The applicant's first contention in ground 1 is that the Tribunal's "exercise of discretion" was legally unreasonable or that it failed to ask, "relevant questions". There are three particulars in support of this ground (as set out above).
Legal unreasonableness is a well-established category of jurisdictional error. Legal unreasonableness is where a decision maker has come to a conclusion so unreasonable that no reasonable decision maker could have come to it: see Minister for Immigration arid Citizenship v Li[2013] HCA 18; (2013) 297 ALR 225 (Li) at [28] per French CJ. A plurality in Li also held that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification: see Li at [76] per Hayne, Kiefel and Bell JJ.
It is also well established that any discretion exercised by the Tribunal must be exercised reasonably: See Li at [105] per Gageler J; Minister for Immigration v Stretton[2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection[2016] FCA 132 at [17] per Perry J.
However, legal unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of facts, or the evaluative judgments made by the decision maker: see at [30], [113].
Li
A bare assertion that the Tribunal failed to ask relevant questions is not a known category of jurisdictional error. Except in very specific circumstances, there is no obligation on the Tribunal to investigate an applicant's claims: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural arid Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of claims. The Tribunal must then decide whether that claim is made out: see Abebe v Commonwealth of Australia(1999) 197 CLR 510 (Abebe) at [187] per Gummow and Hayne JJ.
In the first paragraph in support of ground 1, the applicant asserts in a challenge to paragraph [19] of the Tribunal decision, that the Tribunal never considered the COVID-19 pandemic that was going on during that period and the travel restrictions. This assertion misunderstands paragraph [19]. Paragraph [19] was a summary of information which the Tribunal requested from the applicant on 24 August 2021, to which the applicant responded: see paragraph [20] of the Tribunal's decision. There was nothing legally unreasonable about what was said in paragraph [19] as it merely set out details of correspondence between the Tribunal and the applicant. Nor was the Tribunal obliged under the Act to ask or "consider" that COVID-19 was going on, or that travel restrictions were in place in the context of the request in paragraph [19], or at all. The first paragraph in support of ground 1 is unmeritorious.
In the second paragraph the applicant argues there was an obligation on the Tribunal to consider (in paragraph [22] of its decision) the applicants' psychological issues as a result of the COVID-19 pandemic where many people were undergoing severe mental health problems. The Tribunal accepted she suffered from untreated mental health problems, unrelated to COVID-19: see paragraph [32] of the Tribunal decision. There was no mental health claim made by the applicant based on COVID 19. The second paragraph in support of ground 1 is also unmeritorious.
In the third paragraph of ground 1 the applicant asserts she should have been given time to provide all her medical records as it was difficult to meet and take medical examination during the COVID-19 pandemic, and all she could obtain was a letter dated 8 September 2021 from her treating Doctor. Putting to one side that the onus is on the applicant to advance whatever evidence or argument she wishes to advance in support of claims, there is no evidence the applicant asked the Tribunal for the opportunity to put on further medical evidence of the kind she identifies in this ground of review: see paragraphs [25]-[28] of the Tribunal decision which details the exchange between the applicant and the Tribunal about her evidence and claims. As the first respondent submitted, the applicant was afforded sufficient time and opportunity to provide her medical records, she also availed herself of the opportunity to provide evidence in response to the s 359 invitation. There was nothing in the Tribunal's decision record to suggest that the applicant requested further time to provide evidence at the hearing: see paragraph 29 of the first respondent's written submission. Paragraph three is unmeritorious.
Ground 1 does not establish the Tribunal committed jurisdictional error.
[2]
This ground alleges the Tribunal failed to engage in an active intellectual process by failing to ask relevant questions and failed to assess relevant criteria required to grant the visa. The applicant asserts that the Tribunal should have considered "compelling reasons" when assessing to grant the visa. The compelling reason was said to be: not being able to engage a specialist doctor due to Covid-19 restrictions in 2020.
In determining whether the decision-maker had an active intellectual engagement, the Full Court at [37] in Singh v Minister for Home Affairs[2019] FCAFC 3 (Singh), (Reeves, O'Callaghan and Thawley JJ), found that the following two matters to be relevant:
First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259 at [30];
it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48].
Clause 602.215 required that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. This was the issue before the Tribunal. As the Tribunal itself found, cl 602.212(6) did not apply to the applicant as she was under 50 years of age.
The Tribunal found that despite having a genuine medical condition the applicant did not intend to stay temporarily in Australia. The Tribunal found, after considering the evidence, at [31]-[35]:
For the following reasons, the Tribunal has decided that the under review should be affirmed.
The Tribunal accepts that the applicant suffers with anxiety/depression and has thyroid problems. The Tribunal accepts on the basis of the medical letters provided that she, is receiving treatment for these conditions and the treatment is medication. The Tribunal accepts that was referred to a psychologist but that she is not currently being treated by a psychologist because she cannot afford to pay for that care. The Tribunal also accepts that she has previously had issues with polycystic ovary syndrome but that she is not currently receiving treatment for this condition.
However, just because the applicant genuinely has a medical condition does not mean that she genuinely intends to stay temporarily in Australia for the purpose of treatment for that condition.
The Tribunal is satisfied that the applicant's intention is to remain in Australia permanently. Her oral evidence is that she left Malaysia because she feared for her life. It was that reason that she did not return to Malaysia. She lodged a protection visa which demonstrates her unwillingness to return to Malaysia. The applicant claims that the danger in Malaysia continues to be present.
