Kaushal v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 991

1. The applicants filled out the Request for Student Visa Information form and returned it to the Tribunal. The completed form provided limited information about the applicant's travel, study, visa and work history. It provided no information in the sections of the form concerning:

(a) the applicant's current and proposed courses of study;

(b) the applicant's living expenses;

(c) the applicant's community ties in Australia;

(d) the applicant's community ties in India; and

(e) the applicant's expected remuneration, utilising the qualifications he hoped to attain, upon returning to India.

1. The applicant's representative later sent to the Tribunal a course description for the Diploma of Leadership and Management.
2. The Tribunal conducted a hearing of the review application on 22 February 2021. On 28 April 2021, the Tribunal decided to affirm the decision not to grant the applicants visas.

1. In its reasons, the Tribunal noted that the criteria in cl 500.211 to cl 500.218 of sch 2 of the Regulations had to be satisfied by at least one of the applicants.
2. The Tribunal then set out the terms of cl 500.212 of sch 2 of the Regulations (which is set out above) and summarised the content of the Direction (which is summarised above).
3. After setting out the dates of birth and arrival into Australia of each of the applicants, the Tribunal turned, at [14] of its reasons, to the times the applicant had returned to India, which the Tribunal recorded as having occurred in 2011, and twice in 2013.
4. That contrasted with the completed Request for Student Visa Information form, which only referred to a four-week trip in January 2011.
5. The Tribunal recorded at [15] that the applicant said he could not afford to pay for return trips to India for three people, and that was a reason why he had not travelled there on a regular basis since 2013. The Tribunal also recorded, at [16], the applicant's distress at his mother having passed away from a form of cancer in March 2020.
6. The Tribunal went on at [19] as follows:
   1. The first named Applicant has not returned to India on a regular basis since his arrival in Australia. The evidence suggests that it is unlikely that he has close community ties as he has lived in Australia for so long.
7. The Tribunal noted at [21] the applicant's lack of assets in India and observed that he appeared desperate at the hearing to remain in Australia due to his family's financial situation in India. The Tribunal said at [22]:
   1. The Tribunal finds that the first named applicant does not have significant economic and family ties to his home country which will serve as an incentive to return to his home country to live after the completion of his course. The Tribunal places weight on those factors against the applicant's case.
8. The Tribunal proceeded to recite the applicant's visa and study history, and recorded, at [40], that the applicant had worked very hard for an employer when he had been the holder of a 457 visa, and had been upset that his employer did not deliver on his promise to help the applicant apply for a permanent visa.
9. The Tribunal noted that the applicant had wished to remain in Australia permanently, and that when he was asked what he hoped to achieve with his proposed studies, he had been unclear. The Tribunal also noted that the applicant had cancelled his proposed course of study.
10. The Tribunal went on (at [68] and [69]) as follows:
    1. The Tribunal's strongly held view is that the first named applicant is motivated to remain in Australia to work until he can find a pathway to a more permanent arrangement. The Tribunal is not satisfied, in his circumstances, considering his visa history and the time he has spent in Australia, 12 years, indicates that he considers residing in Australia to be temporary. Although he has visited his home country on 3 occasions the applicant has spent most of his adult life living in Australia.
    2. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. The applicant demonstrated an intention to remain in Australia but did not articulate a lawful means of doing so outside of the student visa program at the moment, It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia. The tribunal places a lot of weight on those facts against the applicant's case.
11. At [72]-[74], the Tribunal concluded as follows (emphasis in the original):
    1. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
    2. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
    3. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
12. At [75] the Tribunal affirmed the decision not to grant the applicants the student visas.

1. It is convenient to set out the stated ground in the application again:

The member fell into jurisdictional error because they took into account an irrelevant consideration because

A: In paragraph 14 & 15 she put a lot of emphasis not traveling to India. As we are a family of three and my mother was fighting cancer and there was no such circumstances that I can afford to go and I tried to help with the treatment and she said that I have no strong ties where she lacked to understand my situation.

