Chitturi v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 769

(a) The Response, filed 21 October 2019;

(b) The Minister's Outline of Submissions filed 4 April 2025;

(c) The List of Authorities filed 5 May 2025; and

(d) The Minister's Further Written Submissions filed 9 May 2025.

1. Both parties relied on the Court Book.
2. The Application contains five (5) grounds of review (Grounds of Review):
   1. The Tribunal failed to have proper regard to the Applicant's circumstances and hardship and consequently failed to exercise its discretion properly. (Ground 1).
   2. The Tribunal erred in finding that the applicant's visa should remained cancelled and failed to give proper weight and consideration to the oral and written statements and documents submitted by the applicant. By doing so, the tribunal erred jurisdictionally by failing to objectively and fully consider the evidence before it or by discounting the evidence before it. (Ground 2).
   3. The Tribunal has accordingly breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just. (Ground 3).
   4. The Tribunal has further breaches Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made. (Ground 4).
   5. The decision of the Tribunal 03 September 2019 under review was and is invalid in that (Ground 5):
      1. The Second Respondent ("the Tribunal") wrongly affirmed the decision of the delegate;
      2. The Tribunal reached a mistaken conclusion by saying that it does not accept that the Applicant's present circumstances and failed to decide whether the circumstances were exceptional, whether there was non-compliance on behalf of the Applicant'
      3. The Tribunal erred in finding that the Applicant had no compelling need to travel or remain in Australia
      4. The Tribunal failed to properly consider that the Applicant may be caused and faced with hardship if her visa was cancelled'
      5. In light of the foregoing, the Tribunal acted improperly and unreasonably by affirming the decision of the delegate.

1. The Applicant did not file written submissions.
2. The Applicant made oral submissions during the Hearing. The Applicant advised the court that he wanted to finish the course and then go back to India. He indicated that he had four semesters to go with his course. He also indicated that he had freedom in Australia.

1. The Minister submits that the Tribunal did not err on any of the above grounds.
2. The Minister seeks that the Application should be dismissed and the Applicant pay the Minister's costs fixed in the amount of $7,500, being an amount less than the current scale costs for a migration proceeding concluded at final hearing.

Failures to consider and properly weigh relevant evidence

1. As correctly stated by the Tribunal at [20] of its reasons, there are no prescribed circumstances that must be considered when exercising the discretion to cancel a visa pursuant to s 116. There are no relevant considerations that the Tribunal "must" consider.
2. In relation to each of the Applicant's allegations, the Minister submits there was no failure to consider evidence made by the Tribunal as it considered the Applicant's circumstances as outlined in the Genuine Temporary Entrant Statement, Applicant's submissions as well as oral evidence.

Failure to comply with procedure requirements of the Act

(a) S 338 defines a 'Part 5 - reviewable decision', it does not impose any obligation on the Tribunal;

(b) S 348 provides that the Tribunal must review an Application for review of a 'Part 5 -reviewable decision', that is properly made. The Tribunal did not breach that provision of the Act;

(c) S 353 is facultative and does not provide a basis for seeking judicial review; and

(d) S 357A informs the content of the specific procedural obligations and does not impose any obligation on the Tribunal such that there could have been a breach of that provision.

Alleged incorrect findings of fact/ mistaken conclusions

1. The Minister submits that an error of fact based on a misunderstanding of the evidence does not equate to jurisdictional error.
2. Further, the Minister submits that the question of whether the Applicant's circumstances were exceptional formed part of the weighing exercise by the Tribunal and the Tribunal considered whether the Applicant had a compelling need to travel to and remain in Australia; the Tribunal was not satisfied.

Alleged improper unreasonableness in Tribunal's decision

1. The Minister submits that the Tribunal's reasons demonstrate a clear intellectual process that is not arbitrary. The Tribunal's decision to affirm the decision under review was not improper or unreasonable.

1. The Minister submits that the Tribunal's written statement of reasons is demonstration of providing proper reasons for its decision and there was no breach of s 368.