The applicant told the Tribunal that she will not return to Malaysia, even if her medical treatment concluded.
These paragraphs show the Tribunal engaging in an active intellectual process with the evidence and the criteria in cl 602.215 as required by Singh. As the applicant herself gave evidence that she had no intention of returning to Malaysia, regardless of her health and medical treatment (see [35] above), the Tribunal's finding that it was not satisfied the applicant genuinely intended to stay in Australia temporarily for medical treatment was both reasonably (and clearly) open to it on the evidence. For completeness, as referred to above, there was no obligation on the Tribunal when engaging in an active intellectual process with the evidence and the requirements of cl 602.215 as required by Singh, to ask particular questions or make out the applicant's claims for her: see Abebe at [187].
Further, for completeness, I also agree with the first respondent's submission that at no point in her written or oral evidence to the Tribunal did the applicant claim that she could not engage in medical treatment because of the COVID-19 pandemic.
Ground 2 is unmeritorious.
[3]
Ground 3 alleges a breach of s 359A in that the Tribunal should have put the departmental record of her arrival on a visitor visa in 2017 to the applicant under s 359A for comment.
There was no failure to comply with s 359A as alleged. The department record of her arrival on a visitor visa in 2017 did not "contain in [its] terms a rejection, denial or undermining" of the applicant's claims to need medical treatment: SZBYR v Minister for Immigration and Citizenship and Another(2007) 96 ALD 1, at [17].
Rather, it was simply a record of the applicant's movement and immigration history in Australia. Further, as the first respondent pointed out the "reference to the applicant's immigration history was also contained in the delegate's decision record, which the applicant provided to the Tribunal (see Court Book page 33), which information is excluded from the obligation under s 359A under s 359A(4)(b).
Ground 3 does not establish the Tribunal committed jurisdictional error.
[4]
For the reasons outlined above, the applicant has not established that the Tribunal's decision is affected by jurisdictional error.
As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection[2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
The application is dismissed.
[5]
The first respondent seeks costs fixed in the sum of $6,500. I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.
[6]
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.
Parties
Applicant/Plaintiff:
AAE18
Respondent/Defendant:
Minister for Immigration and Citizenship [2025] FedCFamC2G 1375
Legislation Cited (3)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Circuit and Family Court of Australia Act 2021
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Cases Cited (9)
At the hearing of this matter on 20 August 2025, the applicant appeared unrepresented assisted by a Tamil interpreter. Ms Wilford of Sparke Helmore appeared for the first respondent.
This Court has duties to take appropriate steps to ensure that unrepresented applicants have sufficient information about practice and procedure of the court they are appearing in, so far as is reasonably practicable, for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection[2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing) and BSQ17 v Minister for Immigration and Citizenship[2025] FCA 943 Hill J.
It has been suggested that the best approach is to give the unrepresented litigant enough information to make an effective choice in the conduct of the proceedings: see, for example, SZRUR at [60].
I consider, in cases such as the present where the applicant is unrepresented, the appropriate procedure is to give the applicant an opportunity to explain orally at the hearing before me what was meant by each of the grounds of review as they appear in the application to this Court and why the applicant considers the Tribunal was wrong.
Accordingly, I took the applicant through each of the three grounds of review and asked what was meant by each ground. As to ground 1, the applicant told the Court she was depressed and, since the hearing in the Tribunal, she had lost her work rights and has been unable to see a doctor. As to ground 2, the applicant repeated what she said in her oral submissions on ground 1, adding she had a fear of harm in Malaysia because she borrowed money when she was living there. As to ground 3, she told the Court she did not understand the ground. Generally, the applicant told the Court that she did not want to go back to Malaysia and wanted a protection visa. I told the applicant that this hearing was not about any protection visa she had lodged in the past. Ms Wilford told the Court the applicant had previously made a protection visa application which had been refused and that decision was the subject of a judicial review application in this Court and a subsequent appeal to the Federal Court. Those appeals were unsuccessful. I note in paragraph [34] the Tribunal referred to that previous protection visa application made by the applicant.
Ms Wilford made brief oral submissions summarising the first respondent's written submissions. Ms Wilford submitted that none of the matters raised by the applicant orally in her submissions to this Court identified any arguable jurisdictional error by the Tribunal. I agree with that submission. The applicant's oral submissions only went to the merits of her claim in the Tribunal which are not reviewable by this Court.
The applicant made a brief submission in reply to Ms Wilford. Again, she made submissions about the merit of her claims for a protection visa and then for the medical treatment visa. She also made a general allegation that her lawyer did not handle her visa application very well.
Courts have a relatively confined function in judicial review proceedings. The issue before this Court in this case is whether the Tribunal's decision contained a "jurisdictional error"; that is, a serious legal error that results in an administrative decision lacking any legal force (or being "invalid"): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2024] HCA 12; (2024) 280 CLR 321 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Hossain v Minister for Immigration and Border Protection[2018] HCA 34; (2018) 264 CLR 123 at [25] (Kiefel CJ, Gageler and Keane JJ).
Further, as Hill J re-affirmed in BSQ17 at [14], the issue before this Court is not whether the Tribunal's decision is correct on its merits.
Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal committed jurisdictional error.