Chong v Minister for Immigration and Citizenship [2026] FedCFamC2G 456

Degning v Minister for Home Affairs [2019] FCAFC 67

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326

Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; 163 FCR 285

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611

National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1

SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The amended application for judicial review dated 15 October 2025 is dismissed.
2. The applicants pay the first respondent's costs and disbursements of and incidental to this proceeding fixed in the sum of $9,097.93.

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. The applicants seek judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the then Administrative Appeals Tribunal (Tribunal), now the Administrative Review Tribunal, made on 28 August 2020. In that decision, the Tribunal affirmed a decision of the first respondent (Minister) to refuse to grant the first applicant a Student (Temporary) (Class TU) (Subclass 500) visa (visa).
2. References in these reasons to 'CB' pages are references to the Court Book tendered and admitted as evidence at the hearing before this Court and designated exhibit 'R1'.

1. The applicants are husband and wife and citizens of Malaysia. They first arrived in Australia in May 2012 on a visitor visa (CB 70). The second applicant then applied for and was granted a student visa and the first applicant was granted a visa as her accompanying spouse (CB 105). The second applicant was subsequently refused a further extension of her student visa and the applicants returned to Malaysia (CB 32 and 105).
2. On 16 March 2019, the applicants re-entered Australia as the holder of a visitor (Subclass 600) visa (CB 40).
3. In May 2019, the first applicant enrolled in a Certificate III course in Commercial Cookery at the Australian Institute of Entrepreneurship (CB 71).
4. On 28 May 2019, the first applicant applied for the visa the subject of this proceeding. The second applicant also sought a visa as an accompanying spouse (CB 1-32).
5. On 13 August 2019, the application for the visa was refused by a delegate of the Minister on the basis that the first applicant did not meet the genuine temporary entrant criterion under cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). The first applicant did not then complete the Certificate III course in Commercial Cookery (CB 71).
6. On 20 August 2019, the applicants applied to the Tribunal for review of the delegate's decision (CB 45-7).
7. In October 2019, the first applicant enrolled in General English course at Della International. The first applicant claims he subsequently completed that course but did not receive a certificate of completion (CB 71 and 105 [19]). In March 2020, the first applicant enrolled in a Certificate IV in Business and a Diploma of Leadership and Management at the International College of Melbourne (CB 71).
8. On 4 May 2020, the Tribunal invited the applicants to provide further information to support their application for review. The invitation from the Tribunal also informed the applicants that in making its decision it must have regard to the Ministerial Direction No 69 made pursuant to s 499 of the Act (Direction No 69) a copy of which was attached to the invitation (CB 56-65). The first applicant completed a 'Request for Student Visa Information' form (RSVI Form), (CB 66-76) and attached two current and two previous Confirmation of Enrolments (CoE) (CB 77-80).
9. On 13 August 2020, the Tribunal invited the applicants to attend a hearing on 28 August 2020. A further copy of Direction No 69 was included in the invitation (CB 81-90). The letter explained that at least 7 days before the hearing the applicants should provide the Tribunal with all the documents that they intend to rely on to establish that they meet the criteria required for the visa (CB 84). The invitation also made reference to the decision made by the delegate to refuse to grant the first applicant the visa. In the invitation the Tribunal cautioned that the applicants should have regard to these reasons and any change in circumstances in providing documents and preparing for the hearing (CB 84).
10. On 28 August 2020, the applicants attended a hearing of the Tribunal. The applicants were assisted by a migration agent and an interpreter of the English and Mandarin languages. The hearing was brief. The duration of the hearing, including the translation of the first applicant's evidence, was approximately 23 minutes (CB 96-8).
11. On 28 August 2020, the Tribunal affirmed the decision of the delegate to refuse to grant the applicants the visa (CB 102-10) (Decision).

