Ricky v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 648

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant lodged the present application on 19 November 2020 (the application) seeking an order that the first respondent, the (then) Minister for Immigration, Citizenship, Migrant Services and the Multicultural Affairs, now Minister for Immigration and Multicultural Affairs (Minister) and the second respondent, the (then) Administrative Appeals Tribunal, now Administrative Review Tribunal (Tribunal) show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (Act) in respect of a decision of the Tribunal (decision) affirming a decision of a delegate of the Minister to refuse the applicant a Student (Temporary) (Class TU) Subclass 500 visa (student visa).
2. The application to invoke the Court's jurisdiction has been made within the time specified in s 477(1) of the Act.
3. At the hearing of the application on 21 January 2025, the applicant proceeded on an amended application filed on 30 October 2024 (the amended application). He appeared in person and was assisted by an Indonesian interpreter.
4. The Court received into evidence, without objection, an affidavit of the applicant dated 20 November 2020 which annexed a copy of the Tribunal's written record of its decision, along with a court book which contained documents from the Department of Home Affairs and the Tribunal concerning the applicant's visa application and application for review.
5. In order for the Court to grant the relief sought by the applicant, it was required to be satisfied that the Tribunal's decision involved jurisdictional error.
6. For reasons that follow, the Tribunal's decision did not involve jurisdictional error and the application must be dismissed.

1. The applicant, born 4 February 1987, is a citizen of Indonesia.
2. The applicant's name, as it appears on his Republic of Indonesia birth certificate and passport, is Ricky. No other name precedes or follows it. However, in some of the documents in the court book, the applicant is (mistakenly, it appears) referred to as "Mr Ricky", as if Ricky was the applicant's last name, or "Ricky Ricky", as if Ricky was both the applicant's given name and family name.
3. The applicant initially entered Australia in 2009 on a student visa.
4. The applicant undertook the following studies:

(a) Advanced Diploma of Accounting, in Sydney between April 2009 and September 2010;

(b) Advanced Diploma of Business, in Sydney between January 2011 and September 2013;

(c) Diploma of Hospitality, in Sydney between November 2013 and August 2015; and

(d) Advanced Diploma of Software Development in Sydney between October 2015 and October 2018.

1. In the visa application the applicant stated that he wished to remain in Australia to study for a Diploma of Human Resources Management in Sydney, followed by an Advanced Diploma of Management (Human Resources). Studies for the former qualification were to be undertaken from November 2018 to November 2019, with studies for the latter to be undertaken between November 2019 and May 2021.
2. The applicant's application was initially supported by a letter (the first letter of support) from the applicant's cousin, William (also a person who appeared to have a single name). William was the owner of a company in Indonesia, called Kilang Padi Suka Damai, which was in the business of rice milling. The first letter of support, which was dated 14 November 2018, stated that William's company currently had more than 50 employees and was growing, that William needed someone that he could trust to look after the company and employees, and had offered Ricky a position as Human Resources Manager with a salary equivalent to AUD$3,000 per month. It narrated that Ricky and William had discussed Ricky's future plans and had agreed to work together in William's company.
3. The first letter of support said:

In this human resources course, he will learn how lead effective workplace relationships, implement customer service standards, establish networks, address customer needs, manage remunerations and employee benefits, develop and manage performance-management process, manage company risks and other that will benefit him when he works for my company.

Based on the above reasons, I decide to offer him to work at my company and guarantee him to fill the Human Resources Manager position. He will be offered for the minimum salary of Rp 30,000,000/month or about AUD$3,000/month excluded the allowances. By having a qualification from his previous study and with combination of understanding Human Resources which he is going to learn, it increases his confidence to help me to manage my business and to dealing with the employees.

...I guarantee that I shall start to work together and manage the business with him as long as he completes the human resources program and returns to Indonesia.

1. On 21 January 2019, the Minister's delegate wrote to the applicant advising the applicant that his application for the visa had been refused (the refusal letter).
2. The decision record attached with the refusal letter recorded the delegate's view that cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) (Regulations) was not satisfied. That clause, known as "the genuine temporary entrant criterion", provides as follows:

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. The delegate referred to Ministerial Direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Ministerial direction) which sets out the factors that must be taken into account when assessing the genuine temporary entrant criterion for student visa applications. The delegate noted that the Ministerial direction is made in accordance with s 499 of the Act. The delegate set out a summary of the factors to be considered arising from the Ministerial direction, which included, relevantly:

(a) the applicant's circumstances in their home country;

(b) the applicant's potential circumstances in Australia;

(c) the value of the course to the applicant's future; and

(d) the applicant's immigration history.

