Arcenal v Minister for Immigration and Citizenship [2026] FedCFamC2G 228

(General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to

r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)

1. Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal).
2. The Tribunal affirmed a decision of a delegate of the then Minister of Home Affairs to refuse to grant Maribel Corton Arcenal a student visa and, through her, visas for her children.
3. To obtain relief from this Court, the Applicants must show that the Tribunal fell into jurisdictional error. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal's decision.
4. Consequently, the application for judicial review must be dismissed.

1. The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.

1. Maribel Corton Arcenal (Primary Applicant) is a citizen of the Philippines[1] and has two children: Cyrus Arcenal Safari and Marcus Arcenal Safari (born in Australia).[2]
2. The Primary Applicant arrived in Australia on 28 February 2015.
3. On 26 April 2019, the Primary Applicant lodged an application for a Student (subclass 500) visa (Student Visa). [3] Her two children were listed as Secondary Applicants.
4. The Primary Applicant had previously held a Student (subclass 500) visa and a Temporary graduate (subclass 485) visa.[4] She had completed a Diploma of Early Childhood Education and Care in Brisbane, from March 2015 to February 2017.[5] The Primary Applicant had also completed a Bachelor of Elementary Education in the Philippines.[6]
5. The Primary Applicant intended to study an Advanced Diploma of Leadership and Management.[7]

1. On 3 July 2019, the Minister's delegate (Delegate) refused to grant the Primary Applicant a Student Visa. The Delegate was not satisfied the Primary Applicant met clause 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth), also known as the genuine temporary entrant criterion (GTE Criterion).[8]
2. The Delegate was not satisfied that the Primary Applicant was genuinely seeking to undertake the proposed course for academic and career progression, and that she was more likely seeking to maintain residency in Australia. The Delegate reached this conclusion in light of the Applicants' overall visa history, as well as the Primary Applicant's failure to provide a satisfactory explanation as to how changes in their study pathway would contribute towards their academic/professional development, or assist in improving their employment prospects in their home country or a third country.[9]
3. By operation of the Migration Act 1958 (Cth) (Act), this Court has no power to review the decision of the Delegate.[10]

1. On 23 July 2019, the Applicants applied to the Tribunal for review of the Delegate's decision. The Applicants appointed a representative, Migration Guru Pty Ltd, to receive correspondence.[11]
2. On 22 January 2021, the Applicants were invited by the Tribunal to provide information (pursuant to section 359(2) of the Act) which would satisfy it that the Primary Applicant was:

(a) enrolled in a registered course of study; and

(b) a genuine applicant for entry and stay as a student.

1. On 5 February 2021, the Applicants responded to the request for information.[12] The Primary Applicant confirmed in her response that she did not have a current Confirmation of Enrolment (CoE) in a registered course of study.[13] Further, the Tribunal was made aware that the Primary Applicant sought to renew an offer she had received to study a Bachelor of Early Childhood Education (Birth to Five Years) at the Australian Catholic University.[14]
2. On 17 February 2021, the Tribunal invited the Applicants to attend a hearing on 5 March 2021.[15]
3. The Applicants provided a response to the invitation to the hearing, signed 26 February 2021, confirming attendance and requesting a Filipino interpreter.[16] The Applicants' representative also provided written submissions and evidence.[17]
4. On 5 March 2021, the Applicants' representative provided further submissions and evidence of a current CoE to study a Bachelor of Early Childhood Education (Proposed Course).[18]
5. On 5 March 2021, the Primary Applicant and her representative attended the scheduled hearing assisted by the request interpreter.[19]
6. On 11 March 2021, the Applicants' representative provided further submissions and evidence of the Primary Applicant's financial capacity.[20]
7. On 24 March 2021, the Tribunal affirmed the Delegate's decision not to grant the Applicants the Student Visas. The Applicants were notified of the decision that same day.[21]

1. The Tribunal's decision is 15 pages long and spans 44 paragraphs.
2. The Tribunal's reasons are summarised at paragraphs 14 to 22 of the First Respondent's (Minister) first outline of submissions filed on 8 January 2026. The Court as presently constituted has carefully read the Tribunal's reasons and accepts that the Minister's summary is comprehensive, fair and properly referenced. The Court adopts it for the purposes of this judgment.

14. The Tribunal recorded that the first applicant held a Bachelor in Elementary Education obtained in 2009 and worked as an elementary school teacher in the Philippines for 5 years, and that she completed a Diploma of Early Childhood Care in 2017. At the time of the hearing the applicant was enrolled in a Bachelor of Early Childhood Education commencing 22 February 2021 and due to be completed on 31 December 2024: [16]-[18].

