The applicant's evidence as to personal ties to India was set out in paragraph [20]-[21] of the Tribunal decision. At [20] the Tribunal observed:
[2]
The applicant stated that his mother and wife reside in India, and his sister resides in New Zealand.
[3]
At [21] the Tribunal observed that the applicant stated to the Tribunal (at least initially) he owned assets in India, but then later on paragraph [32] when asked if he owned assets in India said, "not in my name".
The Tribunal considered the evidence on the issue of personal ties (as required under cl 9(b) of Direction 69) at paragraphs [46] and [49]. It also observed relevantly he had stable employment in Australia.
At [46] the Tribunal held:
[4]
The applicant's wife and immediate family reside in India although one sister resides in New Zealand. At the hearing he stated that he owned no assets in India in his name. However, two documents suggest he does own some real property in India. The applicant has had stable employment in Australia. The applicant has changed the direction of the study on several occasions whilst in Australia.
[5]
The Tribunal has considered the applicant's circumstances in his home country. The applicant is married and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. While the Tribunal accepts that the applicant may have family ties to India having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India
[6]
These findings were reasonably open on the evidence.
Based on this, the Tribunal found at [55] that:
[7]
... the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to India.
[8]
Contrary to the applicant's submissions, the Tribunal plainly considered the applicant's "personal", or "family" ties under cl 9(b) under Direction 69. It was under no obligation to consider these matters under cl 2(a) or under the "any other relevant matters" provision in cl 16 of Direction 69: see Kaur and discussion above about the nature of Direction 69. As discussed above, the weight the Tribunal gave to the evidence of his family ties in India (namely his mother and wife) was a matter for the Tribunal. It is not for the Court to determine what the "proper" weight should be in judicial review applications under s 476. That goes to the merits of the Tribunal decision not its legality: see Wu Shan Liang.
The applicant's submission the Tribunal "minimised" the evidence of the applicant's family ties to India is not a recognised basis for establishing jurisdictional error. Again, as referred to above, the weight of evidence is a matter for the Tribunal. Further, I do not accept the Tribunal was dismissive of the evidence, in the sense that it ignored it, or failed to give it proper consideration. As outlined above, it considered the evidence under cl 9 of Direction 69, and found the applicant had not been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study, and that it was not satisfied that the applicant has significant incentive to return to India. This was based on the applicant's own evidence as to his family ties, and on the evidence of the applicant's ownership of personal assets in India. The applicant's evidence ultimately was that he did not own any assets in India in his own name.
I consider this ground raises no higher than a disagreement with the merits of the Tribunal decision and its consideration of Direction 69.
Ground 3 does not establish jurisdictional error.
[9]
The applicant has not established that the Tribunal's decision is affected by jurisdictional error.
The application is dismissed.
[10]
The first respondent seeks costs fixed in the sum of $6,500. I consider the amount sought by the respondent is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.
[11]
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.
Parties
Applicant/Plaintiff:
Singh
Respondent/Defendant:
Minister for Immigration and Citizenship [2025] FedCFamC2G 1727
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Cases Cited (13)
To obtain the relief sought the applicant must prove that the Tribunal's decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth[2003] HCA 2; (2003) 211 CLR 476 at [76].
In LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2024] HCA 12 at [3] (LPDT) the High Court explained that:
The first respondent submitted that on the issue of what weight the Tribunal gave to the evidence, including the weight it attributed to the applicant's partner visa application, and his withdrawal of that visa, this was a matter for the Tribunal alone. The first respondent relied upon Tran v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 297 (Tran) at [5]-[7] to make this submission.
On the issue of whether it was permissible for the Tribunal to consider the partner visa application to begin with, the first respondent submitted that the application was clearly relevant to the determinative issue on review, that is, whether the applicant was a genuine temporary entrant, and formed part of the applicant's immigration history, a matter which the Tribunal had to consider in accordance with cl 500.212(a)(ii) and cl 13 of Direction 69.
The first respondent submitted that the Tribunal's conclusion on that matter - that the application for a partner visa was inconsistent with the conduct of a person who intended to reside in Australia temporarily - was open to it because it was a visa which, if successful, would have enabled him to reside in Australia permanently. The first respondent submitted that this finding was not a finding which was legally unreasonable or irrational or illogical. It was submitted that the finding was not so lacking in a rational or logical foundation that it was one that no rational or logical decision-maker could make. The first respondent relied upon Minister for Immigration and Citizenship v SZMDS[2010] HCA 16; (2010) 240 CLR 611 at [130]- [131] to make this submission.
The first respondent also submitted that ground 1 raises no higher than a mere disagreement with the merits of the Tribunal decision.
It is well accepted that it was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight: see Tran at [5]. The matter of the weight to be given to the evidence was in the domain of the Tribunal and not a judge on judicial review: Tran at [5].
In Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCCA 1060 (Ludgero), Judge Lucev stated at [23] and [24]:
[23] The Court has no jurisdiction to engage in merits review, and the Tribunal's fact-finding is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 167 (NADR) at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors(1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (Wu Shan Liang), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[24] ...Mere assertion of jurisdictional error as a cloak for mere disagreement with the Tribunal Decision cannot succeed, because mere disagreement with the Tribunal Decision does not amount to jurisdictional error: Re Minister for Immigration & Multicultural Affairs; ex parte s20/2002[2003] HCA 30 ... [and] are no more than a request for impermissible merits review.
