Akkala v Minister for Immigration and Citizenship [2025] FedCFamC2G 1822

Due to the Current situation Covid19 Pandemic, I am unable to provide you all documentation. I am still trying to collect as much documents as possible to support my case.

Please allow me some time to provide you all documentation. As soon as I receive them, I will forward to you.

I promise you that I will try my best to provide you all documentation before my interview date.

Please allow me an opportunity to collect all documents and provide you.

...

1. On 20 October 2021, the Tribunal invited the applicant to attend a hearing by way of telephone (CB 134-137). In the hearing letter, the applicant was invited to provide any documents in support of his case by 9 November 2021. Further, the Tribunal also requested the following:
   1. A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
   2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia ...
2. On 9 November 2021, the applicant's migration agent emailed the Tribunal attaching an undated statement from the applicant, a confirmation of enrolment letter from TKL College, a transcript of units undertaken in the Diploma of Business from TKL College, a letter from Dr Krishan Sahithi, Yashoda Hospital, a letter from Indian Australian Multicultural Association and medical results (CB 148-159).
3. On 15 November 2021, the applicant's migration agent provided further medical and psychiatric reports to the Tribunal (CB 163 -170).
4. On 16 November 2021, the applicant attended the telephone hearing before the Tribunal to give evidence and present arguments. The applicant was assisted by his migration agent (CB 171- 173).
5. On 17 November 2021, the Tribunal affirmed the delegate's decision not to grant the applicant the Student 500 visa (CB 181).
6. On 18 November 2021, the applicant was notified of the Tribunal's decision through his migration agent (CB 176).

1. The Tribunal Decision is 21 pages long.
2. The Tribunal began by identifying the visa under review and summarising the procedural history of the matter (TD [1-20]).
3. The Tribunal recorded the evidence before it (TD [21-42]).
4. The Tribunal summarised the relevant law (TD [43-47]).
5. The Tribunal identified that in considering whether the applicant satisfied cl 500.212(a) of Schedule 2 to the Regulations, it must have regard to the factors specified in Direction No. 69, 'Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications', made under s 499 of the Act. The Tribunal set out the factors it must have regard to (TD [45]). The Tribunal noted that the factors in Direction No 69 were not a checklist (TD [46]). The Tribunal made the following findings and comments (TD [48-56]):

(a) circumstances in applicant's home country: The Tribunal found that there were no concerns about unrest in India that would result in the applicant choosing to stay in Australia for an indefinite period of time. The Tribunal recorded that there was no evidence before it of any military commitments that would disincentivise the applicant from returning to India. The Tribunal accepted the applicant's evidence regarding his parents and siblings in India and the absence of any family in Australia. The Tribunal accepted the applicant's evidence that his father owns land, businesses and a residence in India and that the applicant would inherit this upon his return. The Tribunal accepted the applicant's evidence that he speaks to his parents often by telephone. The Tribunal found that the applicant's family ties in India were indicative of a significant incentive for him to return to India. The Tribunal found that the applicant's circumstances in India were consistent with a person who is only a temporary entrant and wishes to return to their home country (TD [48]).

(b) potential circumstances in Australia: the Tribunal accepted the applicant's evidence regarding his enrolment in a Diploma of Business, a Graduate Diploma of Engineering and an Advanced Diploma of Business in Australia (TD [49]). The Tribunal recorded its concerns as to the lack of course progression over a significant period of time (TD [50]). The Tribunal found that the applicant had not proffered credible evidence to allay its concerns as to his lack of course progression. The Tribunal rejected the applicant's evidence regarding course progression (TD [51-53]). The Tribunal found that the applicant was not a genuine student and was using the student visa as a migration pathway to remain onshore in Australia (TD [54]). The Tribunal recorded the applicant's evidence that he worked in Australia for a minimum of 8 to 10 hours per week from March 2020 to June 2021 (TD [52]).

(c) value of the course to the applicant's future: the Tribunal found that the applicant had provided inconsistent evidence regarding his study plans in Australia and the value of the Diploma of Business to his future. The Tribunal noted that the applicant had said that the purpose of studying the Diploma of Business was to attain management and business skills to assist in his father's property and construction business. The Tribunal noted that in his response to the Tribunal's invitation dated August 2021, the applicant had stated that 'he will return to India to look for a good job and would expect to receive $2,000.' The Tribunal noted that in his Student 500 visa application to the Department that he had stated the purpose of studying this course was to 'make his family proud' and attain 'a highly paid graduate role'. The Tribunal recorded its difficulties in accepting the applicant's evidence. The Tribunal found that the inconsistencies in the applicant's evidence added to the finding that the applicant's reasons for studying are to maintain residence in Australia and that the applicant was not a genuine student (TD [55]).

(d) applicant's immigration history: the Tribunal found that there was nothing before it to support the finding that the applicant did not genuinely intend to stay in Australia temporarily (TD [56]).

1. On the evidence advanced and considered cumulatively, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student (TD [58]). The Tribunal summarised the evidence, circumstances, matters it considered relevant and Direction 69 in reaching its findings (TD [57-58]).
2. The Tribunal found that the applicant did not meet cl 500.212(a) of Schedule 2 to the Regulations (TD [59]). The Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa had not been met by the applicant (TD [60]).
3. The Tribunal affirmed the delegate's decision dated 10 January 2020 (TD [61]).

