Patel v Minister for Immigration and Citizenship [2026] FedCFamC2G 426

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The first applicant (the applicant) seeks judicial review of a decision of the then Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (the visa). As will be explained, for the applicant to succeed in this Court, she must establish that the Tribunal decision contains a jurisdictional error. The Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has found a jurisdictional error in the Tribunal's decision. On that basis, the application has succeeded.
3. However, the Court accepts that it only has jurisdiction in respect of the first applicant's application. That is because the second and third applicants (who are the applicant's husband and child respectively) were not included as parties to the Tribunal review application. There is consequently no Tribunal decision in respect of the second and third applicants which invokes the jurisdiction of this Court.

1. The applicant is a citizen of India (Court Book (CB) 4, 43). She first arrived in Australia on 30 October 2018 as the holder of a visitor visa. The applicant departed Australia on 25 January 2019 and returned on a visitor visa on 7 September 2019 (CB 144).
2. On 1 December 2019, the applicant applied for the visa which is the subject of the application before this Court (CB 1-52).
3. On 14 February 2020, a delegate of the Minister refused to grant the applicant the visa (CB 68-78). The delegate was not satisfied that the applicant met the genuine temporary entrant criteria in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 74). That clause relevantly provides:

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; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

1. On 5 March 2020, the applicant applied to the Tribunal for review of the delegate's decision (CB 97-98).
2. On 21 September 2021, the Tribunal wrote to the applicant in accordance with s 359 of the Migration Act 1958 (Cth) (the Act), inviting the applicant to provide information (by 5 October 2021) that demonstrated that she was enrolled in a registered course of study and that she was a genuine applicant for entry and stay as a student. The Tribunal also warned the applicant that she would lose any entitlement to a hearing if she did not provide material by the stated deadline (CB 105-113).
3. The applicant did not meet the 5 October 2021 deadline, instead providing a completed response dated 7 October 2021 (CB 124-136).
4. The Tribunal proceeded to determine the application without inviting the applicant to a hearing. It does not appear that the Tribunal subsequently advised the applicant that it intended to proceed to make a decision without inviting her to a hearing. However, it correctly identified in its reasons that it was precluded from doing so having regard to the cascading provisions of ss 359A, 359C, 360 and 363 as explained by the Federal Court in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (Hasran) (see also this Court's consideration of Hasran in Nguyen v Minister for Immigration and Citizenship [2025] FedCFamC2G 1575).
5. On 9 May 2023, the Tribunal affirmed the delegate's decision not to grant the applicant the visa (CB 150-157).
6. On 30 May 2023, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of 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. The Tribunal began by identifying the visa under review, noting that the applicant applied for the visa on 1 December 2019 (at [1]). The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian) (at [2]).
3. The Tribunal explained that a delegate of the Minister had refused to grant the visa on the basis that the applicant did not satisfy the genuine temporary entrant criteria in cl 500.212 of Schedule 2 to the Regulations. The Tribunal observed that the delegate had also refused to grant a visa to the second applicant (the applicant's husband) but that only the applicant had applied for a review of the decision (at [3]).
4. The Tribunal confirmed that the applicant had been invited to provide a response to the request for information but failed to do so within the stipulated timeframe (although the applicant provided that information two days after the due date) and, on that basis, the applicant was not entitled to appear before it. The Tribunal confirmed that it had decided to proceed to a decision (at [5]-[7]).
5. The Tribunal outlined the evidence submitted by the applicant in support of her application (at [13]-[14]). The Tribunal noted that it had regard to documents contained on the Department file relevant to the applicant's visa application. The Tribunal also stated that it had obtained copies of the movement records of the applicant and her husband, along with the applicant's PRISMS record (at [16]).
6. The Tribunal set out the relevant legislative provisions in Schedule 2 to the Regulations for the grant of a student visa as outlined above at [6] of these reasons (at [10]). The Tribunal stated that in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Ministerial Direction No. 69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' (Direction 69) (at [11]). The Tribunal noted, however, that the factors set out in Direction 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant's circumstances as a whole (at [12]).
7. Against this background, the Tribunal made the following findings.
8. The Tribunal noted the presence of the applicant's parents in her home country and considered that would give her some incentive to return there, however the Tribunal did not consider this was a significant incentive (at [17]). The Court notes that the Tribunal did not refer to the evidence before the Department which indicated that the second applicant's grandfather resided in India and that he had provided significant financial support and encouragement to the applicants (CB 11, 24-25).
9. The Tribunal also noted that the applicant had completed a Bachelor of Commerce in India and that she had not been employed prior to coming to Australia. The Tribunal noted that the applicant had identified significant assets in India but had not provided corroborative documentary evidence. Accordingly, the Tribunal found that there was nothing in the evidence to support a contention that she had any economic incentive to return to India. However, the Tribunal also acknowledged that there was no evidence to indicate that there was any positive economic incentive to avoid returning to her country (at [18]).
10. The Tribunal further found that there was no evidence that military commitments or civil or political unrest would lead to an incentive to not return to India (at [19]).
11. In considering her reasons for studying a package of hospitality courses in Australia rather than in India, the Tribunal found that these reasons were reasonable, albeit not compelling (at [20]).
12. The Tribunal ultimately considered that the lack of any strong incentive to return to India was particularly significant (at [21]).
13. In considering the applicant's potential circumstances in Australia, the Tribunal found that her relationship with her brother-in-law appeared to be close and noted that she volunteered at her local temple. The Tribunal found that these were personal and community ties which would provide her with an incentive to remain permanently in Australia (at [22]).
14. The Tribunal accepted that, whilst the applicant had engaged in some work in Australia, this was limited and not of the order that it provided an economic incentive to remain here. Similarly, the Tribunal accepted that the applicant had not entered into a relationship of concern and there was no direct evidence that she was using the student visa programme to maintain ongoing residence (at [23]-[24]).
15. The Tribunal noted that the applicant had first arrived in Australia on 26 January 2019 on a visitor visa and had applied for a student visa on 1 December 2019. The Tribunal noted that the applicant had provided some evidence of investigating possible study options following her arrival in Australia but found that "this evidence is in the most general terms, and does not assist me in reaching any view as to her intentions as to the length of her proposed stay in Australia" (at [25]).
16. In reaching its conclusion in respect of the applicant's potential circumstances in Australia, the Tribunal found as follows (at [26]);

