Barima v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2026] FedCFamC2G 583

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (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) Rules 2025 (Cth).

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it then was) dated 19 February 2021, which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 (Student) visa.
2. The factual background to this matter is not in dispute.
3. The applicant is a citizen of Ghana.[1]
4. In his written submissions, the applicant states that in 2018, he was granted a Student (Temporary) (Class TU) Subclass 500 (Student) visa to study a Masters of Education (Special Education) course at Torrens University.[2] That visa was valid until 1 November 2019.
5. Further, in his written submissions, the applicant goes on to say that in October 2018, the applicant applied to Torrens University for a deferral of his course until 25 February 2019.[3] That deferral was granted and the applicant was issued with an amended Confirmation of Enrolment ('CoE') with an amended course period from 25 February 2019 to 10 May 2020.[4] The First Respondent does not seem to take issue with this historical narrative.
6. On 13 October 2019, the applicant made a visa application to extend his student visa to allow him to complete his studies.[5]
7. The visa application was accompanied by the applicant's CoE, Health Insurance Information, and an IELTS Test Report Form, but did not include evidence of his financial capacity.
8. On 5 December 2019, a delegate of the Minister wrote to the applicant requesting additional information, including a request for evidence of his financial capacity and evidence that the applicant had access to $41,130 during the first 12-months of his proposed study and stay in Australia in accordance with clause 500.214(3) of the Migration Regulations 1994 (Cth) ('Regulations').[6]
9. In response, on 2 January 2020, the applicant, via his solicitor, wrote to the first respondent seeking an extension of time in which to provide the requested information.[7] In the request for an extension, the applicant's solicitor also sought clarification about the financial capacity information requested and in particular drew the delegate's attention to clause 6 of the Migration (LIN 19/198: Evidence of financial Capacity Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (Cth) ('LIN 19/198').
10. By letter dated 9 January 2020, the delegate agreed to the extension but did not address the applicant's request for clarification regarding the financial capacity information requested.[8]
11. The applicant says that on his calculation, on a pro rata basis, he was required to provide evidence of access to $17,906.50 in respect of the remaining period of his course, until 10 May 2020, being a period of less than 12 months.[9] In his response to the delegate, the applicant provided evidence that he had a balance of $19,109.08 available to him.[10]
12. On 13 February 2020, the delegate refused the applicant's visa application. The delegate found that the applicant was required to demonstrate that he had access to funds in the amount of $41,130, and that he had not done so. Consequently, the delegate found that applicant had not satisfied the criteria for the student visa.
13. On 2 March 2020, the applicant applied to the Tribunal for a review of the delegate's decision. In support of his application for review, the applicant provided the following documents:[11]
    • A tax invoice from Torrens University dated 6 May 2019 for two units of study as part of the Master of Education (Special Education) course;
    • Tax invoices from Torrens University for payments of $4,937.50 on 4 April 2019, $3,022.70 on 8 June 2018, $2,675 on 2 July 2019, and $2,400 on 20 September 2019;
    • A CoE for the Master of Education (Special Education) at Torrens University with a course start date of 25 February 2019 and end date on 10 May 2020;
    • A list of subjects for 2019 to 2020 for the Master of Education (Special Education), generated on 6 April 2021.
14. By letter dated 3 February 2021, the applicant was invited to attend a hearing before the Tribunal.[12] In the invitation to attend the hearing, the Tribunal noted that it was not able to make a favourable decision on the basis of the information provided by the applicant to date. The hearing was initially scheduled to occur on 18 February 2021 but due to technical issues, did not proceed on that date and was adjourned to the following day, 19 February 2021.[13] The applicant appeared at the hearing and was assisted by his representative.
15. In the invitation to attend a hearing, the applicant was requested to provide all documents on which he intended to rely at least 7 days prior to the hearing. In addition, the applicant was asked to provide the following:[14]
    • A copy of [his] current Confirmation of Enrolment (COE) or other document/s that show [he was] currently enrolled in a course of study as defined in cl 500.211 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994... for the grant of the visa.
    • Documents showing [the applicant's] past studies in Australia...;
    • Either:
      • Documents that demonstrate [the applicant had] genuine access to sufficient funds to meet [his] costs and expenses during [his] intended stay in Australia ... to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. ...