Further, and relevantly, at [132] in SZMDS, their Honours held that the correct approach when assessing this ground of review, was to ask 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. This approach has been referred to as the critical fact approach: see Minister for Immigration and Border Protection v SZUXN[2016] FCA 516; (2016) 69 AAR 210 at [54] and EUD24 v Minister for Immigration and Citizenship[2025] FCAFC 128 (EUD24) at [35].
In Djokovic, the Full Court of the Federal Court summarised the principles relevant to whether a decision is unreasonable because of illogicality or irrationality as follows at [29]-[35]:
[29] As a statutory jurisdictional condition or jurisdictional fact (cf Aronson et al op cit at 258-260 [5.500]), the satisfaction that the presence of a visa holder may for the purposes of s 116(1)(e) be a relevant risk must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness: Minister for Immigration and Citizenship v Li[2013] HCA 18; 249 CLR 332 at 350-351 [26]-[29], 362 [63] and 370 [88].
...
[30] As Allsop CJ said in Minister for Immigration and Border Protection v Stretton[2016] FCAFC 11; 237 FCR 1 at 3-4 [3], [5] and [6], the above statements of principle in Li drew upon and drew together a number of well-known expressions and bodies of principle in giving explanatory (not definitional) content to the concept of legal unreasonableness. Further, as the Court (Allsop CJ, Robertson and Mortimer JJ) said in Minister for Immigration and Border Protection v Singh[2014] FCAFC 1; 231 FCR 437 at 445-446 [44], the Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an "outcome focused" conclusion without any specific jurisdictional error being identified.
[31] That taxonomy should not, however, be taken to mask the interrelationship of result and specific error. Nevertheless here, as shall be seen, the complaints made were directed to identifiable errors: a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction, illogical or irrational reasoning central to the reaching of the relevant state of satisfaction, and such matters also affecting the exercise of discretion.
...
[32] The nature of jurisdictional error and legal unreasonableness was described by Allsop CJ in at 3-6 [2]-[13]. See also ; at 170-172 [54]-[65].
The Tribunal set out the evidence regarding the applicant's enrolment in the Certificate IV in Automative Mechanical Diagnosis at paragraphs [37] and in a table (which the applicant provided) at paragraph [38]. The Tribunal well understood from the table that the course went from 17 January 2022 to 1 July 2022 (see [38]). It also well understood from the applicant's evidence in the table that he had been submitting his assessments on time (see [38]). I do not accept the submission that the Tribunal: (i) failed to appreciate the applicant had been successful in pursuing his Certificate IV course, and the requirements of the course; and/or (ii) failed to appreciate that this meant he was likely to finish the course by July 2022.
As outlined above, the weight the Tribunal gives to evidence is matter for it, as part of its fact-finding function: see Ludgero at [23]. I do not accept the applicant's submission that the Tribunal failed to give "proper weight" to the fact that the subject course in question (Certificate IV in Automative Mechanical Diagnosis) was almost finished by the time the AAT made its decision, and the applicant had been submitting his assessments on time, as these were matters for the Tribunal to determine for itself.
Further, there was no requirement on the Tribunal to specifically consider the applicant's "course progression" under cl 500.212(a). I do not accept the submission that clauses 2a and 16 of Direction 69 required the Tribunal to "comment" or address the fact that the applicant had completed 66% of the Certificate IV course in Automative Mechanical Diagnosis at the time of decision. The factors in Direction 69 are not mandatory or to be treated like a "checklist", rather they are to be used as a guide by a decision-maker "when considering the applicant's circumstances as a whole": see Kaur v Minister for Home Affairs[2019] FCA 2026 per Steward J at [30]. The Tribunal's task under cl 500.212(a) was to determine if the applicant "intended to genuinely stay in Australia temporarily" as a student, having regard to the matters in sub clause (i)-(iv) of cl 500.212(a), and by reference (as a guide) to the relevant factors in Direction 69: see Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCA 670 (Kaur) at [15]. This did not include, in the preset case, having to find to what extent the applicant had already successfully or unsuccessfully completed the Certificate IV course in Automative Mechanical Diagnosis. Course progression was not a factor to be considered specifically under Direction 69. What was a relevant factor in the present matter was the value of the course to the applicant's future, including remuneration and career prospects in the applicant's home country: see clause 12 in Direction 69. The Tribunal gave detailed consideration to this factor in paragraphs [50] - [53].
(2022) 289 FCR 21
(2010) 240 CLR 611
(1996) 70 ALJR 568
(2003) 211 CLR 476
(1996) 185 CLR 259
(1996) 136 ALR 481
Stretton
Minister for Immigration and Border Protection v Eden
[33] The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made_._ ...
[34] The task in assessing illogicality is not an exercise in logical dialectic. "Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case": SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
[35] 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]; R_e 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.
At paragraphs [50]-[53], the Tribunal found the Certificate IV course in Automative Mechanical Diagnosis would extend the applicant's stay until at least July 2022, and it considered that the length of the proposed stay suggested that the applicant was studying for the purposes of staying in Australia. It found that on balance this was consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme. It also did not place weight on the value of the course to the applicant's future, because it had some doubt as to whether the applicant's desire to open such a business in India was in fact genuine. Relevantly, the Tribunal had earlier found that the applicant's evidence generally was vague and imprecise (see paragraph [39]). The Tribunal observed that the Certificate IV course in Automative Mechanical Diagnosis was inconsistent with the applicant's plans when he first entered Australia on 8 June 2008 to study commercial cookery.
At paragraph [53] the Tribunal specifically considered clause 12 of Direction 69 and found that: