Pasuengos v Minister for Immigration and Citizenship [2025] FedCFamC2G 2129

1. The applicant seeks judicial review of a decision of the then Administrative Appeals Tribunal (the Tribunal) affirming a decision of the first respondent (the Minister) to refuse to grant the applicant a Child (Residence) (Class BT) (subclass 802) visa (the visa). As will be explained, for the applicant to succeed in this Court, she must establish that the Tribunal's decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has not found jurisdictional error in the Tribunal's decision. On that basis, the application cannot succeed.

1. The applicant is a national of the Philippines (Court Book (CB) 17). She turned 18 on 14 July 2014. Relevantly, while living in the Philippines:

(a) She completed her secondary education in 2012 (CB 202-203);

(b) She graduated with a Bachelor of Science in Business Administration from Centro Escolar University on 22 March 2016 (CB 205-208).

1. She arrived in Australia on 7 July 2019 as the holder of a Tourist visa (CB 49, 155).
2. On 11 October 2019, the applicant enrolled in a Certificate III in Individual Support at SMP Network (CB 32-33) which she completed on 28 February 2020 (CB 209-210).
3. On 21 January 2020, the applicant applied for the visa which is the subject of this application (CB 14-71).
4. On 28 April 2020, the applicant enrolled in a Certificate IV in Human Resources at TAFE SA which she completed on 9 December 2021 (CB 12, 211-212).
5. On 13 October 2020, a delegate of the Minister refused to grant the applicant the visa (CB 154-157). The delegate was not satisfied that the applicant met the criterion in cl 802.214(1)(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). That criterion relevantly provided:

...

(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full‑time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

1. On 26 October 2020, the applicant applied to the Tribunal for review of the delegate's decision (CB 158-159).
2. On 2 February 2022, the applicant enrolled in a Certificate III in Health Administration (CB 12).
3. On 14 April 2023, the applicant was invited to attend a hearing scheduled for 11 May 2023 (CB 164-168).
4. On 4 May 2023, the applicant's representative provided the Tribunal with a 'Response to hearing invitation' form, a written outline of submissions and supporting documents (CB 169-265).
5. On 11 May 2023, the applicant attended the hearing together with her mother and her representative (CB 266-268). On that same day, the Tribunal affirmed the delegate's decision not to grant the applicant the visa (CB 271-280).
6. On 14 June 2023, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).

1. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. After setting out the procedural history and legislative scheme, the Tribunal identified that the issue before it was whether or not the applicant met the requirements of cl 802.214(1)(c) and cl 802.214(2) (at [9]). Those subclauses are set out at [8] of these reasons.
3. The Tribunal explained that the applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12, been undertaking a full-time course of study at the time of application (at [21]). That, of course, is the express terms of the relevant clause.
4. The Tribunal observed in that respect (at [22]):

This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]- [16]. In determining what is a 'reasonable time' for cl 802.214(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 802.214(2).

1. The Tribunal also explained that, where the applicant met cl 801.214(1)(c), those requirements must continue to be met at the time of the decision. In this respect, the Tribunal stated (at [23]):

For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant's conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP [2015] FCCA 1638; (2015) 297 FLR 416.

1. The Tribunal concurred with the delegate's conclusion that, at the time of application, the applicant was a full-time student. However. The Tribunal observed that the applicant must be a continuous full-time student from the date of turning 18 (at [28]).
2. The Tribunal observed that the applicant had resumed full-time study in December 2019 but, by her own admission, had not studied for a period in excess of 3.5 years since turning 18.
3. The Tribunal turned its mind to whether the applicant's break in study was reasonable. The Tribunal reasoned as follows in that respect (at [30]):

In considering whether a break in study is a reasonable period, the break in study must be between completing secondary studies and commencing post-secondary studies. The Tribunal has been provided with a University Degree Certificate and Academic Record Certificate clearly indicating the applicant undertook and successfully completed a Bachelor of Science in Business Administration at Centro Escolar University, Philippines between 2012 and 2016. The Tribunal has determined the gap in question is not directly after secondary studies and it is very substantially longer than what is deemed as reasonable, had it been immediately post-secondary study completion. Up to 12 months if a person undertakes a Gap Year before commencing tertiary studies, post-secondary high schooling can be considered a reasonable period in most cases. Therefore, this break is not considered to be for a reasonable period at the relevant point in time.