1. The applicant's grounds for judicial review are set out in the application filed on 15 December 2021.
2. The Court on 9 March 2022 ordered that any amended application, submissions and any additional evidence be filed 28 days before the hearing. A number of other timetabling orders were made by the Court at later dates.
3. The application contained three grounds:
   1. Breach of procedural fairness.
   2. Misapplication of Ministerial Direction 69 - Genuine Temporary Entrant Applicant.
   3. Taking into account of irrelevant consideration.
4. Filed with the application was an Affidavit of the applicant deposed on 14 December 2021.
5. A hearing was held in the Sydney Registry of this Court on 10 September 2025. Mr Leybourne from Australian Legal and Migration Services appeared for the applicant. Mr Djasmeini from MinterEllison appeared for the Minister.
6. At the hearing, the Minister handed up a list of objections to the Affidavit deposed on 14 December 2021 (MFI 1). The solicitor for the applicant handed up a response to that list (MFI 2). After argument in Court, the Affidavit deposed on 14 December 2021 was read with the exception of paragraphs 1 to 3, sentences 1 to 2 of paragraph 6, and the first and second sentences in paragraph 7, as these paragraphs and sentences were not pressed. There were also a number of deletions to sentences in paragraphs 4, 5 and 6. The remainder of the Affidavit was treated as submissions to the Court (Tp 2.32-38).
7. The Affidavit deposed on 14 December 2021 attached a copy of the Tribunal Decision, and three Psychiatric Summaries from Yashoda Hospital of interviews dated 18 November 2018, 20 January 2019 and 3 March 2019. These documents were before the Tribunal (page 30 to 32 of the Affidavit deposed on 14 December 2021) and are referred to at 164 - 166 of the Court Book.
8. The Affidavit deposed on 14 December 2021 also annexed a Statement of Attainment from TKL College issued on 8 November 2019 (page 33 of the Affidavit deposed on 14 December 2021) in relation to a Diploma of Business, at 152 of the Court Book.
9. A further Affidavit of the applicant deposed on 28 August 2025 was also subject to objections from the Minister (see MFI 1) and a number of paragraphs and sentences were not pressed and were treated as submissions.
10. At the hearing before me, Mr Leybourne for the applicant referred to a further Affidavit of the applicant deposed on 22 August 2025, which had a series of annexures (MF1 4). He said that he 'thought they had been filed' some time previously but had discovered this was 'erroneous', and he had filed them the night before the hearing (Tp 10.6-8). Although he told me at hearing that they had been filed the night before, Registry confirmed that no documents had been filed at the Court. When asked why he had not filed documents in compliance with the court orders, Mr Leybourne said that he did not have an explanation for this (Tp 13.44-45 -14.1).
11. The Affidavit deposed on 22 August 2025 was handed up at court and marked MFI 4. The Minister objected to the admission of this evidence on the basis of relevance (Tp 3.10-13). The Affidavit contained some background information already before this Court. It also contained evidence about the applicant's circumstances, visa status and future plans. This part of the Affidavit referred to the applicant's life after the Tribunal Decision and is not relevant to the question of whether there is jurisdictional error in the Tribunal Decision. Fresh evidence is not admissible unless it bears on some jurisdictional error: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]. The Affidavit deposed 22 August 2025 was inadmissible and was not read.
12. The applicant at hearing presented a document titled 'Request for Consideration of Current Circumstances and Removal of Section 48 Bar' dated 15 August 2025 (MFI 3). Mr Leybourne said that the document, which referred to matters not 'pertaining precisely to this judicial review' could 'stay as an MFI' (Tp 10.19-21 and 12.39-45). This document was not admitted into evidence as it was not pressed (Tp 13.4-6).
13. The applicant filed written submissions on 28 August 2025 (Applicant's Submissions). The Applicant's Submissions contained new grounds - failure to consider relevant considerations and unreasonableness. The written submissions also included a number of paragraphs headed 'audio recording extracts'.
14. At the hearing, Mr Leybourne was asked why he did not file an amended application in accordance with the orders and instead had included new grounds in the written submissions (Tp 13.33-40). He said that he sought leave to amend his application in court and he blamed 'haphazard instructions'(Tp 14.1-2). The Minister objected to leave being granted to amend the application. The Minister noted that the applicant had had multiple opportunities to file an amended application. It was also submitted that the new grounds had no merits (Tp 13.33 -14.1-19). The Minister also objected to the parts of the Applicant's Submissions which referred to timestamps in the audio recording of the Tribunal hearing, on the basis that a transcript was not attached to an affidavit, explaining the methodology and sources used in the preparation, and confirming that it had been accurately prepared (Tp 14.21-27).
15. The onus is on the party seeking leave to amend to persuade the Court that the leave should be granted; Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 per Marshall, Rares and Flick JJ at [17]. Mr Leybourne did not provide persuasive reasons as to the delay. He has been the solicitor on record since 2021 when the originating application was filed with the Court. He has had numerous opportunities to file documents.
16. Where there is a litigant in person, this Court often exercises its discretion to permit transgressions from the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (GFL Rules), given lack of knowledge regarding the law and processes. However, where the applicant is represented, a lawyer is expected to be aware of the GFL Rules and comply with them and with orders of the court, given the overarching purpose of this Court and the role of solicitors as set out in ss 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
17. Notwithstanding the lack of compliance, I grant leave pursuant to Rule 8.09 of the GFL Rules for the application to be amended as of the date of the hearing before me to include the ground referred to in the Applicant's Written Submissions. I dispense with the need for filing of this amended application, pursuant to Rule 1.10 of the GFL Rules. I have granted leave in fairness to the applicant and as there is little prejudice to the Minister.
18. The extracts from the audio which are referred to in the Written Submissions are not admissible for the following reasons. A transcript of the audio recording was not attached to an affidavit, explaining the source, who was responsible for preparation of the transcript and the methodology used to prepare the extracts. Such an affidavit could also have deposed that the transcript extracts had been accurately prepared with reference to the hearing, and that what was annexed was a true and accurate record. Without such evidence, the extracts are not reliable in Court and are inadmissible.
19. The Court Book was tendered and marked as Exhibit IR.
20. In summary, the following documents were before the Court - the initiating application for judicial review as amended in Court to include the new grounds referred to in the Applicant's Submissions, the supporting affidavit of the applicant filed on 15 December 2021, a Court Book (numbering 208 pages and marked as Exhibit 1R) filed on 10 February 2022, three further affidavits of the applicant which have partly been treated as submissions as referred to in the preceding paragraphs, the Applicant's Submissions without the audio extracts filed on 28 August 2025 (Applicant's Written Submissions), and written submissions of the first respondent filed on 1 September 2025 (Minister's Written Submissions).

