regulations 1994 was flawed and constitutes a jurisdictional error. Specifically (Ground 2):
a.     Excessive Weight Placed on the Applicant’s Past Immigration History in Contravention of Relevant Legal Standards: The Tribunal placed undue weight on my previous immigration history, such as past course changes and visa cancellations, without adequately considering my explanations for these actions. I provided clear and reasonable explanations for these events, including personal and family-related factors. The Tribunal failed to assess the broader context of these actions and applied an overly simplistic view of my immigration history, which resulted in an unfair conclusion.
b.    Failure to Adequately Evaluate the Applicant's Current Circumstances in Accordance with Relevant Visa Criteria: The Tribunal failed to properly assess my current circumstances and the reasons for my decision to pursue my proposed course of study in Australia. I clearly explained how this course would assist my future career in India, yet the Tribunal disregarded these reasons without proper analysis. The failure to assess my current situation in light of the GTE criterion is a legal error.
c.     Misapplication of Ministerial Direction No. 69 in the Assessment of the Applicant's Genuine Temporary Entrant Status: The Tribunal did not apply Ministerial Direction No. 69 in a balanced and comprehensive manner. The Direction calls for a holistic approach when assessing a student’s intentions, including the applicant’s career prospects and ties to their home country. By not considering all relevant factors and failing to balance the various elements of the Direction, the Tribunal made an erroneous decision.
This flawed application of the GTE criterion resulted in an unlawful decision, and I request that the Tribunal’s findings be reviewed.
Ground 2 includes complaints in relation to the Tribunal’s approach to:
(a)The Applicant’s immigration history; and
(b)The Applicant’s current circumstances.
As set out above, each of these matters was the subject of detailed consideration by the Tribunal as set out above at [107]. The alleged failures are characterised in various ways including, giving “undue weight”, and failures to “assess the broader context”, “properly assess” and undertake “proper analysis”. I refer to and repeat my comments above at [114]. I am not satisfied that the Tribunal’s reasoning, fact finding or conclusion were unreasonable or otherwise flawed.
The balance of Ground 2 concerns Direction 69.
Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) of the Migration Act provides that a person or body (which would include the Tribunal) must comply with a direction given under s 499(1).[51]
[51] See Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209 at [65].
Direction 69 is a direction given by the Minister under s 499(1) of the Migration Act concerning the assessment of the genuine temporary entrant criteria at cl 500.212(a).
While a decision-maker must comply with written direction made pursuant to s 499,[52] Direction 69 provides that it “is only to guide decision makers” and identifies factors the decision maker “should have regard to”.
[52] See s 499(2A) and Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 204 at [19].
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, Gummow and Callinan JJ held (at [24]) that a failure by the decision maker “to respond to a substantial, clearly articulated argument relying upon established facts” would entitle the applicant to relief under s 75(v) of the Constitution (at [25]).
In Kumar v Minister of Immigration and Border Protection (2020) 274 FCR 646; 274 FCR 646 (Kumar), Derrington and Thawley JJ explained how a failure to comply with a Ministerial Direction might give rise to jurisdictional error:
If there is a failure to comply with Direction 53 in reaching an adverse state of satisfaction under cl 572.223(1)(a) which is sufficiently material to the formation of that state of satisfaction, and consequently upon the state of satisfaction in s 65(1) of the Act then, depending on the nature of the non-compliance, jurisdictional error may be established. An example of such jurisdictional error is as follows. If Direction 53 required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated if the applicant established that he or she was thereby deprived of the possibility of the repository of power forming a favourable state of satisfaction: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]–[31] (Keifel CJ, Gageler and Keane JJ) and [72] (Edelman J); Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421 at [45]–[48] (Bell, Gageler and Keane JJ) and [84]–[95] (Nettle and Gordon JJ). Although the decision-maker was, in fact, not satisfied that the visa applicant had met the relevant criteria, that actual state of mind was reached through a “material” non-compliance with statutory requirements prescribed for that decisional process. Accordingly, the state of non-satisfaction was not of the kind upon which the legislature conditioned the exercise of power under s 65(1)(b).