1. The delegate then went on to consider those factors in the applicant's case.
2. The delegate said that the applicant's visa application had provided only general information regarding his future career prospects. The delegate noted that the applicant had not explained why he had changed his field of study multiple times, and considered the applicant had not adequately explained the relevance of his proposed course of study to his previous academic background. The delegate was not persuaded the applicant's further studies would assist him to improve his prospects, when considering he had already acquired qualifications that allowed him to work in the field.
3. The delegate was not satisfied that the applicant's ties to Indonesia would be compelling reasons for him to return when he had spent limited time there since 2009. The delegate also concluded the applicant had not taken substantive steps to investigate alternative education providers in Indonesia.
4. The delegate was not satisfied that the study the applicant proposed to undertake would increase his career prospects given his existing qualifications.
5. Noting the fact that the applicant had been in Australia for 3,644 days with 62 days offshore from the time of entry, and had not achieved a qualification greater than an advanced diploma, the delegate was not satisfied the applicant was showing satisfactory course progression and had serious concerns the applicant was using the student visa scheme to maintain ongoing residency in Australia.
6. The delegate found that the applicant did not meet the requirements of cl 500.212 of sch 2 of the Regulations, concluded that the applicant did not meet the criteria for the grant of the visa and refused the application.

1. The applicant lodged his application for review with the Tribunal on 5 February 2019.
2. On 17 April 2020, the Tribunal wrote to the applicant with an invitation to provide information concerning the application.
3. The invitation was contained in an attached letter which stated that it was a requirement of the student visa sought by the applicant that he be both:

(a) enrolled in a registered course of study; and

(b) a genuine applicant for entry and stay as a student.

1. The letter advised the applicant that he would need to provide sufficient information to satisfy the Tribunal that he met both of those visa requirements. It invited him to give to the Tribunal, in writing, all relevant information about the course of study he was undertaking and his entry and stay in Australia as a student. The invitation directed him to provide specific details about the requested information using the "Request for Student Visa Information" form, to which it provided a link. The invitation also provided the applicant with a copy of the Ministerial direction. The invitation requested the applicant to provide the information by 1 May 2020.
2. The applicant provided a completed Request for Student Visa Information form to the Tribunal, in which, he stated that he did not consent to the Tribunal deciding the review without holding a hearing.
3. The applicant responded to a prompt to provide information about his work experience before arriving in Australia by identifying an employer for whom he worked in "Sales Marketing" from July 2005 to February 2009.
4. The applicant stated that he had arrived in Australia on 25 May 2009 and had returned to his home country three times since his arrival, holding a series of class 572 visas over that period.
5. The applicant stated that he was presently studying an Advanced Diploma of Management (Human Resources) with VIA Education, which course was due to conclude in May 2021. The applicant set out his lengthy educational history in Australia dating back to 2009, which included a Diploma of Hospitality which he did not complete.
6. The applicant said that the main reason he wanted to undertake the human resources management study was that he had the job offer from his cousin. The applicant considered that he had obtained some relevant experience from his previous studies but doubted his capability in the human resources field.
7. The applicant said that he chose to study in Australia because doing so would give him a good chance to find employment at respectable international companies, as well as improve his English whilst undertaking his studies.
8. The applicant's application disclosed a history of lengthy periods of employment in the hospitality industry during the period he had been in Australia.
9. The applicant provided the Tribunal with a number of documents in support of his application, including a further letter from William on the letterhead of Kilang Padi Suka Damai dated 24 April 2020 (the second letter of support).
10. The second letter of support again recited that the company had more than 50 employees and was growing, and that William needed a trustworthy person to assist him in the business expansion. It continued:

In this human resources course, he will learn how lead effective workplace relationships, implement customer service standards, establish networks, address customer needs, manage remunerations and employee benefits, develop and manage performance-management process, manage company risks and other that will benefit him when he works for my company.

Based on the above reasons, I decide to offer him to work at my company and guarantee him to fill the Human Resources Manager position. He will be offered for the minimum salary of Rp 30,000,000/month or about AUD$3,000/month excluded the allowances. By having a qualification from his previous study and with combination of understanding Human Resources which he is going to learn, it increases his confidence to help me to manage my business and to dealing with the employees.

I really hope that you could grant him the necessary visa and I guarantee that I shall start to work together and manage the business with him as long as he completes the human resources program and returns to Indonesia.

1. On 1 October 2020 the Tribunal wrote to the applicant attaching an invitation to attend a telephone hearing on 16 October 2020, advising that on the material before the Tribunal alone it was unable to make a decision that was favourable to the applicant. The letter attached a "Fact Sheet" with information about the Tribunal's hearing process. The letter asked the applicant to provide certain documents prior to the hearing, namely, his certificate of enrolment, documents showing his past studies and documents demonstrating work experience relevant to his studies.
2. The letter advised that the Tribunal may assess whether the applicant was a genuine applicant for entry and stay as a student. It attached a copy of the Ministerial direction.
3. The Tribunal hearing proceeded as a virtual hearing on 16 October 2020.
4. The hearing concluded and the Tribunal gave an oral decision. The Tribunal also provided the applicant with an Outcome of Review statement which stated that the decision under review was affirmed.
5. The applicant requested that he be provided with the written reasons.
6. The Tribunal gave a written statement of its decision and reasons on 2 November 2020.