1. The ground contained in the application alleged that the Tribunal erred by taking into account an irrelevant consideration, being the fact that the applicant had not travelled to India. It alleged that the Tribunal member put a lot of emphasis on that fact when the applicant could not afford to travel to India but had instead tried to help with his mother's treatment. The ground also alleged that the conclusion of the Tribunal that the applicant lacked strong ties showed the Tribunal failed to understand his situation.
2. In the Applicants' Outline of Submissions dated 13 March 2025 filed in support of his application, the applicant characterised the Tribunal's error as one of failing to take a relevant consideration into account.
3. The ground is encapsulated at 1.10 of the Applicants' Outline of Submissions, as follows:

...they [referring to the delegate and the Tribunal member] failed to consider the personal circumstances of the applicant and the global border shutdown that occurred due to COVID-19 pandemic.

1. The applicant's submission contained a table that he described as his "travel history". It contained references to:

(1) His 5 week stay in India in 2011;

(2) His 6 week stay in India in 2013 for his wedding;

(3) His visit to India in September 2013 to visit family and collect his wife; and

(4) A visit to his mother in September 2014.

1. The table also includes references to the applicant's mother being ill with blood cancer in December 2017, the applicant's mother passing away in March 2020 and the applicant's inability to visit at that time, and the applicant's father suffering a fatal stroke in August 2021.
2. The applicant stated in his submissions that the Tribunal "muddled up" his trips and also that he attended the Tribunal hearing in a poor mental state and was anguished by his mother's death and his father having had open-heart surgery. His Outline of Submissions said:

Amid a perfect storm of emotions, the applicant could not answer the member's questions adequately.

1. The ground as stated in the application employs the phrase "irrelevant consideration" (although in the Applicants' Outline of Submissions the ground is characterised as failing to take into account a relevant consideration). However, the ground also contains a contention that the Tribunal gave excessive weight to the fact that he had not travelled to India.
2. Mason J (as he then was) discussed the grounds of failing to take into account a relevant consideration and taking into account irrelevant considerations as they appeared in the Administrative Decisions (Judicial Review) Act 1977 (Cth) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend) at (p 39 - 40) [15], as follows:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505).

1. His Honour went on, relevant to the question of the weight to be given to competing considerations, to say as follows (at p 40 - 41):

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (Sean Investments Pty Ltd v. MacKellar, at p 375; Reg. v. Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, at p 205; Elliott v. Southwark London Borough Council (1976) 1 WLR 499, at p 507; (1976) 2 All ER 781, at p 788; Pickwell v. Camden London Borough Council (1983) QB 962, at p 990). I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".

1. In light of the above passages, it is necessary to consider:

(1) whether the Act and Regulations contain an implication that a decision-maker considering a student visa application may not consider whether and how often an applicant has returned to their home country; and

(2) whether the Tribunal's consideration of that issue as it addresses the question posed by cl 500.212 of the Regulations was manifestly unreasonable.

1. The applicant was not legally represented at the hearing. He made oral submissions which, understandably, strayed beyond the ground contained in the application.
2. The applicant was distressed as he recounted a number of very difficult circumstances.
3. First, he recounted that he had lost his mother in 2020 following her tragic illness. That illness took a great toll on the applicant's mother, who had to travel many hours on a regular basis from her home to New Delhi in order to undertake chemotherapy. It also took a toll on the applicant's family, as his mother's treatment was very expensive, and led to the sale of the family home. The applicant was very distressed that he had been unable to be involved in what he described as "the last rites" for his mother.
4. Second, the applicant described how he had experienced great difficulty finding secure employment in Australia, taking jobs in Stawell in Victoria, then in Moree, and finally in Canberra. The applicant said he had worked without wages on a trial in Stawell and had been very overworked at his job in Moree, before being given two weeks' notice in that role, and finally moved to Canberra for a role.
5. Third, the applicant told the Court how he had struggled with anxiety and depression, but had been unable to admit that fact.
6. The applicant said the decision breaks his heart, and breaks his family.