15. The Tribunal considered the first applicant's evidence that her current course would help her work in early childhood education in the Philippines as 'there is a significant demand for qualified childhood and education care teachers': [19]. However, the Tribunal had a number of concerns about her application, and in all the circumstances did not consider the proposed course offered any more than marginal value to her future: [20], [25]. In this regard the Tribunal:

15.1. observed that the first applicant was a qualified elementary school teacher in with five years of work experience in the Philippines, and considered that given this she was well placed to find suitable employment upon her return: [21].

15.2. in the absence of objective evidence, rejected the first applicant's argument that the opportunities available to her in the childcare sector were significantly better than those available to her as a school teacher, and that those opportunities were of such a nature that it warranted her undertaking four further years of study in an overseas country: [22].

15.3. considered the first applicant would not require a Bachelor of Early Childhood Education to open her own school or childcare centre given her qualifications and experience, and placed no weight on her aspiration to do so: [23].

15.4. considered it weighed against the first applicant that she had not completed any study in Australia since early 2017, and did not accept her evidence that she was prevented from study for any extended period due to Covid-19 or family obligations: [24].

16. The Tribunal recorded that there was no evidence as to the first applicant's circumstances in her home country relative to others there, and accepted she had no concerns as to political or civil unrest or military service commitments in her home country: [25]-[27].

17. The Tribunal found that the first applicant's reasonable understanding of living in Australia and her course provider and proposed course weighed slightly in her favour. The Tribunal also accepted it was reasonable for her to seek to undertake further study overseas: [29]-[30].

18. The Tribunal accepted that the applicant had close ties to her family, but in the circumstances considered that those ties were not of such a nature to operate as a significant incentive for her to return home. The Tribunal considered that the first applicant's husband and children in Australia must operate as a personal tie to Australia that is a strong incentive to remain here: [31]-[32].

19. The Tribunal did not consider there was sufficient evidence to conclude that the first applicant's economic circumstances operated as a significant incentive to return home or remain in Australia, and treated these as neutral to the application: [33].

20. The Tribunal did not make any adverse findings in relation to the first applicant's travel or immigration history: [34].

21. The Tribunal considered that the first applicant would need access to at least $167,000 to remain in Australia to complete her course, and found she had not demonstrated how this was possible. However, the Tribunal placed no weight on this matter, and noted its concerns about her application would not have been allayed had she demonstrated she had access to significantly more money: [37].

22. The Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily, and accordingly found she did not meet cl 500.212(a), and that the second and third applicants failed to meet the relevant criteria: [39]-[43].

1. Based on the findings made by the Tribunal it was not satisfied the Primary Applicant met the GTE Criterion. Accordingly, the Tribunal affirmed the Delegate's decision to refuse the Student Visa.

1. On 28 April 2021, the Primary Applicant applied to this Court for judicial review of the Tribunal's decision (Originating Application)[22].
2. The application was made within the 35-day prescribed time limit,[23] and brought pursuant to section 476 of the Act, which confers upon this court, in relation to migration decisions, the "same original jurisdiction as the High Court under s 75(v) of the Constitution". That is, the Court may undertake judicial review, in respect of matters "where a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth."[24]

1. On 6 May 2021, the First Respondent (Minister) filed its response, seeking that the Originating Application be dismissed. The Minister submitted that the decision under review was not affected by jurisdictional error.
2. On 18 November 2021, the Minister filed the Court Book.
3. On 8 January 2026, the Minister filed written submissions.
4. On 28 January 2026, the Applicants filed written submissions and an Amended Originating Application. The Applicants seek writs of certiorari and mandamus and plead two grounds of review (reproduced and considered below).
5. On 6 February 2026, supplementary written submissions were filed by the Minister.
6. Therefore, the materials before the Court are as follows:

(a) the Originating Application for judicial review filed 28 April 2021 (superseded by the Amended Application);

(b) a Court Book numbering 310 pages filed 18 November 2021 (marked as Exhibit R1);

(c) Written Submissions filed by the Minister on 8 January 2026;

(d) Amended Originating Application filed 28 January 2026;

(e) Written Submissions filed by the Applicants on 28 January 2026; and

(f) Supplementary Written Submissions filed by the Minister on 6 February 2026.

1. This matter was allocated to the Court as presently constituted on 5 December 2025, and heard virtually on 9 February 2026 via Webex.
2. At the hearing:

(a) the Applicants were represented by Russel Tien, solicitor at Legal Guru Pty Ltd. Mr Tien made submissions (considered below) consistent with those filed on 28 January 2026; and

(b) the Minister was represented by Jade Birman, solicitor at Australian Government Solicitor. Ms Birman made submissions consistent with the written submissions filed by the Minister on 8 January 2026 and 6 February 2026.

1. After the Minister's representatives made oral submissions, the Court invited the Applicants' representative to respond; no further submissions were made in reply.

THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS

1. In Bhasker v Minister for Immigration and Multicultural Affairs[25] his Honour Judge Fary (as he was then) summarised the role of the Court in judicial review proceedings:
   1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
   2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[26]
   3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[27]
   4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[28] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[29] Different kinds of error may overlap.[30] The categories are not closed.[31] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[32]
   5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[33] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[34] It has been described as an "undemanding" standard.[35]
2. The Court as presently constituted respectfully adopts his Honour's summary of the task before it.
3. Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[36]

_ The Second Respondent failed to have regard to material claims provided by the Applicant that were relevant to considerations under Direction no. 69, in particular Paragraphs 9 and 12, by failing to have regard to the claims of the Applicant or by misunderstanding and misconstruing the considerations it was required to have regard to under those paragraphs of Direction no.69._*

Particulars

1. The Second Respondent misunderstood the considerations it was required to consider in relation to Paragraph 12a and 12b of Direction no.69
2. The Second Respondent failed to have regard to the claims made by the Applicant in the Applicant's written statement and Applicant's representative's written submissions in relation to Paragraph 12 of Direction no.69
3. The Second Respondent failed to have regard to the claims made by the Applicant in relation to information relevant to Paragraph 9c of Direction no.69.

1. Before the Court, the Applicants argued that the Tribunal had failed to consider important claims made by the Primary Applicant relating to paragraphs 9c, 12a and 12 b of Direction 69. Those sub-paragraphs provide as follows:

The applicant's circumstances in their home country

1. When it considering the applicant's circumstances in their home country, decision makers should have regard to the following factors:

....

1. economic circumstances of the applicant that would present a significant incentive to return to their home country. These circumstances may include considerations of the applicant's circumstances relative to the home country and to Australia.

...

Value of the course to the applicant's future

1. Decision makers should have regard to the following factors when considering the value of the course to the applicant's future:
   1. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
   2. relevance of the course to the student's past or proposed future employment either in their home country or a third country; and
   3. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

1. The Primary Applicant contended that the Tribunal had discounted her claims in relation to the value of the Proposed Course for her future career in early childhood. The Primary Applicant stated that, whether she went on to work as an early childhood educator or to operate her own childcare centre in the Philippines, the course would advance her career.[37]
2. First, the contention that that Tribunal "discounted" the Primary Applicant's claims is akin to an argument about the weight given by the Tribunal to the evidence. It is well established that the degree of weight to be given to evidence is a factual question for the decision-maker alone.[38]
3. It is also well established that the onus is on the applicant before the Tribunal to make good their claims. A decision-maker is not obliged to uncritically accept an applicant's evidence and is not required to "possess rebutting evidence before holding that a factual assertion is not made out". [39]
4. The only evidence before the Tribunal were the bare assertions made by the Primary Applicant about the demand and employment opportunities in the childcare industry in the Philippines. There was no independent, objective evidence to support her claims. This absence of objective evidence was noted by the Tribunal and accepted by the Primary Applicant's representative before this Court. [40]
5. The Tribunal recorded that the Primary Applicant already had a Bachelor in Elementary Education, had worked as an elementary school teacher in the Philippines, and had obtained a Diploma of Early Childhood Care. The Tribunal considered the Primary Applicant's evidence about the demand for "qualified childhood and education care teachers". However, overall, the Tribunal considered that the Proposed Course was of marginal value to her future. It was a forward-looking assessment. The Tribunal set out its cogent reasons for coming to this finding. The findings and conclusion about the marginal value of the Proposed Course were open to the Tribunal. There is no error.
6. The Primary Applicant further criticised the Tribunal for overlooking her aspirations to change careers, (paragraph 12(a) of Direction 69).[41] This criticism is not warranted because the Tribunal expressly considered her future ambition to work in childcare in paragraphs 22-3 of the Tribunal Decision:

22. The applicant's position is that there are superior work opportunities available to her in her home country in child-care, as opposed to continuing her career as a school-teacher. She says that the study of early childhood courses is 'not popular' in the Philippines and she expects to have increased job opportunities as a result. There was no documentary objective evidence led in relation to this matter and I do not accept her evidence. I consider that the it is unlikely that there is a substantial difference between the two sectors. In the absence of objective evidence, I reject the applicant's argument that the opportunities available to her in the childcare sector significantly better than those available to her as a school teacher. I do not accept, and the applicant has not demonstrated on evidence, that those opportunities are of such a nature that it warrants her undertaking four further years of study in an overseas country.

23. The applicant says that eventually she would like to open her own school or childcare centre. It is apparent that any plans she has in this regard are not well advanced. I do not consider that she would require completion of the Bachelor of Early Childhood Education (Birth to Five years) in order to do so. She holds a Bachelor of Elementary Education from her home country. She holds a Diploma of Early Childhood and Care from Australia. She has work experience in the childcare sector in Australia. I place no weight on her aspiration to open a school or child care centre.