1. The applicant has claimed that the Tribunal Decision fell into jurisdictional error. The Court must review the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [17].

1. The Tribunal was required to consider whether the applicant met the legislative criteria for a Student (Temporary)(Class TU) (Subclass 500) visa.
2. Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Regulations prescribe the criteria for classes of visas: ss 31(1) and 31(3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
3. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act. These criteria are considered by the Tribunal on review.
4. The criteria for the visa applied for by the applicant were set out in Clause 500.2 of Schedule 2 to the Regulations. Relevantly, Clause 500.212 required that the applicant was a genuine applicant for entry and stay as a student, having regard to various factors.

1. A privative clause as defined at s 474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

1. The task of this Court in judicial review is not to undertake a general review, but to consider jurisdictional error and if found, to quash the decision of the Tribunal: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
2. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) the High Court, per Nettle and Gordon JJ at [81], explained that:

The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

1. It is well-established that the Court cannot review the merits of the Tribunal decision. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), the High Court said at 272:

.. any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

1. It follows that disagreement with the merits of a decision, if any, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611.

Grounds of review alleged by the applicant in the application to this Court

1. The applicant advanced three grounds of jurisdictional error in the originating application.
2. These were:

Breach of procedural fairness.

Misapplication of Ministerial Direction 69 - Genuine Temporary Entrant Applicant.

Taking into account of irrelevant consideration.

1. The first ground advanced by the applicant in the application was 'procedural fairness'. No particulars were provided.
2. In the Applicant's Submissions filed on 29 August 2025, Mr Leybourne for the applicant submitted that:
   • the applicant was not given an opportunity to 'address this material adequately of personal circumstances', which constituted a denial of procedural fairness ([11] and [12] of the Applicant's Submissions).
   • 'the error was material because had the Applicant been allowed to respond, he could have explained the apparent poor study record with more precision and logic' ([13] of the Applicant's Submissions).
   • the applicant was not able to comment on the Tribunal's scepticism of the authenticity of the report from the applicant's psychiatrist ([15] of the Applicant's Submissions).
   • the Tribunal's decision was legally unreasonable, as the hearing was conducted by telephone, which placed the applicant in a disadvantaged position that could not be remedied. Mr Leybourne claimed that the requirement of natural justice was 'placed in jeopardy and not adequately provided' ([17] of the Applicant's Submissions). It was submitted that the Tribunal was aware of the non-performance of the applicant's representative throughout the telephone call hearing and should have provided the applicant with a further opportunity in person hearing (Tp 18.23-31). Mr Leybourne submitted that the applicant claimed that there were references to documents in the hearing and the applicant was not able to address these adequately in the telephone format (Applicant's 28 August Affidavit at [13]).
3. After consideration of these submissions, I am satisfied that procedural fairness was afforded by the Tribunal and that the applicant had multiple opportunities to present evidence of his personal circumstances, poor study record and all other evidence he wished to adduce.
4. In Written Submissions, the Minister set out the steps taken by the Tribunal to provide procedural fairness under Div 5 of Pt 5 of the Act, as follows:
   1. First, the Tribunal invited the applicant, under s 359(2) of the Act, to provide additional information relevant to the issues arising in the application on two occasions: by letter dated 5 August 2021 (CB 97-99) and by letter dated 20 October 2021 (CB 134-137). The applicant provided information in response to those requests on 10 August 2021 (CB 105-130) and 9 November 2021 (CB 148-159) respectively, which was specifically considered by the Tribunal (CB 184-186, [14]-[18]).
   2. Second, the Tribunal invited the applicant to attend a hearing before it to discuss the dispositive issues, which were the same as before the delegate: s 360 of the Act: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
   3. Third, the Tribunal complied with its obligations under s 359AA(1) of the Act. In particular, the Tribunal raised with the applicant the information contained in his PRISMS, which is recorded at CB 188 [24]. The decision records indicates that the Tribunal outlined its relevance with regard to the genuine temporary entrant criteria, his lack of enrolment and course progression and that since his arrival in April 2017, he had yet to finish a course (CB 188 [25]). The decision record indicates that 'the applicant chose to respond orally at hearing...' (CB 188 [26]). It can be inferred from this statement that the applicant was advised he could seek additional time to comment on or respond to the information in compliance with s 359AA(1)(b)(iii) of the Act.
5. Div 5 of Pt 5 of the Act as it then was, comprised an exhaustive statement of the natural justice hearing rule: s 357A of the Act; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 per Heerey, Conti and Jacobson JJ at [66].
6. The steps set out above in the Minister's Written Submissions demonstrate that the Tribunal complied with procedural fairness obligations and provided multiple opportunities for the applicant to adduce evidence in support of the case.
7. Although the applicant claims that the mode of hearing denied the applicant an opportunity to have a fair hearing, s 366 of the Act empowered the Tribunal to allow an applicant to appear by telephone.
8. In SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 (SZJTK), the appellant claimed that the failure to afford him an in-person hearing meant that he had been denied a real and meaningful opportunity to appear before the Tribunal pursuant to s 425(1) of the Act (the equivalent provision for protection visa cases). The Federal Court found that s 425(1) did not require that the opportunity to appear before the Tribunal required an in-person hearing. The court observed at [23] that:

In this day and age, it is quite common for courts and tribunals to have people appearing before them using modern technology such as video conference facilities. Most of the concerns of decades past about the use of such technology have disappeared: see McDonald v Commissioner of Taxation (2000) ATC 4271 at [21]-[22] per Finn J.