1. The Tribunal's written reasons were described as the written record of the reasons it delivered orally on 16 October 2020. The written reasons have some of the features of a transcript. They contain throughout passages which are attributed to "Interpreter" and "Member", and which appear to show exchanges between them.
2. Although those exchanges interrupt the recitation of the reasons, the record shows the Tribunal Member returning in each instance to the recitation of the reasons, meaning the written record is capable of being understood.
3. The Tribunal noted that the criteria for the visa were set out in pt 500 of sch 2 of the Regulations, and that the issue in the present case was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student. The Tribunal noted that in considering that question it was bound to have regard to the Ministerial direction.
4. The Tribunal noted that the applicant's application was for his sixth student visa and that if he proceeded with the Advanced Diploma of Management (Human Resources), scheduled to conclude in May 2021, the applicant would have been in Australia for 12 years.
5. The Tribunal noted the applicant's courses of study in Australia, and the documents he had submitted in support of his application evidencing his participation in those courses.
6. The Tribunal also listed (at [21] and [23]) the documents provided by the applicant in support of his application. In that list, the Tribunal Member does not mention the second letter of support, referring only to the first letter of support.
7. The Tribunal noted the applicant's evidence that he wished to study in Australia because an Australian qualification would be of better quality and would be highly regarded, and would give him a good chance to find employment at a reputable international company.
8. The Tribunal recorded that the applicant's mother resided in Indonesia and that the applicant maintained regular contact with her. The applicant informed the Tribunal in his oral evidence that as the eldest child in an Indonesian family he considered it his responsibility to return home at the conclusion of his studies and look after his mother.
9. The Tribunal said the applicant did not give any evidence about community ties in his home country and did not give any information about any assets or property in his own name in Indonesia, acknowledging that the applicant had provided some information regarding bank accounts and land holdings "in relation to his family's financial status".
10. The Tribunal also noted the information provided by the applicant about his history working in the hospitality industry in Australia during the period he held student visas.
11. The Tribunal did not accept the applicant's reasons for not studying in Indonesia, due to the fact that the applicant had failed to demonstrate having undertaken any significant research into the availability of the course in his home country.
12. The Tribunal found that the applicant's family ties to Indonesia did not provide a significant incentive for him to return, when considered against the applicant's economic circumstances in Australia, given his strong employment history in Australia, and given the fact he had only returned home to Indonesia to visit three times since arriving.
13. The Tribunal was unable to conclude whether the applicant had strong community ties in Indonesia that would operate as a strong incentive for him to return as he had not provided any evidence of such ties. The Tribunal noted the financial circumstances of the applicant's family (real estate and cash) but did not think these constituted a strong incentive to return home when weighed against the applicant's strong economic circumstances in Australia.
14. The Tribunal considered the applicant's lengthy stay in Australia to undertake a suite of vocational level courses in different areas was inconsistent with him being a genuine student and indicative of an intention to remain permanently in Australia.
15. The Tribunal noted the applicant's offer of employment from his cousin's firm, and the applicant's argument that he needed to obtain human resources qualification to work in his cousin's business as a human resources manager. However, the Tribunal said that it could not be satisfied that the applicant's current course would further assist his career development or earning potential. The Tribunal considered that the extent to which the applicant had changed pathways was not consistent with the behaviour of a genuine student, and it was not objectively demonstrated how the applicant's pathway changes would be beneficial to him in future and outweigh the financial commitment involved in pursuing further study.
16. The Tribunal noted the applicant's claim in his GTE (genuine temporary entrant) statement to the Department that the position in his cousin's business would pay him AUD$3,700 per month, whilst the letter from the applicant's cousin demonstrated that the offer for the role was AUD$3,000 per month, which the Tribunal found was (at [46] and [47] of its reasons):

offered on the basis of the applicant having qualifications from his previous study with a combination of understanding human resources which will help the applicant's cousin in the management of the business and in dealing with employees.

Based upon that evidence, the Tribunal is satisfied that the applicant is now suitably qualified to return home to his home country and commence employment in his cousin's business because he has already successfully completed the Diploma of Human Resources Management. The Tribunal is not satisfied that the applicant has demonstrated that it is necessary to undertake an Advanced Diploma of Human Resources Management for the purposes of undertaking employment in his cousin's business, particularly in view of the extraordinary number of qualifications the applicant has already obtained.

