Huang v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1156

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant is a citizen of China. He arrived in Australia on 24 November 2013 as the holder of an Australian student visa (subclass 573), and has remained in Australia since that time, variously as the holder of bridging, student, graduate and visitor visas.
2. On 8 August 2022, the applicant applied for a Visitor (Subclass 600) visa, in which he requested to further stay for up to 12 months. He said that he "would like to travel to the eastern states and look around a few universities" and that he could not do this previously because of COVID-19 border restrictions.
3. On 15 February 2023, the delegate refused to grant the applicant the visa. On 7 March 2023, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate's decision.
4. The Tribunal correctly identified that the issue was whether the applicant satisfied cl 600.211 of Schedule 2 of the Migration Regulations 1994 (Cth), being whether he genuinely intends to stay temporarily in Australia.
5. Clause 600.211 provides:

The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

(a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

(b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

1. The Tribunal found that the applicant was the current holder of a bridging visa. The Tribunal accepted, having regard to the applicant's departmental records, that he has complied substantially with the conditions of all of the visas that he has held since his arrival in Australia on 24 November 2013. The Tribunal noted that the applicant's compliant visa history would be given favourable weight in the assessment of whether he genuinely intends to stay temporarily in Australia.
2. For the purposes of cl 600.211(b), cl. 600.611 relevantly provided:

(1) Subclauses (2) to (4) apply if the visa is a Subclass 600 visa in the Tourist stream.

(2) If the sponsorship described in clause 600.224 has been approved by the Minister, conditions 8101, 8201, 8503, and 8531 must be imposed.

(3) If the applicant was not sponsored in accordance with clause 600.224, and subclause (4) does not apply:

(a) conditions 8101 and 8201 must be imposed; and

(b) conditions 8501, 8503 and 8558 may be imposed.

(4) If:

(a) the applicant is suffering financial hardship as a result of changes in the applicant's circumstances after entering Australia; and

(b) the applicant, or a member of the applicant's immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia; and

(c) for reasons beyond the applicant's control, the applicant, or a member of the applicant's immediate family, cannot leave Australia; and

(d) the applicant has compelling personal reasons to work in Australia;

condition 8201 must be imposed and condition 8503 may be imposed.

1. The Tribunal found that the conditions to which the visa would be subject are conditions 8101, 8201, 8503 and 8531 (applying cl 600.611(2)). It is common ground that this finding is an error, because the applicant was not seeking approval of a sponsor, and did not have an approved sponsorship under cl 600.224.
2. Schedule 8 of the Regulations relevantly provide as follows:

Visa conditions

8101 The holder must not engage in work in Australia.

...

1. (1) While in Australia, the holder must not engage, for more than 3 months, in any studies or training.

...

...

1. The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

...

1. The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

...

1. The holder must not remain in Australia after the end of the period of stay permitted by the visa.

...

1. The holder must not stay in Australia for more than 12 months in any period of 18 months.

1. The Tribunal accepted the applicant's evidence at the hearing that he does not intend to work or study whilst on the visa.
2. In relation to condition 8531, the Tribunal found the applicant's evidence about not remaining in Australia after the end of the permitted stay to be unconvincing, and had doubts that he would depart at the end of the permitted stay, particularly if a visa was granted which he considered was of insufficient length for him to complete his entire travel itinerary. The Tribunal had regard to his compliant visa history, but was ultimately not satisfied that the applicant intended to comply with condition 8531.
3. The Tribunal also found the applicant's evidence about his intention to not apply for a partner visa unconvincing. The Tribunal was not satisfied that the applicant would comply with condition 8503 if it were imposed, finding that his marriage in October 2023 to an Australian citizen strongly suggests an intention to apply for a partner visa and remain permanently in Australia.
4. The Tribunal considered that there were significantly more incentives to the applicant to stay indefinitely and permanently in Australia, rather than to depart Australia at the end of the visa. The Tribunal found that even though the applicant had been compliant with his previous visas held, he has not departed at the end of any of them, and has reapplied for a new visa on every occasion a temporary visa has ceased. The Tribunal considered that the applicant's uninterrupted residence in Australia strongly suggest that he had no intention of returning permanently to China, even before he was married.
5. The Tribunal found that the applicant was using the visitor visa application to extend his residence in Australia beyond a period which could reasonably be considered to be a temporary stay. It did not accept his evidence at the Tribunal hearing, that he would definitely return to China in about one or two years, or that he has a genuine intention to depart Australia at all.
6. The Tribunal was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal found that the requirements of cl 600.211 were not met.
7. On 18 April 2024, the applicant applied for review of the Tribunal's decision in this court.
8. There are two grounds of review. The first ground concerns the Tribunal's error in applying cl 600.611(2). The second ground alleges that the Tribunal's finding that it was not satisfied the applicant would comply with condition 8503 is illogical.

