KC v Minister for Immigration and Citizenship [2025] FedCFamC2G 854

(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 [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]; 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 applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
2. Against this background, the applicant simply told the Court that at the time of the Tribunal hearing, he had completed his course already. He had nothing further he wished to draw to the Court's attention.

1. As outlined above, the application for judicial review contains four grounds asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant's grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).

1. Ground one contends that the Tribunal and the Department failed to take into account the applicant's study intentions and progression in his courses. As correctly submitted by the Minister, the Court does not have jurisdiction to review any error on the part of the delegate. Accordingly, the Court will only consider this ground with respect to the Tribunal's reasons.
2. In his affidavit, the applicant submitted that the Tribunal failed to consider that he has "abided by all [the] rules" and was genuinely pursuing trade qualifications for a career within the automotive field.
3. Having reviewed the decision, it is the Court's view that the Tribunal did expressly take into account and actively consider the applicant's prior studies and progression within these courses. Paragraphs [8] to [17] of its decision demonstrate a detailed and intellectual consideration of these prior studies to inform its overall finding that the applicant did not satisfy the genuine temporary entrant criterion. It cannot be said, on this basis, that the Tribunal failed to consider the applicant's study progression.
4. No jurisdictional error arises in respect of ground one.

1. In ground two, the applicant asserts that the Tribunal took into account irrelevant considerations, namely, his age and length of stay in Australia.
2. The Minister submitted that the weight attributed to any evidence was a matter for the Tribunal to decide. It was not unreasonable for the Tribunal to attribute more weight to these factors when assessing his evidence against the genuine temporary entrant criterion, especially in circumstances where the applicant conceded at the hearing that he had been in Australia for a "very long period of time" which was "inconsistent with the stay being temporary".
3. The Court adopts the Minister's view in this regard. The Tribunal is indeed permitted to attribute weight to evidence that it sees fit, within the scope of what is reasonable and noting that reasonable minds may still differ (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 1 All ER 498 at 498). It is not clear that the Tribunal did consider the applicant's age (beyond merely mentioning it at [12] of its reasons) or applied it as a relevant factor in its consideration of the entirety of the applicant's circumstances. The weight that the Tribunal placed on the applicant's age or the duration of his stay in Australia when assessing his evidence against the genuine temporary entrant criterion was merely reflective of it taking into account all of his evidence, including his concession that being in Australia since 2008 was inconsistent with it being a temporary stay.
4. The Tribunal considered all the relevant considerations that it was required to, pursuant to Direction 69 and cl 500.212 of the Regulations, and did not consider any information that was entirely irrelevant or that it was not permitted to. That was precisely the task before the Tribunal. No error arises in the Tribunal's approach.
5. No jurisdictional error arises in respect of ground two.

1. Grounds three and four contend that the Tribunal's decision was "one dimensional" and that the decision-maker was biased.
2. Insofar as the applicant alleged in his affidavit that the "decision has been taken with [a] preconceived mind frame to only entertain refusal", it is well established that any allegation of bias must be firmly established (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531). An applicant is unable to establish bias if the Tribunal simply makes adverse findings against an applicant's case, as a decision-maker is not required to uncritically accept an applicant's claims (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70).
3. There was nothing one dimensional about the Tribunal's decision in circumstances where it took into account the numerous factors listed under Direction 69 in reaching its decision, such as the applicant's lengthy stay in Australia, the economic incentives for him to stay, and the limited time he had spent overseas since his arrival in 2008.
4. In the Court's view, the applicant has not established how the Tribunal might not have brought an impartial mind to bear upon the decision. The Tribunal simply and reasonably applied the evidence before it in accordance with Direction 69, giving weight to certain evidence that it saw fit. The Tribunal indicated that, as the applicant had been in Australia for nearly 17 years on various student visas, it was not satisfied that he met the genuine temporary entrant criteria in cl 500.212. In taking this approach, it is difficult to ascertain how the Tribunal may not have brought an impartial mind to deciding the applicant's case. There was no error in the Tribunal's approach in this regard.
5. No jurisdictional error arises in respect of grounds three and four.
6. The Court also asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention in terms of any concerns or doubts about the Tribunal's decision. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal's decision.
7. The Court is satisfied that, even adopting the broad approach referred to in [46] of these reasons, no jurisdictional error is apparent.

1. The application for review and additional submissions made by the applicants have failed to identify any jurisdictional error on the part of the Tribunal. 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 sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.