1. The Tribunal accepted that one of the reasons the applicant did not undertake studies immediately following the completion of her bachelor's degree was because of financial difficulties. The Tribunal accepted that the applicant's parents were unable to finance further study as a result of their own financial, health and family circumstances. The Tribunal expressed sympathy for the applicant's circumstances, observing that she and her family were faced with difficulties which were not of their own making and that they had worked diligently to overcome the negative issues in their lives (at [31]).
2. Nevertheless, the Tribunal found that the applicant had not been a continuous full-time student since turning 18 and therefore did not meet cl 802.214(1)(c) (at [32]-[35]).
3. Accordingly, the Tribunal was not satisfied the applicant met cl 802.214 at the time of application or at the time of decision (at [36]-[37]. The Tribunal affirmed the delegate's decision not to grant the applicant the visa (at [39]).

1. As observed above, the applicant applied for judicial review within time on 14 June 2023. That application contained five grounds of review.
2. On 8 May 2025, the applicant's legal representative filed an outline of written submissions.
3. On 22 May 2025, the Minister filed a responsive outline of submissions which, inter alia, drew to the Court's attention that a number of authorities referred to in the applicant's outline of submissions do not exist.
4. The matter was due to come before the Court for final hearing on 26 May 2025. The Court requested that the applicant's representative provide copies of those authorities cited in their submissions prior to the hearing.
5. The applicant's legal representative briefed Mr Kikkert of counsel who appeared before the Court on 26 May 2025. Counsel for the applicant acknowledged that he could not provide copies of those authorities because they do not exist. Counsel admitted on behalf of the applicant's representative that an artificial intelligence program had been used to generate the submissions and the solicitors had not verified those cases. In those circumstances, the hearing did not proceed and the Court made the following orders:
   1. The name of the first responded be amended to 'Minister for Immigration and Citizenship'.
   2. The first respondent's legal representative have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
   3. The matter be re-listed for final hearing on 22 July 2025 at 10.00 am.
   4. By 24 June 2025, the applicant file and serve any amended application with proper particulars of the grounds of the application and written submissions addressing each ground.
   5. By 24 June 2025, the applicant's legal representative file and serve an affidavit addressing how the submissions filed on 8 May 2025 were generated, including a full explanation as to why the submissions contained references to non-existent authorities.
   6. By 24 June 2025, the applicant's legal representative file and serve written submissions as to why they should not be referred to the Legal Profession Conduct Commissioner (SA).
   7. By 8 July 2025, the first respondent file and serve any additional written submissions relevant to the substantive proceedings.
   8. By 8 July 2025, the first respondent file and serve any written submissions about whether the applicant's legal representative should be referred to the Office of the Legal Profession Conduct Commissioner (SA).
   9. The question/issue of costs of today's listing is reserved to the conclusion of the substantive proceedings at the hearing referred to in Order 3, including the question of whether costs should be paid personally by the applicant's legal representative pursuant to r 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
   10. Liberty to apply on two days' notice.
6. This judgment is solely in respect of the applicant's substantive judicial review application. The issues arising from the representative's ill-conceived reliance on AI hallucinated authorities will be considered in a separate judgment. As advised to the parties at the hearing of this matter, the Court has decided that it should not consider those issues until after it has considered and reached a judgment in respect of the substantive application. The Court has taken this approach in order to ensure the consideration of the applicant's judicial review application would not be clouded by those issues.
7. Mr Kikkert continued to appear as counsel on behalf of the applicant. He was involved in preparing an amended application, further submissions and argued the matter at the resumed hearing. The Court emphasises that any criticism of the conduct of the applicant's representative is not directed towards Mr Kikkert, who accepted the brief in difficult circumstances and at all times acted competently and professionally. Indeed, the Court is grateful to Mr Kikkert's willingness to assist under such circumstances and for the quality of that assistance.
8. On 24 June 2025, the applicant filed an amended application containing two particularised grounds for review as follows (without alteration, emphasis in original):
   1. The Tribunal asked itself the wrong question, or alternatively, applied the incorrect test

