Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1064

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(f) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28] (Li); Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicants that this was not an exhaustive list and they should tell the Court what they believe the Tribunal did wrong. In response, the applicant told the Court that she came here to study in 2008 but her circumstances are now different and she needs to stay in Australia for her children who are citizens.
2. The Court reminded the applicant that it does not have the power to grant a visa and asked her again if there was anything wrong about the Tribunal's decision. The applicant said that she needs to do more study in Australia and that the Tribunal's decision was not fair because she needs a visa.
3. The Court drew the applicant's attention to the written grounds in her application and invited her to expand upon what she meant about not getting a fair decision from the Tribunal. The applicant said it was because the Tribunal had determined she was only studying in order to extend her stay. The second applicant was invited to but did not expand upon the applicant's oral submissions.

1. The application for judicial review is set out above. Although containing recognisable grounds of jurisdictional error, the application largely takes a narrative approach to something more closely resembling submissions. This is not uncommon with self-represented applicants, and the Court recognises the difficulties litigants-in-person often have in articulating their arguments. Having regard to this, the Court has endeavoured to interpret those grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). In this respect, the Court was greatly assisted by the Minister's submissions which identify and address the grounds which emanate from the applicants' application. The Court has adopted a similar approach in its consideration of the complaints raised by the applicants with respect to the Tribunal's decision.

Did the Tribunal fail to consider the courses which the applicant had completed in Australia?

1. At paragraph four of her application, the applicant contends that the Tribunal did not take into consideration the study she had already completed during her stay in Australia.
2. As correctly observed by the Minister, the Tribunal expressly referred to the applicant's educational history in Australia at [16] and [18] of its decision, including a number of courses which the applicant refers to in the grounds of her application. In assessing whether the applicant met the genuine temporary entrant criterion, and in accordance with the Direction 69 guidelines, the Tribunal summarised the history and considered the value of those courses at [22]-[24]. It is thus clear that the Tribunal did indeed consider the applicant's study history in reaching its findings.
3. No jurisdictional error arises in respect of this ground.

The applicants claim they did not receive a fair Tribunal decision and request that the Court reconsider their case

1. At paragraph five of her application, the applicant asks the Court to reconsider her case as she did not get a fair decision from the Tribunal.
2. Taken at its highest, the Minister submitted that this could be interpreted as an allegation that the Tribunal's decision was biased. The Court accepts that a broad reading of an allegation of an "unfair hearing" aligns with a ground alleging bias. However, the Court also accepts the Minister's submission that, in the absence of any particulars to support the applicant's claim, such an allegation has not been distinctly made or clearly proved (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). Counsel for the Minister acknowledged the applicant's claim in oral submissions that the Tribunal decision was not fair because they need the visas. The Minister submitted that needing a visa is not a reason for a ground of bias and that it should be rejected. The Court agrees that the applicants have not met the threshold required for establishing a ground of bias in respect of the Tribunal's decision.
3. The Minister further submitted that the Tribunal's reasons are fair and balanced, having regard to the applicant's oral and documentary evidence and the relevant factors in Direction 69. In particular, the Minister cites paragraph [30] of the Tribunal's decision as an example of a fair and balanced finding wherein the Tribunal accepted that the Graduate Diploma of Management is a higher level course and did in fact reveal academic progression with respect to the applicant's studies. The Court has reviewed the Tribunal's reasons and agrees that there is nothing in the Tribunal's decision to suggest it did not make a fair decision.
4. To the extent that the applicant asks the Court to reconsider their case, the Court accepts the Minister's submission that this an invitation for the Court to engage in impermissible merits review and should be refused (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36).
5. No jurisdictional error arises in respect of this ground.

Did the applicants receive a fair opportunity to provide oral evidence at the Tribunal hearing?

