Xu v Minister for Immigration and Citizenship
[2025] FedCFamC2G 809
•2 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Xu v Minister for Immigration and Citizenship [2025] FedCFamC2G 809
File number: MLG 3582 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 2 June 2025 Catchwords: MIGRATION – student (class TU) (subclass 500) visa – review of decision of the (then) Administrative Appeals Tribunal – judicial review – genuine temporary entrant criterion – whether Tribunal considered irrelevant consideration – whether Tribunal’s decision irrational or illogical – whether Tribunal’s decision legally unreasonable – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued Legislation: Migration Act 1958 (Cth) ss 359(2), 476, 499
Migration Regulations 1994 (Cth) sch 2, cls 500.211, 500.211(a), 500.212, 500.218, 500.311, 500.312
Cases cited: Attorney-General (NSW) v Quin [1990] HCA 21, 170 CLR 1
BNGP v Minister for Immigration Citizenship and Multicultural Affairs [2024] FCAFC 111, 298 FCR 609
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611
Insurance Australia Ltd (t/as NRMA) v Howard [2019] NSWSC 224
LPDT v Minister for Immigration, Citizenship, MigrantServices and Multicultural Affairs [2024] HCA 12, 98 ALJR 610
McAuliffe v Secretary, Department of Social Security [1992] FCA 731, 28 ALD 609
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12
Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30, 198 ALR 59
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 16 April 2025 Date of hearing: 30 April 2025 Place: Melbourne Counsel for the Applicants: Ms G Costello KC and Dr A McBeth Solicitors for the Applicants: Verge Legal Counsel for the First Respondent: Mr K Sypott Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3582 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LEI XU
First Applicant
XIAOLIN SUN
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
2 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.A writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal (AAT) made on 15 September 2020 in Case No 1924084.
3.A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application for review made to the AAT in Case No 1924084.
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 Gostencnik
INTRODUCTION
In August 2019, a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused to issue visas to the applicants. The first applicant had applied for a Student (Temporary) (Class TU) (Subclass 500) visa while the second applicant sought a visa as a member of the same family unit of a person who is the holder of a visa. The former Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. Before the Court is an application made under s 476 of the Migration Act 1958 (Cth) (Act)[1] for judicial review of the Tribunal’s decision.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
BACKGROUND
The first applicant is a citizen of China who arrived in Australia on 27 November 2014 as the holder of a Student (Class TU) (Subclass 573) visa. On 4 May 2019, the first applicant applied for a Student visa to study a Graduate Certificate in Leadership Diversity and a Graduate Diploma of Strategic Leadership with Newton College. The second applicant is the first applicant’s wife and was included in the visa application as a member of the same family unit. The applicants provided the Department of Home Affairs evidence in support of the visa application, including: certificates and statements of completion for various courses; evidence of bank deposits; a resumé; and a Student visa financial support statement by the first applicant’s father. The visa application included a short statement addressing the genuine temporary entrant criterion in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations)[2] in respect of the grant of a Student visa (GTE criterion). The first applicant explained in his statement that he graduated with a Bachelor of Economics from Jilin University of Finance and Economics and arrived in Australia with his wife to pursue further study. He enjoyed his new life and freedom in Australia, he applied for a dependent visa, and subsequently purchased a café. The first applicant contended that he was no longer interested in pursuing a master’s degree, and shortly thereafter sold the café to focus on studying a leadership degree with Newton College.
[2] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.
The Department acknowledged receipt of the visa applications on 4 May 2019. On 2 July 2019, the Department requested the first applicant provide a submission addressing the GTE criterion. The letter disclosed the following information adverse to the first applicant:
Departmental records indicate you were granted a student visa in 2014 to study a Master of Commerce, however you never commenced the course and only completed an English course. You were granted a student dependant visa in September 2015 and having spent 4 years on a dependant visa you have now decide (sic) to recommence study.
Since arriving in November 2014, you have only spent 144 days outside Australia
The Department requested the first applicant address the reasons for studying the proposed courses; what the first applicant will learn from the course that he will not learn from work; why he stopped studying in 2015; why he recommenced studying; why he did not return home to start his café business – which he had previously opened and managed for two (2) years; and how his intended courses will assist him to achieve his goals. The Department also requested further information including evidence of ties to his home country and evidence of current and previous employment.