Their Honours found (at [96]) that Direction 53 did not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality and, less still, was there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.
Direction 69 provides in paragraph 1, that it “is only to guide decision makers”, and identifies facts the decision maker “should have regard to”. In contrast, Direction 53 (which was the subject of the decision in Kumar) is expressed in terms that the decision maker “have regard to” the factors set out in that direction.
The principles set out in Kumar were applied by Sarah C Derrington J in the context of Direction 69 in Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385.
In Kaur v Minister for Home Affairs [2019] FCA 2026,[53] Steward J held (at [29]) that what the Tribunal must do in a case concerning the application of cl 500.212(a) is make a finding of fact about whether an applicant does or does not intend genuinely intend to stay in Australia temporarily, and for that purpose apply the four factors prescribed by cl 500.212(a); namely the applicant’s circumstances, the applicant’s immigration history; if the applicant is a minor, the intentions of the parent, legal guardian or spouse; and any other relevant matter.
[53] See also Kaur v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 esp at [15].
His Honour held that Direction 69 should be used as a “guide” in applying the four factors in cl 500.212(a), that the factors in the Direction “should” be considered, rather than “must” be considered, and that the Direction should not be applied by way of a “checklist”.
His Honour held that the factors in Direction 69 which a decision-maker must take into account are those “which have been the subject of substantial, clearly articulated claims made by the visa applicant” (at [31]). A failure to consider and engage with such a claim may constitute jurisdictional error. Alternatively, a failure to consider a claim engaging a factor listed in Direction 69 that is apparent on the face of the material before the Tribunal and which “clearly emerged” from that material may constitute jurisdictional error.
A finding that an unarticulated claim “clearly emerged” from material is not one which is made lightly. It is insufficient that such a claim “might” emerge from the material.[54] But it is one that is more likely to be made where the applicant is self-represented.[55]
[54] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [68].
[55] CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [74] – [75].
The Tribunal’s error is said to lie in not considering all relevant factors and failing to balance the various elements of the Direction 69. As noted above, in Kaur, Direction 69 is a “guide” and not a mandatory “checklist”. The Tribunal did not err in failing to consider all of the factors.
The substance of the complaint in Ground 2(c), even though expressed by reference to Direction 69, would appear to be with the weight that the Tribunal afforded various factors including career prospects and ties to home country, and to the Tribunal’s findings of fact. I am not satisfied that the Tribunal made a jurisdictional error as alleged in reaching the conclusion that the Applicant was not a genuine temporary entrant (at [35]). That conclusion was open on the evidence.
I am not satisfied that jurisdictional error has been demonstrated by reference to Ground 2.
Ground 3
Ground 3 is that:
3.    Failure to Afford Procedural Fairness in the Decision-Making Process
The Tribunal’s decision was made in breach of the principles of procedural fairness, which constitutes a jurisdictional error. Specifically (Ground 3):
a.     Failure to Properly Consider and Respond to the Applicant's Submissions Regarding Return Intention and the Relevance of the Proposed Course: Despite submitting detailed and comprehensive evidence of my intention to return to India, including financial and familial evidence, the Tribunal did not properly address or respond to these submissions. This failure to engage meaningfully with my claims deprived me of a fair opportunity to present my case and clarify any doubts the Tribunal may have had.
b.    Failure to Provide an Opportunity to Respond to Concerns Raised by the Tribunal: The Tribunal raised concerns about my immigration history, course relevance, and temporary stay intentions without offering me an opportunity to respond to those concerns. This lack of opportunity to clarify my position or address the issues raised by the Tribunal is a breach of procedural fairness, as I was not give a chance to rectify any misunderstandings.
The failure to ensure procedural fairness was a serious flaw in the Tribunal’s decision-making process, and as such, the decision should be set aside.