Again, while some of the matters I am required to consider favour the applicant, on the whole I place greater wight on what I have found to be the applicant's personal ties to Australia and on her lack of any sufficiently particularised and coherent explanation for her apparently sudden decision, having arrived in Australia as a visitor, to remain in this country for what is now a considerable period of time. I find that the applicant's potential circumstances in Australia weigh against accepting her claim to intend genuinely to remain in Australia only temporarily.

1. Having regard to the Bachelor of Commerce attained in India, the Tribunal found that the applicant's enrolment in Certificate and Diploma level courses in Australia reflected a regression in her level of study (at [27]). The Tribunal noted that the package of commercial cookery and hospitality courses were in keeping with her stated aim to return to her home country and work as a chef, but that her current enrolment in a Diploma of Leadership and Management was not relevant to her stated plans (at [28]).
2. In considering the applicant's immigration history, the Tribunal noted that she had first come to Australia on a visitor visa and applied for a student visa once she had arrived. The Tribunal found that could suggest that she did not seriously intend to study in Australia, although appeared to accept that "it is hard to match that suggestion with her study record in Australia" (at [31]).
3. The Tribunal accepted that the applicant had no previous visa refusal issues either here or elsewhere, and that this stood in her favour (at [31]).
4. The Tribunal found that she had resided primarily in Australia for almost four and a half years during which she had primarily been studying. The Tribunal observed that "it is to her credit that she has completed her package of hospitality courses without any apparent difficulties, deferrals, or variations" but that this did not overcome the difficulty with her current enrolment (at [32]).
5. The Tribunal found that the applicant's immigration history gave some support to her claim to be a genuine temporary entrant but not as strong support as it would if the applicant disclosed a clear explanation for her continued presence in Australia (at [33]).
6. The Tribunal was not satisfied the applicant intended to stay in Australia temporarily and therefore found the applicant was not a genuine applicant for entry and stay as a student as required by cl 500.212 (at [34]-[35]). The Tribunal found that the applicant did not meet the criteria for the grant of the visa and, accordingly, affirmed the delegate's decision (at [36]-[37]).