By separate email correspondence also on 2 July 2019, the Department invited the second applicant to comment on the following adverse information relating to the visa application:
Departmental records indicate you were granted a student visa in October 2014, you were granted a further student visa in February 2017 to study English and a Master of Professional Accounting. Based on information provided by the education provider you have not completed the Master course and have only completed English course since arriving in Australia.
Records indicate you stopped studying the Master course on 15 June 2018 and the enrolment was cancelled on 27 July 2018. You have not had any enrolment in the Higher education sector which is a breach of your visa conditions.
Records also indicate you last completed an English course on 28 January 2019. You have not had any enrolment or undertaken any study since which is also a breach of your visa conditions.
In the 4.5 years you have been in Australia on student visas, you have only completed two English courses and a direct entry course. You have yet to complete the Master course and you are now applying to be a dependant on your husband’s student visa.
Since arriving in Australia on 27 November 2014 you have only spent 141 days offshore.
The Department requested the second applicant provide her comments concerning that information by way of response, noting that the information formed part of the delegate’s assessment of the GTE criterion.
In response to the Department’s correspondence, on 19 July 2019, the first and second applicants provided evidence of their current employment, medical certificates and certificate of bank deposits. The first and second applicants provided separate statements in response to the Department’s invitation on 2 July 2019. The first applicant explained that he withdrew from university because he enjoyed the freedom of spending time with his wife. He asserted that he and his wife were unable to keep up with the rising cost of living and opened a café. He said that in the absence of practical experience and professional qualifications, they were unable to run the business on their own, and that they sold the café in early 2019 and he returned to study thereafter. The second applicant explained in her submissions that her academic interruption was attributed to her mother-in-law’s illness and the death of her grandfather. She expressed that “[their] life was [a] mess” and she intended to return to China, however she remained in Australia as her husband was intent on studying to “run [their] own business in the future”.
On 27 August 2019, a delegate of the Minister refused the applicants’ visa applications, and a notification and copy of the decision record were dispatched to the first applicant by email.
The delegate was not satisfied that the first applicant intended to stay temporarily in Australia, and so he failed to meet cl 500.212 of Sch 2 to the Regulations. Accordingly, the delegate refused the first applicant’s visa application. And as the second applicant was not a member of the same family unit of a person who was the holder of a visa, the delegate was not satisfied that she met cl 500.311 of Sch 2 to the Regulations. Accordingly, the second applicant’s visa application was also refused.
TRIBUNAL PROCEEDING
The applicants applied to the Tribunal for a review of the delegate’s decision on 28 August 2019. The Tribunal acknowledged receipt of the application on 4 September 2019 by letter. In its letter, the Tribunal noted that the validity of the application had not yet been assessed, invited the applicants to provide any material or written arguments for its consideration, and enclosed an ‘Information for review applicants’ factsheet.
Pursuant to s 359(2) of the Act, on 12 May 2020, the Tribunal invited the applicants to provide information in writing in relation to the course(s) of study in which the first applicant was then enrolled, and to provide information demonstrating that he was a genuine applicant for entry and stay as a student. The letter directed the applicants to complete the ‘Request for Student Visa Information’ form, returnable to the Tribunal online. The Tribunal enclosed with its correspondence a copy of Ministerial Direction No 69 (Direction No 69) made in accordance with s 499 of the Act for the applicants’ reference, and explained that it must have regard to the matters set out in Direction No 69 when assessing whether an applicant is a genuine applicant for entry and stay as a student.
On 21 May 2020, the applicants returned a completed ‘Response for Student Visa Information’ form setting out their response to the information requested by the Tribunal in varying levels of detail, and indicating they consented to the Tribunal deciding the review without a hearing. The applicants provided written reasons in support of their application in which they addressed: the first applicant’s future goals; why he chose to study his intended course(s) in Australia; the applicants’ ties to their home country; their ties to China; and their future employment plans. The correspondence enclosed supporting documents, including: a letter from an education provider, Newton College, indicating that the first applicant was then enrolled in the Graduate Certificate in Management (Learning) which commenced on 9 December 2019, and a Graduate Diploma of Management (Learning) which was due for completion on 11 July 2021; and multiple receipts of payment for course tuition.
TRIBUNAL’S DECISION AND REASONS
On 15 September 2020, the Tribunal affirmed the delegate’s decision. The applicants were notified by correspondence directed to the first applicant’s email address, which enclosed a copy of the Tribunal’s Statement of Decision and Reasons (Decision) and a copy of Direction No 69.