OR

• Evidence of the annual income of [the applicant's] parents/spouse/de facto partner and that [the applicant had] genuine access to those funds.

1. On 12 February 2021, the applicant's representative provided a bank statement demonstrating access to sufficient funds, a statutory declaration from the applicant's landlord confirming the applicant's living expenses and a letter of completion for the course of study from Torrens University, subject to the CoE that was previously issued to the applicant.[15] The applicant was not able to provide a current CoE in circumstances where he had completed his course of study and was awaiting the determination of his review application.
2. On 19 February 2021, the applicant appeared at the hearing before the Tribunal and the Tribunal affirmed the delegate's decision.

1. In its reasons for decision, the Tribunal, after setting out the factual background to the matter, considered the applicant's claims.
2. Relevantly, at [21], the Tribunal noted that the applicant confirmed in evidence at the hearing on 19 February 2021, that he had completed his studies in October 2020 and that he was remaining in Australia to attend a graduation ceremony. The Tribunal also noted that the applicant advised that he 'would depart for home in the near future'.
3. At [22], the Tribunal noted:

Without a current COE or other proof of enrolment ... the Tribunal is unable to calculate evidence of financial capacity as outlined in LIN 19/198.

1. The Tribunal then went on to say that notwithstanding having been aware since the delegate's decision in February 2020 of the requirement to provide proof of his access to funds, the applicant had not provided such evidence. The Tribunal then concluded at [24]:

The applicant did not provide adequate current proof of GAF to the Tribunal. The evidence before the Tribunal does not satisfy LIN 19/198 (see paragraph 16 above in addition).

1. The Tribunal therefore concluded that the applicant did not satisfy the requirements of clause 500.214(3) of the Regulations, and therefore the requirements of the criteria for the granting of the visa were not met by the applicant. In those circumstances, the Tribunal affirmed the delegate's decision to refuse the visa.

1. In his amended application for judicial review filed 13 March 2026, the applicant raises two grounds. I will address each of them in turn.

The Tribunal's decision is affected by jurisdictional error by misdirecting itself or took account of an irrelevant consideration.

(a) At [16] the Tribunal referred to the legislative instrument 19/298 in s 6(2) which outlines the detail an applicant is required to provide to comply with the instrument. In my opinion, as the applicant has completed his studies and waiting for his graduation ceremony, the Tribunal should have calculated, as specified in section 11, the applicant's financial capacity on pro rata equivalent of annual living cost. The Tribunal at arriving its decision failed to take into account that the applicant has paid his educational expenses and that letter of completion was before the Tribunal. By regarding it as so, the Tribunal misdirected itself.

(b) The Tribunal constructively failed to exercise its review jurisdiction and/or made findings that were illogical, irrational or unreasonable by making assumptions lacking any probative or intelligible basis.

(c) The Tribunal misconstrued and/or misapplied subclause 500.214(3) of the Migration Regulations 1994 (Cth) of the Migration (LIN 19/198: Evidence of financial capacity - subclass 500 Visa and Subclass 590 Visa) Instrument 2019.