1. It is common ground that the Tribunal ought to have applied cl 600.611(3), and the Tribunal erred by applying cl 600.611(2). This resulted in the Tribunal considering four visa conditions as mandatory, one of which, condition 8531, did not apply at all. In my opinion, this error also resulted in the Tribunal entirely failing to consider discretionary conditions 8501 and 8558, that may be imposed.
2. The issue is whether the Tribunal's error was material. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[1] the plurality of High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) said:[2]

[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non-compliance.

...

[9] Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.

[10] The enquiry posited by each question is wholly backward-looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious.

[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.

[15] ... Importantly, a Court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained...

[16] In sum, 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, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

1. In LPDT, the High Court found that the Full Court of the Federal Court erred in applying these principles when it found that the Tribunal had made errors in giving consideration to factors relevant to the decision, but dismissed the appeal on the basis that the error was not material. The plurality said:

[29] Having found the Tribunal so erred, the Full Court then identified other aspects of the Tribunal's reasons as bases for assuming that the Tribunal would have adopted a different process of reasoning to the same end and, on that basis, concluded that the error was not material. By way of example, the Full Court reasoned that, 'even if the Tribunal had concluded that subparagraph (a) was entirely irrelevant and moved on', the Full Court did not consider that there was a 'realistic possibility' that the Tribunal could have found the appellant's conduct to be merely 'serious' in considering the nature and seriousness of his conduct under paras 8.1(2)(a) and 8.1.1(1), or that the weighing exercise under para 8.1.1(1) could have had a 'favourable outcome' for the appellant even if the Tribunal did assess his conduct to be 'serious'. Both of these findings involved the Full Court making assumptions about how the Tribunal would have undertaken the weighing exercise of the matters in para 8.1.1(1). Such approaches should not be adopted. A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision."[3]

...

[32] ... The starting point is the nature of the error ... The question was whether the decision that was in fact made by the Tribunal could, not would, "realistically" have been different had there been no error. The answer to that question, in this appeal, is to be determined from the face of the Tribunal's reasons.

...

[36] 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 in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met. None of the facts before the court provided a basis to consider that the outcome would inevitably have been the same had the error not been made. The error was jurisdictional. The curial relief sought by the appellant should be granted.