1. At paragraph six of the application, the applicant contends that she was not given a fair opportunity to present oral evidence to the Tribunal and that she was denied her right of review by the Tribunal.
2. Interpreting this ground as an allegation that the applicant was denied procedural fairness, the Minister submits that this ground is not made out. The applicants were invited to appear before the Tribunal to give evidence and present arguments pursuant to s 360(1) of the Act. The Tribunal decision and hearing record indicate that the applicants attended that hearing along with their appointed representative and with the assistance of a Punjabi interpreter, but that only the primary applicant gave oral evidence at the hearing (CB 152, 160).
3. The Minister submitted that the Tribunal clearly considered the applicant's oral evidence, in particular, with respect to her employment in an Indian restaurant and at a nursing home (at [19]), her decision to remain in Australia because of COVID-19 travel restrictions (at [32]), and with respect to the two properties back in India and how those properties are being used (at [39]). This is noted throughout the Tribunal's reasons at the aforementioned paragraphs.
4. The applicant asserts that she mentioned the visa criteria in her hearing statement and that she provided all the relevant and necessary evidence at the hearing. The Minister acknowledged that the applicants provided a statement addressing the genuine temporary entrant criterion with their initial visa application, that they responded to the Request for Student Visa Information form, and that the primary applicant gave oral evidence at the Tribunal hearing. However, the Minister submitted it was a matter for the Tribunal as to how it assessed and what weight it attributed to that evidence (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]).
5. It is apparent to the Court that the applicants were given ample opportunity to provide oral evidence at the Tribunal hearing in addition to their previous statements and responses. Further, it is clear from the Tribunal's decision that it considered that evidence. In the absence of any evidence to suggest otherwise, the Court finds that the Tribunal complied with its procedural fairness obligations and no error arises with respect to the Tribunal's findings.
6. No jurisdictional error arises in respect of this ground.

1. At paragraph seven of the application, the applicants contend that the decision of the Tribunal is "short and void" and should be overlooked.
2. Counsel for the Minister helpfully noted that the copy of the Tribunal decision filed in the Court Book contained only 9 of 15 pages due to an administrative error. The Minister rectified this by filing an affidavit on 28 May 2025 which annexes a complete copy of the Tribunal decision. In any event, the missing six pages relate only to the replication of the Direction 69 guidelines which the Minister submitted the applicant had already been provided with and was on notice about at the time of delegate's decision. The Court accepts that no jurisdictional error arises from this administrative oversight.
3. With respect to the length of the Tribunal's reasons, brevity alone is not indicative of jurisdictional error (Fang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2455 at [19]). What matters is whether the Tribunal's reasons display an intellectual engagement with the claims and material that have been submitted before it.
4. As discussed earlier in these reasons, it is clear that the Tribunal had appropriate regard to the evidence before it and assessed that evidence properly in light of the Direction 69 guidelines. The applicants have not advanced any particulars to suggest how the Tribunal's findings should fail in this respect. In that light, the Court finds that the Tribunal's decision is neither short nor "void" of intellectual consideration, and in fact contains a comprehensive analysis of the applicants' oral and documentary evidence.
5. No jurisdictional error arises in respect of this ground.

Were the applicants denied 'substantial justice'?

1. At paragraph eight of the application, the applicants contend that "substantial justice was not provided" and this is the reason they have applied to this Court.
2. To the extent that this ground is a complaint about the "statutory exhortations or aspirations" of the Tribunal, the Minister submitted that this does not amount to a failure of the Tribunal to perform its statutory duty (citing Li at [98] per Gageler J as he then was), and in event, lacks sufficient particularity to succeed. There is clearly force to that submission in the absence of any clarification to this ground either in written submissions or at the hearing of this matter.
3. Further, counsel for the Minister, whose client is subject to a direction to behave as a model litigant, submitted she had independently reviewed the Tribunal decision herself and was otherwise unable to find any legal error in the Tribunal's decision. It is also not evident to the Court that a denial of substantial justice, or any other potential arguable error, arises in respect of the Tribunal's decision.
4. No jurisdictional error arises in respect of this ground.
5. The Court is satisfied that, even adopting the broad approach referred to in [48] of these reasons, no jurisdictional error is apparent. At the hearing, the applicants told the Court that now that they have had children, they wish to remain in Australia for them. That is entirely understandable and the Court empathises with their situation. However, the Court has been unable to ascertain any jurisdictional error either arising out of their application or independently.

1. The application for judicial review, supporting affidavit and any additional submissions advanced by the applicants at the hearing have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

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