1. In the Decision, the Tribunal outlined the chronology and procedural history of the application for review and set out the statutory framework guiding the Tribunal's decision making, in particular Direction No 69 and cl 500.212(a) of the Regulations (CB 103-5, [1]-[19]).
2. Direction No 69 and cl 500.212(a) of the Regulations jointly require the Tribunal to consider the first applicant's circumstances in his home country and potential circumstances in Australia, the value of the course to the first applicant's future, the first applicant's immigration history and any other relevant information provided by the applicants, or otherwise available to the decision maker. These were matters considered by the delegate when refusing to grant the visa (CB 38-43).
3. In paragraphs [11]-[12] of the Decision (CB 104), the Tribunal identified the evidence considered in making the Decision, notably: the first applicant's current and previous CoEs, the content of the RSVI Form, the material before the delegate, the delegate's decision record and the first applicant's oral evidence at the hearing before the Tribunal on 28 August 2020.
4. At paragraphs [20]-[29] of the Decision (CB 105-7) the Tribunal considered the first applicant's circumstances in his home country. In particular, the Tribunal at [20] recorded the first applicant's response in the RSVI Form to the following prompt (CB 72):

If there are similar courses available in the Main Applicant's home country or region to the course(s) they are currently studying and/or propose to study in Australia, please give details of the Main Applicant's reasons for not undertaking the course(s) in their home country or region.

There are many Graduates and Diploma holders looking around for jobs in my country. To stand out among them, the importance of an Australian qualification, skills and knowledge gained from an western country is significant.

1. The first applicant did not provide any further information or supporting evidence to substantiate this claim. Nor did the Tribunal request either orally or in writing further information or evidence to be provided, prior, during or after the hearing.
2. At [21], the Tribunal made the following finding in relation to the first applicant's response in the RSVI Form:

The Tribunal is unable to accept the applicant's reasons for not studying in Malaysia, due to the fact that the applicant has failed to demonstrate that he has undertaken any significant research into the availability of the course in his home country.

1. At [20] of the Decision, the Tribunal also recorded the first applicant's response in the RSVI Form to a prompt relating to the first applicant's ties to his home country. The prompt was expressed as follows (CB 74):

Information about assets

Please give details of the Main Applicant's property or other significant assets.

1. In his response in the RSVI Form, the first applicant wrote (CB 75):

Description of asset Value ($AUD) Location of Asset

Double Story House 172000 Kuala Lumpur, Malaysia

Hot-Stamping Factory (Joint venture) 180000 Kuala Lumpur, Malaysia

Honda BRV (year2019) 30000

1. The first applicant did not provide any further information or supporting evidence to substantiate the ownership of these assets. Nor did the Tribunal request either orally or in writing further information or evidence to be provided, prior, during or after the hearing.
2. In relation to this response in the RSVI Form, the Tribunal found at [23] that:

The Tribunal in unable to place significant weight on the applicant's alleged financial ties to Malaysia as he has not provided any objective evidence to verify his claims.

1. At paragraphs [22] and [24]-[28], the Tribunal made several findings in relation to the first applicant's circumstances in his home country. Namely, that the first applicant's family ties in Malaysia do not present a 'significant incentive for him to return to Malaysia, when considered against his circumstances in Australia'; the length of time spent onshore in Australia without leaving and while on temporary visas ('coupled with the fact that strong economic circumstances in the first applicant's own country have not been substantiated': [25]) indicates an intention to remain in Australia permanently; the failure to complete the course the subject of the initial visa application was behaviour inconsistent with that of a genuine student; the current course the first applicant is enrolled in would not assist the first applicant in his career development; and the timing of the first applicant's student visa application, after the second applicant's visa was refused, raises concerns about whether the first applicant meets the genuine temporary entrant criterion.
2. In relation to the first applicant's personal circumstances in Australia, the Tribunal concluded at [32] (CB 108):

Due to the number of temporary dependant student visas the applicant has held and the fact that he and his wife have now "swapped" roles as the primary and dependant student visa holder after the applicant's wife's primary student visa applicant was refused in 2017, the Tribunal is of the view that the applicant is enrolling in his current course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.

1. The Tribunal noted, at [33] (CB 108), that in making this finding against the first applicant, it placed significant weight on the second applicant and the first applicant's mother residing in Australia and the financial support the first applicant receives from his mother, which both serve as strong incentives for the first applicant to remain in Australia.
2. Paragraphs [34]-[36] (CB 108-9) of the Decision addressed the value of the proposed course of study to the first applicant's future. At [34], the Tribunal cited the first applicant's response in the RSVI Form to the following prompt (CB 75):

Please give details of the Main Applicant's plans, including employment plans, at the completion of the course(s) of study now proposed. Please include details of how these courses relate to the Main Applicant's future plans.