Despite reference to “procedural fairness”, the complaint in Ground 3(a) is of a failure to “properly” consider and respond to submissions concerning return intention and relevance of the proposed course, matters that were considered at [20] and [22], respectively. I am not satisfied that the complaint of failure to “properly address or respond to… submissions” is made good. As noted above, it is not necessary for the Tribunal to refer to every piece of evidence and every contention in the reasons.[56] To extent the complaint may be characterised as one of weighting, generally speaking this is a matter for the Tribunal, and I can see no unreasonableness or irrationality in the reasoning or conclusions.
[56] Minister’s submissions at [28].
The complaint in Ground 3(b) is properly characterised as a complaint of a denial of procedural fairness. The breach is said to lie in the failure by the Tribunal to give the Applicant a “proper opportunity” to respond to concerns raised about immigration history, course relevance and temporary stay intentions.
The requirements of natural justice in relation to the Applicants’ hearing before the Tribunal were codified by Division 5 of Part 5 of the Migration Act in relation to the matters dealt with in that Division.
Section 357A of the Migration Act provided (at the date of the Tribunal’s Decision):
1.    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
2.    Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
3.    In apply this Division, the Tribunal must act in a way that is fair and just.
Section 359A(1) of the Migration Act provided (at the date of the Tribunal’s Decision) the Tribunal must give the Applicant clear particulars of any information that the Tribunal considers “would be the reason, or a part of the reason, for affirming the decision that is under review”; and ensure as far as reasonably practicable ‘that the applicant understand why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review”; and invite the Applicant to comment on it.
Section 360 of the Migration Act provided (at the date of the Tribunal’s Decision):
1.    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
2.    Subsection (1) does not apply if:
a.     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
b.    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
c.     subsection 359C(1) or (2) applies to the applicant.
3.    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The requirement of procedural fairness is a fair hearing and not a fair outcome.[57] Hence, the enquiry is directed to the Tribunal’s processes and not its decision.[58] The test is essentially practical; the law’s concern being to avoid practical injustice.[59]
[57] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [25].
[58] SZBEL at [25].
[59] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37].
In determining the requirements of procedural fairness, it is of “critical importance” to consider the statutory framework within which the decision-maker exercises power.[60]
[60] at [26].
In the context of judicial review of a decision made by the Tribunal under the Migration Act, relevant considerations include: first, the Tribunal’s obligation to invite the applicant to give evidence and present arguments,[61] and second, the obligation of the Tribunal to give an applicant particulars of certain information that the Tribunal considered would be the reasons or part of the reasons for affirming the decision under review. But the latter obligation does not extend to information that is not specifically about the applicant or another person and is just about a class of persons which the applicant or another person is a member.[62]
[61] Section 360 of the Migration Act.
[62] SZBEL at [28].
Where the Tribunal takes no step to identify issues, other than those considered by the delegate to be dispositive, the applicant is entitled to assume that those are the issues on review. Hence, unless the Tribunal tells an applicant something different, they would be entitled to assume that the reasons of the delegate will identify the issues that arise in relation to that decision.[63]
[63] SZBEL at [36].
However, the Tribunal is not confined to the issues identified by the delegate as dispositive. Whether the Tribunal seeks to rely on other dispositive uses, those issues are required to be identified, so that the applicant may be afforded the opportunity to give evidence and present arguments in respect of them. A breach may consist of a failure to identify the issue adequately, or “dissuasion” or curtailment of the applicant’s attempt to address it.[64] The level of specificity required in the identification of an issue is such as to “place him in a position where he can meaningfully avail himself of an opportunity to be heard”.[65] This does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”.[66]
[64] NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [87].
[65] SZMUF v Minister for Immigration and Citizenship [2009] FCA 182.
[66] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per Gleeson CJ and Hayne J (at 69).
The Applicant’s complaint concerning Ground 3(b) is undermined by her own submission that “Despite providing detailed evidence on these points, the Tribunal failed to meaningfully engage with my submissions… “.[67] Once again, the challenge appears to be with the extent of the Tribunal’s engagement with the specified issues, and its conclusions, rather than procedural fairness. I have dealt with the former complaints, which are made under various guises, above.
