Chong v Minister for Immigration and Citizenship [2025] FedCFamC2G 1670

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. The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 1 August 2019. The Tribunal affirmed a decision of a delegate of the second respondent (Minister) to refuse to grant the applicant a Student (Subclass 500) visa (visa) on the basis that he was not a genuine temporary entrant within the meaning of cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
2. Reference in these reasons to 'CB' pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit 'R1.'

1. The applicant is a citizen of Malaysia. He first arrived in Australia on 16 May 2017 (CB 135). He applied for the visa on 16 July 2017 (CB 1-16). The applicant initially enrolled in a Certificate III course in English and a Diploma of Business at the Australian School of Commerce (CB 135 [12]).
2. On 23 August 2017, a delegate of the Minister refused to grant the applicant the visa (CB 26-33). The delegate was not satisfied that the applicant was a genuine temporary entrant.
3. On 13 September 2017 the applicant applied to the Tribunal to review the delegate's decision (CB 34-43).
4. On 7 February 2019, the Tribunal wrote to the applicant inviting him, pursuant to s 359 of the Migration Act 1958 (Cth) (Act), to provide information about his intended course of study and his entry and stay in Australia as a student (CB 59-60).
5. On 18 February 2019, the applicant provided further information to the Tribunal including a completed Request for Student Visa Information Form, a Certificate of Enrolment, a written submission as to his intentions and a letter from his former employer (CB 66-96).
6. On 5 March 2019, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments. The hearing was scheduled for 20 March 2019 in person in Melbourne (CB 98-104).
7. On 6 March 2019, the applicant completed the Response to hearing invitation that accompanied the invitation to appear and returned it to the Tribunal (CB 113-115).
8. On 20 March 2019, the applicant appeared at a hearing before the Tribunal. He was assisted by an interpreter fluent in the Mandarin and English languages (CB 116-118). The applicant also produced documents indicating that a friend would pay his future tuition fees (CB 120-125).
9. On 6 August 2019, the Tribunal affirmed the delegate's decision to refuse the applicant the visa (CB 129-138) (Decision).

1. In the Decision, the Tribunal identified and set out the requirements of cl 500.212 of the Regulations. The Tribunal identified the issue to be determined as whether the applicant was a genuine temporary entrant within the meaning of cl 500.212(a) of the Regulations (CB 134 [6]-[7]).
2. The Tribunal also considered Ministerial Direction No. 69 for 'assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications' made pursuant to s 499 of the Act (Direction No. 69) (CB 135 [8]-[9]).
3. The Tribunal recorded the applicant's evidence that he had been defrauded by his migration agent and that the agent provided incomplete or incorrect information to the Department, including about the company that he proposed to work for on his return to Malaysia. The applicant told the Tribunal that he believed that this information would have altered the delegate's decision to refuse the visa.
4. The Tribunal noted that the matters referred to by the applicant were not matters relied on by the delegate when assessing the application for the visa. The Tribunal found that none of the matters raised 'bears materially on the question that is before the Tribunal, namely, is the Tribunal satisfied at date of its decision that the applicant intends genuinely to stay in Australia temporarily' (CB 135 [10]).
5. The Tribunal then recorded in the Decision the applicant's claim that when he received notification of the delegate's decision, he was advised by his migration agent to cease studying his proposed courses and await the outcome of the review by the Tribunal. This meant he did not complete the English language course or commence the proposed Diploma of Business course.
6. The Tribunal found the evidence of the current status of the applicant's enrolment, 'confusing' (CB 136 [14]). Nevertheless, the Tribunal gave the applicant the benefit of the doubt and proceeded to consider the applicant's evidence on the basis that the applicant was currently enrolled in a registered course of study. The Tribunal then found that the applicant had not attended any course of study since September 2017 or made any inquiry about returning to a course of study. The Tribunal also found that there was no evidence of the alleged fraud by the applicant's migration agent or that the applicant had taken any steps to report the agent to the police or any other authority (CB 136 [17]).
7. The Tribunal then considered the applicant's evidence of his intention to return to Malaysia to resume employment. The Tribunal considered the letter from the applicant's former employer at CB 93 that was also provided to the delegate. The Tribunal found that the letter was simply a historic record of the applicant's previous employment and that it did not say anything about the relevance of the applicant's competence in English or the need for the proposed Diploma in Business to further the applicant's career. The Tribunal could not find any satisfactory or credible link to the proposed course of study and the applicant's claimed prospects of future employment in Malaysia (CB 137 [21]-[22]). The Tribunal also found that the failure to attend any course of study was 'at odds' with his evidence that he was 'single minded about his studies'. The Tribunal concluded that the continued reliance on advice to stop studying allegedly given by an agent he considered to be a fraudster, coupled with his failure to make any enquiries, raised a 'real concern that the applicant is using the student visa process as a means for maintaining ongoing residence in Australia' (CB 137 [23]).
8. The Tribunal considered the guidelines in Direction No. 69. These included the value of the proposed course of study to the applicant's future prospects of employment (CB 136 [19]-[25]) and the applicant's circumstances in Australia and Malaysia, accepting that the applicant did not have any close family ties in Australia. However, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and affirmed the delegate's decision to refuse the visa (CB 137 [26]-[27]).

