Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1849

1. The applicant, a citizen of India, seeks judicial review of a written decision of the Administrative Appeals Tribunal (Tribunal) dated 12 October 2021, which written decision was provided following the Tribunal's oral decision made on 6 October 2021. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a Student (Temporary) (Class TU) (Subclass) 500 visa (student visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
2. The applicant sought to impugn the Tribunal's reasons and findings on the grounds set out at [18] of this judgment. For the reasons set out below, I find the applicant has not demonstrated jurisdictional error and I dismiss the application.

1. On 15 October 2019, the applicant applied for a student visa (Court Book (CB) 1 to 21). In his genuine temporary entrant (GTE) statement dated 3 October 2019, the applicant stated that he wished to study a course in General English from the Choice Business College in Sydney (CB 31 to 33).
2. The applicant was represented by Oceania Education Solutions (applicant's representative) in making his student visa application (CB 22 to 24) and application to the Tribunal for review of the delegate's decision (CB 48).

1. On 20 January 2020, the delegate refused the application by the applicant for a student visa on the basis that the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia and thereby failed to meet the genuine temporary entrant criterion (GTE criterion) in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) (CB 42 to 46).

1. On 3 February 2020, the applicant applied to the Tribunal for review of the delegate's decision (CB 47 and 48). By letter dated 20 August 2021, the Tribunal attached a copy of Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), that was given under s 499 of the Act, and invited the applicant to provide information about the course(s) of study he was undertaking and his entry and stay in Australia as a student, which could demonstrate he met both of the following student visa requirements (CB 55 to 61):

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

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

1. In response to the Tribunal's request, the applicant provided the following additional supporting documents to the Tribunal (CB 62 to 101):

(a) Confirmation of Enrolment - Diploma of Leadership and Management dated 28 July 2021.

(a) Completion Certificate - General English (Pre Intermediate Level) for the period 13 January 2020 to 11 December 2020.

(b) Completion Certificate - General English (Intermediate Level) for the period 11 January 2021 to 25 June 2021.

(c) Identity documents.

(d) Deed of Partnership dated 18 May 2015, stating the business of the partnership to be "financing of vehicles, household appliances, industrial equipment's and financing of every kind" and Company Registration Certificate dated 20 March 2015 for the finance company.

(e) HDFC Bank Balance Confirmation Certificate Letter dated 23 August 2021.

(f) Property Valuation Report dated 25 August 2021.

1. By letter dated 14 September 2021, the Tribunal invited the applicant to appear before it by telephone to give evidence and present arguments (CB 104 to 106). The Tribunal also requested the applicant to provide the following additional documents at least seven days before the hearing date:

(a) Confirmation of Enrolment in a course that the applicant was currently enrolled in.

(b) Documents of the applicant's past studies in Australia and documents evidencing any work related to past or intended studies in Australia.

(c) A written statement that addressed the issue of whether the applicant was a genuine applicant for stay and entry as a student by referring to Direction No. 69.

1. On 30 September 2021, the applicant's representative provided written submissions on behalf of the applicant in response to the Tribunal's request (CB 114 to 121).
2. By letter dated 5 October 2021, the Tribunal sent the applicant's representative the applicant's Provider Registration and International Student Management System (PRISMS) report, indicating that the Tribunal may refer to the said report in the hearing and requested the applicant to be familiar with its contents (CB 123 to 125).
3. On 6 October 2021, the applicant appeared before the Tribunal by telephone. At the Tribunal hearing, the applicant was assisted by his representative, Mr Sandip Khanal, and an interpreter in the Punjabi and English languages (CB 126 to 128).

1. The issue before the Tribunal was whether the applicant was a genuine temporary entrant to stay as a student in Australia ([10] of its reasons).
2. The Tribunal found that the applicant's circumstances in his home country did not constitute a strong incentive for him to return, but instead his family ties to Australia constituted a strong incentive for him to remain in Australia ([25] of its reasons). The Tribunal considered the evidence given by the applicant as follows:

(a) The applicant's parents, wife, daughter, son and sister resided in India and he called them three to four times a day by voice and video calls ([22] of its reasons). The applicant last visited his family in India in April 2019 for four months and 15 days and had not returned to India since due to COVID-19 restrictions.

(b) The applicant's community ties to India included his family who lived in the local community and the Sikh temples in his hometown ([23] of its reasons). He was not concerned about military service commitments or political and civil unrest in India.

(c) The applicant lived with his sister in Australia, who financially supported him ([24] of its reasons). The applicant's community ties in Australia consisted of him living with his sister who had been in Australia for 14 to 15 years and knowing his sister's circle of friends.

(d) The applicant had cash worth approximately AUD13,000 in India, property in his father's name worth approximately AUD87,000 that he would inherit, and farmland in his parents' name worth approximately AUD513,000 ([23] of its reasons).