1. While SZJTK was a case about a video hearing, the same principles apply in respect of telephone hearings (see for example Njoroge v Minister for Immigration and Citizenship [2025] FCA 930 (Njoroge) per Jackson J; Dileep v Minister for Immigration and Citizenship [2025] FedCFamC2G 1829 per Judge Johns).
2. Further, the exercise of the Tribunal's discretion to proceed with a telephone hearing was not unreasonable given that the Tribunal hearing was held during the COVID-19 pandemic and the applicant was notified of the Tribunal's arrangements in the hearing invitation (CB 134). Furthermore, the applicant was provided with an opportunity to comment on the hearing mode. In the hearing invitation form, in response to the question 'do you believe that you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation', the applicant marked 'no' (CB 145).
3. I cannot speculate as to whether the hearing conducted was better or worse than if it had been conducted 'in person': MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87 per North, White and O'Callaghan JJ at [29]. There is no transcript before me to demonstrate any unfairness in the hearing. However, a fair reading of the Tribunal Decision does suggest that the hearing appears to have been conducted in a way that afforded procedural fairness. There were many issues addressed at the hearing including education and property in India, reasons for travelling to Australia, reasons for changing course, cancellation of courses, lack of course progression, employment, medical issues, value of the applicant's course to his future, military commitments and political circumstances. I accept the Minister's submissions that it appears from the Tribunal Decision at (TD [20-35]), that the applicant engaged with the Tribunal's questions (see for example, the detailed response at TD [28]).
4. There is no evidence before this Court that there were technical difficulties or that the applicant at any time complained about the hearing mode or requested a hearing in person. Similarly, in Njoroge at [41] His Honour observed that:

there is little to say other than to express agreement with the reasons of the primary judge. As before his Honour, so on appeal, there was no evidence that Mr Njoroge suffered any difficulties in taking part in the hearing or that he raised any such difficulties with the Tribunal. At the hearing of the appeal Mr Njoroge simply made assertions from the bar table about phone connection difficulties he had when taking part in the hearing, but those difficulties were not established by any evidence, and nor was it apparent from anything before the Court that the alleged problems detracted in any significant way from the fairness of the Tribunal hearing.

1. In the case before me, if the applicant had concerns about the hearing or lack of access to hard copies of documentation, as is now claimed, these concerns were not drawn to the attention of the Tribunal and in any event, documents are also usually available in digital form.
2. I note further that the applicant was provided with opportunities to provide written material to the Tribunal, as referenced earlier in these reasons, in which he could have drawn attention to documents or claims he wished to make.
3. To the extent that in this ground the applicant is taking issue with the 'non-performance' of the representative at the Tribunal ([19] of the Applicant's Submissions; [3] of the Applicant's 2025 Affidavit [12]) I am not satisfied that there is evidence before me of non-performance. There is nothing in the Court Book or Tribunal Decision to demonstrate that the applicant had concerns about incompetence or negligence, or that the representative demonstrated incompetence or negligence. In any event I accept the submissions of the Minister that mere negligence, inadvertence, or incompetence does not automatically give rise to jurisdictional error: SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73 per Perram, Robertson and Griffiths JJ at [52].
4. At the hearing before me, it was argued by Mr Leybourne for the applicant (Tp 18.28-31) that the Tribunal hearing was 53 minutes long which was less than the time allotted (90 minutes) (CB 171- 173). He submitted that the length of the hearing 'versus the available time slot tends to lend credence to the applicant's complaint that he was pushed through for a term without adequate assistance' (18.28-31).
5. There is no information before me to suggest that the length of the hearing indicates that the Tribunal hearing was in any way unfair or wanting. I note further that opportunities to provide evidence had been provided before the hearing and the applicant had availed himself of these opportunities.
6. As to the claim that the applicant was not given an opportunity to comment on his poor academic progress, I am satisfied that the applicant had this opportunity: [24-28] and [36] of the Tribunal Decision, as well as opportunities to provide evidence prior to the hearing. At [25] the Tribunal recorded that at the hearing it noted that since his arrival in April 2017, he had yet to finish a course and at [26] the applicant provided a response.
7. The applicant was also given an opportunity to comment on the concerns about credibility, the psychiatrist's report, and the prevalence of fraud in India: [29] and [36] of the Tribunal Decision.
8. The applicant was provided with an opportunity to comment on concerns the Tribunal had that he had never mentioned seeing a psychiatrist as a reason of lack of study in 2018/2019 in information to the Department: [38] of the Tribunal Decision.
9. As submitted by the Minister, the Tribunal was not required to provide the applicant with an opportunity to comment in regard to the conclusions reached about weight to be given to evidence, which were 'subjective appraisals, thought processes or determinations' which did not constitute 'information' for the purposes of ss 359A or 359AA of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [17]-[18] ([51] of the Minister's Written Submissions).
10. There is no jurisdictional error arising because procedural fairness was not afforded to this applicant.