1. On 12 August 2019, the applicant filed an application for judicial review in this Court accompanied by an affidavit of the same date. The affidavit attached a copy of the Decision and the assertion that the Tribunal erred in failing to properly consider the applicant's circumstances.
2. The applicant identified the following grounds of review:
   1. The Tribunal erred in the exercise of its jurisdiction or failed to exercise its jurisdiction to review the decision of a delegate of the First Respondent, by making findings of fact which were critical to its decision but for which there was no evidence.
   2. The Tribunal erred in the exercise of its jurisdiction or failed to exercise its jurisdiction to review the decision of a delegate of the First Respondent, by misconstruing and/or misapplying Migration Regulations 1994.
   3. The decision of the Tribunal was unreasonable. The Tribunal did not fully consider the Applicant's individual circumstances and made its decision based on its own assumption.
3. On 1 June 2023, the applicant was ordered to file and serve any amended application for review, an outline of submissions and any further evidence upon which he intended to rely no later than 28 days before the date of the final hearing. The hearing was listed to be heard in person at Melbourne on 23 September 2025. The applicant did not file any further documents or evidence as ordered.
4. On 23 September 2025, the applicant appeared at the final hearing of the application for judicial review. He was assisted by an interpreter in the English and Mandarin languages.
5. Ms Griffiths-Mark, solicitor, appeared for the Minister.
6. Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to inform the Court of the basis on which the Tribunal made any error. The Court also gave the applicant the opportunity to tender any further documents upon which he wished to rely to establish an error by the Tribunal.
7. To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Decision.
8. It was also explained that this Court cannot review the merits of the Decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material jurisdictional error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Wu Shan Liang).

1. The applicant submitted that the Tribunal member did not read his application completely. He said that he engaged a migration agent to assist him, but the agent did not submit documents to the Tribunal. This included a letter from his employer in Malaysia. He said that he gave the letter to the agent, but the agent did not give it to the Tribunal. He only had an original of the letter and no copies. It was not the same letter that appears at CB 93 but another letter about the family business in Malaysia where he was a retail supervisor for a golf course and that his 'boss sent me here to study English and business management.' The applicant claimed that he did not have this document, could not get a copy or replacement but he would definitely return to Malaysia once he completed the courses.
2. The applicant claimed that he trusted the agent but now no longer trust agents, and that is why he waited until today before pursuing further study and to obtain a fair judgment. The applicant claimed that he would definitely go back to his country, and that he only stayed due to COVID. He had no further documents to provide to support his claims because he gave them all to the agent who cheated him. The applicant did not seek to tender any evidence to support these claims.

1. On behalf of the Minister, Ms Griffiths-Mark relied on an outline of written submissions filed on behalf of the Minister dated 9 September 2025.
2. Ms Griffiths-Mark recalled some of the history of the application for the visa, noting that no migration agent is recorded as assisting the applicant with the application or the application to the Tribunal.
3. In the Decision, the Tribunal found that the applicant's evidence of the alleged fraud of the agent and the current status of his enrolment to be confusing and in many respects, unsatisfactory. The Tribunal found that the applicant had not attended any course of study since September 2017 and produced no evidence to the Tribunal of the alleged fraud or any evidence of any steps taken to verify the agent's advice or to report the agent to the police or any authority. The Tribunal also found that the applicant took no steps to appoint a new agent and sought no advice whatsoever from any person apart from his friends.

1. The function of this Court is to review the Decision and determine whether the Tribunal has fallen into error by failing to conduct the statutory task of reviewing the application for the visa in accordance with law.
2. In Wu Shan Liang, the High Court said at 272:

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

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

1. Therefore, it is not for this Court to review the merits of the Decision or to reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings. The weight to be given to the evidence was in the domain of the Tribunal and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Tran)).
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 (LPDT), the plurality J said at [3]:

[3]...Jurisdictional error on the part of a statutory decision-maker in making a decision can 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.