1. The applicant has submitted that the proper application of cl 600.211(b) required the Tribunal to consider whether the applicant would comply with conditions 8101 and 8201. It is submitted that the requirement to have regard to whether the applicant intends to comply with the conditions to which the visa would be subject meant that the Tribunal was constrained to consider only the mandatory conditions, and not the discretionary conditions, citing Krummrey v Minister for Immigration and Multicultural and Indigenous Affairs.[4]
2. I do not accept this submission. I accept the Minister's submission that Krummrey does not support the applicant's contentions, and is otherwise distinguishable from the legal and factual circumstances of this matter. I accept the Minister's submission that it is a matter for the Tribunal to consider whether an applicant intends to comply with the conditions to which the visa would be subject, whether mandatory or discretionary.[5]
3. I accept that the use of the future conditional tense in cl 600.211(b) requires a decision-maker to determine what the likely conditions of a visa are, and then consider whether the applicant intends to comply with them. That does not preclude the consideration of discretionary conditions, and the flexibility given to the consideration of whether an applicant genuinely intends to stay temporarily in Australia by way of the decision-maker's ability to take into account any other relevant matter pursuant to cl 600.211(c).
4. In this case, the nature of the Tribunal's error was that rather than conditions 8101, 8201, 8503 and 8531 being mandatory visa conditions, the Tribunal was required to conduct the review on the basis that conditions 8101 and 8201 must be imposed, and conditions 8501, 8503 and 8558 may be imposed.
5. I accept the Minister's submissions in relation to condition 8503. Although the Tribunal treated the condition as a mandatory one, it is a discretionary condition that may be imposed pursuant to cl 600.611(3)(b). Even though the Tribunal erred in the mandatory application of the condition, I do not consider that the Tribunal erred in considering and assessing condition 8503.
6. However, the Tribunal's error in wrongly applying cl 600.611(2) meant that consideration of condition 8531 was irrelevant. It is not a condition that could be imposed upon the visa at all. The Minister accepts this error, but submits it was not jurisdictional because it was immaterial to the outcome, condition 8531 requiring the holder of the visa to not remain in Australia after the end of the period of stay permitted by the visa.
7. However, further in my opinion, the Tribunal's error also meant that it considered the conditions to which the visa would be subject without an appreciation that conditions 8501 and 8558 may be imposed. These relevantly involved the visa holder being required to maintain adequate arrangements for health insurance whilst in Australia, and being required to not stay in Australia for more than 12 months in any period of 18 months.
8. The assessment of whether an applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted requires the Tribunal to "have regard to" a number of factors. None of the factors in cl 600.211 are necessarily determinative in and of themselves, because the assessment is an overall one that requires the Tribunal to have regard to each of the factors, including any matter it considers to be relevant.
9. In my opinion, the Tribunal's error meant that it proceeded on an entirely incorrect footing as to what conditions the visa would be subject, which in turn affected the consideration of what the conditions were, and whether the applicant intended to comply with them. This went on to affect the overall assessment by the Tribunal as to whether the applicant genuinely intends to stay temporarily in Australia as a visitor.
10. I do not accept the Minister's submission that the Tribunal's error is capable of being resolved through the application of the Tribunal's ability to have regard to any other relevant matter. Cl 600.211(a) and (b) are discrete matters and more particularly, cl 600.211(b) is directed to conditions which the visa would be subject. The Tribunal's error meant that the evaluative assessment requiring regard to be given to the conditions to which the visa would be subject occurred pursuant to an incorrect process of reasoning, with the result that an inapplicable condition was considered, two potentially applicable conditions were not considered, and all of the conditions were considered as mandatory, when not all of them were.
11. I do not accept the Minister's submission that these errors are not material, because in my opinion that would reconstruct the decision-making process and rework the basis for the Tribunal's decision, in a way that makes dismissive assumptions about the visa conditions, including those that were not taken into account at all and could have been, in a way that it is not open for me to do so. As the plurality in LPDT made plain, a reviewing court should not make assumptions about how the Tribunal would have undertaken the weighing exercise.
12. Although the Tribunal's assessment of whether the applicant had a genuine intention to stay temporarily in Australia was detailed and multifaceted, in my opinion it took place against the backdrop of a fundamental misconception, being the conditions that the visa would be subject.
13. The applicant must establish materiality, but that threshold is not demanding or onerous. I am unable to conclude that the outcome would inevitably have been the same had the Tribunal not made the error that it did.
14. In my opinion, the error in misapplying cl 600.611(2) permeated the decision-making process and is material.
15. Ground 1 is made out.