1. The Tribunal accepted that the applicant had undertaken some research about his course, but was concerned, based on the number of courses he had undertaken and previous student visas he had held that he was enrolling in his current course with the primary purpose of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.
2. The Tribunal was concerned that the presence of the applicant's siblings in Australia, and his strong economic (employment) history may serve as an incentive not to return to Indonesia.
3. The Tribunal noted that the applicant was undertaking a course at the same level of study as previous courses, noted the applicant's failure to progress beyond vocational studies, and the lack of relation between his present course and the previous courses he had undertaken. The Tribunal was not satisfied his course was necessary for him to obtain employment in his cousin's business because he had completed a Diploma of Human Resources together with a suite of other vocational courses, and concluded as follows (at [56]):

...(t)herefore, the Tribunal cannot be satisfied that the applicant has objectively demonstrated the value of the current course to his future as there is no objective evidence before the Tribunal as to how the Advanced Diploma of Management in which the applicant is currently enrolled is necessary to enable the applicant to undertake or commence employment at his cousin's business in view of the qualification and experience he already holds.

1. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and concluded that he did not meet the requirement in cl 500.212(a), and accordingly, found that the criteria for the grant of the student visa were not met and affirmed the decision under review.

1. The Court may only grant a remedy to the applicant if persuaded that the Tribunal's decision is affected by an error that is jurisdictional in character.
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 (LPDT); Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (with whom Beech-Jones J agreed in separate reasons) described jurisdictional error as follows (with footnotes omitted) at [2] to [3]:

Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all" and is in that sense "void".

Because an express or implied condition of a statutory conferral of decision‑making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. In some cases, an error will be jurisdictional in nature, whether or not that error has been shown to have had an effect on the final decision, for example, where apprehended or actual bias are shown: LPDT at [6].
2. However, in most instances an error will only be jurisdictional where the error was material to the decision made, in the sense that there is a realistic possibility, that is, one that is neither fanciful nor improbable, that the decision could have been different but for the error: LPDT at [7], [14].
3. The grounds in the Amended Application are as follows:

(1) The Tribunal Member drew a conclusion without outlining the basis of or reasons for making the conclusion.

(2) Further, the Member failed to uphold her obligation to consider all information available to her in the review.

1. Although not represented at the hearing, the applicant filed an outline of submissions dated 30 October 2024, headed "Outline of Submissions for the Applicant" (OOSA). At the outset, the OOSA set out a series of passages from a range of cases commencing with a passage from Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58. Each of the passages concerned the question of error constituted by a failure to deal with either a particular submission or a piece of evidence.
2. Following those passages the applicant developed his argument under the heading "Submission". The first five paragraphs of the Submission section of the OOSA appear to develop the applicant's first ground but in relation to different aspects of the Tribunal's decision, while the final four paragraphs of the section appear to concern the applicant's second ground. Given the paragraphs deal with different parts of the Tribunal's decision, they are dealt with in turn below.

1. Paragraph 1 of the Submission section of the OOSA contends:

The Administrative Appeals Tribunal drew a conclusion without adequate basis and did not provide a reason for drawing the conclusion. Specifically, the Tribunal Member stated in Paragraph 44 of the decision that the applicant did not need to undertake his Advance Diploma in Human Resource as he had completed the Diploma of Human Resource course. The Tribunal member did not provide any reason for such a conclusion and the applicant is perplexed as to the underlying basis for the Tribunal to draw such a conclusion.

1. Paragraph 44 of the Tribunal's decision reads as follows:

MEMBER: While the Tribunal accepts that individual may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential. The view of the qualifications that the applicant already holds.

1. The final sentence of [44] does not make grammatical sense. Although it appears the sentence has been prematurely terminated, having regard to the content of the preceding sentence, it appears that the paragraph should read as follows (with corrections marked up):

MEMBER: While the Tribunal accepts that individual may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential,. The in view of the qualifications that the applicant already holds.