1. The Decision contains a very thorough and detailed analysis of the applicant's claims and evidence. In Wu Shan Liang at 272, the Court warned against construing the decision under review 'minutely and finely with an eye keenly attuned to the perception of error'. The applicant's grounds of review in the application for judicial review and his oral submissions to this Court at the hearing seek to revisit the merits of the Decision and repeat the evidence given to the Tribunal, but do not identify any material jurisdictional error.
2. The first ground of review identified in the application for judicial review is vague and unclear. The applicant does not identify the findings of fact that were made contrary to the evidence. At best, it is said that the Tribunal should have found that the applicant did intend genuinely to return to Malaysia at the completion of his studies because of evidence that the applicant did not have and could not produce to the Tribunal because of the alleged fraud of an unidentified agent. It was not an error to dismiss the applicant's claims when there was no evidence to support them. The inferences drawn from the evidence presented were open to the Tribunal. The Tribunal found that the applicant had made no genuine attempt to pursue the course of study undertaken and on balance, was not a genuine student. It did so after weighing the evidence as it was required to do. It gave more weight to objective evidence than the unverified assertions of the applicant. There was no jurisdictional error in doing so. This ground of review must be dismissed.
3. Ground two claims that the Tribunal misconstrued the Regulations. There are no particulars given as to how this occurred, and the applicant could not assist at the hearing in clarifying this allegation. The Decision reflects the proper consideration of the correct provisions of the Regulations and the due considerations of the guidelines in Direction No. 69. The Tribunal undertook the weighing process required to assess whether the applicant satisfied the criteria in reg 500.212 of the Regulations, but after weighing the evidence, reached the required level of satisfaction that the applicant did not intend genuinely to stay in Australia temporarily. There was no error in the approach taken by the Tribunal.
4. The third ground of review is that the Decision was unreasonable. That claim is also rejected. The Tribunal considered Direction No. 69 and the guidelines therein and then applied those guidelines to the applicant's evidence and documented circumstances. There was nothing unreasonable, illogical or irrational about the process of reasoning adopted by the Tribunal. The Court queried with the solicitor for the Minister whether there was a logical inconsistency between the Tribunal giving the applicant the benefit of the doubt and assuming that the applicant was currently enrolled in a course of study (CB 136 [15]) and the finding that he had not actively attended any course of study since September 2017 and that there was evidence of a lack of academic progress (CB 136 [16]).
5. The Court also queried whether the Tribunal need expressly reject the claim that the applicant was told not to study until the Tribunal concluded its review or whether the rejection of that assertion was implicit in [23] of the Decision. Ms Griffiths -Mark submitted that there was no inconsistency in giving the applicant the benefit of the doubt about his enrolment status (which the Tribunal found the applicant's evidence to be confusing) and finding that regardless of the status, there had been a lack of genuine progress in pursuing the nominated courses of study. The Tribunal showed a logical and intelligible basis when finding that the applicant had not taken any active steps to pursue a course of study or taken any reasonable steps to inquire as to whether the advice received from the allegedly fraudulent agent was correct. The Tribunal did undertake the necessary weighing process when considering the guidelines in Direction No. 69 and was not persuaded that the applicant intended genuinely to stay in Australia temporarily. It weighed the factors that supported the applicant's claims against those facts that did not. On balance, it was not persuaded that the applicant was a genuine student, and the Decision disclosed an intelligible path of reasoning.
6. After scrutinising the Decision but not with an eye keenly attuned to the perception of error, I am satisfied that the Tribunal did not approach the statutory task unreasonably. It could not be said that no decision-maker acting reasonably could have reached the same conclusion reached in the Decision or that 'no sensible authority acting with due appreciation of its responsibilities' would have exercised its discretion as it did: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [71]. Further, the Tribunal's Decision to affirm the delegate's decision to refuse the visa had an 'evident and intelligible' foundation (Li at [76]) such that the Decision cannot be properly characterised as a legally unreasonable decision.
7. Noting that the applicant appeared before this Court without legal assistance, the Court also scrutinised the Decision for jurisdictional error after considering the materials in the Court Book and the applicant's oral submissions (see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [15], [77], [100], [112]-[114]). No discernible error could be identified.
8. The applicant has not identified any material jurisdictional error in the Decision for any of the grounds identified in the application for judicial review or in the applicant's oral submissions to the Court. The application for judicial review filed 12 August 2019 is dismissed.

1. The Minister sought an order that the name of the first respondent be amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title which changed on 13 May 2025.

1. Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $7,509.70, which is less than the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 3, Div 3 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
2. The sum claimed is fair and reasonable and will be ordered to be paid by the applicant.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship'.
2. The application for judicial review filed 12 August 2019 is dismissed.
3. The applicant pay the first respondent's costs and disbursements of and incidental to the proceeding, fixed in the sum of $7,509.70.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.