1. In relation to particular (a), it is submitted for the applicant that in circumstances where the applicant provided evidence that he had completed his course of study, the Tribunal's finding that there was no evidence on which it could calculate his financial capacity was unwarranted. The applicant submits that this finding was made without a rational basis and was contrary to the limited material before the Tribunal. In his written submission, the applicant further states:
   1. The Tribunal relied upon its assumption to find that the Applicants (sic) did not have financial capacity without considering evidence provided when the review application was made, before concluding that it was not satisfied with the financial capacity without proof of enrolment ... It infected the whole of the Tribunal's conclusion concerning the Applicant's financial capacity.
   2. The applicant submits that, as he was waiting for his graduation in the second quarter of 2021, what was required of him was to demonstrate that he had sufficient funds available to meet his travel expenses, living costs and expenses to be calculated as specified in Item 11 of Legislative Instrument 19/198, requiring those expenses to be calculated on a pro-rata basis. It is submitted that his calculated total financial capacity was AUD 12,398, consisting of AUD 1,000 for travel (estimated) and AUD 11,398 for living costs required under Item 6(2)(B), sufficient for 6 months living expenses in Australia.
2. The applicant says that he provided evidence of his financial capacity above this level on a pro-rata basis and therefore it was illogical or legally unreasonable for the Tribunal to reach the conclusions that it did.
3. The applicant submits that this error is a jurisdictional error as was the case in SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 ('SZHYH'), CBY15 v Minister for Immigration and Border Protection [2020] FCA 878 ('CBY15') and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 ('DAO16').
4. In oral submissions, in response to a question from me about the Tribunal's capacity to grant a visa in circumstances where, at the time of the Tribunal' s decision, it is common ground that the applicant was not enrolled in a course of study and therefore could not satisfy the requirement of clause 500.211(a) of the Regulations, the applicant's representative submitted that the Tribunal was required to consider whether the delegate had made an error in their decision. It was submitted that at that time of the delegate's decision, the applicant was enrolled in a course of study, and had the delegate not made an error in the application of clause 500.214, the applicant would have met the criteria for the issuing of the visa.
5. As I understand it, the applicant submits that there was an error in the delegate's decision, namely in the application of clause 500.214. It is the applicant's position that had the application for review of the delegate's decision been considered prior to him completing his studies, he would have succeeded in overturning the decision and would have been able to satisfy the requirements of the visa.
6. Ultimately, there are two difficulties with this submission. First, the delegate's decision is not a reviewable decision and is not before the court. It is not open to this court therefore to consider whether in fact there was an error in the delegate's reasoning. But in any event, the Tribunal, in considering the review application, was required to consider for itself whether the applicant satisfied the criteria for the visa and that the relevant time for that consideration was at the point of decision, not by way of considering whether the applicant would have satisfied the criteria at the time that the delegate made their decision.
7. Section 349 of the Migration Act 1958 (Cth) ('Migration Act'), provided at the relevant time:

(1) The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2) The Tribunal may:

(a) affirm the decision; or

(b) vary the decision; or

(c) if the decision relates to a prescribed matter - remit the matter for the reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d) set the decision aside and substitute a new decision; or

(e) if the applicant fails to appear - exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

1. In addition, section 65 provided that:

(1) ... after considering a valid application for a visa, the Minister:

(a) if satisfied that:

(i) ...

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) ...

(iv) ...

b. if not satisfied, is to refuse to grant the visa.

1. In considering the review application, therefore, in this instance, the Tribunal was required to effectively stand in the shoes of the Minister and only grant the visa if satisfied that the criteria for the granting of that visa were met, that is, met at the time of the Tribunal decision, not at the time of the delegate's decision, the subject of the review application.
2. For the following reasons, when the Tribunal's reasons for decision are read as fairly and without a keen eye to error,[16] and having regard to the criteria that the applicant had to satisfy in clause 500 of the Regulations, I find that the Tribunal's reasons are not affected by jurisdictional error in the manner alleged or otherwise.
3. In reaching its conclusions, the Tribunal did not misdirect itself or take into account irrelevant considerations. It is apparent from a fair reading of the Tribunal's reasons that in reaching its conclusions, the Tribunal had regard to whether the applicant met the requirements of both clauses 500.211 and 500.214 of the Regulations.
4. At the time he lodged his application, the applicant had applied for an extension for his student visa to allow him to complete his studies which were extended due to unfortunate circumstances.
5. To satisfy the requirements for a student visa, the applicant had to meet the primary criteria in clause 500.211 which relevantly provides:

One of the following applies:

(a) the applicant is enrolled in a course of study;

(b) if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;

(c) if the applicant is a Foreign Affairs student - the applicant has the support of the Foreign Minister for the grant of the visa;

(d) if the applicant is a Defence student - the applicant has the support of the Defence Minister for the grant of the visa.