1. In response, the first applicant wrote (CB 75):

My employment plan is to secure a decently paid admin job on my return to Malaysia. There are many of Graduates and Diploma holders looking around for jobs in Malaysia. To stand out among them, the importance of an Australian qualification, skills and knowledge gained from an western country is significant. While I am here, 1 want to complete these vocational qualifications.

1. The first applicant did not provide supporting information or evidence, and again the Tribunal did not request either orally or in writing further information or evidence to be provided, prior, during or after the hearing. As a result of this response, the Tribunal made the following finding against the first applicant at [35] (CB 109):

The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future. The Tribunal is unable to accept the applicant's assertions as to the value of the course to his future as he has not provided any objective evidence of his understanding of the job market in Malaysia, job offers, job applications or other research, demonstrating how the completion of his current course will improve his employment prospects or add value to his earning capacity, in view of the work experience in his own business that he already possess.

1. At paragraphs [37]-[39] (CB 109), the Tribunal considered the first applicant's immigration history and repeated the finding that the first applicant and his wife have essentially 'swapped roles' in applying for another Student visa, in a manner which 'demonstrates an intention to use the student migration program to maintain ongoing residence in Australia' (CB 109 [38]).
2. On these bases, the Tribunal concluded that the first applicant was not a genuine applicant for entry and stay as a student as required by cl 500.212 of the Regulations. The decision of the delegate to the Minister to refuse to grant the first applicant the visa was affirmed (CB 109-10 [42]-[45]).

1. On 15 September 2020, the applicants filed an application for judicial review with the then Federal Circuit Court of Australia.
2. On 15 October 2025, the applicants' solicitors filed an amended originating application. In the amended application for review, the solicitors for the applicants outlined the following three grounds of review:

1. The Tribunal failed to afford the applicants procedural fairness, or failed to provide a meaningful opportunity to give evidence or present arguments on issues arising in the review pursuant to s 360 of the Migration Act 1958 (the Act).

Particulars

(a) The Tribunal at [21] rejected the first applicant's explanation for not studying in Malaysia "due to the fact that the applicant has failed to demonstrate that he has undertaken any significant research into the availability of the course in his home country.

(b) The Tribunal at [35] rejected the first applicant's evidence about the value of the course to his future because "he has not provided any objective evidence of his understanding of the job market in Malaysia, job offers, job applications or other research demonstrating how the completion of his course will improve his employment prospects or add value to his earning capacity, in view of the work experience in his own business that he already possess (sic)."

(c) The matters in each of particulars (a) and (b) were issues arising in the review within the meaning of s 360 of the Act.

(d) The subject matter of neither particular (a) nor particular (b) was put to the first applicant for comment, nor was he given a meaningful opportunity to give evidence or present arguments in relation to either matter.

(e) Each of the findings in particulars (a) and (b) were material to the Tribunal's decision and each separately constitutes jurisdictional error.

(f) Further and alternatively to the above, the hearing before the Tribunal was extremely cursory and did not give the applicants a meaningful opportunity to be heard on the issues arising in the review.

2. The Tribunal's decision was based in substantial part on an irrational finding or irrational reasoning, or an unfounded assumption.

Particulars

(a) Particular (a) to ground 1 is repeated.

(b) The assumption that a person must have undertaken significant research into study opportunities in their home country before they can be considered a genuine temporary entrant for study in Australia is unfounded and/or irrational.

(c) The finding in particular (a) was material to the Tribunal's decision and constitutes jurisdictional error.

3. The Tribunal adopted an unreasonable approach to the review, or denied the applicants procedural fairness, or or failed to provide a meaningful opportunity to give evidence or present arguments on issues arising in the review pursuant to s 360 of the Act, by making adverse findings against the applicants for providing evidence to the Tribunal in the form the Tribunal requested.

Particulars

(a) The Tribunal at [23] declined to place significant weight on the first applicant's evidence regarding his financial ties to Malaysia because "he has not provided any objective evidence to verify his claims."

(b) The Tribunal at [35] made the finding set out at particular (b) to ground 1.