1. That is, the Tribunal Member was, whilst acknowledging that some persons may legitimately change their career or study pathway, not satisfied that the applicant's proposed study would enhance his career prospects beyond the prospects he enjoyed as a consequence of all the other courses he had studied.
2. The applicant's challenge to that conclusion, in effect, raises an illogicality or irrationality ground.
3. To assess that claim it is important to bear in mind that in order for the applicant to be granted the visa he sought he was required to satisfy the criteria for the grant of the visa in the Act and Regulations, including the genuineness criterion in cl 500.212 of sch 2 of the Regulations. It was not a criterion for the grant of the visa that the applicant's proposed course of study enhance the applicant's career prospects. However, the value of the course to the applicant's future was a question to which the Tribunal was directed by paragraph 12 of the Ministerial direction. That paragraph directed the Tribunal to have regard, in considering the value of the course, to the consistency of the proposed course of study to the applicant's present level of education and whether the proposed course of study would assist the applicant to obtain employment or improve their employment prospects in their home country.
4. Within that framework, a decision-maker's persuasion that an applicant's proposed course of study would enhance his employability or career prospects was one factor capable of weighing in the balance in support of a conclusion that the applicant was a genuine applicant for entry and stay as a student. That is, if it appears that an applicant's proposed course of study makes career sense, a decision-maker may be readily satisfied that it is likely the applicant genuinely intends to remain as a temporary entrant in order to undertake that study. Conversely, if the course an applicant proposes to undertake does not make career sense, that may call into question the genuineness of their intention in seeking the visa.
5. The Tribunal noted, at [39] and [40] of its reasons, that the applicant had been in Australia since 2009, had undertaken a number of vocational level courses which were not consistent with each other, and recorded that it had advised the applicant that those matters might be a part of the reason for affirming the delegate's decision. The Tribunal then, at [41] and [42], recorded the applicant's response, which was to identify the offer of employment made by William as the reason for him to undertake studies in human resources.
6. At [44], the Tribunal was not concluding that the applicant did not need to undertake the Advanced Diploma course. Rather, the Tribunal was recording that it had not been persuaded that the Advanced Diploma course made the applicant more employable than he already was, or likely to earn more, as he already possessed a range of qualifications, and the course he proposed to undertake would not elevate him beyond his existing level of academic achievement. The Tribunal was, as para 12 of the Ministerial Direction envisaged, considering the value of the Advanced Diploma course to the applicant's future career prospects, in light of the qualifications the applicant already held. It was open to the Tribunal to reach that conclusion, which was an entirely conventional one given the facts before the Tribunal.
7. The task of the Court undertaking judicial review is not to reconsider that question having regard to that evidence. Rather it is to ascertain whether there was a rational basis for that conclusion. Even if the Court has an emphatically different view to that of the Tribunal Member about the value of the Advanced Diploma in Human Resources, it does not follow that the Tribunal's conclusion was illogical or irrational and therefore erroneous: Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [124], [129]. The Tribunal's conclusion about the value of the applicant's proposed course was open to it on the evidence before it about the applicant's history and I am not persuaded there is any jurisdictional error of the type described by the applicant.

1. Paragraph 2 of the Submission section of the OOSA is as follows:

The Applicant was denied of natural justice and access to procedural fairness because by virtue of the Migration Act 1958 (Cth), the tribunal must have regard to all material relevant to the applicant's matter. Among others there were documents which shows that the Advanced Diploma and the Diploma of Human Resources course are different in the terms of course content.

1. The applicant submits that failure to consider a particular piece of evidence, namely, the documents showing the Advanced Diploma and Diploma of Human Resources had different course content involved a failure to afford procedural fairness.
2. There are two documents in the court book that are capable of meeting the description given to them by the applicant, namely, documents showing the content of the Diploma and Advanced Diploma courses. The applicant's "Transcript of Results" for his Diploma of Human Resources Management, which he submitted in support of his visa application, contains a list of the units of competency attained by the applicant. The applicant also submitted an interim transcript of results for his Advanced Diploma of Management (Human Resources), which showed 2 units of competency attained by the applicant, being "BSBHRM602 Manage human resources strategic planning" and "BSBRSK501 Manage risk". Those units were not listed on the applicant's "Transcript of Results" for his Diploma of Human Resources Management. The interim transcript did not otherwise show the content of the Advanced Diploma.
3. The units of competency in the Advanced Diploma, or the content of that course, appears to have been described by William in both the first and second letters of support, viz:

...learn how lead effective workplace relationships, implement customer service standards, establish networks, address customer needs, manage remunerations and employee benefits, develop and manage performance-management process, manage company risks and other that will benefit him when he works for my company.

1. However, far from it being the case that such evidence was not considered, the Tribunal Member referred, at [50] to [52], to the applicant's recitation of those components of his proposed study in his completed Request for Student Visa Information form.
2. Failure to mention a matter may in some instances provide support for a conclusion that the matter was not in fact considered, but the mere absence of reference does not compel that conclusion: see Soliman v University of Technology, Sydney (2012) 207 FCR 277; [2012] FCAFC 146 (Soliman) at 295 [54]. Here, where the applicant's own description of the content of his proposed course was referred to by the Tribunal in its reasons, it cannot be said that the Tribunal failed to consider the course content of the Advanced Diploma.
3. The Tribunal did not err in the manner described.

1. Paragraph 3 of the Submission section of the OOSA is as follows:

The conclusion was a significant and material because such drawn conclusion about the applicant's course inevitably makes him a non -genuine student and deprives the applicant from a different outcome (ie no possibility of being considered as a genuine student).

