Gjoni v Minister for Immigration and Citizenship [2026] FedCFamC2G 363

1. The applicant seeks judicial review of a decision of the Administrative Review Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant her a Student Guardian (Temporary) (Class TU) visa (the visa). For the applicant to succeed in this Court, she must establish that the Tribunal's decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has found jurisdictional error in the Tribunal's decision. On that basis, the application has succeeded.

1. Ms Gjoni (the applicant) is a citizen of Italy (Court Book (CB) 12, 27). She first arrived in Australia in 2018 with her two children as the holder of a visitor visa (CB 79).
2. On 17 March 2023, the applicant (via her nominated legal representative) applied for the visa which is the subject of this application (CB 12-26).
3. On 14 April 2023, a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion as specified in cl 590.215 in Schedule 2 of the Migration Regulations 1994 (Cth) (CB 44-51). Clause 590.215 relevantly provides:

The applicant is a genuine applicant for entry and stay as a student guardian because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant's circumstances; and

(ii) the applicant's immigration history; and

(iii) any other relevant matter; and

(b) the applicant intends to comply with any conditions to which the visa may be subject, having regard to:

(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

1. On 4 May 2023, the applicant applied to the Tribunal for review of the delegate's decision (CB 52-58).
2. On 13 September 2024, the applicant was invited to attend a hearing scheduled for 3 October 2024 (CB 65-67).
3. On 23 September 2024, the applicant's representative provided written submissions and various supporting documents including a statement written by her ex-husband in support of the applicant's claims (CB 77-103).
4. On 3 October 2024, the applicant attended the Tribunal hearing accompanied by her legal representative (CB 104-106).
5. On 28 January 2025, the Tribunal affirmed the delegate's decision not to grant the applicant the visa (CB 110-121).
6. On 20 February 2025, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth).

1. On 27 January 2026, the applicant (by way of her legal representative) filed an amended application for judicial review containing two particularised grounds for review as follows (without alteration):
   1. The Second Respondent erroneously failed to take into account the Applicant's evidence that the Applicant's financial circumstances would change when her children become adults or completed the courses that were the subject of their Student visas.

Particulars

1.1. In finding that the Applicant was not a genuine applicant for entry and stay as a student guardian as required clause 590.215, the Second Respondent reasoned as follows (at [30]):

The Tribunal is unable to place weight on the representative's claim that the applicant's circumstances will change when her children become adults and she is now divorced. Her former husband has stated in writing that he fully supports the applicant while she is in Australia, notwithstanding they are currently divorced. He has not indicated when or if any change will occur to these arrangements.

1.2. This finding has ignored or overlooked the evidence of the former husband that he would stop financially supporting the Applicant once they turned 18 or otherwise completed the studies that are the subject of their student visas. The statement of the former husband that was before the Second Respondent relevantly provided as follows (at [4]-[5]):

As part of our divorce, I agreed that I would continue to financially support Lule while she is in Australia looking after our kids. I therefore pay for all of their living expenses and their school fees.

However, this arrangement will end once the kids complete their high school education and turn 18. At that point, Lule will return home to Italy to be with her family and support network.

1.3. The former husband therefore plainly has indicated that these arrangements will change. If the Second Respondent had regard to this evidence, a different outcome was a realistic possibility and so the error is material.

1. The Second Respondent erred in misunderstanding or misconstruing cl 590.215, or engaged in irrational, illogical, and/or unintelligible reasoning

Particulars

2.1. The Tribunal was required to assess whether the applicant intended to say in Australia temporarily: cl 590.215.

2.2. The Tribunal accepted that the Applicant evidence that she plans to remain in Australia with her children until they are both 18 or had finished their studies.

2.3. The Tribunal did not make any finding that the Applicant intended to stay in Australia after her children had turned 18 or finished in their studies. The Tribunal did not make any finding that the Applicant intended to stay in Australia indefinitely or permanently.

