Gu v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1745

1. On 8 May 2019 the Tribunal issued its statement of decision and reasons (Tribunal Decision).
2. At paragraph [3] of the Tribunal Decision, the Tribunal noted that the issue before the Delegate was whether the applicant was a genuine temporary entrant pursuant to cl 500.212 of sch 2 of the Regulations of which it could not be satisfied.
3. At paragraphs [4] - [9] of the Tribunal Decision, the Tribunal summarised the procedural history in relation to the s 359 Invitation and the extension of time granted to the applicant to provide a response to the s 359 Invitation. The Tribunal found that the applicant did not provide a response to the s 359 Invitation within the prescribed period or within the time as extended. In those circumstances, the Tribunal noted that s 359C of the Act applied and pursuant to s 360(3) the applicant was not entitled to attend a hearing and pursuant to s 363A, the Tribunal had no power to permit him to appear. In those circumstances, the Tribunal proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.
4. At paragraphs [11] - [14] of the Tribunal Decision, the Tribunal set out the relevant law, including the requirement of cl 500.212(a). Clause 500.212(a) of sch 2 of the Regulations required the Tribunal to be satisfied that the applicant was a genuine temporary entrant.
5. At paragraph [16] of the Tribunal Decision, the Tribunal identified and had regard to the documents provided to the Department by the applicant, including the applicant's:
   • Visa application;
   • Bridging Visa Grant Notice and the confirmation of same;
   • high school graduate certificate and translation;
   • passport extracts;
   • Diploma of Interpreting;
   • Genuine Temporary Entrant Statement (GTE Statement);
   • Academic Diploma and transcript of Cambridge International College;
   • evidence of health insurance;
   • Delegate's decision record; and
   • notification of refusal by the Delegate.
6. At paragraphs [17] - [28] of the Tribunal Decision, the Tribunal summarised the applicant's GTE Statement, noting the applicant's course enrolment at the time of the Visa application and found that there was no evidence before the Tribunal that would indicate whether the applicant continued his study after the Delegate's decision was made. The Tribunal considered the applicant's study history (noting a gap in his study between September 2011 and October 2012), his reasons for study and his personal ties to his home country. The Tribunal subsequently made a number of findings, including that:

(1) it could not assess whether the applicant had a reasonable reason for not undertaking study in his home country;

(2) the applicant's personal ties to his home country were not so significant as to incentivise his return;

(3) the applicant's Visa application may have been primarily motivated by general economic opportunities in Australia rather than for the educational opportunities as noted in the application;

(4) the applicant's proposed study would not assist him in obtaining employment or improving his prospects of success in his home country; and

(5) noting the applicant arrived in Australia in 2010, the Tribunal was concerned that the Visa may be utilised as a mechanism to maintain his ongoing residence in Australia.

1. At paragraphs [29] - [31] of the Tribunal Decision, the Tribunal noted that the applicant largely relied on previous assertions and evidence and it could not accept those assertions and claims regarding the applicant's intention to genuinely stay in Australia on a temporary basis and as such found that the applicant did not meet cl 500.212(a).
2. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa.

1. The applicant applied for judicial review of the Tribunal Decision on 21 May 2019. The Application contained the following grounds for judicial review (without amendment):

Ground 1: The AAT decision record and reasons does not reflect a proper analysis and consideration of the applicant's case.

Ground 2: The Tribunal made its decision without consider the Applicant's individual circumstances and made its own assumption.

1. In support of the applicant's Application for judicial review, the applicant filed an affidavit on 21 May 2019 annexing a copy of the Tribunal Decision (Affidavit in Support). In that affidavit, the applicant raises an additional ground for judicial review (without amendment):

...

1. I was not aware of the hearing date for the AAT hearing and I was not given an opportunity to give evidence before the Tribunal, as well as that the Tribunal did not consider my individual merits.

...

1. At the hearing, the applicant sought leave to rely on written submissions and an affidavit dated 18 September 2025. The outline of submissions contained the following additional grounds for judicial review (without amendment):

Ground 1: Procedural Fairness

1. In January 2019, the Tribunal sent a notice under s 359C of the Migration Act to my migration agent.

2. I never personally received or properly understood this notice.

1. At that time, my English was very limited and I had no knowledge of the law. I relied completely on my migration agent.