Misapplication of Ministerial Direction 69 - Genuine Temporary Entrant Applicant

1. The second ground advanced by the applicant in the application was a 'misapplication' of Ministerial Direction No 69.
2. In the 2021 Affidavit, the applicant claimed that 'AAT member has misapplied the relevant law ie. Clause 500.212(a) and Direction 69'. He referred to successfully completing three subjects in his course and having recovered from 'impediments that effected my study in the past'. He said that he provided 'plentiful evidence that I satisfy these criteria by the way of my current course enrolment, course attendance and successful completion of subjects and also meeting all other requirements for the grant of student visa' ([7] of the Applicant's 2021 Affidavit).
3. This appears to be a claim that the Tribunal did not give appropriate weight to the applicant's academic study, rather than a claim that the Tribunal did not apply the law or Ministerial Direction No 69 correctly. The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function and is not the province of this Court: Wu Shan Liang, per Brennan CJ, Toohey, McHugh and Gummow JJ at 281-282. Direction No 69 does not dictate how much weight should be ascribed to the various factors.
4. In any event, I am satisfied that the Tribunal applied Ministerial Direction No 69 as required by law. At [43] - [46] of the Tribunal Decision, the Tribunal summarised the relevant law. The Tribunal noted that in considering whether the applicant satisfied cl 500.212(a) of Schedule 2 to the Regulations, the Tribunal must have regard to the factors specified in Ministerial Direction No. 69, and the Tribunal set out the relevant factors (TD [45]). The Tribunal then identified, correctly, that the factors in Ministerial Direction No 69 were not a checklist (TD [46]). The Tribunal then made findings in respect of these factors (TD [48-56]).
5. In Kaur v Minister for Home Affairs [2019] FCA 2026 Steward J at [31] observed that the factors in Ministerial Direction 69 which must be taken into consideration are those which are the subject of substantial, clearly articulated claims or those that squarely arise from the material. I accept the Minister's submissions that the Tribunal considered all of the applicant's claims against these factors. These included the applicant's circumstances in his home country (TD [48]), the applicant's potential circumstances in Australia (TD [50-54]), the value of the course to the applicant's future (TD [55]) and the applicant's immigration history (TD [56]).
6. The applicant submitted in the Written Submissions that the Tribunal should have relied on Direction Number 106 - Assessing the Genuine Entry and Stay Requirements for Student Visa and Student Guardian Visa Applications (Direction 106) which 'provides more consideration of the applicants circumstances' ([10] of the Applicant's Submissions). The Minister submitted that this claim was misconceived ([47] of the Minister's Written Submissions). I accept this submission. Direction 106 was not applicable at the time, as it commenced on 23 March 2024. As pointed out by the Minister this was approximately 2 years and 4 months after the Tribunal hearing and the Tribunal's Decision (17 November 2021). I accept that the Tribunal was correct in considering Ministerial Direction 69 as the relevant Direction in force at the time of the Tribunal's decision. Ministerial Direction No. 69 commenced 1 July 2016.
7. No jurisdictional error arises from misapplication of Ministerial Direction No 69.

Taking into account irrelevant considerations or making findings without evidence

1. The third ground advanced in the application was that the Tribunal took into account irrelevant considerations, although these were not particularised.
2. In the 2021 Affidavit, the applicant claimed that ([3] of the Applicant's 2021 Affidavit):

the AAT member has denied me procedural fairness as the member placed weight on speculation and opinion, and matters beyond my control of medical, family and relationship problems, but completely disregarded my current good academic, and compliance history.

1. The issue of procedural fairness has already been addressed in these reasons.
2. While the applicant characterised the issue as one of procedural fairness, the particulars relate more suitably to a claim of consideration of irrelevant considerations (or an allegation of failure to consider relevant information or unreasonableness which are considered later in these reasons). He also stated in his 2021 Affidavit that [57] - [60] of the Tribunal Decision are examples of the Tribunal making findings 'without evidence' ([6] of the Applicant's 2021 Affidavit).
3. I am satisfied that the Tribunal made its findings on the evidence before it and did not take into account irrelevant considerations. At [57] the Tribunal noted that it had considered all the evidence before it. This included academic history, family ties in India and Australia, evidence of property and business in India, medical evidence submitted, the applicant's expression of intention to return to India, immigration history and submissions of the representative (TD [57- 58]). All of these considerations, including the 'medical, family and relationship problems' were relevant considerations based on evidence provided by the applicant, and the factors listed in Ministerial Direction No 69. There is no evidence that the Tribunal took into account irrelevant considerations or placed weight on speculation and opinion or made findings without evidence.
4. The alleged failure to take into consideration academic progress is considered in relation to 'failure to consider relevant considerations' in the paragraphs below.
5. In essence, in this ground the applicant appears to disagree with weight given by the Tribunal. As referred to earlier in this judgment, the weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, per Brennan CJ, Toohey, McHugh and Gummow JJ at 291 to 292.
6. There is no jurisdictional error which arises because of taking into account irrelevant considerations or making findings without evidence.

1. In the 2025 affidavit the applicant appeared to advance a claim that there was a failure to consider relevant considerations. The applicant stated that the Tribunal 'completely disregarded my current good academic, and compliance history' ([3] of the Applicant's 2025 Affidavit).
2. The applicant also claimed in the Written Submissions that:

The Tribunal failed to consider a psychologist's report and commented there is document Fraud in India. Further the member was sceptical regarding the Psychiatrist's report. The applicant was not provided with adequate opportunity to address this prejudicial statement made by the member. (Para 29 decision record) ([15] of the Applicant's Submissions).

The failure to consider this report rendered the Tribunal finding of adverse credibility unreasonable and legally flawed ([16] of the Applicant's Submissions).