1. The application for judicial review filed by the applicant on 30 May 2023 contains 12 paragraphs which essentially reiterate the applicant's reasons for studying hospitality courses in Australia and which set out her educational pathway in that respect. The application does not set out any assertions of jurisdictional error per se. This is not uncommon with self-represented applicants, and the Court recognises the difficulties litigants-in-person often have in articulating their arguments. Furthermore, the fact that the applicant has not properly asserted error on the part of the Tribunal does not lead inexorably to a conclusion that her application should be summarily dismissed for that reason. A self-represented applicant may very well believe there is something wrong with a decision even if they are not able to properly articulate what that error might be.
2. In this matter, the Court accepts that the applicant is effectively submitting that the matters she raises in her narration were either not considered by the Tribunal or were not properly engaged with. At the hearing, counsel for the Minister accepted this to be so.
3. The applicant also filed an affidavit with that judicial review application on 30 May 2023, replicating the narration in her judicial review application and annexing a copy of the Tribunal's decision and the delegate's decision.
4. The applicant appeared before the Court on 16 April 2025 without legal representation. The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister's written submissions.
5. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 30 May 2023 (the affidavit being taken as read and in evidence at the hearing on 16 March 2026), a Court Book numbering 158 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 2 March 2026.
6. The applicants were not represented at the hearing on 16 March 2026 and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [25] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282 at [41]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal's decision and/or procedure.
7. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(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 (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 she should attempt to tell the Court what she says the Tribunal did wrong.

1. At the hearing, the Court raised with the Minister a concern it had with the approach taken and findings made by the Tribunal in respect of its assessment of the applicant's potential circumstances in Australia. In particular, the Court was concerned with the Tribunal's finding, having found that the applicant had first arrived in Australia on 26 January 2019 and filed her application for a visa some ten months later on 1 December 2019 (at [25]), that this was an "apparently sudden decision" (at [26]). The Court was concerned that such a finding was illogical.
2. This Court has previously considered the principles relating to illogicality and legal unreasonableness in Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123 at [80]- [83] as follows:

[80] It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (Djokovic) and the cases cited therein).

[81] In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:

...[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

[82] The correct approach, according to the High Court in SZMDS, is to enquire "whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it" (at [133]). At [135], the High Court stated:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn...

[83] In Djokovic at [35], it was observed:

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 and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20-21 [38]; Re Minister for Immigration and 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. In this matter, the question is whether the Tribunal's finding that the applicant had made an "apparently sudden decision" was illogical.
2. The applicant gave a relatively lengthy written statement which set out her process for reaching a decision to study in Australia (CB 35-39). That statement acknowledged that her decision was arrived at after she had arrived in Australia. It is clear that the Tribunal had regard to this and found that it was "in the most general terms, and does not assist me in reaching any view as to her intentions" (at [25]). The Court accepts that this apparent rejection was one which was within the Tribunal's zone of decisional freedom.
3. The use of the phrase "apparently sudden decision" indicates the Tribunal's finding that this was a decision which the applicant made swiftly and abruptly. There is nothing which would support such a finding. The Tribunal appears to have accepted that the applicant had arrived in January 2019 and, quite evidently, a decision made some ten months later is not one which could be rationally described as "apparently sudden". Indeed, it accords with the applicant's explanation that she had carried out her own investigations as to the benefit of studying in Australia. To be clear, the Tribunal was not required to accept that those investigations had occurred. Nevertheless, it was not permitted to simply dismiss a decision as "sudden" without an actual basis for doing so. Rejecting the applicant's explanation as not "sufficiently particularised and coherent" did not erase the time period.
4. There is a complication in the sense that the Tribunal also appears to have made an error in the actual time the applicant was onshore in Australia. That error was carried over into the submissions which were filed on behalf of the Minister and appears to have arisen from the applicant's statement in her response to the Tribunal's request for information that she had first arrived in Australia on 26 January 2019. However, a review of the movement details for the applicant appears to indicate that she first arrived in Australia on 30 October 2018 and departed Australia on 25 January 2019 before returning again on 7 September 2019 (CB 144).
5. This discrepancy does not ameliorate the error made by the Tribunal for two reasons. Firstly, the Tribunal had irrationally made its finding that the applicant's decision to pursue a student visa was sudden based on its, albeit incorrect, understanding of what the relevant time period was. As such, the inherent irrationality remains irrespective of the discrepancy. In any event, the evidence was that the applicant had arrived in Australia at an earlier date which, if anything, compounds the error made by the Tribunal.
6. The Minister sought to submit that, even if the Tribunal's finding was illogical, it was immaterial in the sense that it was one of a cumulative set of findings.
7. It is, of course, well established that in order for an error to be jurisdictional, there must have been a realistic possibility that the decision could have been different had the error not occurred. This was considered by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT). In LPDT, the Court explained at [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.