Particulars

• 1.1 The question before the Tribunal was whether, having regard to the time period from the commencement of study until the time of decision, characterised as a whole, the visa applicant's conduct during that period warrants the conclusion that she has been undertaking relevant study.

• 1.2 The test of whether the gap in the Applicant's studies can be considered "reasonable" and should not be applied when considering the whole period of study for the purposes of clause 802.214. The tests may be similar but they are different.

• 1.3 The Tribunal's finding regarding whether the period between studies was reasonable cannot be viewed as addressing the question of whether the Applicant's conduct characterised as whole shows that she has undertaken relevant study.

• 1.4 The appropriate test was brought to the Tribunal's attention through submissions referring to Nguyen (Migration) [2021] AATA 1330 and also Hussain v MIMP.

1. The Tribunal fell into jurisdictional error by failing to address a substantial, clearly articulated claim, namely the Applicant's assertion that his home was destroyed. This amounted to a denial of procedural fairness. Alternatively, the Tribunal failed to give proper, genuine and/or realistic consideration to matters before it by not genuinely engaging with the Applicant's evidence. Alternatively, the Tribunal failed to take into account relevant considerations.

Particulars

• 2.1 The Applicant explicitly made the following submissions to the Tribunal in her submissions, dated 4 May 2023:

  1. "The Sponsor was experiencing dire financial situation during the period that applicant temporarily stopped her study" [emphasis added]. (4.23 CB. 189)

1. There were other children dependent on the sponsor (4.24, CB. 189)

2. "Viewed in its totality, it is evident that the gap in applicant's study was NOT due to neglect or perversity but because of dire financial situation" [italics added for emphasis].

3. The Tribunal accepted the gap between finishing a bachelor's degree and starting master's degree in Nguyen (Migration) [2021] AATA 1330. (4.31)

4. Because the Tribunal found in the Applicant's favour despite there being a gap between the Applicant's bachelor's degree and master's degree in Nguyen, a gap between stages of an Applicant's post-secondary study is not fatal to an Applicant's case (CB 190).

• 2.2 The Applicant's references to Nguyen was a submission that was raised squarely by the applicant and as a clearly articulated submission of substance and cogent evidence providing substantial support to the applicant's case.

• 2.3 In her submissions, the Applicant also specifically quoted from portions form Nguyen, namely:

1. The circumstances involved a second course with an entrance exam, which was a high bar to entry and would require serious study and preparation (para [43]).

2. The applicant could not have technically be called an enrolled student at the time between completing the bachelor's degree and beginning the master's degree, but the necessary preparations explained this (para [45]).

3. "The decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant's conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247 (para 46).

4. "The Tribunal accepts that the visa applicant was studying within six months of turning 18".

5. "The courts have found that there is no requirement for an applicant to have been 'continuously involved' in study from the time of commencement of their studies and up until the time of decision, the visa applicant must, at the time of decision, be undertaking a full-time course. He is doing so at present."

• 2.4 The Applicant's reliance on Nguyen is emphatic, and had the Tribunal considered Nguyen, as the Applicant implored it to do, there is a possibility that the Tribunal decision's might have been different.
• 2.5 There was evidence before that Tribunal that any break in studies was purely out of necessity and that the Applicant and her sponsor never ceased to prepare for her to recommence her studies.