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.[14]
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.[15] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[16]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[17] 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".[18] Different kinds of error may overlap.[19] The categories are not closed.[20]
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.[21] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[22] It has been described as an "undemanding" standard.[23]

1. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
2. The criterion that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cl 500.211 to 500.218 in Schedule 2 of the Regulations.
3. Section 41(1) of the Migration Act provided (at the time of the Tribunal's Decision) that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
4. Regulation 2.05 of the Regulations provided (at the time of the Tribunal's Decision) that for s 41(1) of the Migration Act, a visa is subject to any conditions specified for that subclass of visa in Schedule 2.
5. Schedule 8 of the Regulations sets out the visa conditions:

8202 (1) The holder must be enrolled in a full‑time course of study or training if the holder is:

1. a Defence student; or

2. a Foreign Affairs student; or

3. a secondary exchange student.

4. A holder not covered by subclause (1):

   1. must be enrolled in a full‑time registered course; and
   2. subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
   3. must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
      1. the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
      2. the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

5. A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   1. is enrolled in a course at the Australian Qualifications Framework level 10; and

   2. changes their enrolment to a course at the Australian Qualifications Framework level 9.

(emphasis added)

1. Section 116(1)(b) of the Migration Act provided (at the time of the Tribunal's Decision) that the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa. Section 116(2) provided that a Minister is not to cancel a visa under s 116(1) if there are prescribed circumstances in which a visa is not to be cancelled. Section 116(3) provided that if the Minister may cancel a visa under s 116(1), the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled.

1. It is convenient to consider the grounds of review under the headings used in the Minister's submissions.
2. Grounds 5(a) and 5(e) contain generalised assertions of (jurisdictional) error, and would appear to be introductory to, or a summary of, the other matters in Ground 5. They do not require separate consideration.

Failure to consider and properly weight evidence

1. Ground 1 is that:
   1. The Tribunal failed to have proper regard to the Applicant's circumstances and hardship and consequently failed to exercise its discretion properly.
2. Ground 2 is that:
   1. The Tribunal erred in finding that the applicant's visa should remained cancelled and failed to give proper weight and consideration to the oral and written statements and documents submitted by the applicant. By doing so, the tribunal erred jurisdictionally by failing to objectively and fully consider the evidence before it or by discounting the evidence before it.
3. Ground 5 is that:
   1. The decision of the Tribunal 03 September 2019 under review was and is invalid in that :
      1. ...;
      2. The Tribunal reached a mistaken conclusion by saying that it does not accept that the Applicant's present circumstances and failed to decide whether the circumstances were exceptional, whether there was non-compliance on behalf of the Applicant'
      3. ...
      4. The Tribunal failed to properly consider that the Applicant may be caused and faced with hardship if her visa was cancelled'
      5. ...
4. Grounds 1, 2 and 5(b) and (d) are broadly directed to the complaint that the Tribunal failed to "accept", or "properly consider", or "have proper regard to", or "give proper weight and consideration to" the Applicant's circumstances and submissions. These matters concern the exercise of discretion by the Tribunal to cancel the Applicant's Visa under s 116(1)(b) of the Migration Act.
5. There was no dispute before this court or the Tribunal that:

(a) condition 8202(2)(b) of the Migration Regulations was breached at the time of the decision of the Delegate and the Hearing before the Tribunal; and

(b) the Minister's discretion to cancel the Visa under s 116(1) of the Migration Act was enlivened.

1. Accordingly, the jurisdictional fact which is the precondition for the exercise of the discretion in s 116(1) of the Migration Act was satisfied in the present case.[24]
2. While the discretion to cancel a visa is broad, it must not be exercised unreasonably.[25]
3. In Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 2 at [15], Mason J set out the legal principles which apply on judicial review in relation to failing to take into account relevant considerations as follows:

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision...

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision... A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision...

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power**. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".** This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

The principles stated above apply to an administrative decision made by a Minister of the Crown... However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.

(emphasis added)

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

(emphasis added) (footnotes omitted)

1. In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, Robertson J held (at [77] and [111]) that the question of whether a failure to consider evidence gives rise to jurisdictional error:

... is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error... the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.