[67] Applicant’s submissions at [Ground 3(ii)].
The three matters in respect of which it is alleged that the Tribunal failed to give the Applicant a proper opportunity to address concerns raised were the subject of specific comment in the Delegate’s Decision under review: namely immigration history[68], course relevance[69] and temporary stay intentions.[70] In these circumstances, the Delegate’s Decision itself provides sufficient identification of the dispositive issues before the Tribunal,[71] such that there was no denial of procedural fairness as alleged in Ground 3(b).
[68] CB 43.
[69] CB 42.
[70] CB 43.
[71] SZBEL at [36].

I am not satisfied that jurisdictional error has been demonstrated by reference to Ground 3.
Ground 4
Ground 4 is that:
4.    Unreasonableness of the Tribunal’s Decision in Contravention of Established Administrative Law Principles
The Tribunal’s decision was unreasonable in the legal sense, demonstrating a failure to properly exercise its decision-making powers and thus constituting a jurisdictional error. Specifically (Ground 4):
a.     Failure to Consider the Value of My Proposed Course of Study to My Career: The Tribunal dismissed my explanation regarding the value of my proposed course of study, which I explained would assist in my future career in India, particularly with my plans to open a food business. The Tribunal did not adequately assess the potential benefits of this course in the context of my career goals. This failure to consider the value of my proposed study renders the decision unreasonable.
b.    Excessive Focus on My Past Course History Without Consideration of My Current Circumstances: The Tribunal placed significant emphasis on my past course enrolments, labelling them inconsistent and not aligned with my prior education. The Tribunal failed to consider that my career goals had evolved over time, and the course I am currently pursuing is directly related to my future business aspirations in India. The Tribunal’s unbalanced focus on past courses, without considering my present intentions, is irrational and unreasonable.
The unreasonable nature of the Tribunal’s decision, due to its failure to properly assess my educational.
Ground 4 alleges unreasonableness in the Tribunal’s decision making. Two specific failures are alleged: first, alleged failures to consider the value of the Applicant’s proposed course of study to her career and second, excessive focus on her past course history without consideration of current circumstances.
Contrary to the matters alleged in Ground 4, the Tribunal did consider the value of the Applicant’s course to her future (at [29] and [30]) and her current circumstances (at [18] at [24]). The Tribunal also considered her past course history (at [16] and [17] and [22]).
The alleged failures are characterised in various ways including, failure to “adequately assess”, placing “significant emphasis”, failure to consider and “unbalanced focus”. Once again, these matters go to questions of weight, which, subject to requirements of reasonableness and rationality, is a matter for the Tribunal.[72] I am not satisfied that the Tribunal’s reasoning, fact finding or conclusion were unreasonable[73] or otherwise flawed.
[72] SJSS at [33].
[73] SZMDS at [130].
I am not satisfied that jurisdictional error has been demonstrated by reference to Ground 4.
Ground 5
Ground 5 is that:
5.    Failure to Consider the Best Interests of the Child in Accordance with Section 60CC of the Family Law Act 1975
The Tribunal failed to adequately consider the best interests of my child, Viraaj Singh Cheema, which constitutes a jurisdictional error under section 60CC of the Family Law Act 1975. Specifically (Ground 5):
a.     Failure to Assess the Impact of the Tribunal’s Decision on My Child: The Tribunal did not properly consider the impact its decision would have on my child, who was born during the visa application process. The best interests of the child must be a primary consideration in any decision-making process, and the Tribunal’s failure to consider this factor is a serious legal oversight.
b.    Failure to Apply Relevant Legal Standards Regarding the Best Interests of the Child: The Tribunal did not consider the Family Law Act 1975, which requires decision-makers to prioritize the best interests of children when making decisions that affect them. This failure to apply the law regarding children’s interests further undermines the Tribunal’s decision.