1. The matter returned for hearing on 22 July 2025. The materials before the Court at that hearing include:
   • the amended application for judicial review filed on 24 June 2025;
   • the affidavit of the applicant affirmed on 8 June 2023 (taken as read and in evidence);
   • a Court Book numbering 280 pages (marked as Exhibit 1);
   • written submissions filed on behalf of the applicant on 24 June 2025; and
   • written submissions filed on behalf of the Minister on 22 May 2025 and 15 July 2025.

Ground one - did the Tribunal ask itself the wrong question or apply the incorrect test?

1. The applicant's argument in this respect evolved somewhat. In written submissions, the applicant appeared to submit that the Tribunal had found that the applicant met the 'time of application' criteria in cl 804.214(c). However, at the hearing of this matter, the applicant conceded that the Tribunal had not made that finding. The Court finds that is the case in light of the Tribunal's express finding to that effect at [32] of its decision and the reasons which informed that conclusion.
2. However, the applicant argued that that finding made no difference to the actual error which was asserted. That is, the applicant asserted that the Tribunal asked whether or not the gap in the applicant's studies could be considered "reasonable". This, the applicant argued, differed from the correct question which was whether, having regard to the time period from the commencement of study until the time of decision, characterised as a whole, the visa applicant's conduct during that period warranted the conclusion that she had been undertaking relevant study.
3. The Tribunal identified the issue in this matter as whether or not the applicant met the requirements of clauses 802.214(1)(c) and 802.214(2). That is, whether the applicant met both the 'time of application' and 'time of decision' criteria. There is no error in the Tribunal's identification of the relevant issue.
4. The Tribunal relied upon the decision of Riethmuller FM (as his Honour then was) in Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 190 (Sok) in terms of its assessment of what the clause applied to when considering a course of full-time study. In Sok, the Court expressly found that the correlative provision (at [15]-[16]):

...appears to contemplate a single full time course of study at a specific educational institution leading to an award of a qualification. To read this clause, all of the parts of which are in the singular, as including multiple courses of study appears to me to be beyond the clear terms of the regulation.

[...]

The regulation looks to a particular course of study at an educational institution, such as a degree or technical college qualification (for example a qualification as a draftsman). The clause may well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions (in much the same way as one can obtain credits for some subjects towards a university degree by undertaking subjects at alternative institutions).

1. It can thus be seen that the educational pathway followed by the applicant is not of the kind this Court found was contemplated by the provision. Nevertheless, in the Court's view, the statutory regime would also permit a recognisable pathway of more than one course, such as the completion of postgraduate qualifications, provided it could be said that a person had continued to undertake full-time study. This possibility was accepted by the Tribunal (at [22]).
2. What, then, are the temporal parameters of the regime?
3. In Wake v Minister for Immigration and Citizenship [2010] FMCA 272, the Court considered what was meant by the phrase "since turning 18" (at [25]-[27]):

In my opinion, the language and immediate legislative context show that 'since' is used in the sense of 'continuously from' the event of 'turning 18'. As reference to the Macquarie Dictionary or other dictionaries show, this is the ordinary meaning of the word, whether used as an adverb, preposition or conjunction.

Moreover, I accept the submission of counsel for the Minister, that to read the word 'since' as merely meaning 'at any time after' turning 18, would give the first wing an effect which left no purpose for the inclusion of the second wing. It is a construction which, therefore, was unlikely to have been intended by the maker of the regulation.

This is because, read in the context of the preceding words in cl.802.214(1)(c), both wings necessarily relate to a person who at time of visa application and decision has 'turned' 18, is not working full-time, and has been undertaking a course of tertiary study before visa application. If, under the first wing, the time of commencement of that study may occur at any time before or after the applicant's 18th birthday, then there was no purpose in making the provision in the second wing for visa applicants who were not undertaking tertiary study when they turned 18, but commenced their course after that age and after a hiatus of 6 months or a 'reasonable time' from completing year 12.