2.4. The findings of the Tribunal are only consistent with the applicant intending to stay in Australia temporarily

2.5. The Tribunal was presented with submissions that the circumstances of the applicant as assessed within the correct operation of the Act could only be consistent with the applicant intending to stay in Australia temporarily. The Tribunal did not consider those circumstances to be relevant.

2.6. The Tribunal has misdirected its consideration, or failed to reveal a rational or intelligible reasoning process to support its conclusion.

1. The materials before the Court include:
   • the amended application for judicial review filed by the applicant on 27 January 2026;
   • the affidavit of Mitchell Simmons affirmed and filed on 20 February 2025 (taken as read and in evidence at the hearing on 23 February 2026);
   • a Court Book numbering 121 pages (marked as Exhibit 1);
   • written submissions filed on behalf of the applicant on 27 January 2026; and
   • written submissions filed on behalf of the Minister on 9 February 2026.

Ground one: did the Tribunal overlook the evidence of the applicant's ex-husband?

1. As set out above at [5], clause 590.215 required the Tribunal to be satisfied that the applicant intends genuinely to stay in Australia temporarily. In doing so, the Tribunal was required to have regard to Direction 108, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' (the Direction). The Direction required the Tribunal to have regard to the applicant's circumstances in their home country and, relevantly, required the Tribunal to consider:

...economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant's circumstances relative to the home country and to Australia.

1. In submissions to the Tribunal addressing this factor, the applicant's representative submitted that "[w]hile in Australia, Ms Gjoni is completely reliant on the financial support of her ex-husband which is linked to her support of the children while they are studying" (CB 84). In an accompanying statement, the applicant said that she had not worked since her children were born as they had "always been financially supported by my now ex-husband" (CB 90).
2. The applicant also relied upon a brief statement from her ex-husband (CB 91). Importantly, that statement set out the following:

As part of our divorce, I agreed that I would continue to financially support Lule while she is in Australia looking after our kids. I therefore pay for all of their living expenses and their school fees.

However, this arrangement will end once the kids complete their high school education and turn 18. At that point, Lule will return home to Italy to be with her family and support network.

1. Quite clearly, the evidence that was before the Tribunal was that the ex-husband was prepared to financially support his ex-wife and their children until they had completed high school and turned 18. The evidence was that there was an identifiable end point to the support the ex-husband was prepared to provide.
2. In considering this aspect, the Tribunal noted at [10] of its reasons that the applicant said that she intended to remain in Australia until her children turned 18. When asked about her means of support, she said "she gets help from her ex-husband, she has money set aside, and her children are beginning to do some work".
3. The Tribunal was evidently aware of the ex-husband's statement and considered it as follows (at [24]):

The applicant's former husband stated in his written submission that he works full time and is not able to look after the children. He declared he continues to financially support the applicant while she cares for the children and pays all their living expenses and school fees. The evidence indicates the applicant's children are now teenagers with the oldest soon to be an adult. Given the applicant recorded her children's residential address as being the same as their father in her visa application, and he continues to support them fully financially, it is clear they have continued a close relationship with him. It may be that the children's father needs to make some after school arrangements for his children if he is employed full-time, but the Tribunal is not satisfied it is necessary for the applicant to remain in Australia as the guardian of the children when their father is onshore.

1. The Tribunal's conclusion that it was not necessary for a mother to remain in Australia with her school-aged children is a curious finding, to say the least. If it is a reasonable finding, it would arguably only be found to be so by the barest of margins. However, that is not how this ground is advanced. What is germane to this ground is that nowhere is there any indication that the Tribunal had regard to the evidence from the ex-husband that his financial support of the applicant and their children would cease once they finish their schooling and turn 18.
2. That is made clear by the Tribunal's following conclusions (at [29]-[30]):

Regarding her economic circumstances, it was submitted the applicant is unable to work in Australia but can work anywhere in Europe as well as access benefits. While this may be the case, the applicant has been and is currently fully supported by her former husband. If she were granted a Student Guardian visa she would be permitted to work in Australia.

The Tribunal is unable to place weight on the representative's claim that the applicant's circumstances will change when her children become adults and she is now divorced. Her former husband has stated in writing that he fully supports the applicant while she is in Australia, notwithstanding they are currently divorced. He has not indicated when or if any change will occur to these arrangements.