1. Sub paragraphs (b) to (d) of clause 500.211 inclusive do not apply. Therefore, to meet the criteria for a student visa, the applicant has to be enrolled in a course of study. Relevantly, there is no provision for a student visa to be granted to an applicant who, having completed his studies is awaiting graduation. The question of a student having completed his studies, is expressly addressed in (b) in the context of a student who has completed his postgraduate thesis but who is awaiting the marking of that thesis.
2. It is against this primary criteria that clause 500.214 then requires that:

(1) the applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).

(2) While the applicant holds the visa, sufficient funds will be available to meet:

(a) the costs and expenses of the applicant during the applicant's intended stay in Australia; and

(b) the costs and expenses of each member of the applicant's family unit (if any) who will be in Australia.

(3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

(4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).

1. There is an interrelationship between clauses 500.211 and 500.214. That is, an applicant will not qualify for a visa unless both are met.
2. In this case, it is common ground that at the time that the Tribunal was considering the applicant's review application, which required the Tribunal to assess whether the applicant met the criteria for the granting of the visa, the applicant was no longer enrolled in a course of study, nor did he have a CoE for a future course of study. The requirements of clause 500.214 require the applicant to demonstrate that he has sufficient funds to meet the identified costs during his intended stay in Australia, that is his intended stay to undertake the study in which he is enrolled.
3. Contrary to the applicant's submissions, the applicant could not meet the requirements of clause 500.214 by establishing that he had sufficient funds to cover his living expenses during his period of stay whilst he awaited his graduation ceremony. Nor could he satisfy those requirements, even if he could show that at the time of the delegate's decision, he complied with clause 500.214, properly applied.
4. The applicant further claims that the Tribunal erred by constructively failing to exercise its review function. On the contrary, for the reasons set out earlier, the Tribunal in fact considered whether the applicant met the criteria for the granting of a student visa and, respectfully, correctly concluded that he did not in circumstances where he did not have a CoE.
5. The applicant also claims that the Tribunal misconstrued and/or misapplied clause 500.412(3) and LIN 19/198.
6. Paragraph 6 of LIN 19/198 relevantly provides:

(1) For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsections (2), (3), (4), (5) or (6).

(2) The evidence of financial capacity

(a) ...

(b) demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:

(i) travel expenses; and

(ii) the following living costs and expenses:

(A) if the primary applicant intends to stay in Australia for a period of 12 months or more - AUD21,041 (annual living costs) and

(B) if the primary applicant intends to stay in Australia for a period of less than 12 months - the pro rata equivalent of annual living costs**,** calculated as specified in section 11; and

(iii) the following course fees, minus any amount already paid:

(A) if the duration, or the remainder, of the primary applicant's period of study in Australia is less than 12 months - the fees for the course of study of the remaining components of the course of study; or

(B) if the duration, or the remainder, of the primary applicant's period of study in Australia is more than 12 months - course fees for the first 12 months of the period study in Australia; and

...

(11) In this Part, the pro rata equivalent of annual costs is calculated by:

(a) dividing the annual amount by 365; and

(b) multiplying the resulting number by the number of days the applicant is intending to stay in stay in Australia.

1. When regard is had to the structure and intent of clause 500 as a whole, it is clear that a decision maker is only required to consider whether the requirements of clause 500.214 are met if the applicant has a current CoE. Similarly, paragraph 6(2)(b)(iii) of LIN 19/198 assumes that the applicant will be enrolled in a course of study as required by clause 500.211. That is to say that clauses 500.211 and cl 500.214 (and by reference LIN 19/198) operate concurrently.
2. It is apparent from the terms of paragraph 15, 16 and 17, when read in context, that the Tribunal concluded that in circumstances where the applicant was not enrolled in a course of study, he could not satisfy the requirements of clause 6(2)(b)(iii) of LIIN 19/198. The evidence of financial capacity required by clause 6(2)(iii) requires that the applicant is enrolled in a course of study in respect of which fees are payable.
3. Whilst the Tribunal's reasons could have been more clearly articulated, it is clear from a fair reading of the Tribunal's reasons, that the Tribunal considered that in circumstances where the applicant was not enrolled in a course of study, it was not possible to calculate the evidence of financial capacity as required by LIN 19/198.
4. That finding was reasonably open on the material before the Tribunal and is not illogical or irrational.