(c) The information submitted by the applicants in relation to each of those issues was by way of completing the online form 'request for student visa information' sent by the Tribunal and lodged online by the first applicant.

(d) As to financial ties in Malaysia, the Tribunal form provided a space for a description of each asset, the value of the asset and the location of the asset. It did not indicate that documentary evidence was required.

(e) In relation to the finding at [35] regarding research of the job market in Malaysia and the like, the Tribunal's form only asked about "employment plans", including "details of how these courses relate to the Main Applicant's future plans". The first applicant answered that question in a level of detail commensurate with the space on the form.

(f) Neither of the findings in particular (a) or (b) were put to the applicants for comment by the Tribunal, nor was any meaningful opportunity provided to address those matters as issues arising in the review.

(g) Each of the findings in particulars (a) and (b) were material to the Tribunal's decision and each separately constitutes jurisdictional error.

1. The final hearing of the application for judicial review took place before this Court in person at Melbourne on 24 February 2026.
2. Dr McBeth, of counsel, appeared for the applicants and Ms Chan, of counsel, appeared for the Minister.

1. Dr McBeth, on behalf of the applicants, relied on an outline of written submissions filed on 18 December 2025.
2. The applicants also sought to rely on an affidavit of Newton Yue Han, the solicitor for the applicants, affirmed 18 December 2025 to which Mr Han annexed a transcript of the hearing before the Tribunal (Exhibit 'A1'). The transcript confirmed that the hearing before the Tribunal was 23 minutes in duration and that at no time did the presiding member raise any concern with the first applicant as to the absence of corroborating or objective evidence to support his claim to be a genuine applicant for entry and stay as a student temporarily.
3. In relation to ground one of the grounds in the amended application for judicial review, it was submitted that the first applicant was denied 'procedural fairness or a meaningful opportunity to give evidence and present arguments on an issue arising in the review'. The Tribunal did not give the first applicant an opportunity to comment on or address the findings that the Tribunal proposed to make at [21] and [35] of the Decision. In those two findings, the Tribunal held that there was insufficient evidence to support the first applicant's assertions. It was submitted that the procedural fairness requirements of s 360 of the Act (now repealed) required the Tribunal to give the first applicant a meaningful opportunity to address any misgivings that the Tribunal may have regarding the adequacy of the evidence presented to it (DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290; 85 AAR 48 at [80]- [81] per Mortimer J and SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1 at [5]- [7] per Gray J).
4. In particular, it was submitted that the Tribunal's finding at paragraph [21] of the Decision, that the first applicant had 'failed to demonstrate that he has undertaken any significant research into the availability of the course in his home country', was not put to the first applicant for comment during the hearing or at any point in writing before or after the hearing. This finding materially contributed to the conclusion that the first applicant did not genuinely intend to stay in Australia temporarily for the purpose of study, therefore it was one of the 'issues arising in relation to the decision under review' under s 360 of the Act, which should have been put to the first applicant for comment (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [36]- [40] (SZBEL)). The Tribunal stated, in express terms, that it was unable to accept the first applicant's reasons for not studying in Malaysia 'due to' the first applicant's failure provide evidence of 'significant research' and yet the Tribunal failed to, in a 23-minute hearing (half the time of which was taken by interpreting), request any explanation for the lack of evidence provided.
5. Additionally, the first applicant was not afforded the opportunity to comment, give evidence or present arguments in relation to the matters arising from paragraph [35] of the Decision (neither before, during or after the hearing), namely that the Tribunal was not satisfied that the first applicant had 'provided any objective evidence' with regard to his research into the job market in Malaysia, or how the completion of the current course would improve his employment prospects or earning capacity in Malaysia, in light of his existing financial situation there (CB 109 [35]). Again, the Tribunal relied on the first applicant's failure to provide objective evidence in making this adverse finding, even though these issues were never put to the first applicant. Both the findings in [21] and [35] of the Decision were therefore in relation to material issues arising from the review, that required consideration and a fair opportunity for the first applicant to present his case. The failure to provide this constitutes a material jurisdictional error.
6. In ground two of the amended application for judicial review, it was submitted that the Tribunal made an irrational finding, used irrational reasoning or relied on an unfounded assumption in paragraph [21] of the Decision. The first applicant's response in the RSVI Form (see paragraph [18] above) should be considered as arising from a premise that there were similar courses available in his home country, but the first applicant nevertheless chose to study in Australia because of the competitive advantage an Australian qualification would have in Malaysia. For this reason, it was submitted that the Tribunal's reasoning in rejecting the first applicant's explanation was not rationally probative of the question that the first applicant was required to answer and was an irrational and legally unreasonable finding made by the Tribunal. Given that this was a material issue in the matter, it was realistically possible that the outcome of the review could have been different had the Tribunal not made this irrational finding and therefore the error was material.
7. Ground three of the grounds of review in the applicants amended application for judicial review claimed that the Tribunal made a material jurisdictional error in refusing to put significant weight on the first applicant's financial ties to Malaysia, because the first applicant 'has not provided any objective evidence to verify his claims' (Decision [23]). Again, the Tribunal was reliant here on the RSVI Form submitted by the first applicant prior to the hearing and the response provided in relation to a prompt to provide details about the first applicant's property and assets in Malaysia (see paragraph [22] above). Despite this, neither the RSVI Form or the Tribunal requested that the first applicant provide any proof of his ownership of the assets identified, nor did the Tribunal raise the issue or express any doubt about the existence of the assets during the hearing. This error was repeated in paragraph [35] of the Decision, where the Tribunal noted the lack of 'objective evidence' provided by the first applicant with regards to an issue that was never put to him. At no point was there a request for the first applicant to provide corroborating evidence to support his answers in the RSVI Form. The first applicant simply provided information with the same level of detail asked (see paragraphs [28]-[29] above). The Tribunal's findings at [23] and [35] of the Decision were legally unreasonable and were also separately a denial of procedural fairness.