The Tribunal sets out a brief procedural history at [1]–[7], noting the applicants consented to the Tribunal deciding the review without a hearing, and that the Tribunal was making its decision on the information before it, which included the information previously provided to the Department. The Tribunal records at [9] that at least one applicant must satisfy the primary criteria for the grant of the visa in cls 500.211 to 500.218, and that any other family member applicant need only satisfy the secondary criteria.
The Tribunal was satisfied that the first applicant was enrolled in a course of study at the time of application, that he remained enrolled in that course of study at the time of the Decision, and so found that the first applicant met the criteria of cl 500.211: Decision at [13]–[20].
The Tribunal next considered whether the first applicant was a genuine applicant for entry and stay as a student, referring to cl 500.212 of the Regulations and the considerations in Direction No 69: Decision at [21]–[26]. The Tribunal records its consideration of the applicants’ written submissions provided to the delegate and their further submissions responsive to the Tribunal’s s 359 request for further information, noting the applicants’ claims that:
(a)the first applicant ran a café for around 2 years, which he sold to focus on study;
(b)the first applicant intended to return to China to run a chain café in his hometown, at the completion of his coursework: at [27]–[28];
(c)the first applicant did not complete his enrolment in the master’s degree at Deakin University. He married the second applicant in May 2015 and expressed that “the only think (sic) I wanted to do was staying (sic) with my wife and looked (sic) after her”: at [28];
(d)the first applicant initially arrived in Australia to study with his wife; however, after arriving in Australia, he ignored his studies to enjoy the freedoms of life without parental supervision: at [29];
(e)the first applicant stated that he was too young and naïve when he bought his café, as at the time he lacked managerial skills. He sold the café in February 2010 to begin his studies, and attests that now he and his wife are more mature: at [29]; and
(f)the second applicant said she was a poor student; it was the first time she and her husband did not have parental supervision; a close family member was sick in China and there was much sadness in her life; and that she had breached the conditions attached to her student visa but wanted another chance for her husband to finish his coursework before returning to China: at [30].
Upon assessment of the applicants’ claims, the Tribunal:
(1)noted there were no further written explanations to augment the applicants’ earlier claims that they were genuine temporary entrants, including those in their response to the request for information under s 359(2): Decision at [31];
(2)acknowledged that the first applicant achieved academic progress, maintained enrolment, and met his tuition fees: at [32];
(3)noted the second applicant ceased enrolment in the master’s level course in July 2018 and had only completed an English language course, which concluded on 28 January 2019: at [34];
(4)noted the second applicant did not progress academically and admitted to breaching her student visa: at [34];
(5)determined that the applicants did not take the visa conditions imposed on them seriously, and were not seeking to stay in Australia temporarily: at [34];
(6)found that as the applicants were in their late twenties when they arrived in Australia, the Tribunal did not accept that they were so immature so as not to take Australia’s migration laws seriously: at [35];
(7)acknowledged that the applicants had provided evidence in relation to familial ties to China, but noted they had not provided evidence of any fixed assets in China, rather the applicants had been willing to commence running a business in Australia: at [36];
(8)noted that the applicants did not explain why they purchased a café in Melbourne, rather than establishing such a business in China: at [37]; and
(9)determined that the applicants’ behaviour was not consistent with a couple genuinely intending to stay in Australia, and noted that the applicants together had not taken seriously the conditions imposed on the second applicant’s previously held student visa: at [38]–[39].
The Tribunal noted that the applicants failed to address the Tribunal as to why the first applicant did not complete a master level degree in commerce when he had the opportunity to do so – which, according to the Tribunal, would have increased his employability and remuneration on his return to China: Decision at [40].
The Tribunal did not accept that the first applicant wanted to progress his academic learning of business skills because he realised while operating and managing a café that such skills were wanting. Nor was it satisfied that the applicants’ ties to China were as significant as claimed: Decision at [40]. The Tribunal rejected the first applicant’s explanation that the reason he intended to study a Graduate Certificate and Diploma of Management (Learning) was to improve his ability to run a café: at [40]–[41]. At [43]–[44], the Tribunal reasoned that:
43.. . . It does not consider the first applicant is a genuine temporary entrant who travelled to Australia or applied for this visa in order to improve his employability back in his country of nationality. It does not accept the reasons for the behaviour outlined above was (sic) due to immaturity, naivety or circumstances beyond their control. The Tribunal is concerned that this application for a further student visa is motivated by reasons other than study and that the applicants are utilising the student visa program as a means of maintaining ongoing residence in Australia. In those circumstances the application is refused.
44. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.
The Tribunal accordingly refused to grant the applicants a Student visa: Decision at [44]–[51].
CONSIDERATION
The applicants’ judicial review application advanced three grounds of review, however at the hearing they no longer, properly in my view, pressed the third. Of the two remaining grounds, the applicants first contend the Tribunal erred because it took into account an irrelevant consideration and it misunderstood or misconstrued cl 500.212 of Sch 2 to the Regulations. They contend that instead of considering whether the first applicant for the Student visa was a genuine temporary entrant within the meaning of the Regulations, the Tribunal considered whether the second applicant had the relevant intention. In the result, the Tribunal proceeded on the basis that both the first and second applicants were required to satisfy the GTE criterion, considered whether the second applicant genuinely intended to stay in Australia temporarily, and conflated the first and second applicant’s intentions. The applicants say the decision was therefore gravely affected by a dispositive consideration of an irrelevancy, or by a serious misunderstanding of the provisions the Tribunal was required to apply.
Second, the applicants contend the Tribunal’s decision is legally unreasonable because its reasoning is unintelligible. It is convenient to examine the review grounds together because part of the irrationality or unreasonableness alleged in ground 2 arises from the same issues about which the applicants complain in ground 1.
The first applicant, as the primary visa applicant, was required to satisfy the primary criteria set out in subclass 500 of Sch 2 to the Regulations, relevantly the requirements in cl 500.211(a) that he be enrolled in a course of study, and cl 500.212 that he be a genuine applicant for entry and stay as a student. The Tribunal was satisfied the first applicant was enrolled in a course of study, but it is the Tribunal’s assessment of the GTE criterion which is at the heart of the applicants’ complaint. Clause 500.212 provided as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The second applicant sought a visa as a member of the family unit of a person who satisfied the primary criteria, and she needed to satisfy the secondary criteria in cl 500.3 of Sch 2. Clause 500.312 relevantly provided:
The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa, 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
…
(iv) any other relevant matter; and
The applicants contend that in considering whether the primary visa applicant satisfied the GTE criterion the Tribunal was required to assess the first applicant’s intention and genuineness, not whether the second applicant was a genuine applicant for entry and stay. So much may be accepted. The applicants contend that the Tribunal failed to do so and essentially conducted the assessment by considering the position of the applicants collectively. Put another way, the applicants say the Tribunal impermissibly conflated the second applicant’s intention to genuinely stay in Australia with the first applicant’s intention. The applicants say that by adopting such an erroneous approach, the Tribunal adopted irrational reasoning. Moreover, the applicant’s say that parts of the Tribunal’s reasoning is plainly irrational.
Considering whether the Tribunal’s decision or reasoning is illogical, irrational or unreasonable, it must be borne in mind that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality, irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [131], per Crennan and Bell JJ. The threshold for a finding of legal unreasonableness is high: BNGP v Minister for Immigration Citizenship and Multicultural Affairs [2024] FCAFC 111, 298 FCR 609 at 624 [47], [138].
Here, as already observed, the applicants complain about irrational or unreasonable reasoning the Tribunal adopted in arriving at its conclusions to affirm the delegate’s decision. In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J summarised the principles relevant to determining whether a decision is vitiated for jurisdictional error because of illogical or irrational findings of fact or reasoning as follows:
52.As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
...
54. … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
55. Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
It may also be accepted that if allegations that the Tribunal arriving at a state of satisfaction is illogical or irrational, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which engaged and to make the findings it did make on the material before it: SZMDS at [133]. Sometimes the use of the epithets ‘illogical’ or ‘unreasonable’ are merely emphatic ways of disagreeing with a set of reasons, and so may have no particular legal consequence: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611 at 626 [40], and so cautions about conducting merits review under the guise of judicial review must be borne in mind: Attorney-General (NSW) v Quin [1990] HCA 21, 170 CLR 1 at 35–6.