1. Additionally, the Primary Applicant took issue with the Tribunal reaching a conclusion that the Proposed Course would not improve her employment prospects in her home country or a third country.[42] This finding was open to the Tribunal to make. The Primary Applicant's contentions amount to nothing more than mere disagreement with the Tribunal.
2. Moreover, the Primary Applicant's representative contended that the Primary Applicant had adduced probative evidence demonstrating that the cost of living in the Philippines was cheaper than in Australia. It was contended that the Tribunal did not properly consider this evidence when determining whether the economic circumstances presented a significant incentive for the Primary Applicant to remain in Australia, as required by paragraph 9(c) of Direction 69.[43]
3. The evidence supplied by the Primary Applicant was screenshots[44] comparing the costs of various goods and services between Australia and the Philippines. This material lacked veracity, the Court is unsure of the source of the screenshots, and the Tribunal cannot be criticised for disregarding evidence which was unexplained by the Primary Applicant. At the hearing, the Primary Applicant's representative accepted that the screenshots were not explained. It was the Primary Applicant's responsibility to make out her own case, not leave the Tribunal to make findings on conjecture. The Tribunal is not to be faulted for finding that the economic circumstances of the Primary Applicant did not establish a significant incentive to return to the Philippines.
4. There being no error in the Tribunal's findings it is not necessary to consider materiality.
5. Accordingly, Amended Ground One is dismissed.

_ The Tribunal's decision was legally unreasonable as it was irrational and illogical._*

Particulars

1. Paragraph 25 of the Second Respondent's written decision reaches findings which lack an evident and intelligible justification that render the findings illogical, irrational and therefore legally unreasonable.

1. At the hearing, the Primary Applicant's representative submitted that it lacks an evident and intelligible justification to say that the proposed course would increase the Primary Applicant's employment options but would not improve her employment prospects.[45]
2. The test for unreasonableness is a stringent one.[46] The relatively recent judgment of Anderson, Feutrill and Raper JJ in King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 contains a useful summary of the applicable principles:

53 Review for legal unreasonableness is concerned with enforcement of the law governing the limits of the power in question, and not the manner in which that power was exercised. '[T]he Court's role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances in which reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of the power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification.': Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [92].

54 Accepting that statutory discretions confer an 'area of decisional freedom' a decision may be legally unreasonable if it is shown 'to be arbitrary or capricious or to abandon common sense', or if it 'lacks an evident and intelligible justification': Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28], [76]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]. Such expressions are not to be regarded as rigid formulae, but rather, as assisting in the evaluative task of determining whether a decision may be properly characterised as sitting outside the boundaries of legal reasonableness: Stretton at [2]-[13] (per Allsop CJ).

1. The Tribunal's findings in paragraph 25 were open to the Tribunal to make, given that options for employment (what types of roles an individual can do) and prospects of employment (ability to obtain gainful employment) are two different concepts.
2. The Primary Applicant did not provide evidence (accepted at the hearing by the Primary Applicant's representative)[47] about how the proposed course would increase her already good employment prospects - she only gave bare statements which the Tribunal was not required to accept. It is the Court's view that criticism of the Tribunal's reasoning process is unfounded, and that the Tribunal's findings were within its 'area of decisional freedom'.
3. Accordingly, Amended Ground Two is dismissed.

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

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns.

[10] Migration Act 1958 (Cth) ss 338, 474, 476(2)(a), 476(4)(a).

[22] The Originating Application was not allocated to the court as presently constituted until 5 December 2025.

[23] Migration Act 1958 (Cth) s 477(1).

[24] EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826, [64].

[25] [2025] FedCFamC2G 620.

[26] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

[27] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [17] (Allson CJ, Besanko and O'Callaghan JJ).

[28] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

[29] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152, [3] ('LPDT').

[30] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323, [82].

[32] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, [82].

[34] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506, [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

[35] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80, [33] (Kiefel CJ, Keane and Gleeson JJ).

[36] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, [40].

[37] Transcript of Proceedings, Arcenal v Minister for Immigration and Citizenship (Federal Circuit and Family Court of Australia, Judge Johns, 9 February 2026) 6 line 12-20 ('Court Transcript').

[38] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164, [33].

[39] CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 253 FCR 496, [65] (McKerracher, Griffiths and Rangiah JJ).

[42] CB 298 [25], Court Transcript 9 lines 6-23.

[45] Court Transcript 11 line 38 - 12 line 2.

[46] Minister for Immigration and Citizenship v Li [2013] HCA 18, [108]-[109] and [113].