The Tribunal has erred and fell into jurisdictional error by asking itself wrong questions, ignore relevant material and corroborative evidence which could have assisted the Tribunal to calculate evidence of the applicant's financial capacity.

1. It is submitted for the applicant that the Tribunal did not hear evidence directly from the applicant and in particular did not exercise its discretion to call evidence itself as well as to hear evidence from any witness identified by the applicant.
2. The Tribunal invited the applicant to attend a hearing in writing.[17] Section 361 of the Migration Act provides that the applicant may within 7 days of being invited to such a hearing, give the Tribunal written notice that the applicant wants the Tribunal to obtain oral or written evidence from a person or persons named in the notice.
3. In the Response to the Hearing invitation at Court Book pages 98 to 99, the applicant indicated that he did not wish to have oral evidence taken from any other person.
4. There is no evidence to suggest that the Tribunal failed to comply with its obligations under sections 360 or 361.
5. Section 359 provides that in conducting a review, the Tribunal may get any information that it considers relevant. This includes the power to invite a person to give information. The applicant submits that this discretionary power, must be exercised reasonably and that legal unreasonableness may 'manifest in the final outcome in the exercise of power or in some step along the way'. It is submitted for the applicant that the Tribunal's failure to obtain information about the date of the applicant's graduation ceremony which would have assisted it to calculate the amount required for living costs and expenses, may be legally unreasonable.
6. It is submitted that in this case, where the applicant had advised the Tribunal that he had completed his studies and that he was awaiting his graduation ceremony, an inquiry by the Tribunal as to when that graduation ceremony, which had been postponed due to the COVID-19 pandemic, would have assisted the Tribunal to have reached an informed decision. It is submitted therefore that the failure by the Tribunal to make that inquiry was legally unreasonable.
7. It was further submitted for the applicant that requiring the applicant to produce a current CoE in circumstances where he advised the Tribunal that he had completed his studies was also legally unreasonable.
8. It is submitted that this is particularly so where the Tribunal's review had already been delayed by nearly a year from the date on which the application was first filed and where the applicant had actively engaged with the process and in circumstances where the applicant had provided the information within his power and control. The applicant says that a reasonable decision maker would have made an attempt to calculate the applicant's financial capacity by finding out when the graduation ceremony was due to occur. The applicant also refers to the fact that the Tribunal hearing only lasted some six minutes and that by failing to do more to make the necessary calculation, the applicant says that the Tribunal acted unreasonably and its decision was therefore affected by jurisdictional error.
9. For reasons discussed earlier, the reasoning of the Tribunal was not legally unreasonable.
10. But in any event, even if I am wrong about either ground 1 or 2, and it could be said that there was an error in the Tribunal's reasoning, such an error could not be said to be material in circumstances where the applicant on his own evidence did not satisfy the requirements of clause 500.211.
11. As recently noted by the plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12:
    1. In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
    2. In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non-compliance.

...

1. What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. ...
2. In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

1. In this case, for the reasons set out above, I am not satisfied that there has been a jurisdictional error.
2. But, as I say, if I am wrong about that, in circumstances where the applicant was put on notice of the need to have a current COE and in circumstances where he by his own admission did not have a current COE, the Tribunal would not have been able to be satisfied that he met the criteria for the visa and would have had to affirm the delegate's decision albeit on a different basis. As such, the application for review therefore could not realistically have resulted in a different decision to that ultimately made by the Tribunal.

1. For each of these reasons, I therefore order that the applicant's application be dismissed and that the applicant pay the first respondent's costs in a sum to be fixed if not agreed.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

[2] Applicant's Outline of Submissions filed on 13 March 2026, paragraph 4.

[3] Applicant's Outline of Submissions filed on 13 March 2026, paragraph 5.

[9] Applicant's Outline of Submissions filed on 13 March 2026, paragraph 12.

[13] See Court book at pages 106 to 107, 111.

[16] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.