2. The agent did not explain the contents of the notice or what the consequences would be if I did not respond.

3. Because of this, I lost the chance to attend the hearing, to speak for myself, and to give supporting evidence.

4. This meant I did not get a fair hearing. I was denied a real opportunity to be heard.

Ground 2: Unreasonableness and Illogicality

1. The Tribunal accepted that I had already completed more than 60% of my Bachelor of Accounting.
2. Even so, the Tribunal decided I was not a genuine student.
3. This finding was unreasonable because:
   • My study record showed consistent progress in my chosen course.
   • The Tribunal itself noted the course was relevant to my future career.
   • Yet it still said my study was not genuine. These statements contradict each other.
4. The Tribunal placed too much weight on a study gap in 2011-2012, without taking into account possible explanations such as financial or health difficulties.
5. The Tribunal also relied on the fact that I had been in Australia for a long time. But many international students spend several years in Australia, moving from English language courses into higher education. This should not be seen as negative.
6. Overall, the Tribunal's findings were not supported by the evidence. The decision was unreasonable and illogical.

1. At the hearing, the applicant confirmed that he no longer sought to press the grounds of judicial review contained in his Application. Instead, the applicant relies on the grounds of review in the outline of submissions and affidavit in support.
2. The Minister did not oppose the applicant's reliance on the grounds for judicial review contained within the outline of submissions and affidavit in support.

1. The hearing took place on 22 September 2025.
2. The applicant appeared on his own behalf with the assistance of an interpreter in the Mandarin and English languages. The Minister was represented by Mr McDonald, solicitor for Clayton Utz.

1. A "privative clause decision" as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal's decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76].
2. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [175].

1. By Ground 1, the applicant submits that he never "personally received or properly understood" the contents of the s 359 Invitation and therefore was denied procedural fairness. He submits that his representative did not explain the content of the s 359 Invitation to him nor did his representative explain what the consequence of failing to respond were. He submitted that at the time he had limited English and had no knowledge of the law. Further, the applicant submits that the Tribunal denied the applicant procedural fairness by failing to invite him to a hearing.
2. For the following reasons those submissions must be rejected.
3. Section 357A of the Act (as it was at the relevant time) was headed "Exhaustive statement of natural justice hearing rule" and provided, relevantly, as follows:

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

...

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

1. Accordingly, pursuant to s 357A(1) of the Act, Division 5-Part 5 of the Act (Division 5) is "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". As such, notions of common law procedural fairness do not apply in relation to the matters Division 5 deals with; although there can be no doubt that the Tribunal is required to apply the provisions of Division 5 in a fair and just way.
2. The Tribunal complied with its procedural fairness obligations under Division 5 of the Act because, as submitted by the Minister:

(a) the Tribunal invited the applicant to provide information by sending the s 359 Invitation to the last email address in connection with the review, being that of the applicant's representative; (ss 379A(5)(b), (d), 379C(5)): s 359;

(b) in its s 359 Invitation, the Tribunal put the applicant on notice that it required the information as it was a requirement for the grant of the Visa that the applicant was a genuine applicant for entry and stay in Australia as a student, and provided a time period and specific way in which the information is to be provided, being the completion of a linked form, 'Request for Student Visa Information', by 31 January 2019: s 359B;

(c) in its s 359 Invitation, the Tribunal put the applicant squarely on notice that if he did not provide the information within the time specified (or extended), it may make a decision on the review without taking further action to obtain the information, and that he would (in bolded text) lose any entitlement he might otherwise have had to appear at a hearing: s 359C(2);

(d) as the applicant did not provide a response to the s 359 Invitation by 14 February 2019, the period as extended, the Tribunal was entitled to make a decision on the review without taking any future action to obtain the information pursuant to s 359C(1);

(e) as s 359C(1) applied to the applicant, the applicant was not entitled to appear before the Tribunal: s 360(3); and

(f) as the applicant was not entitled to appear before the Tribunal, the Tribunal did not have the power to permit the applicant to appear before it: s 363A; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 at [29] per Jacobson, Gilmour and Foster JJ.

1. Accordingly, insofar as Ground 1 submits that the Tribunal erred by not sending the s 359 Invitation to the applicant personally and/or failing to hold a hearing, that ground must fail.
2. As to the contention that the applicant's representative did not explain the contents of s 359 Invitation or the consequences of failing to comply, this does not establish error on the Tribunal's behalf. Even if it be accepted that the applicant's representative did not explain the content and consequences of the s 359 Invitation as contended for by the applicant, at best, this might establish negligence on the representative's behalf. Mere negligence is not capable of stultifying or vitiating the Tribunal's processes and does not disclose error: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.
3. Finally, as to the contention that the applicant had limited English and no knowledge of the law, these matters also do not disclose any error by the Tribunal. Indeed, it is the case that a great many visa applicants have limited English language skills and no knowledge of the law.
4. Ground 1 does not disclose any jurisdictional error on the Tribunal's behalf.