1. Ms Chan, of counsel, relied on written submissions filed with the Court on 10 February 2026.
2. In response to ground one of the amended grounds for judicial review, it was submitted that the findings in [21] and [35] of the Decision should be read in the context of the broader issue to be determined by the Tribunal on the review, namely whether the first applicant intends genuinely to stay in Australia temporarily.
3. In the finding at [21] of the Decision, the Tribunal was entitled to observe and rely on the first applicant's failure to include information about the availability of alternative courses in Malaysia in his RSVI Form response and evidence. The first applicant had twice been put on notice by paragraph 9(a) of Direction No 69, that he explain the availability of similar courses of study in his home country. The finding in [21] was reflective of an 'obvious and natural evaluation' of the material provided by the first applicant and the Tribunal was not obliged to 'descend to a granular level of detail' by requiring the first applicant to comment on or respond to the adverse finding being proposed (see National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [68]- [69] (WRMF)). The onus was on the first applicant to persuade the Tribunal that he was a genuine temporary entrant. Proof of that criteria required the first applicant to show that similar courses were not available or to explain why similar courses were inappropriate.
4. Similarly, at [35] the Tribunal did not err in pointing out the absence of 'objective evidence of his understanding of the job market in Malaysia', as that finding was a natural response to the 'high-level and generic' answers given by the first applicant in the completed RSVI Form. This finding by the Tribunal was not based on disbelief in the first applicant's claims but rather an election to give these responses limited weight because of the absence of corroborative evidence. It was submitted that the first applicant was 'on a number of occasions' put-on notice that objective corroborating evidence going to the matters of cl 12(a)-(c) of Direction No 69 (relating to the value of the courses to the applicant's future) was relevant and would assist him with his application for the visa.
5. Reference was also made to the delegate's decision and the fact that the first applicant was specifically put on notice that the lack of supporting evidence provided in matters going to paragraphs 12(a)-(c) of Direction No 69 was given weight by the delegate at CB 41, where the delegate said:

I give weight to the lack of information to support his application and the value of the courses to his future, which indicates that he does not genuinely intend to stay in Australia temporarily and is using the student visa program as a means of maintaining residence in Australia.