1. Ground 2 complains that the Tribunal's finding that the applicant would not comply with condition 8503 was illogical.
2. Condition 8503 provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
3. It is a condition that may be imposed, pursuant to cl 600.611(3)(b).
4. As I have set out in Ground 1, the Tribunal was not satisfied that the applicant would comply with condition 8503, finding that his circumstances strongly suggest an intention to apply for a partner visa and remain permanently in Australia.
5. The essence of this ground is that the Tribunal's finding was illogical as condition 8503 cannot be complied with and cannot be scrutinised for compliance as it is beyond the applicant's intention or control.
6. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, the Full Court of the Federal Court said:

[33] The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647-650 [130]-[135]; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496 at 517 -518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].

[34] The task in assessing illogicality is not an exercise in logical dialectic. "Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case": SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

[35] Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20 -21 [38]; Re Minister for Immigration &Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

1. The applicant has attempted to distinguish condition 8503 from other visa conditions for the purposes of the Act and Regulations. It is submitted that conditions under s 41(2)(a) of the Migration Act 1958 (Cth) are strict prohibitions and are distinct from conditions made under ss 41(2)(b) or 41(3) of the Act, and that they are put in place purely to limit any future visa applications a visa holder may make.
2. I do not accept the applicant's submissions.
3. Section 41(1) of the Act provides that the Regulations may provide visas of a specified class be subject to specified conditions. Section 41(2) goes on to set out, without limitation, conditions that that the Regulations may provide visas are subject to.
4. Regulation 2.05 sets out that for subsection 41(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2, subject to sub-regulation (2). Regulation 2.05(2) provides that for s 41(3) of the Act, the conditions that the Minister is permitted to impose on a visa are the conditions (if any) specified as permitted for that Subclass of visa in Schedule 2.
5. Section 41(3) provides that in addition to s 41(1) or s 41(2B) the Minister may specify that a visa is subject to such conditions as are permitted by the Regulations for the purposes of the subsection.
6. Section 41(2A) provides that the Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph 2(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
7. In Trinh v Minister for Immigration, O'Dwyer FM said:[6]

In my view, the language of ss.41(2A) supports the contention of the Respondent that ss.41(1) and 41(2)(a) should be read together and that ss.41(2) is a subset of ss.41(1). Subsection 41(2A) clearly draws a distinction between ss.41(2) and 41(3) and caters for a formal process to waive mandatory conditions that would otherwise apply to a specified class of visa.

1. Although condition 8503 is expressed as a bar to the grant of a substantive visa, other than a protection visa, while the holder remains in Australia, I do not consider that the Tribunal erred in having regard to whether the applicant intended to comply with the condition.
2. The Tribunal incorrectly proceeded on the basis that condition 8503 was mandatory and not discretionary, but it is a matter for the Tribunal to assess what discretionary conditions may be imposed.[7] The Tribunal clearly set out its analysis of why it was not satisfied that the applicant would comply with the condition.
3. I also accept the Minister's submission that whilst condition 8503 may be regarded as a prohibition, that does not exhaust the regard that the Tribunal is required to have, under cl 600.211(b). I accept that each visa condition in cl 600.611 is an independent subset to the Tribunal's overall consideration under cl 600.211.
4. In my opinion, the Tribunal was entitled to take into account the applicant's evidence about his marriage and his life circumstances in Australia, and have regard to and make findings about whether he intended to comply with condition 8503, in the context of an intention to apply for a different category of visa, being a partner visa, and seek to remain permanently in Australia. I do not consider that the Tribunal's decision is illogical, and I do not consider the Tribunal made any error in this regard.
5. In my opinion, Ground 2 has not been made out and I dismiss this ground.

1. As Ground 1 has been made out, I will make orders quashing the Tribunal's decision, and issuing a writ of mandamus to it, requiring it to determine the application according to law.
2. I will hear the parties as to costs if necessary.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris.

[1] [2024] HCA 12; (2024) 98 ALJR 610.

[4] [2005] FCAFC 258; (2005) 147 FCR 557 at [29].

[5] Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1467 at [15]; NBGK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 560 at [21].

[6] [2004] FMCA 945 at [19].

[7] Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCA 483 [2022] FCA 483 at [42] - [44].