1. Paragraph 3 of the Submission section of the OOSA appears to refer back to the "conclusion" in [1] of the Submission section of the OOSA.
2. For the reasons set out above in respect of [1], the applicant's characterisation of the "conclusion" in [44] should not be accepted. Nor should the submission that the "conclusion" in paragraph [44] necessarily meant the applicant was not a "genuine student" be accepted. That submission mis-states the question before the Tribunal, which was not whether the applicant was a "genuine student", but whether he was, as described in cl 500.212(a) of the Regulations "...a genuine applicant for entry and stay as a student because...[he] intends genuinely to stay in Australia temporarily...".
3. The submission should also be rejected because it was still open to the Tribunal to have been satisfied that the applicant was a genuine temporary entrant, notwithstanding the fact it had not been persuaded that his intended course would enhance his career prospects. To give an example, had the Tribunal been convinced that the applicant had a powerful personal interest in the subject matter of the course, it may have been persuaded that the applicant was a genuine applicant for entry and stay as a student notwithstanding its misgivings about the value of the course in enhancing the applicant's employability or career prospects. Equally, it would have been open to the Tribunal to reject the application even if persuaded that the applicant's proposed course enhanced his career prospects, if there was other evidence calling the applicant's bona fides into question. The Tribunal's conclusion about the value of the applicant's proposed course was not dispositive of the application for review.
4. Nothing in [3] of the Submission section of the OOSA demonstrates jurisdictional error on the part of the Tribunal.

1. Paragraph 4 of the Submission section of the OOSA is as follows:

Paragraphs 44 and 45 of the Tribunal's decision stipulates that the Advanced Diploma court (sic) will not further assist in the applicant's career development or earning potential. We respectfully submit that this is an illogical conclusion in the face of the fact that the applicant was offered a position as the Human Resources Manager at Kilang Padi Suka Damai where he was required to complete his HR courses. The job offer letter indicated that the position has to be filled by someone with Human Resources understanding. It is necessary for the applicant to pursue an Advanced Diploma of Management (Human Resources) to fill the position. The Member wrongly concluded that the course is of no value to the applicant's career development. The member's basis for making this conclusion is inadequate.

1. The Tribunal later dealt with the offer that was made to the applicant by the applicant's cousin's business, Kilang Padi Suka Damai. At [56] of its reasons, the Tribunal said:

For the reasons the Tribunal has set out above, the Tribunal is not satisfied that the current course in which the applicant is enrolled is necessary for the applicant to obtain employment in his cousin's business, because the applicant has completed a Diploma of Human Resources, together with a suite of other further vocational courses as set out above. Therefore, the Tribunal cannot be satisfied that the applicant has objectively demonstrated the value of the current course to his future as there is no objective evidence before the Tribunal as to how the Advanced Diploma of Management in which the applicant is currently enrolled is necessary to enable the applicant to undertake or commence employment at his cousin's business in view of the qualification and experience he already holds.

1. The Tribunal was not persuaded that it was necessary for the applicant to undertake the Advanced Diploma in order to obtain the role in the cousin's business.
2. That conclusion was one which was open to the Tribunal. Both the first and second letters of support promised that the cousin would take the applicant on in his business, as long as he completed "the human resources program". However, nothing in either letter explained why the Advanced Diploma of Management (Human Resources) was necessary for the applicant to perform the role.
3. Illogicality as a basis for judicial review will not be demonstrated where the conclusion which is the subject of that argument is one as to which reasonable minds may differ: SZMDS at [131], per Crennan and Bell JJ. It was open to the Tribunal to reason, as it did, that the letters from the applicant's cousin did not demonstrate that the Advanced Diploma was necessary to perform the role in the applicant's cousin's business. Another decision-maker may have regarded the letters of support differently, but that fact does not demonstrate irrationality.
4. I am not persuaded that the Tribunal erred in the manner alleged by the applicant.

1. Paragraph 5 of the Submission section of the OOSA is as follows:

The applicant submits that the courses he has undertaken in the past are consistent with his aim of acquiring the necessary knowledge to equip himself with skills required to commence employment in his cousin's company upon his return to Indonesia. Moreover, the job offer extended comes with a requisite condition that the applicant is awarded with qualifications from his previous studies with an emphasis on the need to understand human resources management.

1. In paragraph 5, the applicant seeks to engage with the merit of his visa application, and attempt to persuade the Court to consider again his satisfaction of the visa criteria.
2. The role of the Court is not to consider the strength of the applicant's claim for the visa; it is to make an assessment whether the Tribunal decision contained jurisdictional error. In undertaking its review task, the Court 'must be careful not to assume the function of the decision-maker' (LPDT at [15]).
3. Paragraph 5 does not disclose any jurisdictional error which would permit the Court to grant relief.
4. I am not persuaded that there is any jurisdictional error of the type alleged in Ground 1 of the amended application.