1. The Tribunal was also concerned that the applicant may be using the student visa system to extend his stay in Australia ([30] of its reasons). The Tribunal acknowledged that the applicant decided to study in Australia when he arrived on a visitor visa because he wanted to improve his English after finding it difficult to communicate with people in English ([29] of its reasons). The Tribunal placed significant weight on the fact that the applicant had been in Australia for two years since he arrived for the second time and was seeking to extend his stay to finish his course, which was due for completion in January 2023 ([26] and [30] of its reasons). Moreover, the applicant had finished the General English course, the subject of his first student visa, and was now proposing to study the Diploma of Leadership and Management, which was not related to his previous work or study that he had undertaken ([30] of its reasons).
2. Further, the Tribunal was not satisfied of the value of the Diploma of Leadership and Management to the applicant's future. The Tribunal considered the evidence given by the applicant as to how the course would help his future business plans, being that the skills he gained from the course would allow him to "deal with banks and teamwork, and would help him to expand his business", as well as "earn more income" ([34] of its reasons). The Tribunal found the applicant only provided "vague details" about his future plans, and "failed to explain in any meaningful detail" why a Diploma of Leadership and Management was required to achieve his future plans ([35] of its reasons). The Tribunal placed significant weight on the fact that the applicant did not have a written business plan for his proposed business and had already completed his General English course.
3. The Tribunal placed little weight on the evidence that the applicant's expected earning income would be approximately AUD30,000 per annum upon completion of the Diploma of Leadership and Management after returning to India ([37] of its reasons).
4. At the hearing on 6 October 2021, the Tribunal orally affirmed the decision of the delegate not to grant the applicant a student visa and explained the reasons for its decision (CB 131). The Tribunal affirmed the delegate's decision on the basis that it was not satisfied the applicant intended genuinely to stay in Australia temporarily and therefore failed to satisfy the requirements of cl 500.212(a) of the Regulations ([38] to [41] of its reasons). On 12 October 2021, the Tribunal at the applicant's representative's request provided a written statement of the decision and reasons given orally at the hearing on 6 October 2021 (CB 138 to 145).

1. Leave was granted to the applicant to file an amended application. On 11 November 2025, the applicant filed an amended application raising the following grounds (as per original):

Ground 1

The Tribunal fell into jurisdictional error by misconstruing, misdirecting and misapplying the cl 500.212 of the schedule 2 to the migration Regulation 1994.

Particular One:

The Tribunal incorrectly identified the wrong issue or asked the wrong question: This is a important manifestation of misinterpreting the statute.

The Tribunal in placing "significant" weight on the fact that the applicant did not have a "written business plan" for his business was irrational, illogical and took into account an irrelevant consideration, as it was not a requirement under [12] of Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications for the applicant to have a written business plan in determining the value of the applicant's course.

Particular Two

The Tribunal ignored or failed to have regard relevant information that the statue required to taken into account as a condition of jurisdiction of power being exercised.

The Tribunal in reaching the conclusion at [38] of its reasons that it "is not satisfied that the applicant intends genuinely to stay in Australia temporarily" failed to have regard to and actively engage with the applicant's immigration history and record of compliance with visa conditions in assessing whether the applicant is a genuine temporary entrant pursuant to cl 500.212(a) of the Migration Regulations 1994 (Cth). Further, the Tribunal failed to consider the factors set out at cl 500.212(b) of the Regulations.

Further the Tribunal failed to make finding in relation to the factors set out at cl 500.212(b) of the Regulations.

The applicant provided evidence to the Tribunal in connection with cl 500.212(b) factors.

The Tribunal's error was "material" in the sense used in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12.

Ground 2

The Tribunal committed jurisdictional error by arriving at a conclusion that was legally unreasonable. The reasoning process was illogical and irrational.

[Illogical or irrational findings made by a decision maker "on the way" to a final conclusion may establish jurisdictional error: SZMDS at [132].

Particulars:

a) The Tribunal's finding at [25] of its reasons that "the applicant's family ties to India do not of themselves constitute a strong incentive for the applicant to return to India. Similarly, the Tribunal finds that the applicant's family ties to Australia do constitute a strong incentive for the applicant to remain in Australia" was legally unreasonable, irrational or illogical based on the evidence before it because the majority of the applicant's family were in India and the applicant's only family in Australia was his sister.

b) The Tribunal in placing "significant" weight on the fact that the applicant did not have a written business plan for his business was irrational, illogical and took into account an irrelevant consideration, as it was not a requirement under [12] of Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications for the applicant to have a written business plan in determining the value of the applicant's course.

c) The Tribunal in reaching the conclusion at [38] of its reasons that it "is not satisfied that the applicant intends genuinely to stay in Australia temporarily" failed to have regard to and actively engage with the applicant's immigration history and record of compliance with visa conditions in assessing whether the applicant is a genuine temporary entrant pursuant to cl 500.212(a) of the Migration Regulations 1994 (Cth). Further, the Tribunal failed to consider the factors set out at cl 500.212(b) of the Regulations.