1. There have also been a number of authorities which considered what is meant by the phrase "been undertaking". In Opoku-Ware v Minister for Immigration and Border Protection [2015] FCCA 1638; (2015) 297 FLR 416, the Court found (at [75]-[78] and [84]):

[75] I first turn to the tense of the phrase "has been undertaking" found in cl.101.213(1)(c). This phrase is constructed in the present perfect continuous tense, a tense which, as submitted by the Minister, is used to describe an action that has already commenced and remains ongoing.

[76] In limited circumstances I accept that the present perfect continuous tense can be used to describe an action that has stopped (though the action itself may be unfinished), however, when the tense is used in this context there is a result or effect therefrom that is expressly noted. For example, the statement "it has been raining, so the ground is wet" is framed in the present perfect continuous. This statement can be read in a number of ways, either that:

a) The rain is still ongoing; or

b) The rain has recently stopped; or

c) The rain has recently stopped, but may start again soon.

The connection is contingent on the second part of the statement appearing therein, being that "the ground is wet", to support the basis that the tense may be used to describe an action that has stopped.

[77] Having regard to the above, there are no word or words present in cl.101.213(1)(c) to support a conclusion that the present perfect continuous tense is used to describe an action, in this case the undertaking of further full-time studies, that has recently stopped.

[78] In the extant matter, in the case of an applicant "who has turned 18 at the time of the application, the clause requires that the applicant continue to satisfy that criterion at the "time of decision" (...). In cl.101.221(2)(b) the verb used is "continues" which is written in the present tense. Accordingly, on this construction, it must be the case that the applicant is still undertaking studies at the time of the decision in respect of the visa.

...

[84] In respect of particulars 1.(b) and 1.(b1), the applicant's contention is that by undertaking multiple courses of study, even though the visa applicant may not be studying at the time of the decision, the visa applicant is still eligible for the grant of a visa. This contention, as submitted by the Minister, has no foundation in the language contained in the regulations. Having regard to the reasons already noted above, the requirement that an applicant must continue to satisfy is that he or she has been undertaking a full-time course of study". That is to say that, at the time of the application, the visa applicant must still be undertaking a full-time course of study. Having regard to the Court's findings in respect of the use of the present perfect continuous tense, the language of the clauses does not permit an end to the study within the decisional time frame.

1. However, in Hussain v Minister for Immigration and Border Protection [2017] FCCA 3247 (Hussain), the Court said (at [110]-[111]):

Opoku-Ware does not stand for the proposition that a visa applicant must be "continuously involved" in study from the time he or she commenced his or her study to satisfy the criteria. Rather, it shows that the action of studying must have commenced by the time of application and that the visa applicant must be studying at the time of the decision. The approach taken in Opoku-Ware does not establish or support the proposition that a "continuous involvement" in study in the interim, without a pause, is required as a matter of construction.

In my view, and as the Applicant submitted, the natural meaning of the phrase "has, since turning 18... been undertaking" in cl.101.213(1)(c), both in itself and read with the requirement in cl.101.221(2)(b) that a visa applicant "continues to satisfy" requires a decision-maker considering the criteria at the time of decision to look at the time period from the visa applicant commencing study within cl.101.213(1)(c) until the time of the decision and ask whether, characterised as a whole, the visa applicant's conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period. This will, as Logan J recognised in Liang at [51], necessarily involve examining what the applicant has been doing in that interval. Where the "activity" in question is study, such an enquiry must necessarily have regard to the fact that, of its nature, the activity of study (as distinct, for example, from "enrolment") is intermittent.

1. In Hussain, the Court found (at [114]) that it was incumbent on a Tribunal to have regard to all of the relevant circumstances and "in particular, the nature and duration of a gap in study and any explanation for such a gap".
2. Somewhat surprisingly, neither of the parties referred the Court to the decision of Beach J in Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463 (Khan). In Khan, Beach J found that because the applicants had never commenced a full-time course of study, they could not, on any reading, be found to have "been undertaking" a full-time course of study [61]-[62]. His Honour expanded as follows (at [66]-[74]):

[66] ...The words "been undertaking" mean what they say. The visa applicants have never been undertaking a relevant full-time course of study. The relevant word is "been" which is a past participle. And the phrase "has ... been undertaking" can be thought of as the present perfect continuous tense. That use and context is clear. The appellant seeks to re-write it. Now true it is that there is the optionality of a "reasonable time after ...". But that is comfortably fitted within the present perfect continuous tense "has ... been undertaking".

[67] Now statutory construction must begin and end with a consideration of the text. And the language which has actually been employed in the text of the legislation is the surest guide to legislative intention. Moreover, extrinsic material cannot displace the clear meaning of the text.

[68] Clause 101.213(1)(c) requires that:

the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study...

[69] "Undertaking", in this context, means engaging in, entering upon or participating in a full-time course of study.

[70] And as I have said, as the phrase "has ... been undertaking" is used in the present perfect continuous tense, that tense denotes an action that has already commenced and is ongoing. And such an interpretation is consistent with the plain reading of cl 101.213(1)(c). Clause 101.213(1)(c) requires that the visa applicants must have actually commenced a full-time course of study by the time of the visa application is lodged. The clause identifies when the study must have commenced, that is, "since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system".

[71] The clause is drafted to permit study or its penumbra such as enrolment or other preliminary steps to commence within a time period, for example, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system. But the study or its penumbra must have commenced. To construe it otherwise is to re-write "been undertaking".

[72] Now whilst cl 101.213(1)(c) identifies when study must have commenced, which is the appellant's so-called grace period, the existence of such a time period does not logically mean that the clause therefore captures a person who has never commenced the requisite study as in the present case. In other words, the existence of a so-called grace period to commence studying does not deny the need to have actually commenced studying or its associated penumbral activities, the boundaries of the latter of which should be considered realistically in the context of the particular case. Otherwise, the person has not "been undertaking" study at all, as that phrase is ordinarily understood.

[73] Further, the study must be ongoing at the time the visa application is made (cf. the heading to the clause). It is a "time of application" criterion. Moreover, the visa applicants must still be undertaking study at the time of the decision; see cl 101.221(2)(b). Moreover, it is difficult to understand how a visa applicant could meet cl 101.221(2)(b) ("continues to satisfy the criterion in clause 101.213") if they had never commenced study at all, even up to the time of decision.

[74] In summary, the action of studying must have commenced by the time of application and the visa applicant must be studying at the time of the decision. The decision-maker is required to look at the time period from the visa applicant commencing study within cl 101.213(1)(c) until the time of the decision and ask whether the visa applicant's conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period. But I should note that it is not necessary for visa applicants to have been continuously involved in study without pause from the time they commenced that study until the time of decision.