1. Paragraphs 6 to 9 of the Submission section of the OOSA are as follows:
   1. The Member wrongly concluded that there was no evidence of circumstances that would serve as a strong incentive for the applicant to return to his home country. On the contrary, the applicant has received and submitted accordingly, an employment offer was extended to the applicant and if he decides not to accept that offer, he would be working in his cousin's company provided that he is successfully awarded the requisite skills required by his cousin before he returns home.
   2. This application for judicial review is grounded on the member's failure to give proper and due consideration of the facts and evidence provided to the Tribunal. In the case of Singh v Minister [2019] FCAFC 3 at [3], the Full Court stated that:

"If a statute requires a decision-maker to consider a atter (sic), the decision-maker must give that matter 'proper, genuine and realistic consideration': that is, the decision-maker must engage in an 'active intellectual process' directed at the matter: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] per Griffiths, White and Bromwich JJ

1. To similar effect, in NAJT v Minister (2004) (2005) 137 FCR 51 at [212] (Madgwick J, Conti J agreeing) stated:

"Nevertheless, given the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to 'have regard' to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a 'decision-maker may be aware of information without paying any attention to it or giving it any consideration'. In my opinion it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration - had in Black CJ's phrase in Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462 engaged in an 'active intellectual process' in relation to the letter - yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.

1. On this occasion, the Administrative Appeals Tribunal had disregarded their overarching duty of consider all the relevant information before the Tribunal and duty to draw fair conclusion with adequate basis for doing so. In particular the Tribunal's action of making unfounded conclusions against the applicant without taking into serious consideration other materials that may be in favour of the applicant.

1. Paragraph 6 above appears to erroneously include a "not", before the words "to accept the offer". The submission appears to have been intended to read as "if he decides to accept that offer, he would be working in his cousin's company...".
2. Paragraphs 6 to 9 argue that the Tribunal failed to give proper, genuine and realistic consideration to the offer of employment, relying on [30] of Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 (Singh):

If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter 'proper, genuine and realistic consideration'; that is, the decision-maker must engage in an 'active intellectual process' directed at the matter: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.

1. In considering the ground, the Court must consider, first, whether the offer of employment was a matter the decision-maker was required to give "proper, genuine and realistic consideration", and if so, whether the Tribunal Member erred by failing to give it the appropriate consideration.
2. To answer the first question, it is important to have regard to the passage in Singh following that on which the applicant relied. The Full Court goes on in Singh, as follows:

31 A statute might require a decision-maker to consider a matter by:

(1) expressly stating that the decision-maker must consider the matter; or

(2) necessary implication because the consideration is a mandatory one having regard to the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

....

1. The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with "review" may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if - for example - it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:

(a) a "substantial, clearly articulated argument relying upon established facts" - see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;

(b) a claim "raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review" - see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or

(c) a matter "that is an essential integer to an applicant's claim or that would be dispositive of the review" - see: ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.

1. The question the Tribunal was required to consider by cl 500.212 of sch 2 of the Regulations was whether the applicant satisfied the criterion that he be a "genuine applicant for entry and stay as a student because... [he] intends genuinely to stay in Australia temporarily".
2. In considering whether the applicant intended genuinely to stay in Australia temporarily, the Tribunal was obliged to have regard to the applicant's circumstances, a matter identified in cl 500.212(a)(i) of sch 2 of the Regulations.
3. The Ministerial Direction also applied to the Tribunal's decision, [2] of which obliged the Tribunal to:

...assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

1. considering the applicant against all factors specified in this Direction...

1. One of the factors specified in para 9 of the Ministerial direction was follows:

When considering the applicant's circumstances in their home country, decision makers should have regard to the following factors:

...

1. 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. The extent of the applicant's personal ties to his home country and whether those circumstances would serve as a significant incentive for his return was, therefore, a matter the Tribunal was required under the statutory scheme to give proper, genuine and realistic consideration. The inclusion in the Ministerial direction, amongst the examples of such ties, of "employment" meant that the question whether the applicant had any employment ties in their home country was a matter required to be considered in order to determine whether those ties served as a significant incentive for the applicant to return to his home country.
2. The fact that the applicant was not in fact employed at the time of his application, but was the subject of an offer of employment, is not critical in reaching this conclusion. "Employment" is used adjectivally in para 9 of the Ministerial Direction in relation to the word "ties". In the context of the Ministerial Direction, an "employment tie" comprehended by para 9 should be understood as referring to both the ties created by current employment relationships, as well as those arising due to relevant past and/or prospective employment relationships. Read in that manner, the connection between a person with a long history of employment with an employer, and a promise of further employment upon returning from studies abroad would be required to be evaluated for the purpose of determining whether it created an incentive for an applicant to return to the country of such employment.
3. The applicant's prospective employment with his cousin was a central claim made by the applicant in his review application, and was relevant to one of the considerations identified in the Ministerial Direction; it was therefore a matter that should have been given proper genuine and realistic consideration.
4. In addressing the second question, whether the Tribunal gave the offer of employment "proper, genuine and realistic consideration", the judgment in Singh provides guidance:
   1. However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review (emphasis in original):

The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister's decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as "proper, genuine and realistic consideration" can, if taken out of context, encourage a "slide" into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA's comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).