(emphasis added)

1. I am not satisfied that the Tribunal erred as alleged in Grounds 1, 2 and 5(b) and (d):

(a) Paragraphs [5], [23] - [24] and [28] - [32] of the Tribunal's Decision demonstrate that it did have regard to "oral and written statements and documents" which matters were the subject of the Genuine Temporary Entrant statement, the Applicant's submissions and oral evidence;

(b) Paragraphs [24] and [28] - [32] of the Tribunal's Decision demonstrate that it did have regard to "the Applicant's circumstances and hardship [that would be caused by cancellation]";

(c) Paragraph [33] of the Tribunal's Decision was directed to the matter of the "Circumstances in which ground of cancellation arose". The Tribunal noted, unexceptionally, that the fact that the Applicant had obtained further enrolment after being issued a NOICC did not address the non-compliance with condition 8202(2). The Tribunal did otherwise consider the Applicant's circumstances at the time of the hearing, particularly at [28];

(d) I do not take the Tribunal's rejection of the further enrolment in the context of a consideration of the circumstances in which the cancellation arose, as indicating that it had no regard to that matter when considering the circumstances of the Applicant generally. The reference [33] is sufficient indication that it did have regard to this matter. Further, the Tribunal noted that the Applicant had advised of his "compelling need... to finish his studies in Australia" (at [24]) and the reasons for that, and that his parents "would support him for further study in Australia" (at [29]);

(e) Paragraph [35] of the Tribunal's Decision demonstrate that it did consider the Applicant's behaviour towards the Department. It was open to the Tribunal to conclude that the absence of evidence of non-co-operation should not outweigh the significance of the breach [of condition 8202(2)(b)];

(f) To the extent that it is alleged that the error lay in the "weight" attributed to the matters set out above, noting that generally,[26] such question was a matter for the Tribunal; and

(g) I am not satisfied that the Tribunal's decision was otherwise illogical, irrational or unreasonable, or lacking in an evident or intelligible justification.

1. I am not satisfied that jurisdictional error is made out by reference to Grounds 1, 2 and 5(b) and (d).

Failure to comply with procedural requirements of the Act

1. Ground 3 is that:
   1. The Tribunal has accordingly breached Sections 338, 348, 353 and 357A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
2. Section 338 of the Migration Act provided (at the time of the Tribunal's Decision) a definition section. It defined what is a 'Part 5 - reviewable decision'.
3. Section 348 of the Migration Act provided (at the time of the Tribunal's Decision) for Tribunal review of 'Part 5 - reviewable decisions'.
4. Section 353 of the Migration Act provided (at the time of the Tribunal's Decision):

The Tribunal, in reviewing a Part 5‑reviewable decision:

1. is not bound by technicalities, legal forms or rules of evidence; and
2. shall act according to substantial justice and the merits of the case.

1. Section 357A of the Migration Act provided (at the time of the Tribunal's Decision) that Division 5 of Part 5 is taken to be an exhaustive statement of the requirements of natural justice in relation to the matters it deals with, but that in applying the Division; the Tribunal must act in a way that is just and fair.
2. The Applicant's central allegations are that the Tribunal failed to "properly review the decision" and failed to "act in a way that is fair and just".
3. I am unable to discern any error by reference to the matters referred to under Ground 3. The Tribunal Hearing appeared to proceed in a way that was fair and just. I can see no shortcomings in the Tribunal's Decision or decision making process such that it might be characterised as anything other than a "proper review".
4. In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Griffiths, White and Bromwich JJ said (at [48]) that "a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made".[27] I take these comments to have equal application to the challenge to the decision of the Tribunal here.
5. I am not satisfied that jurisdictional error is made out by reference to Ground 3.

Erroneous findings of fact / mistaken conclusions

1. Grounds 5(b) and 5(c) are that:
   1. The decision of the Tribunal 03 September 2019 under review was and is invalid in that:
      1. ...
      2. The Tribunal reached a mistaken conclusion by saying that it does not accept that the Applicant's present circumstances and failed to decide whether the circumstances were exceptional, whether there was non-compliance on behalf of the Applicant';
      3. The Tribunal erred in finding that the Applicant has no compelling need to travel or remain in Australia;
      4. ...
2. The Tribunal found at [33] that:

The delegate made a finding that the applicant was not enrolled in a registered course of study from 30 April 2018. The applicant advised the Tribunal this finding was correct. The applicant enrolled in registered course of study after the issue of the NOICC. Obtaining further enrolment after being issued a NOICC does not negate the fact that the applicant did not comply with condition 8202(2).