1. The applicant referred the Court to a separate decision of the Tribunal in Nguyen (Migration) [2021] AATA 1330 (Nguyen), which was relied upon in support of a proposition that the relevant test for the Tribunal to apply was whether the time period from time of application to the time of decision, when characterised as a whole, demonstrated that the applicant was undertaking relevant studies. The applicant had previously provided the Tribunal with a copy of Nguyen. The applicant conceded that Nguyen did not bind the Tribunal but submitted that the test articulated within that decision did. The Court does not really understand the applicant's reliance on Nguyen in this respect. It bound neither the Tribunal nor this Court. The fact that a test, correct or otherwise, may have been articulated in that decision is, with respect, neither here nor there. Either the Tribunal correctly explained and applied the provision in this matter or it did not. No assistance in ascertaining that can be obtained from considering an entirely separate Tribunal decision.
2. There is also a qualitative difference between the present case and the cases relied upon by the applicant. In each of the other cases, there was at least some nexus between the study that was commenced at the time the applicant turned 18 and the study that was relied on at the time of decision. For example, even in Nguyen, there was a break between the completion of a bachelor's degree and the commencement of a master's degree in the same field. In this case, there is no such nexus and, indeed, a lengthier gap of over three years. Of course, if one is creative enough, a line can be drawn between any endeavour of study and another. It may also be the case that a person may decide after a period of over three years that they would benefit from obtaining an additional qualification which might supplement their initial qualification. However, that is not the kind of break in study that is anticipated by the other decisions, nor does this Court accept that is permitted by the legislation.
3. Furthermore, unlike the decision in Nguyen, there was no submission made by the applicant in this matter that the intervening period involved any kind of preparatory work for the subsequent study. The applicant did give evidence that she and her family were experiencing financial difficulties. However, there was no evidence of an expressed intention to study the course which the applicant ultimately embarked upon. Neither was there a submission that the applicant had been prevented from embarking upon that course earlier as a consequence of the financial difficulties.
4. Ultimately though, there can be no criticism of the approach taken by the Tribunal. In considering the statutory provision and the relevant authorities, the Tribunal gleaned the following:

(a) The provision appears to contemplate a single full-time course of study at a particular institution.

(b) However, it may extend to cover a qualification that is obtained by the satisfaction of various criteria not necessarily fulfilled at the same institution.

(c) All of the surrounding circumstances should be considered including the actual time involved, what activities were undertaken during that time, the purpose behind those activities and, if no activities were undertaken, the reason for that.

(d) In considering the 'time of decision' criterion, a decision-maker must look at the period from the commencement of study until the time of decision and consider whether, characterised as a whole, the period warrants the conclusion that they have been undertaking relevant study.

1. That informed the Tribunal's approach in this matter where it:

(a) observed that, at the time of application, the applicant had not been a full-time student since turning 18 or completing high school;

(b) observed that the applicant had not studied for a period in excess of 3.5 years since the completion of her bachelor's degree;

(c) in considering whether the break in study was reasonable, observed that it was not between the completion of secondary studies and commencement of university studies;

(d) observed that the applicant had completed a Bachelor of Science in 2016;

(e) found that the gap between studies was not directly after secondary studies and was substantially longer than what might be deemed as reasonable;

(f) considered that up to 12 months between secondary education and tertiary studies would be considered a reasonable period in most cases; and

(g) accepted that one of the reasons that study was not undertaken immediately was because of financial difficulty.

1. The Court accepts that the Tribunal had regard to the whole of the applicant's circumstances. There was very clearly a cogent rationale underpinning its finding that the applicant had not, at the time of application, been undertaking a full-time course since turning 18 or within six months or a reasonable time after completing year 12 equivalency. This was clearly rational in the context of an applicant who had, at the time of application, already completed a Bachelor of Science in Business Administration since finishing high school, and over three years later at the age of 23, enrolled in an unrelated Certificate III course.
2. Ultimately, even on the applicant's somewhat elastic construction of the statutory regime, it is abundantly clear that the applicant could not meet the criterion. There is simply no rational way to reconcile the applicant's history with the language of the provision. The applicant has not been undertaking a full-time course of study since turning 18 or completing secondary studies. The applicant completed a bachelor's degree and then, after a period in excess of three years, undertook seemingly unrelated certificate level courses. There may have been financial reasons for that. There may even be an arguable nexus between the courses of study (although that is not readily discernible). Nevertheless, it cannot in any reasonable sense be seen as conduct consistent with undertaking study.
3. This is consistent with the authorities referred to above and with the approach taken by Beach J in Khan. In particular, it is consistent with Beach J's views that whilst the provision permits associated activities such as enrolment or other preliminary steps to be taken into consideration and allows a pause in study, those activities should be considered realistically. A three-year gap between the completion of one course and the commencement of an ostensibly unrelated course does not fall within those parameters.
4. Ground one does not succeed.

Ground two - did the Tribunal fail to consider a claim?