1. As a result, the first applicant should have been aware that it was not sufficient to simply make assertions on a high level and supporting evidence would be required to persuade the Tribunal to reach a different result.
2. The first applicant's submissions in relation to ground one therefore require the Tribunal to go beyond what is necessary to ensure procedural fairness, namely 'a running commentary upon what it thinks about the evidence that is given' (SZBEL at [48]. See also SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 at [38] and WRMF at [68]).
3. Furthermore, the first applicant has been unable to meet the threshold of materiality with regard to the findings in [21] and [35]. There is no realistic possibility that the outcome of the Decision would have been different in light of the Tribunal's concluding reasons, which establish clearly that the criterion for grant of the visa had separately not been satisfied based on the findings in respect of the first applicant's circumstances in Australia (CB 107-8 [30]-[33]) and immigration history (CB 109 [37]-[40]). Even if an error is established, it does not meet the threshold of materiality required by the Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [7] and [9]-[16].
4. Regarding ground two, it was submitted that the 'premise' claimed to be embedded in the first applicant's RSVI Form response was not something that the Tribunal is required to accept. The Tribunal was simply unpersuaded by the first applicant's bare assertion as to the 'importance of an Australian qualification'. This finding in [21] was not 'irrational' or 'unfounded' but was instead an 'obvious and natural evaluation' of the answer provided and the lack of supporting evidence. Furthermore, as with the claims in ground one, even if an error was established, it was not material because the review was dismissed on numerous other grounds for failing to satisfy cl 500.212 of the Regulations.
5. Finally, it was submitted that the first applicant's submissions with respect of ground three must also be rejected. The onus is on the first applicant to establish that his circumstances satisfy the relevant criteria, and the RSVI Form clearly allows for applicants to provide additional supporting information. As above, no denial of procedural fairness can be made out, nor is the Tribunal required to 'disclose its mental processes or evaluation to the applicant', when the applicant is aware of the dispositive issues on review in advance. Similarly the other grounds, even if established, this error would not have been material to the final result.
6. It was submitted on behalf of the Minister that the amended application for judicial review should be dismissed with costs.

1. In reply, Dr McBeth submitted that the submission that the first applicant had been put on notice from the delegate's decision of the requirement to provide supporting evidence and documentation was unfounded. Reference was made to the delegate's decision at CB 41 where the delegate was not satisfied that the first applicant provided evidence to substantiate his claims to future employment and the benefits of his then chosen course of study. Dr McBeth submitted that the delegate's decision was overtaken by the invitation from the Tribunal, which at no point required supporting or corroborating evidence. Reference was made to the High Court in SZBEL at [35] where the Court said that it is for the Tribunal to identify the relevant issues. The issues of concern determined by the Tribunal were articulated in the RSVI Form but the first applicant was denied the opportunity to address the other issues that were not articulated by the Tribunal, therefore a meaningful hearing was illusory.

1. In WRMF at [66]-[70] the Court (Flick, Mortimer and Banks-Smith JJ) said:

[66] One way in which a decision‑maker may deny a party the fair opportunity to be heard is by failing to alert the party of an issue which it considers to be important if that issue goes beyond those considered by the parties.

[67] This principle was expressed by a unanimous High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 as follows (citations omitted):

[83] Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.

[68] The Full Court in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 (Besanko, Gleeson and Burley JJ) explained further as follows:

[38] Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject's case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 ('Alphaone') at 590-591. However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone at 591.

[69] The Full Court's statement above indicates that the Agency was entitled to respond to any adverse conclusion drawn on the materials before the Tribunal which is not an obvious and natural evaluation of that material. Put another way, the Agency was entitled to be directed to the critical issues on which the Tribunal was likely to decide unless recognition of such issues was, from the material, an obvious and natural conclusion to draw: Degning v Minister for Home Affairs [2019] FCAFC 67 at [12] (Allsop CJ), citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 at 590‑591; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32].

[70] It should be noted that while it is necessary for the applicant to show that the process has fallen short of a standard of fairness in all the circumstances, it is not necessarily the case that evidence must be led about what the applicant would have done had the procedure been fair: Degning at [39] (Allsop CJ, Collier J agreeing). Where the procedure adopted by a decision maker can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity: WZARH at [60] (Gageler and Gordon JJ).