Here, there can be little doubt that the Tribunal’s reasons are in many respects untidily expressed. But it must be borne in mind that reasons for a decision of an administrative decision-maker under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. The reasons are meant to inform and not to be scrutinised over-zealously on judicial review by seeking to discern whether there is some inadequacy in the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259 at 271-272; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security [1992] FCA 731, 28 ALD 609 at 616. Mere infelicity in the expression of reasons will not have the effect of rendering an administrative decision unreasonable: Insurance Australia Ltd (t/as NRMA) v Howard [2019] NSWSC 224 at [58]–[59].
The applicants rely on several passages of the Tribunal’s reasons to make good their complaint. The applicants point to [18] of the Tribunal’s decision where the Tribunal observes that “[n]o enrolment details were provided with regard to the second named applicant”: Decision at [18]. They say, correctly, the second applicant was not required to satisfy the primary criteria as it was only the first applicant that applied for the Student visa. But they contend that this sentence suggests the Tribunal laboured under the pervasive misapprehension that both the first applicant and his wife must satisfy the criteria. When the Tribunal’s observation is read in context, the applicants’ contention cannot be accepted.
At [3] the Tribunal states that it would refer to the first applicant as the primary applicant or the applicant, and to the second applicant as the second applicant or applicant spouse. It notes at [9] that the “primary criteria . . . must be satisfied by at least one applicant” and that other members of the family unit who are applicants for the visa need only satisfy the secondary criteria. At [14]–[17], the Tribunal discusses the information before it about the first applicant’s enrolment in a course of study. At [18] the Tribunal expresses that it is satisfied, based on that information, that “the first applicant was enrolled in courses of study at the time of application and has remained enrolled in the same courses of study at the time of” its decision. At [20], the Tribunal concludes that at the time of its decision “at least one the applicants (sic) is enrolled in a course of study and accordingly cl.500.211 is met”. The observation at [18] is nothing more than a prelude to this conclusion. It is not suggestive of any misapprehension that both applicants needed to satisfy the primary criteria.
But other passages of the Tribunal’s reasons cannot so easily be explained.
Dealing first with the applicants’ criticisms that the Tribunal conflated the intentions or action of the second applicant with the first applicant. In short compass the first respondent contends the Tribunal:
·correctly understood the first applicant was required to satisfy the GTE criterion and did not find both applicants were required to do so;
·was entitled to consider the second applicant’s intentions because if the first applicant’s spouse does not intend to stay in Australia temporarily, that is relevant to whether the first applicant — who it may be assumed intends to remain with his spouse — intends to stay in Australia temporarily; and
·did not conflate the applicants’ intentions.
As already noted, I accept that the Tribunal did not approach its task by wrongly considering that both applicants needed to satisfy the primary criteria. But I consider for the reasons explained below that the Tribunal wrongly conflated the applicants’ intentions. To begin, the Tribunal refers at [26] of the Decision to it providing a fair opportunity to the applicants, and that the applicants provided limited reasons for staying in Australia temporarily. The Tribunal records:
the applicants have been provided a fair opportunity to submit up-to-date and beneficial information pertaining to their circumstances, the value of their course, their migration history and any other relevant information, as well as to address any unfavourable information relevant to this matter. However, the applicants have provided some additional information but it was very limited in providing the detailed reasons the applicants intends (sic) to remain in Australia on a temporary basis.
(emphasis added)
Next at [31] the Tribunal records:
there are no further written explanations to augment the applicants ‘earlier written reasons that they are genuine temporary entrants, including that arising from their response to the Tribunal’s s.359(2) letter.
(emphasis added)
At [34] the Tribunal refers to the second applicant’s lack of academic progress in a masters course and her admitted breach of a condition attaching to her visa, then it reasons to the first applicant’s detriment, that:
[a]n unfavourable view of this behaviour indicates the applicants did not take seriously the conditions imposed on them given they set out to run a business in Australia and were seeking to remain in Australia on a long term and not a temporary basis.
(emphasis added)
At [36] the Tribunal reasons that:
in acquiring a business in Australia on a full-time basis, the [first] applicant did so to the detriment of the [second] applicant’s study.
At [37] the Tribunal notes that:
[a]t no time did the applicants address the reasons for not establishing a café or catering business in China instead of metropolitan Melbourne when it was put to them by the Department
(emphasis added)
At [38] the Tribunal reasons that the:
applicants’ admitted behaviour, cumulatively considered, is not consistent with a couple who genuinely intend to remain in Australia. Had the applicants genuinely enjoyed the lack of parental supervision and increased freedoms in Australia or that they genuinely did not want to disappoint his parents regarding their studies, it would have been more reasonable for the applicants to complete his studies without taking on the responsibilities as owners/operators of a small business with employees. Had the first applicant wanted to spend more time the second applicant (sic) as a newlywed couple, it (sic) would have been more supportive by assisting the second applicant in her full-time studies while he worked.