1. The applicant's second ground is premised entirely on the basis that the Tribunal was required to give express consideration to the applicant's submissions which were advanced in respect of the Nguyen decision. Those submissions, in their totality, are set out below (CB 190-191):

4.30 Further, it is worthy to stress that a reasonable gap in study is not limited to an interval between secondary and post-secondary study.

4.31 In the most recent case of Nguyen (Migration) [2021] AATA 1330 (19 March 2021), the Tribunal accepted the gap between finishing bachelor's degree and starting master's degree - as reasonable.

4.32 For this purpose, we invite the attention of the Honourable Member to the pertinent disquisition in that case:

1. In the hearing the applicant said that to get into the master's course he need to pass an entrance examination and this was a two-day examination. To the Tribunal this appeared to be a high bar to entry and would require serious study and preparation possibly taking weeks if not months. There is written confirmation of this master's entrance examination and course on file.

2. To the Tribunal's mind it is reasonable that there is a lag between finishing a bachelor's degree and starting master's degree in a similar field at the same university. There were English tests to be completed and a very involved entrance examination to study for and pass. Brushing up on weaker areas was done in the meantime.

3. The applicant could not have technically be called an enrolled student at the time between completing the bachelor's degree and beginning the master's degree but the necessary preparations would explain this and the Tribunal is satisfied that he is a full time student now.

4. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant's conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP [2015] FCCA 1638; (2015) 297 FLR 416.

5. The Tribunal accepts that the visa applicant was studying within six months of turning 18. There is institutional evidence to this effect to support his claim. There has been a study gap but this is not prolonged and explicable in the circumstances, there has been informal study and the institution has not changed. The courts have found that there is no requirement for an applicant to have been 'continuously involved' in study from the time of commencement of their studies and up until the time of decision, the visa applicant must, at the time of decision, be undertaking a full-time course. He is doing so at present.

6. Accordingly, the Tribunal is satisfied that the requirements of cl.101.213(1)(c) are met at the time of application and at the time of decision.

4.33 From the above, similar in this case that the interval in study happened after applicant has completed her bachelor's degree, it is apparent that this gap is permitted.

1. With respect, those submissions extend to no more than the applicant saying that it had been found in a separate Tribunal decision that the 'reasonable time' aspect of cl 802.214(1)(c) was not limited to a gap between secondary and post-secondary studies. The Tribunal expressly considered that issue (at [30]). It was not required to expressly set out whether it had regard to the fact that the applicant had relied on a different Tribunal case in support of that proposition.
2. The Minister correctly relied on the following long-accepted principles:

(a) A failure to consider a submission is capable of amounting to a constructive failure to exercise jurisdiction (relying upon SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 at [81]).

(b) Whether such a failure amounts to jurisdictional error depends on the cogency of the material and the significance of the material to the decision (CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124; (2022) 294 FCR 318 at [140]- [145]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]).

(c) The Tribunal is not required to refer to every submission or piece of evidence before it (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67]-[68]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46]).

(d) It may be sometimes sensibly understood that a matter was not referred to in the Tribunal's reasons not because it was not considered, but because it was not considered to be material (Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33]- [34]).

1. Those propositions must be accepted. Ultimately in this matter, the Court finds that the Tribunal did not expressly refer to Nguyen because it had no bearing on the question it had to determine. At its highest, it only stood as evidence that in an entirely different matter, which could not bind the Tribunal, a differently constituted Tribunal had observed that a study gap was not limited to a gap between high school and tertiary study. As submitted by the Minister, it is highly questionable as to whether the Tribunal in Nguyen even made that finding. However, that is by the by. The Tribunal turned its mind to the underlying issue and it did not need to set out whether did or did not agree with another Tribunal decision.
2. Ground two is misconceived and does not establish jurisdictional error.

1. The application for judicial review, supporting affidavit, and written and oral submissions advanced by the applicants have failed to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.