1. As set out above, the Court is only empowered to make orders for the correction of jurisdictional error. That limitation exists notwithstanding the sympathetic circumstances of the parties before the Court. The applicant's suffering in connection with the illness and loss of his mother and father, his struggle with anxiety and depression, and his genuine desire to provide stability for his family, including his school age daughter (the third applicant) were circumstances of a profoundly compassionate character. Nonetheless it is not the role of the Court to exercise the discretions that reside with the Minister. The applicant's circumstances do not provide a basis to give the applicant the relief he seeks. The Court may only make orders for the correction of jurisdictional error.
2. The claim that the applicant's return trips to India were an irrelevant consideration in the Tribunal's review of the decision to refuse the applicant the student visa must be rejected. One of the criteria for the visa the applicant sought was that in cl 500.212 of sch 2 of the Regulations. The first part of that clause provided as follows:

500.212 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.

1. The Tribunal was required by the regulation to consider whether the applicant was a genuine applicant for entry and stay as a student, because he intended genuinely to stay in Australia temporarily. That question fell to be addressed, in accordance with the subregulation, having regard to the matters set out in cl 500.212(a)(i) to (iv) of sch 2 of the Regulations, including the applicant's circumstances, his immigration history and any other relevant matter. The applicant's return trips to India fell within the scope of all three of those matters, and his family ties in India fell within at least items (i) and (iv).
2. The Direction, with which the Tribunal was obliged to comply by s 499(2A) of the Act, also directed the Tribunal, at [9 b.] to consider:

9b. the extent of the applicant's personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

1. It was appropriate in those circumstances for the Tribunal to have regard to the applicant's return trips to India during the period he had remained in Australia. Provided the Tribunal reasoned in a legally reasonable manner, the weight to be given to the evidence about the applicant's return trips to India, and the conclusions to be drawn from that evidence, were matters for the Tribunal.

Determination - Failure to consider relevant consideration

1. The applicant's contention that the Tribunal failed to have regard to a relevant consideration, being his personal circumstances and the global border shutdown that occurred due to the COVID-19 pandemic, must also be rejected.
2. The Tribunal Member dealt with the question of the applicant's travel to India at [14] and [15] of her reasons. Those paragraphs are set out in full here for convenience:
   1. Since arriving in Australia, the first named applicant has returned to his home country on three occasions. His first trip back to India was in 2011. He went back for his cousin's wedding in 2013 and then went back again in September October 2013 for his own wedding.
   2. It was very difficult to follow the oral evidence of the first named applicant at the hearing, as he spoke in a pressured way and found it difficult to stay on track to answer the questions put to him by the Tribunal. He did say that he could not afford to pay for a trip to India for three people and that was one of the reasons given, as to why he had not travelled on a regular basis since 2013. He said that he did not think that the Delegate of the Department was fair in his assumption in the Decision dated the 9 November 2018, that he had not travelled to India because he did not have strong ties with his family in India.
3. It is apparent from those reasons that where the Tribunal dealt with the applicant's return trips to India that was at least in part responding to a submission made by the applicant about the assumption in the primary decision that he did not have strong ties to India. The Tribunal referred to the applicant's explanation that he could not afford to pay for a trip to India for three people. The Tribunal did not (in [14] and [15]) reach any conclusion about an absence of ties to India which was conditioned on the applicant not having returned on trips to India more frequently.
4. Rather, at [19], the Tribunal said:
   1. The first named Applicant has not returned to India on a regular basis since his arrival in Australia. The evidence suggests that it is unlikely that he has close community ties as he has lived in Australia for so long.
5. The Tribunal's conclusion at [19] about the extent of the applicant's ties in India was not conditioned solely on the regularity of the applicant's return trips to India. Rather, that conclusion appeared to be based (or at least principally based) on the overall length of time the applicant had spent in Australia, which, by the time of the Tribunal's decision, was about twelve years.
6. The Tribunal went on at [21] and [22], as follows:
   1. He does not have any assets in India. He was emotional during the hearing when describing his family situation and he seemed desperate to remain in Australia due to the financial situation of his family in India. He said he was broke. He said if he returned to India now, he may have difficulty with providing accommodation for his family.
   2. The Tribunal finds that the first named applicant does not have significant economic and family ties to his home country which will serve as an incentive to return to his home country to live after the completion of his course. The Tribunal places weight on those factors against the applicant's case.
7. The Tribunal's ultimate conclusion at [22] of its reasons was not that the applicant had no ties to India. Rather, at [22], the Tribunal concluded the process of weighing whether the applicant's ties to India were such as to constitute an incentive for him to return to India after his study. The Tribunal considered both the applicant's economic and family ties in addressing that question.
8. So far as the Tribunal failed to expressly mention the impact of the COVID-19 pandemic on the applicant's ability to return to India, there was no error by the Tribunal. As set out above, the Tribunal was required to address the question whether the applicant intended to stay in Australia temporarily. It was not obliged to refer to every single piece of evidence before it, or every single argument that was made: Applicant WAEE v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 256 FCR 593; [2003] FCAFC 184 at [46]. In the Tribunal's consideration of the question of the applicant's intentions, the issue of his return trips to India was not dispositive. In any event, the pandemic could only, at the time of the Tribunal's decision in April 2021, account for a little over twelve months of the period during which the applicant had been living in Australia. The Tribunal did not err by failing to expressly address the pandemic when it considered the applicant's return trips to India.