(emphasis added)
At [39] the Tribunal finds that:
[m]oreover, the applicants have not taken seriously the visa conditions imposed…
(emphasis added)
And at [43] the Tribunal finds that:
the applicants are utilising the student visa program as a means of maintaining ongoing residence in Australia…
(emphasis added)
The passages extracted above paint a picture that the Tribunal considered whether the first applicant met the GTE criterion by reference to, amongst other things, the conduct and intentions of the second applicant and the position of the applicants as a couple. It irrationally ascribed blame or responsibility to the first applicant for the second applicant’s breach of an earlier visa condition and wrongly treated that breach as applying to both applicants. This seems also the case in respect of the second applicant’s lack of academic progress:
·at [34] of the Decision, where the Tribunal reasons that this behaviour (which included the second applicant’s visa condition breach and her lack of academic progress) should be viewed adversely, and is indicative of both (but relevantly the first applicant) “seeking to remain in Australia on a long term and not a temporary basis”;
·at [36] where the Tribunal reasons that “in acquiring a business in Australia on a full-time basis, the [first] applicant did so to the detriment of the other applicant’s study”; and
·at [38] where the Tribunal reasons that “[h]ad the first applicant wanted to spend more time the second applicant (sic) as a newlywed couple, it would have been more supportive by assisting the second applicant in her full-time studies while he worked”.
Although the Tribunal correctly acknowledged the task before it in assessing whether the first applicant satisfied the GTE criterion at [22] of the Decision, I agree with the applicants that the reasons disclose that the Tribunal assessed the first applicant’s intention and visa compliance in a rolled-up way which did not distinguish between his intention and visa compliance and the intention and visa compliance of his spouse. It is the first applicant’s circumstances that the Tribunal had to evaluate when considering whether he, as the primary visa applicant, satisfied cl 500.212 of the Regulations. This the Tribunal did not do, and so it failed to undertake the review task it was required to undertake. The first respondent accepted that if ground 1 were made out, the jurisdictional error would meet the materiality threshold in the sense discussed in LPDT v Minister for Immigration, Citizenship, MigrantServices and Multicultural Affairs [2024] HCA 12 at [9]–[16]. I also consider that the Tribunal’s decision could realistically have been different had it not made the error identified above.
Turning to the second review ground, the applicants argue that the Tribunal’s decision is legally unreasonable, largely because its reasoning, highlighted earlier, is unintelligible or irrational. This according to the applicants, is for two reasons. First, as the Tribunal wrongly conflated the intentions of the second applicant with those of the first applicant in assessing whether the first applicant met the GTE criterion, the Tribunal, unsurprisingly, engaged in some irrational reasoning. Second, the applicants say that other parts of the Tribunal’s reasoning are also plainly irrational.
The first respondent says that the Tribunal’s findings, which the applicants criticise under cover of ground one, were not irrational, and were plainly open on the evidence. The first respondent contends that the applicants’ complaint about the Tribunal’s reasons calls upon the Court to engage in impermissible merits review. The first respondent says that merely because some of the Tribunal’s reasons are “impossible to follow”, “badly worded” or “unintelligible” does not mean that the reasons for the Tribunal’s decision are necessarily legally unreasonable. The first respondent says the second applicant was involved in the operation of the café. The applicants’ complaint calls upon the Court to engage in impermissible merits review.
The applicants first point to [38] of the Tribunal’s reasons, where the Tribunal found that the “applicants’ admitted behaviour, cumulatively considered, is not consistent with a couple who genuinely intend to remain in Australia”. The applicants say this is a finding favourable to the first applicant, but the finding is then directly contradicted at [43] of the Decision where the Tribunal expresses its concern that:
this application for a further student visa is motivated by reasons other than study and that the applicants are utilising the student visa program as a means of maintaining ongoing residence in Australia. In those circumstances the application is refused.