1. The High Court further clarified [16] that the threshold for materiality will be met "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".
2. The High Court had identified at [6] that some errors may be jurisdictional irrespective of any consideration of the materiality of that error. Unreasonableness "in the final result" was cited as an example of such an error.
3. The Court notes, however, that Button J recently observed in VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 (VRRQ) at [109]:

...in order to constitute a jurisdictional error, the Applicant needs to show that the illogicality in the Tribunal's reasoning was in respect of a matter that was central to the ultimate decision, whether that is put in terms of being "critical" or "not immaterial". If the illogicality meets that description, I consider - consistently with XRZG at [65] - that it would satisfy the materiality test set out in LPDT if in fact materiality would need to be considered separately, rather than being an example of errors of the kind referred to by the plurality in LPDT at [6] (errors that are jurisdictional regardless of the effect that the error might, or might not, have had on the decision that was made, or where the potential for an effect is inherent in the nature of the error).

1. Following VRRQ, the Court accepts that in a matter such as this it is necessary to establish that the illogical finding made by the Tribunal was not immaterial. For the reasons that follow, the Court is satisfied that the error was material.
2. In this matter, the Tribunal had expressly stated that some of the matters it was required to consider favoured the applicant but that it had decided to "place greater weight" on the applicant's ties to Australia and her lack of explanation for the sudden decision. Consequently, this was considered by the Tribunal to be a determinative factor.
3. Indeed, the Tribunal's decision for the most part generally accepts that the majority of the matters it was required to consider should be resolved favourably for the applicant. The only matters which troubled the Tribunal were the applicant's potential circumstances in Australia and the value of the applicant's most recent course.
4. In respect of the latter, the Tribunal accepted that the applicant's hospitality courses had value for her in her home country and that it was only the most recent course which was not as valuable. Reading the decision fairly, it cannot be said that the Tribunal's finding in this respect was overwhelming or of determinative weight.
5. In respect of the applicant's potential circumstances in Australia, the Tribunal had again accepted a number of matters which were in the applicant's favour, including that there was no evidence that she had entered into a relationship of concern or that she was using the student visa to maintain ongoing residence. The Tribunal also found, in respect of this category, that there was no significant economic incentive to remain in Australia. In relation to this consideration, the only adverse matters for the Tribunal were her ties to the community and the suddenness of her decision to study in Australia. Of those, the ties to community (consisting of a perceived closeness to her brother-in-law and some volunteer work) clearly did not form the bedrock of the Tribunal's conclusion. It was the perceived unexplained suddenness of the decision which appeared to predominantly occupy the Tribunal's mind in this respect. Had the Tribunal more rationally considered the timeline of the applicant's decision to study, it would clearly not be fanciful for this consideration to have weighed in the applicant's favour.
6. In that sense, it is not possible to conclude that a potentially different finding in respect of the applicant's circumstances in Australia would not have produced a different weighing of considerations. In this respect, it is important to bear in mind that the consideration of the relevant factors set out in Direction 69 is not an exercise in mathematical determinism. Indeed, the Direction itself expressly states that it should not be used as a checklist. A matter such as the applicant's intentions in respect of her pursuit of a student visa was clearly important to the Tribunal's deliberation. If the Tribunal had not taken a mistakenly pejorative view of the suddenness of the decision to enrol in the student visa, it may have found that this factor did not weigh significantly against the applicant.
7. The Court also observes the High Court's caution in LPDT at [36] that "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".
8. Consequently, the Court accepts that there is a realistic and non-fanciful possibility that the irrational finding of the Tribunal had a material effect on the outcome.

1. The applicant has succeeded on her application.
2. Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.