1. These statements of principle address the issue that arises in ground one of the applicants' originating application for judicial review. The first applicant contends that he was not alerted to the issue that corroborating or objective evidence was required to support his claims to be a genuine entrant for stay as a student in Australia temporarily and therefore satisfy the criteria for the visa. The Minister contends that the requirement of proof was an obvious and natural evaluation of the material required to satisfy the critical issues raised by the review of the delegate's decision.
2. Scrutiny of the transcript of the hearing confirms that the presiding member did not raise any concerns with the first applicant regarding the adequacy of his evidence or the content of the RSVI Form. There is no dispute that the presiding member did not identify the absence of corroborating or objective evidence as an issue to be considered on the review. The question now to be answered is: was the Tribunal required by procedural fairness to do so? The answer to which is, in my view, no. That is because the issues on the review were cast by the decision of the delegate and Direction No 69 (in particular paragraphs 9(a) and 12) and were not altered by the Tribunal or redefined by the questions asked in the RSVI Form.
3. It is unnecessary and inappropriate to refer to the applicants as bearing any onus of proof. In SZBEL at [35] the Court said:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the Tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof. And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant's claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant's claim, it would not be apt for the Act to describe the Tribunal's task as conducting a "review", and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review.

1. The Tribunal did not redefine or alter the issues arising in relation to the decision under review by sending the invitation letter or the RSVI Form to the applicants for completion. The issues on the review were always whether the first applicant satisfied the criteria in cl 500.212 of the Regulations having regard to the guidelines
2. identified in Direction No 69. That is what was considered by the delegate and what the Tribunal was required to do in the hearing of the review.
3. The first applicant's circumstances had changed between the date of the delegate's decision and the hearing before the Tribunal, in that he had changed courses from a Certificate III in Commercial Cookery to a Certificate IV in Business and a Diploma of Leadership and Management, but the issue in the review was whether the first applicant could satisfy the Tribunal that he was a genuine temporary entrant for stay and study temporarily. Direction No 69 identified the guidelines that the Tribunal should follow when considering the first applicant's claims and when reviewing the delegate's decision. The first applicant was unsuccessful in persuading the delegate that he satisfied the requirements of the Regulations and the delegate specifically identified the factors to be considered at CB 39-40, where the delegate said:

Ministerial Direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications sets out the factors that must be taken into account when assessing the genuine temporary entrant criterion for Student visa applications. This Ministerial Direction is made in accordance with section 499 of the Migration Act. Further information is available at: immi.homeaffairs.gov.au/Visa- subsite/files/direction-no-69.pdf.

In summary, these factors include:

• the applicant's circumstances in their home country, including the applicant's economic situation, political and civil unrest in the applicant's home country, the extent of the applicant's personal ties to their home country, whether the applicant has sound reasons for not studying in their home country if a similar course is available, and military service commitments that would present as a significant incentive for the applicant not to return to their home country

• the applicant's potential circumstances in Australia, including the extent of the applicant's ties with Australia that present as a strong incentive to remain in Australia, evidence that the student visa program may be used to circumvent the intention of the migration program, whether the Student visa or the Student Guardian is being used to maintain ongoing residence, the applicant's knowledge of living in Australia, and whether the primary and secondary applicants have entered into a relationship of concern

• the value of the course to the applicant's future, including the course's consistency with the applicant's current education level, whether the course will assist the applicant to gain employment in their home country, relevance of the course to the applicant's past or future employment in their home country or a third country, and remuneration and career prospects in the applicant's home country or a third country to be gained from the course

• the applicant's immigration history, including visa and travel history for Australia and other countries, previous visa applications for Australia or other countries, and previous travels to Australia or other countries

• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant.

Any other matter relevant to the applicant's intention to stay in Australia temporarily must also be considered. These factors have been weighed up to make an overall decision.