1. The Tribunal's finding that the ex-husband had not indicated when or if he would cease financial support is patently wrong. The ex-husband stated in very clear and express terms that his financial support would cease when the children had completed their schooling and turned 18. Indeed, the ex-husband's statement that "this arrangement will end once the kids complete their high school education and turn 18" is the literal antithesis of the Tribunal's finding. Absent any explanation, it can only be concluded that the Tribunal overlooked or ignored this evidence.
2. The Court acknowledges that the Tribunal was not required to uncritically accept this evidence. It was certainly open to the Tribunal to find that the financial arrangement might continue beyond the terms stated by the ex-husband notwithstanding the unequivocal language he used. However, this would require the Tribunal to acknowledge that evidence and indicate why it had reached a different conclusion in spite of that evidence.
3. The Minister contended that the Tribunal had taken a "different construction" of the ex-husband's statement. The Minister said that the Tribunal understood the ex-husband's statement as indicating that he would cease financial support when the children turned 18 and finished high school because the applicant would return to Italy. On this basis, the Minister submitted that the Tribunal's finding should be read as stating that the ex-husband had not indicated when or if any change in circumstances would occur while the applicant remains in Australia.
4. The Court does not accept the Minister's submission. The statement from the ex-husband was direct, succinct and quite clear. The purported construction of the statement was not open to the Tribunal. More importantly, there is simply nothing to indicate that this is what the Tribunal did. The Tribunal decision is entirely silent on the ex-husband's evidence in respect of when the arrangement would end and, in fact, expressly states that there was no indication from the applicant as to when the arrangement would end despite the express words used by applicant's ex-husband.
5. The Court finds that ground one is made out.
6. The Minister further argued that, even if the Tribunal had erred in the manner suggested by the applicant, this could not realistically have made any difference to the final outcome (in the sense identified in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421). This was on the basis that the Tribunal had made other findings which would ultimately preclude any finding that the applicant satisfied the criterion in cl 590.215.
7. The Minister is correct to say that, in order for the error to be jurisdictional, there must have been a realistic possibility that the decision could have been different had the error not occurred. This was considered by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT). In LPDT, the Court explained (at [14]):

The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

1. The High Court further clarified that the threshold for materiality will be met "unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made" (at [16]).
2. In this sense, the Tribunal's ultimate conclusion at [37] is instructive:

The Tribunal assessed the evidence individually and cumulatively. While there are some aspects of the applicant's case that weigh somewhat in her favour such as no evidence of non-compliance and the presence of her children who are students in Australia, on balance the weight of evidence is against the applicant in assessing whether she is a genuine applicant for entry and stay as a student guardian.

1. The Court accepts the Minister's submission that this is not indicative that the matter was finely balanced. However, it is indicative that the Tribunal accepted that it had balanced competing considerations. In that sense, it is not possible to conclude that a potentially different finding in respect of the applicant's financial circumstances would not have produced a different weighing of considerations. In this respect, it is important to bear in mind that the consideration of the relevant factors set out in the Direction is not an exercise in mathematical determinism. Indeed, the Direction itself expressly states that it should not be used as a checklist. A matter such as the applicant's inability to support herself in Australia past the point for which the visa was granted may well have played a determinative part in the Tribunal's deliberation.
2. The Court also observes the High Court's caution in LPDT that "it would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning" (at [36]).
3. Consequently, the Court accepts that there is a realistic and non-fanciful possibility that a proper consideration of the boundaries of the ex-husband's financial support could have led to a different outcome.
4. In the circumstances, the Court accepts that ground one establishes jurisdictional error and that such an error is material in the sense identified in LPDT.

Ground two: did the Tribunal err in finding that the applicant did not intend to stay in Australia temporarily?

1. The applicant advanced this ground on two fronts. Firstly, the applicant submitted that the Tribunal had committed the same error as was identified in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros) in considering whether the applicant intended to stay indefinitely or permanently in Australia. Secondly, the applicant argued that the Tribunal did not properly consider the practical effect of the Student Guardian visa framework.