1. In ([18] of the Applicant's Submissions) the applicant contended that the Tribunal Member 'made no mention my girlfriend marrying another man' which he said affected his psychological and emotional health ([18] of the Applicant's Submissions).
2. Contrary to the applicant's claims, the Tribunal expressly considered current enrolment and course progress (TD [4],[17] and [19]), in its consideration of the evidence before it (TD [49]) and when weighing up the factors of Ministerial Direction 69 prior to reaching its decision (TD [57]). At [49], the Tribunal noted that the applicant had completed three units towards his course and had been enrolled in three courses since his arrival. At [57], the Tribunal noted that it had considered that he had completed three units and was enrolled in a Diploma of Business. In respect of the issue of compliance, at [56] the Tribunal noted that 'there is nothing which indicates that he does not genuinely intend to stay in Australia temporarily'.
3. I am also satisfied that the medical evidence was considered by the Tribunal: 'The Tribunal has considered the medical evidence...':[53] of the Tribunal Decision.
4. It was a matter for the Tribunal to weigh up the relevant evidence. The Tribunal considered, based on the lack of credibility as to the reasons the applicant did not study, and the prevalence of document fraud in India, that it did not give the medical reports weight (TD [53]). It is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 per Beaumont J at 278.
5. I am also satisfied that the Tribunal considered the applicant's relationship breakdown at (TD [28]).
6. To the extent that the applicant is claiming that the Tribunal should have made further inquiries about whether the medical evidence was genuine, the Tribunal is not under a duty to inquire and it is for the applicant to make his own case: Minister for Immigration and Citizenship v SZIAI [2009] HCATrans 165; (2009) 259 ALR 429 per French CJ, Gummow , Hayne , Crennan , Kiefel and Bell JJ at [25].
7. As to whether the consideration of the medical report was legally unreasonable or there was lack of procedural fairness this is addressed in other parts of these reasons.
8. No jurisdictional error is demonstrated by failing to consider relevant considerations.

1. At [2] of the 2021 Affidavit, the applicant asserted that the Tribunal arrived at an 'incorrect conclusion' in an unreasonable manner.
2. The Minister submitted that this contention was not sufficiently particularised to be the subject of a meaningful response: citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 per Gilmour J at [35]. I accept that this ground is not particularised however I have addressed a number of claims made in the submissions, which appear to refer to illogicality, irrationality or unreasonableness.
3. Mr Leybourne submitted that it was unreasonable of the Tribunal not to give weight to the medical reports from Yashoda Hospital, a 'legitimate practising hospital' (Tp 19.37-38 20.8-10) on the basis of country information about the prevalence of fraudulent documents in India. He submitted that the medical documents should have been given a different 'evidentiary weight', given that there was no hint of fraud, alteration or malpractice. He submitted that the Tribunal should not automatically identify all four documents from Yashoda Hospital as 'useless, probably defective, probably deceitful' (Tp 20.8-10).
4. Mr Leybourne also submitted that at [28] of the Tribunal Decision the Tribunal expressed concern that the applicant did not refer to a relationship breakdown (Tp 19.14-17). He submitted that this was an unreasonable expression of concern, as the relationship breakdown was referred to in the psychiatrist's report which had been provided to the Tribunal (CB 153).
5. The applicant also argued at [6] of the 2021 Affidavit, that the Tribunal formed an unfavourable view of his intentions with respect to his study course, without evidence to properly support it, suggesting that the decision was irrational or illogical.
6. It is clear from the authorities that the test of unreasonableness must be 'necessarily stringent': Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) per Kiefel CJ at [11] and that the characterisation of a decision as legally unreasonable is not easily made out: Djokovic at [33] citing SZVFW at [11], [52], and [135].
7. Jurisdictional error may be established where there is unreasonableness in the findings or process, or in critical facts on the way to making findings. In EUD24 v Minister for Immigration and Citizenship (2025) 311 FCR 155, Hill J observed:

[35] Further, the "critical fact" approach is supported by statements by Crennan and Bell JJ that jurisdictional error may be able to be established on the basis of illogical or irrational findings "on the way" to the final conclusion: see Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [54] (Wigney J), citing Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [132]. This approach also promotes consistency with the closely related principles relating to legal unreasonableness, which applies to both the outcome of the decision and the process by which it is made (including the reasoning that led to that outcome): see Palmer at [101]; Minister for Immigration, Citizenship & Multicultural Affairs v Lieu [2023] FCAFC 57; (2023) 297 FCR 162 at [81] (Mortimer CJ).

1. In AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 (AAJ17) Perry J usefully summarised at [21] the relevant principles by which it is determined whether a decision on findings of credit is legally unreasonable, as explained by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 (DAO16) at [30]:

(1) While findings as to credit are generally matters for the Tribunal, this does not mean that such findings are beyond scrutiny on judicial review. The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (citations omitted).

(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 (SZMDS) that:

135. ... A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

...

(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)).

1. Drawing on various authorities, the Full Court in DAO16 provided some examples of legal unreasonableness, including findings on credit on an objectively minor matter of fact which constitutes the basis on which the decision-maker rejects the entirety of an applicant's evidence and claims, reliance on unwarranted assumptions and false factual premises concerning a critical document.
2. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) per Crennan and Bell JJ at [133] it was observed that 'the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it'. Their Honours further stated at [135] that:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