The Tribunal’s failure to consider the best interests of my child is a significant jurisdictional error, and I request that the decision be reviewed in light of this omission.
As the review by the Tribunal was not a proceeding under Part VII of the Family Law Act 1975 (Cth), s 60CC of the Act has no application to it.[74]
[74] Section 60CB of the Family Law Act 1975 (Cth).
I am not satisfied that the Tribunal made a jurisdictional error by reference to Ground 5.
Prejudice (bias)
In the Affidavit, the Applicant asserts the Tribunal’s decision was “totally based on prejudice”.
An allegation of bias must “be distinctly made and clearly proved”.[75]
[75] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J (Jia Legeng) at [69].
The test for actual bias is where a decision-maker has “a state of mind so committed to a conclusion already formed as incapable of alteration, whatever evidence or arguments may be presented.”[76]
[76] Jia Legeng per Gleeson CJ and Gummow J at [72].
The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring a fair and impartial mind to the making of the decision.[77] This is sometimes referred to as the double “might” test. While the test is the same for judicial and administrative decision makers, its content may differ, depending on the type of decision maker.[78] In the case of administrative proceedings held in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings, the matters in issue, and conduct said to give rise to the apprehension, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.[79]
[77] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[78] Hot Holdings Pty Ltd v Creasey (2002) 210 CLR 438 per McHugh J (at 460) and Kirby J (at 480). See Sharma v Minister for Immigration and Border Protection [2017] FCFCA 227 at [21]-[23].
[79] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425 at [27]–[28].
There is no evidence before me to support the claim of actual or apprehended bias.
CONCLUSION
As jurisdictional error has been established (on Ground 1), the Tribunal’s Decision ought to be quashed and the matter should be remitted to the Tribunal for reconsideration according to law.
Costs
I will hear the parties on the question of costs.

I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.
Associate:
Dated: 12 June 2025

File number(s):	MLG 3355 of 2019
Judgment of:	JUDGE FARY
Date of judgment:	12 June 2025
Catchwords:	MIGRATION – application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not satisfy the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212 – whether Tribunal erred by failing to take into consideration the Applicant’s circumstances – parties invited to make further written submissions – found jurisdictional error on behalf of the Tribunal – application upheld – remitted to the Tribunal.
Legislation:	Evidence Act 1995 (Cth) s 56 Family Law Act 1975 (Cth) s 60CC Migration Act 1958 (Cth) ss 360, 357A, 430, 476, 477, 499 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1, Pt 2 of Sch 2 Migration Regulations 1994 (Cth) Schedule 2, cll 500.212, 500.311
Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR CED15 v Minister for Immigration and Border Protection [2018] FCA 451 CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287 Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Hot Holdings Pty Ltd v Creasey (2002) 210 CLR 438 Kaur v Minister for Home Affairs [2019] FCA 2026 Kaur v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 Minister for Home Affairs v DUA16 (2020) 271 CLR 550 Minister for Immigration & Border Protection v Tesic (2017) 251 FCR 23 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 Nathanson v Minister for Home Affairs (2022) 276 CLR 80 Oshlack v Richmond River Council (1998) 193 CLR 72 Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 Sharma v Minister for Immigration and Border Protection [2017] FCFCA 227 Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 204 Waterford v Commonwealth (1987) 163 CLR 54
Division:	Division 2 General Federal Law
Number of paragraphs:	185
Date of last submission/s:	6 June 2025
Date of hearing:	15 May 2025
Place:	Melbourne
Applicants:	In person
Solicitor for the First Respondent:	Mr Mintz, Clayton Utz
Solicitor for the Second Respondent:	Submitting notice, save as to costs

MLG 3355 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	RITIKA THAKUR First Applicant ANAND SINGH CHEEMA Second Applicant VIRAAJ SINGH CHEEMA Third Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE REVIEW TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE FARY
DATE OF ORDER:	12 JUNE 2025