1. By Ground 2, the applicant submits that the Tribunal Decision was "unreasonable" and "illogical" because:

(a) he had already completed 60% of his Bachelor's degree and therefore he demonstrated consistent progress in his chosen course; and

(b) the Tribunal noted the course of study was relevant to his future career.

1. In this context, the applicant repeatedly submitted that the Tribunal unreasonably and illogically found that he was not a genuine student.
2. The applicant also submitted that the Tribunal placed too much weight on his study gap in 2011 - 2012, without taking into account possible explanations and relied on the fact that he had been in Australia for a long time.
3. As to the applicant's submission that the Tribunal unreasonably and illogically found that he was not a genuine student, these submissions are misconceived. At issue before the Tribunal was whether the applicant was a genuine temporary entrant, not whether he was a genuine student.
4. Clause 500.212 provides as follows:

The applicant is a genuine applicant for entry and stay as a student 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) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, 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. In considering whether an applicant satisfies cl 500.212, the Tribunal must have regard to Direction 69, which is issued by the Minister pursuant to s 499(1) of the Act.
2. Direction 69 requires the Tribunal to have regard to certain specified factors in relation to:
   • the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
   • the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
   • if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
   • any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
3. Direction 69 is a guide only and contains factors that should be considered, not factors that must be considered: Kaur v Minister for Home Affairs [2019] FCA 2026 (Kaur) at [30].
4. The Tribunal's consideration of cl 500.212(a) was extensive and I discern no error in the Tribunal's approach to its consideration of the matters contained in cl 500.212(a) and Direction 69.
5. Having considered all of those matters, based on the material before it, the Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily and accordingly concluded that the applicant did not meet cl 500.212(a). I consider that finding was reasonably open to it on the material before it. It is neither unreasonable nor illogical.
6. As to the applicant's further submissions in Ground 2:

(a) at paragraph [18] of its decision, the Tribunal notes that the applicant says he had completed 60% of the units in the Bachelor's degree;

(b) at paragraph [25] of its decision, contrary to the applicant's submission, the Tribunal said that it was not persuaded that the applicant's proposed study would assist him to obtain employment or improve his prospects of doing so in his home country;

(c) at paragraph [23] of its decision, the Tribunal considered the applicant's immigration history and his length of stay in Australia, pursuant to cl 500.212(a); and

(d) at paragraph [21] of its decision, the Tribunal notes that the applicant had a study gap between 6 September 2011 and 15 October 2012, was enrolled in five courses during this time, that all five enrolments were cancelled and there was no explanation provided as to why the applicant could not study during this period.

1. The weight to be placed on these factors is a matter for the Tribunal and the Tribunal is not required to make the applicant's case for him: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]; Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [49]. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to inquire: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. It is for the applicant to put before the Tribunal material the applicant wishes the Tribunal to consider. The factors in Direction 69 which the Tribunal must take into account are those which have been the subject of substantial, clearly articulated claims made by the applicant: Kaur at [31]. Further, having found that the applicant did not meet the GTE criteria in cl 500.212(a), the Tribunal was not required to consider the criteria in cl 500.212(b) and (c): Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 at [31] - [32] (Jagot, Bromwich and Lee JJ).
2. Accordingly, Ground 2 discloses no jurisdictional error on the Tribunal's behalf.

1. To the extent that the applicant submits that he was not aware of a hearing date before the Tribunal and was not given an opportunity to give evidence before the Tribunal, I refer to and repeat my comments set out above at paragraphs [31] - [34].
2. Insofar as the applicant submits that the Tribunal did not consider the applicant's "individual merits", that ground must also fail. At the hearing the applicant was unable to particularise what "merits" he says the Tribunal failed to consider, repeating that he did not receive the s 359 Invitation. As to these submissions, I refer to and repeat my comments set out in paragraphs [31] - [34].
3. The grounds raised in the affidavit in support do not disclose any jurisdictional error on the Tribunal's behalf.

1. For the reasons set out above, the Application must be dismissed.
2. The Minister seeks that the applicant pay its costs in accordance with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). I shall order that the applicant pay the Minister's costs in the fixed amount of $9,097.93.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.