1. The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

2. In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a) the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];

(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c) a conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48].

1. The Tribunal dealt with the question of the incentive for the applicant to return to Indonesia created by the applicant's family ties in Indonesia at [37] of its reasons, as follows:

...the presence of the applicant's family in Indonesia do not, in and of itself, constitute or represent a significant incentive for him to return home to Indonesia when considered against the applicant's economic circumstances in Australia in the form of his strong employment history. And further demonstrated by the fact that the applicant has only returned home to visit his family on three occasions since arriving in Australia in 2009.

1. In doing so, the Tribunal addressed the consideration in para 9(b) of the Ministerial Direction, namely, the extent to which the applicant's personal ties to Indonesia, such as family ties, would serve as a significant incentive or him to return to Indonesia.
2. The Tribunal continued at [38] and [39] to deal with the applicant's community ties in Indonesia, and the extent to which they served as a significant incentive for the applicant to return to Indonesia, another consideration in paragraph 9(b) of the Ministerial Direction. The Tribunal also addressed the applicant's "personal financial circumstances in his home country", in doing so the Tribunal addressed the consideration in paragraph 9(c) of the Ministerial Direction, namely "economic circumstances that would present as a significant incentive for the applicant not to return to their home country":

The Tribunal is unable to conclude whether the applicant has strong community ties in Indonesia as there is no evidence before it on the subject. The Tribunal finds that the applicant has not demonstrated strong personal financial circumstances in his home country, although it acknowledges the applicant's family has some real estate and cash holdings in Indonesia. The Tribunal does not consider these matters would constitute a strong incentive to return home to Indonesia when weighed against the applicant's strong economic circumstances in the form of his employment in Australia.

The Tribunal notes that the applicant has been onshore since 2009. During that time, the applicant has undertaken a significant number of vocational level courses as set out above. The Tribunal is of the view that this fact, in and of itself, is indicative of the intention on the part of the applicant to remain in Australia on a more permanent basis. The Tribunal finds that the applicant's strong working history is an incentive for the applicant to remain in Australia on a more permanent basis. This is demonstrated by the applicant's strong past and current working history.

1. The Tribunal did not expressly refer to the offer of employment from the applicant's cousin, or make any separate assessment of the incentive it created for the applicant to return to Indonesia.
2. However, the Tribunal was undoubtedly conscious of the offer of employment. The Tribunal had referred expressly to the offer at [41] of its reasons, identifying the salary that had been offered for the role (AUD$3,000 per month). The Tribunal returned to the offer at [46], addressing the inconsistency in the applicant's claims about the offered remuneration, and again, at [47] and [56], where the Tribunal considered whether it was necessary for the applicant to undertake the Advanced Diploma of Human Resources to perform the role, and concluded that it was not necessary. The Tribunal's reasons also recorded, at [35], the applicant's AUD$65,400 per annum remuneration for his then current role as a bartender in Australia, an amount nearly double what was promised to the applicant in the role he was offered in Indonesia.
3. The Tribunal's conclusion in [38] that the applicant had not demonstrated strong "personal financial circumstances" in his home country which would constitute a strong incentive to return home to Indonesia, when weighed against his strong economic circumstances in the form of his employment in Australia, should be understood as a conclusion reached having undertaken a comparison of the applicant's financial interests and prospective employment in Indonesia and the applicant's remuneration in his employment in Australia, in particular, the remuneration associated with his present employment, and his prospective employment.
4. The Tribunal had expressed, elsewhere in its reasons, significant concerns about the applicant's credibility. It did not accept the applicant's proffered reasons for not studying in his home country (at [36]), and at [53]), had expressed concern based on the "sheer volume" of courses he had undertaken and the "sheer number" of student visas he had held that the applicant was enrolling in his current course with the primary intention of attempting to circumvent the student migration program. Implicit in those concerns was real doubt that the applicant intended to return to Indonesia to take up the cousin's offer; in other words, the Tribunal doubted that the offer was operating as an incentive for the applicant to return to Indonesia. Added to that concern, the Tribunal considered there was a strong counter-incentive provided by the applicant's employment in Australia. The Tribunal gave proper, genuine and realistic consideration to the offer of employment. The consideration was no less proper, genuine and realistic because the Tribunal did not accept the applicant's claims about the offer of employment, and reached conclusions in relation to it which were adverse to the applicant.
5. The Tribunal's decision did not contain any jurisdictional error as the applicant contends.
6. The application should be dismissed, and the parties given an opportunity to address on the question of costs.

I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.