1. These issues did not change nor did the Tribunal identify other issues that would make these considerations irrelevant or superfluous. The first applicant did not satisfy the Tribunal that he had sound reasons for not studying in his home country. He gave no explanation that would satisfy that guideline. Similarly, he did not seek to explain whether a similar course was available in Malaysia. The evidence he gave about the value of the proposed courses of study to his future was vague and there was no explanation as to whether the proposed courses of study were relevant to the first applicant's past and future employment in his home country. These issues were identified as relevant issues in paragraphs 9(a) and 12 of Direction No 69. The Tribunal, when considering the first applicant's evidence on these issues, was not satisfied that the first applicant had established that these requirements were met.
2. The findings at [21], [23] and [35] of the Decision, when read in context of the Decision as a whole, reflect that the Tribunal did not give weight to the assertions made by the applicant because they were not corroborated by objective evidence. That was not a new issue that the Tribunal was required to give notice of, but a consideration of the weight to be given to the information provided. There was no failure to afford the first applicant procedural fairness or a denial of an opportunity to be heard. The weight to be given to the evidence is a matter for the Tribunal and the Tribunal alone (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [24]) and it is not a requirement of procedural fairness that the decision maker disclose or give notice to the applicants of the weight he or she proposed to give to the evidence provided (SZHKA at [7] per Gray J and Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; 163 FCR 285 at [88]- [89]). The hearing was brief, as the transcript reflects, but the presiding member did seek to engage with the first applicant regarding his personal history, educational background, financial position and previous employment. The presiding member also asked the first applicant if there was anything further he wished to add at the conclusion of the hearing and he said "No".
3. The first applicant was given a fair and meaningful opportunity to give evidence and present arguments on the issues arising from the review pursuant to s 360 of the Act. There was no breach of the requirements of the Act. Ground one of the amended application for judicial review is not made out.

1. The finding of the Tribunal at [21] of the Decision was also logical and rational. The question or prompt asked of the first applicant at CB 72 in the RSVI Form was:

If there are similar courses available in the Main Applicant's home country or region to the course(s) they are currently studying and/or propose to study in Australia, please give details of the Main Applicant's reasons for not undertaking the course(s) in their home country or region.

1. The response given did not address that question but was:

There are many Graduates and Diploma holders looking around for jobs in my country. To stand out among them, the importance of an Australian qualification, skills and knowledge gained from an western country is significant.

The Tribunal is unable to accept the applicant's reasons for not studying in Malaysia, due to the fact that the applicant has failed to demonstrate that he has undertaken any significant research into the availability of the course in his home country.

1. That finding was rational and had an evident and intelligible justification when read in context with the question and answer and the Decision as a whole (Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332at [76] per Hayne, Kiefel and Bell JJ). The finding has two parts, firstly to reject the first applicant's reason for not studying in Malaysia and secondly to explain why that explanation or lack of an explanation resulted in the rejection. The explanation for rejection was a lack of credible evidence from the first applicant as to his reasons for studying in Australia. That an Australian certificate or diploma was considered of greater value to the first applicant did not fully explain why he was not undertaking the same course in Malaysia. The explanation given was a partial explanation and not a response to the question asked. Therefore, it could be rationally rejected as an explanation.
2. The finding was not one that no rational or logical decision maker could have arrived at on the same evidence (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611at [130]-[131] (SZMDS)). Even if it was a slip in logical analysis it did not amount to 'extreme' illogicality or irrationality so as to constitute a material jurisdictional error because there was no realistic possibility that the decision made could be different based on that finding alone (SZMDS at [132]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] and LPDT at [7]). Ground 2 of the amended application for judicial review is not established.
3. The findings at [23] and [35] of the Decision were also logical and reasonable in the context of the application for review. The first applicant was given a clear opportunity, both in the invitation letter from the Tribunal dated 13 August 2020 (CB 82-5) and the RSVI Form, to provide documentation that may assist the merit of his claims to be a genuine temporary entrant. The RSVI form did not prevent the first applicant from doing so nor did it prevent the first applicant from supplementing that form with further information. The RSVI Form did not limit or restrict the issues to the responses given in that form and the applicants were on notice from the delegate's decision of the need to validate their claims with satisfactory evidence. The findings in [23] and [35] are also findings as to the weight given to the evidence submitted and that, as has been said above, is a matter for the Tribunal. That the Tribunal gave the evidence little or no weight when considering the review does not disclose material jurisdictional error or a legally unreasonable result.
4. The amended application for judicial review dated 15 October 2025 is dismissed.

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 $9,097.93, which is scale amount for a contested migration application concluded at a final hearing provided for in Sch 2, Pt 3, Div 1, Item 3 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). That sum is fair and reasonable in the circumstances of this proceeding. An order will be made that the applicants pay the first respondent's costs and disbursements of and incidental to this proceeding fixed in the sum of $9,097.93.

I certify that the preceding seventy-three (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.