Respectfully, this is an example of infelicity in the expression of reasons by the Tribunal, and of over-zealous scrutiny with an eye keenly attuned to the perception of error in seeking to discern jurisdictional error by the applicants, where there is some inadequacy in the way in which the reasons are expressed. Read in context, the impugned sentence at [38] does not disclose any unreasonableness because it is inconsistent with a latter finding. The sentence is plainly missing the word ‘temporarily” after “Australia”. Such a reading is consistent with [43] and the tenor of the Tribunal’s reasons read as a whole.
As the earlier analysis shows, the Tribunal reviewed whether the first applicant met the GTE criterion through the prism of the second applicant’s intention and past conduct. Whilst I accept that some evidence about the second applicant’s intention and conduct may be relevant in assessing whether the first applicant met the GTE criterion, I do not accept that this is universally true in respect of all conduct. Much depends upon the circumstances and the logical connection between the second applicant’s conduct or intention and one or more of the relevant matters to which the Tribunal must have regard in assessing whether the first applicant meets the GTE criterion. In this regard, there are several aspects of the Tribunal’s reasoning which I consider illogical or irrational, and which were material and critical to the Tribunal’s conclusion.
At [34] of the Decision, the Tribunal records that the second applicant’s breach of her visa condition should be viewed unfavourably because it indicates that “the applicants”, which includes the first applicant, did not take the conditions imposed seriously. There is no apparent logical or rational reason why the breach of a condition by the second applicant in respect of another Student visa she held ought impact negatively on an assessment whether the first applicant satisfied the GTE criterion.
To similar effect, the Tribunal reasons at [36] that in acquiring a full-time business in Australia, the first applicant did so to the detriment of the second applicant’s study. How this is logically or rationally relevant to the assessment whether the first applicant satisfied the GTE criterion is neither explained nor is it apparent. Much less is it evident how this is logically connected to the first applicant’s travel history and his family ties to China discussed in the opening sentence at [36]. In that sentence, the Tribunal finds favourably to the first applicant that he has relevant family ties in China, meaning that those ties are likely to operate as an incentive to return. But then it reasons, apparently by way of reducing the force of that finding — the word “[h]owever” making this clear — that the detriment said to have been visited upon the second applicant’s study by the acquisition of the business is a matter that speaks against the strength of those familial ties.
The Tribunal’s reasoning at [38] is earlier set out. The Tribunal’s reasoning that if “[the applicants] genuinely did not want to disappoint his parents regarding their studies, it would have been more reasonable for the applicants to complete his studies without taking on the responsibilities as owners/operators of a small business with employees”, is difficult to comprehend. If the reference to “his studies” is correct, then the observation is factually wrong since it is clear on the material that the first applicant was not studying when he commenced operating the café, and that in February 2019, he sold his café and then started studying. If the reference to “his studies” is a typographical error intended to be a reference to “her study”, there is no evident or explained logical or rational connection between the second applicant’s incomplete studies, any desire to please the first applicant’s family, and any negative force that these matters may have in assessing whether the first applicant met the GTE criterion.
There is also no evident logical or rational connection between the first applicant’s desire to spend time with the second applicant as a newlywed couple, his level of support for the second applicant in her full-time study, and any negative force that these matters may have in assessing whether the first applicant met the GTE criterion in connection with his Student visa application. There is also no logical or rational basis for concluding at [39] that the first applicant had not taken seriously the visa conditions imposed on the second applicant while she was the primary visa holder of a student visa. Nor as I have already explained is there any logical or rational basis for holding that the second applicant’s earlier breach of a visa condition, and whether she took the relevant condition seriously, should reflect negatively on the assessment whether the first applicant met the GTE criterion.
It may be accepted that not every lapse of logic will give rise to jurisdictional error and the Court should be slow, although not unwilling, to interfere in an appropriate case: SZMDS at [130]. The ultimate question is whether the satisfaction of the relevant state of affairs or matter (in this case that the first applicant did not met the GTE criterion) was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30, 198 ALR 59 at 71 [52], 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction to be reached logically or rationally on the available material: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21 at [35]. But in the instant case, for the reasons given earlier, I consider the applicants have also made good ground two. And I consider that the Tribunal’s decision could realistically have been different had it not made the errors identified.
Accordingly, the Tribunal’s decision should be quashed and the application for review remitted to the Administrative Review Tribunal for redetermination according to law. I will hear the parties on costs.
The name of the first respondent is to be amended to reflect the most recent name change effective from 13 May 2025.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 2 June 2025
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