1. The reference to "present circumstances" in Ground 5(b) would appear to be a reference to the Applicant's enrolment in a registered course of study after the issue of the NOICC.
2. There would appear to be nothing erroneous in the findings of fact recorded in [33]. The breach of condition 8202(2) was not remedied by the Applicant's enrolment in a registered course of study after the NOICC.
3. For reasons set out above at [64(c)], I am not satisfied that the Tribunal erred in its approach to the evidence concerning the Applicant's enrolment in a new course.
4. The Tribunal found at [35] that:

The Tribunal is prepared to accept there may be some embarrassment or discomfort associated with a return to India after 3.5 years without any academic progress in Australia. The Tribunal is prepared to accept there may well be family or community disapproval. The Tribunal accepts that the applicant might regret not taking full advantage of his parent's generosity and consequent opportunity in Australia. However, the personal and family discomfort or embarrassment is a necessary consequence of the applicant's continuing failure to adhere to conditions attached to his visa and engage in study. The Tribunal is unable to conclude there is any compelling need to remain in Australia. Returning home with the aid of family the applicant will have the opportunity to commit to work and develop a successful enterprise.

(emphasis added)

1. The conclusion of an absence of "compelling need to remain in Australia" was one reached by the Tribunal after considering various matters, including financial hardship [28], difficulties in further study in India [28], parental financial reticence [29], psychological hardship [30], emotional hardship [31] and embarrassment and discomfort [32]. See also [19], above. The conclusion reached by the Tribunal was one open to it on the evidence.
2. I am not satisfied that jurisdictional error is made out by reference to Grounds 5(b) and (c).

The Tribunal has further breaches Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.

1. Section 368(1) of the Migration Act provided (at the time of the Decision) that where a Tribunal makes its decision on a review, it must, subject to certain exceptions, make a written statement that:

(a) Sets out the decision of the Tribunal on review;

(b) Sets out the reasons for decision;

(c) Sets out findings on any material questions of fact;

(d) Refers to the evidence or any other material on which the findings of fact were based; and

(e) ...

(f) Records the day and time the statement is made.

1. An obligation to give a written statement of reasons requires that the decision-maker "must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law".[28]
2. In Liang, Brennan CJ, Toohey, McHugh and Gummow JJ said (at [31]) that:

"the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."

1. Non-compliance with ss 368(1) of the Migration Act does not, of itself, establish jurisdictional error.[29] But, non-compliance, such as non-compliance with the obligation to refer to evidence or other material on which the decision is based, may evidence jurisdictional error, for example, a constructive failure to exercise a review function.[30]
2. The Tribunal's reasons set out the decision of the Tribunal on the review, sets out the reasons for the decision, sets out the findings on any material questions of fact and refers to the evidence or any other material on which the findings of fact were based. I am not satisfied that there has been a failure to comply with s 368 of the Migration Act. To the extent that the Applicant makes specific complaint about the findings and conclusions, I have addressed those matters above.
3. I am not satisfied that jurisdictional error is made out by reference to Ground 4.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[31] the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minster sought costs in the sum of $7,500 being an amount less than the scale amount.[32] I am satisfied that costs ought to follow the event,[33] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[34]

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 6 May 2025, Order 3.

[14] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

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

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

[17] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

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

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

[22] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

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

[24] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [131]; Djokovic at [21].

[25] Gupta v Minister for Immigration & Border Protection [2017] FCAFC 172; (2017) 255 FCR 486 per Gilmour, Logan and Mortimer JJ at [53] - [54].

[26] SZJSS at [33]. Compare Li at [72].

[27] See also In CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155; (2019) 272 FCR 131 Allsop CJ, Kenny and Snaden JJ at [76].

[28] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [55].

[29] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 58 ALD 609 at [70] (per McHugh J).

[30] Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 per Kenny J (at [98]).

[31] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[32] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.

[33] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[34] Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172.