1. In Eros, the applicant sought to stay in Australia while her daughter was here for a period of approximately two years and the applicant had enrolled in studies for that same length of time to enable her to stay with her daughter. The Federal Court found that the Tribunal made an error in finding that the applicant was using the student visa system to spend more time with family, rather than to study. The Court ultimately found that the Tribunal misdirected itself as to the meaning of the word "temporarily", as there was no dispute that that visa application was only meant to be for the duration of her studies, which therefore satisfied the criteria of a temporary stay. The relevant criteria required the Tribunal to consider whether the intended duration was temporary irrespective of the reason for that temporary stay.
2. The applicant (in this matter) also sought to rely upon a decision of Rangiah J in Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 1645 (Kaur). In Kaur, Rangiah J observed at [59]:

Accordingly, a visa applicant's intention to stay in Australia "temporarily" within cl 500.212 of Schedule 2 is an intention to stay for a limited time. That time will be limited by reference to the fulfilment of a passing purpose, namely completion of a course of study. An intention to stay in Australia "temporarily" may be contrasted with an intention to stay permanently or indefinitely.

1. Counsel for the Minister referred the Court to two decisions of Judge Kendall in Beejadhur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2238 (Beejadhur) and Wu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 797 (Wu). In Beejadhur, Judge Kendall was satisfied (at [97]) that a finding that an applicant was "maintaining ongoing residence" was a clear finding that the applicant did not intend to temporarily remain in Australia. Similarly in Wu, having regard to the Tribunal's approach to the relevant Direction factors, the Court found that the Tribunal's statement in that matter that the applicant may have been "using the student visa migration program as a means of maintaining residence" was a clear finding that the applicant did not intend to stay in Australia temporarily (at [44]).
2. As explained in Wu (at [40]), the Tribunal in this matter was required to be satisfied that the applicant met the criterion for being a genuine applicant for entry and stay because the applicant genuinely intended to stay in Australia temporarily, or to be not satisfied that that was the case. In Wu, Judge Kendall observed that there is a difference between being not satisfied that the applicant meets the criterion of not intending to stay in Australia temporarily and a positive finding that the applicant intends to stay in Australia permanently.
3. In this matter, again having regard to the Tribunal's consideration of the factors in the Direction, the Court similarly finds that the Tribunal's finding at [34] that "the Student Guardian visa is being used to maintain ongoing residence" is equally a clear finding that the applicant did not intend to stay in Australia temporarily.
4. The Court is of the view that the Tribunal's decision does not reveal an error of the kind identified in Eros.

1. The applicant also contended that the Tribunal's finding that the applicant intended to remain in Australia on a non-temporary basis was untenable in circumstances where:
   • The applicant was unable to validly lodge any other visa application beside a further Student Guardian visa.
   • While she remains in Australia, the applicant would be unable to be granted a visa with a stay period beyond 31 December 2028, representing a clear and finite end date.
   • The applicant could only continue to hold any Student Guardian visa granted to her so long as her children continued to meet the definition of a 'nominating student'. The effect of this is that if her children were to cease studying in Australia or cease to hold their student visa, then the applicant's visa would be considered for cancellation.
   • The applicant must actually support her children through their studies as claimed or her visa would be considered for cancellation.
2. However, the Court accepts the Minister's submission that the Tribunal had regard to the submissions of the applicant's representative with respect to the practical effect of the Student Guardian visa framework and, in particular, the submission that there was no possibility for the applicant to stay in Australia indefinitely or for an extended period on that visa. There is no error in the Tribunal's conclusion that the task before it was to assesses the applicant's intentions other than in the context of the application for the Student Guardian visa.
3. In effect, the applicant is arguing that the Tribunal should have placed greater weight on the matters referred to above. This is an invitation to engage in impermissible merits review and does not speak to jurisdictional error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
4. Ground two is not made out.

1. In this matter, the applicant has succeeded in establishing jurisdictional error. Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.