1. The first issue in the matter before me is whether it was unreasonable for the Tribunal to make findings that it did not give weight to the medical reports from Yashoda Hospital (TD [53]). I accept the findings of the Tribunal had a logical, rational and probative basis. The Tribunal did not give weight to the medical reports for two reasons. The first reason was the applicant's lack of credibility as to the reasons he did not study, based on inconsistent reasons given, and his failure to raise his attendance with a psychiatrist to the Department when his lack of progress was queried by the Department on 21 November 2019. The second reason was that independent country information (DFAT Country information Report India dated 10 December 2020) indicated that document fraud was prevalent in India.
2. The medical evidence adduced by the applicant was not rejected outright by the Tribunal, but it was not given weight as evidence of reasons for his lack of academic progress. The Tribunal considered the reasons the applicant gave for his lack of course progression earlier in [53] of the Tribunal Decision, referring to a number of inconsistencies in his evidence. The conclusion that the Tribunal did not place weight on the medical reports as evidence of his claim that he did not study as he was mentally affected, was not unreasonable when considered in the context of the totality of the findings. Weight to be attributed to country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ at [13].
3. In short, the conclusion reached as to the weight to be given to the medical reports was open to the Tribunal on the evidence before it: SZMDS at [133].
4. The second claim in relation to unreasonableness related to the fact that the Tribunal expressed concern that the applicant did not refer to a relationship breakdown (Tp 19.14-17). It was submitted by the applicant that this was unreasonable, as the relationship breakdown was referred to in the psychiatrist's report which had been provided to the Tribunal (CB 153).
5. In this claim, there is a misunderstanding of the Tribunal's findings at [28]. The Tribunal raised a concern that the applicant did not refer to the relationship breakdown as the reason for his lack of study to the Department in either his initial statement or in his response via to the Department's letter of concern. There was no unreasonableness in the finding at [28], as the Tribunal was referring to information provided in the initial statement to the Department and response to the letter of concern. The fact that the psychiatrist's report was made available generally was not the issue here.
6. The third claim of unreasonableness was that the Tribunal formed an unfavourable view of the applicant's intentions with respect to his study course, without evidence to properly support this view.
7. I am of the view that the findings about the applicant's lack of academic progress had a rational, logical and probative basis. The Tribunal did not accept the applicant's explanation for his poor academic performance being attributable to his claimed medical, familial and relationship problems and provided cogent reasons for this, as set out in [32] of the Minister's Written Submissions:

(a) The Tribunal observed that there was no medical evidence that he faced mental difficulties between November 2017 and March 2018 that rendered him unable to study (CB 193 [53]).

(b) The Tribunal rejected the applicant's submission that he was unaware of the services available to him in light of his level of education and him having health insurance (CB 193 [53]).

(c) The Tribunal noted that the applicant had not raised his relationship breakdown as a reason for his failing academic record in his statements to the Department and the Tribunal (CB 193 [53]). While the applicant claimed to the Tribunal that he had seen a psychiatrist from November 2018 to May 2019 at the hearing, this information was not referred to the Department (CB 193 [53]).

(d) Given the applicant's lack of credibility regarding the reasons as to why he did not study and the prevalence of document fraud in India based on the DFAT Country Information Report dated 10 December 2020, the Tribunal placed no weight on the applicant's medical evidence as evidence of his claim that he did not study as he was mentally affected (CB 193 [53]).

(e) The Tribunal did not accept that the applicant's father's illness affected the applicant's ability to complete any unit in the Diploma of Business when he was enrolled in it from 8 July 2019 to 4 December 2019. The Tribunal found that while the applicant had indicated in his visa application that he was making positive progress, at hearing the applicant stated that he did not complete any unit in his course (CB 193 [53]).

1. The Tribunal is not required to accept, uncritically, any and all claims made by an applicant, nor does it have to possess rebutting evidence before holding that a particular assertion is not established: AAJ17 Perry J at [24]. I accept that the findings on the lack of academic progress were open to the Tribunal on the evidence before it.
2. A further claim of unreasonableness was raised by the applicant in the 2021 Affidavit at [4]. The applicant claimed that at [52] of the Tribunal Decision, the Tribunal said that he worked from March 2020 to June 2021 for a duration of 15 months and claimed that if he had worked, he could also study. The applicant said that this fact was not correct, and he clearly recalled telling the Tribunal that he only worked between March 2021 to June 2021 and that this information could have made a difference to the decision. Mr Leybourne for the applicant submitted that the applicant was working minimal hours due to COVID during a three month period only (Tp 20.25-30). He submitted that the applicant was concerned that this error would influence a conclusion by the Tribunal Member that he would place emphasis on work rather than study, and that this was why he wanted to stay in Australia (Tp 20.33- 35).
3. The Minister referred the Court to the decision in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 (NAOA) at [21] as proposition for the principle that where there is no other evidence, the decision record should be reflective of what took place at the hearing ([43] of the Minister's Written Submissions). In NAOA, Beaumont, Merkel and Hely JJ held at [21] that 'in the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise.' As I have no evidence before me that the applicant provided evidence of working between March 2021 to June 2021, I am not satisfied that such an error was made.
4. Even if such an error were made, I find that it would not be material given the multiple reasons for the findings of the Tribunal. I am not satisfied that the decision could realistically have been different had the error not been made: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at 328 to 329.
5. In respect of the Tribunal findings on the applicant's genuine intention to stay temporarily, I have found earlier in these reasons that the findings were based on correct application of the law and consideration of the evidence before the Tribunal. The Tribunal relied on a number of factors in reaching a conclusion that the applicant was not a genuine applicant for entry and stay, including concerns as to the lack of course progression over a significant period of time (TD [50]) and inconsistent evidence regarding his study plans in Australia and the value of the Diploma of Business to his future (TD [55]). I am satisfied that the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory provided a logical and rational basis for the Tribunal's adverse credibility findings: AAJ17 at [21].
6. It cannot be said that the Tribunal's findings were illogical, irrational or lacked a probative basis. A logical or rational decision-maker could have come to the same conclusion as the Tribunal: SZMDS at [135].
7. There is no jurisdictional error established by way of legal unreasonableness in the findings or outcomes.

1. The applicant has claimed bias in the way the Tribunal conducted the hearing. The Minister has contended that no bias has been demonstrated (Tp 22.5-9).
2. Bias is a serious allegation and for this reason it needs to be 'distinctly made and clearly proved': Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at 531.
3. There can be a finding of actual bias where the Tribunal was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng at 520. A court must assess the state of mind of the decision-maker: Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427 at 437 to 438.
4. The second kind of bias is apprehended bias. In SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45; (2012) 200 FCR 223 (SZQHH) Rares and Jagot JJ observed at [37]:

An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of (citations omitted).

1. In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 per Allsop CJ, Flick and Robertson JJ. Allsop CJ observed at [4] that:

A person in the appellant's position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance.No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.

1. In the case before me, allegations of bias have been made in a number of ways:
   • In the Affidavit of 28 August 2025, the applicant submitted that at approximately the 25: 10-minute mark of the hearing recording, the Tribunal said words to the effect of 'this is difficult to accept' and referred to him as a highly educated person. The applicant contended that this reflected scepticism and prejudgment (Paragraph 9 of the Applicant's Affidavit of 28 August 2025).
   • In the Affidavit of 28 August 2025, at approximately 32.00 the Tribunal Member said twice words to the effect that 'document fraud is prevalent in India' referring to the psychiatrist's report. Mr Leybourne submitted at the hearing before me that there was 'no nexus regarding the documentation' and you could not 'automatically identify all four documents from Yashoda Hospital as defective, probably deceitful' (Tp 20 5-9.) (Paragraph 10 of the Applicant's Affidavit of 28 August 2025).
   • The applicant claimed that the Tribunal Member said that it was bizarre that the applicant could not study long-distance due to family problems. The applicant described this comment as 'biased, judgmental and dismissive of my genuine issues'. At the hearing before me, Mr Leybourne submitted that 'conclusion and pre-judgment was actually placed on this document' (Tp 17.11 -12).
   • Mr Leybourne at the hearing before me, claimed that the applicant was informed of the Tribunal Decision at 8.54am the day after the hearing. He suggested that this was 'indecent haste' (Tp 18.41 - 44) which indicated that the applicant was 'badly treated' (Tp 19.8).
   • In the Affidavit of 28 August 2025, the applicant suggested that there was 'clear conscious bias, including the remarks about India documents being fraudulent and the judgmental characterization of my family-related difficulties'.
   • At the hearing before me, Mr Leybourne referred to Jaggi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1267 (Jaggi) as a relevant authority for 'bias' and 'stereotyping'. Mr Leybourne submitted that in the case before me there were 'very strong whiffs' that 'prejudice had been employed' (Tp 20.18-19).
2. Although the applicant was represented, there was no affidavit before me attaching a transcript of the Tribunal hearing. I do not have before me evidence of the Tribunal Member's conduct at hearing other than what is contained in the Court Book and Tribunal Decision. The representative for the applicant has referred to isolated parts of the Tribunal hearing in his submissions without adducing into evidence a properly verified transcript. Without this evidence, I do not have probative evidence of the statements which the applicant alleges the Tribunal Member made. I make my findings of alleged bias based on the evidence before me.
3. The Court Book at pages 175 and 176 shows that the Tribunal Decision was made the day after the hearing that was held on 16 November 2021 (CB 171-174). In my view, this does not indicate undue haste, without some other evidence of bias. There is no such evidence of bias in this matter. It is the way the hearing is conducted and the way the evidence is considered, rather than the length of time taken, that demonstrates that a fair and impartial decision is made.
4. As addressed earlier in these reasons, it was open to the Tribunal to have concerns that the applicant did not tell the delegate about seeing a psychiatrist when asked about course progression (TD [53]). It was also open to the Tribunal to not place weight on the medical reports given credibility issues as to the reasons the applicant did not study as well as the prevalence of document fraud in India (TD [53]). These findings, although adverse to the applicant, are not illustrative of bias.
5. At [38] of SZQHH, their Honours said that 'decision-makers can be expected to apply the law and relevant policies in a consistent and predictable way', noting that decision-makers frequently will have to decide the same issues raised by different persons in separate applications. Without evidence of a transcript, and after considering the information in the Court Book and Tribunal Hearing I am not satisfied that any bias of any sort is demonstrated. In reaching this finding, I have taken into consideration the detailed and thorough analysis in the Tribunal Decision as well as the opportunities provided for written submissions and documentation.
6. I am not satisfied that there is any similarity between the circumstances in Jaggi and the circumstances in the case before me. I have already noted that I do not have before me a transcript of the Tribunal hearing such that my evaluation of bias is based on the Court Book and Tribunal Decision. Further I keep in mind the well-established principle that the Tribunal enjoys an advantage to test the veracity of evidence given orally by observing the witness: Fox v Percy (2003) 214 CLR 118 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [62].
7. I note further that in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 French, Sackville and Hely JJ observed at [46]:

The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. ..Its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.

1. The mere fact that the Tribunal made adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached their task other than with a mind open to persuasion: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
2. In Jaggi, the Tribunal Member made various comments to the applicant's agent, including 'I am highly likely to affirm this today', and 'I know that 99% of the cooks in India don't come here and study'. Given the nature of this commentary, apprehended bias was made out (Jaggi at [77]). I have no evidence of any similar types of questioning before me.
3. I am not satisfied that the Tribunal was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng [71]-[72]. I am also not satisfied that a fair-minded lay person might think that the Tribunal might not bring a fair and impartial mind to the making of the decision SZQHH [37].
4. I am not satisfied that the Tribunal Member demonstrated bias. No jurisdictional error arises from this ground.

1. For the reasons set out above, this Court is not satisfied that the Tribunal's reasons were affected by jurisdictional error.
2. Accordingly, the application for judicial review is dismissed.
3. The Court will hear the parties on costs.

I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.