Determination - Failure to consider relevant consideration

1. As set out above, on closer examination, the ground in the applicant's application is in truth a complaint that excessive weight was given to his failure to return to India more regularly.
2. Whilst ordinarily questions of weight will be matters for the Tribunal, as Mason J (as he then was) identified in the passage from Peko-Wallsend set out above, in some circumstances, the giving of excessive weight to a particular consideration in reaching a conclusion may render a decision manifestly unreasonable.
3. That is not the case here for reasons which are canvassed above.
4. On a fair reading of the Tribunal's reasons, the applicant's failure to return to India more frequently did not weigh the heaviest in the Tribunal's consideration whether he had an incentive to return. Rather, the applicant's frank admissions to the Tribunal of his own financial difficulties and the difficulties of his family in India appeared to weigh heaviest in the Tribunal's consideration of that question.
5. The Tribunal did not give the applicant's history of return travel to India excessive weight, nor did the Tribunal's consideration of that fact cause it to misunderstand the applicant's circumstances. The Tribunal did not err in the manner alleged.

Additional Grounds in Applicants' Outline of Submission

1. The applicant was also aggrieved by several other aspects of the Tribunal's decision. They are addressed in turn below.
2. First, the applicant complained in his oral submissions that the Tribunal had referred to him having "cousins" in Australia, when he had no such relatives.
3. That complaint may be rejected for a number of reasons. First, it mis-states the Tribunal's reasons. The Tribunal referred (at [20]) to the applicant having "what he termed as cousins" who lived in Parramatta and Blacktown. The Tribunal at [20] was not making a finding that the applicant had actual cousins in Australia, but was recording the applicant having referred to people who, although they were not cousins of the applicant, were described by him as having a comparable type of connection. The applicant has not adduced any evidence to demonstrate that the Tribunal incorrectly recorded what the applicant claimed at hearing. In any event, the reference in [20] to the applicant's claims to have in Australia people who were like cousins to him did not assume any significance in the Tribunal's reasons.
4. The applicant also complained that the Tribunal had mis-stated his income from his employment as $24,500 per year when in fact his income was $54,500. Whilst that figure may have been the incorrect one, it was the figure that appeared in the Request for Student Visa Information form the applicant returned to the Tribunal.
5. The applicant described the Tribunal member as "loud" and complained that he was cut off. The applicant has not adduced any evidence to make out that claim. In the absence of evidence to demonstrate that the Tribunal adopted an approach at hearing that denied him a real and meaningful opportunity to give evidence and make submissions, the Court cannot conclude that the Tribunal erred in the manner in which it interacted with the applicant at the hearing.

1. As the applicant has not demonstrated that the Tribunal's decision was affected by jurisdictional error, the application must be dismissed.
2. I will hear the parties as to costs.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.