1. The applicant was represented at the hearing before me by Mr Rasan Selliah (Mr Selliah) of Rasan T Selliah & Associates Lawyers. The Minister was represented by Mr Anthony Westenberg of Sparke Helmore Lawyers (Mr Westenberg).
2. The evidence before the Court comprised of the Court Book tendered by the Minister, which was marked "Exhibit R1".
3. The applicant relied on Mr Selliah's written submissions accepted for filing on 23 May 2025 and the Minister relied on his written submissions dated 5 June 2025. Mr Selliah and Mr Westenberg also made oral submissions at the hearing.

1. At the relevant time, being the time of the Tribunal decision in October 2021, the following clause in Schedule 2 to the Regulations set out the criteria for the grant of a student visa:

500.212

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

(c) of any other relevant matter.

1. In considering whether the applicant satisfied cl 500.212(a) of the Regulations, the Tribunal was required to have regard to Direction No. 69. This is because "Genuine temporary entrant criterion" was defined in Direction No. 69 as referring relevantly to cl 500.212(a) of the Regulations.
2. Direction No. 69 required that the Tribunal, in considering the GTE criterion (that is whether for the purposes of cl 500.212(a)(i) to (iv) the Tribunal was satisfied that the applicant intended genuinely to stay in Australia temporarily), have regard to:

(a) The applicant's circumstances in his home country, potential circumstances in Australia and the value of the course to his future. This involved, inter alia, considering reasons for not undertaking the study in the home country, personal ties to the home country and to Australia, economic circumstances of the applicant that would present a significant incentive not to return home, evidence that the student visa programme was being used to circumvent the intentions of the migration programme, whether the student visa was being used to maintain ongoing residence and value of the course to the applicant's future.

(b) The applicant's immigration history, including previous applications for an Australian visa or for visas to other countries and previous travel to Australia or other countries, the amount of time the applicant had spent in Australia and whether the visa may be used primarily for maintaining ongoing residence.

(c) Any other relevant information, including information that may be either beneficial or unfavourable to the applicant.

1. It was specified in Part 2 of Direction No. 69 that the factors were not to be used as a checklist, instead stating that the "listed factors are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion".

1. The grounds set out in the amended application are somewhat repetitive. The grounds have been organised into the following categories for clarity.

Ground 1, particular one and Ground 2, particular (b)

1. The applicant's solicitor argued that the Tribunal misconstrued and misapplied cl 500.212 of Schedule 2 to the Regulations, and further the Tribunal's reasoning process was illogical and irrational when the Tribunal at [35] of its reasons placed significant weight on the fact that the applicant did not have a written business plan when considering for the purposes of [12] of Direction No. 69, the value of the course to the applicant's future, for the following reasons:

(a) First, the applicant's solicitor argued that the Tribunal misapplied cl 500.212 and Direction No. 69 when it implicitly found that the applicant needed a written business plan in order to establish the value of the proposed course to his future. It was argued that there was no express requirement in Direction No. 69 that the Tribunal had to consider whether an applicant had a written business plan in assessing the value of the course, or that a written business plan was "a compulsory element of evidence" to establish the value of the course. Rather, it was said that the language in Direction No. 69 indicated both oral and written submissions of the applicant should be considered according to their relevance and context, and not restricted by a specific format. The applicant contended that the Tribunal was irrational by improperly restraining itself in such consideration notwithstanding the applicant's oral and written submissions about his future plans, which detailed how his course would enhance his skills for the purposes of his future career aspirations.

(b) Second, the applicant's solicitor contended that students who hold student visas do not always have a written business plan. It was said that the Tribunal took into account an irrelevant consideration, being whether there was a written business plan in assessing whether the applicant was a GTE, which fell outside the ambit of Direction No. 69 and demonstrated a lack of logical connection in such finding.

1. I find that it was reasonably open to the Tribunal in assessing the value of the Diploma of Leadership and Business to the applicant's future to place significant weight on the absence of a written business plan. I find that the Tribunal did this not by any misunderstanding as to what was required by cl 500.212 or Direction No. 69, but rather as evidence of the fact that the applicant's plans were "vague", lacked detail and did not have any clear goals as to how the course would assist his future proposed plans. The Tribunal's finding at [35] was against the background of the evidence given by the applicant as set out at [34] of its reasons, being that the course would help him to "expand his business", which business the applicant had said was a financial business he had in India. At [33] of the Tribunal's reasons, the Tribunal noted that it asked the applicant if he had a written business plan for his financial business back in India. To that question, the applicant responded that he did not have a business plan in writing. I find that the Tribunal was noting that a written business plan would be the sort of evidence that would provide details and demonstrate the future value of the course to his business, and absent that detail the value of the course was vague.
2. Turning to the applicant's argument that the absence of a written business plan was an "irrelevant consideration" and the Tribunal by taking it into account committed jurisdictional error. I note that it is well-established that before it can be said that a matter is an "irrelevant consideration", so as to amount to a jurisdictional error, the applicant has to demonstrate the Tribunal took into account a consideration which it was precluded from taking into account by the Act, Regulations or Direction No. 69: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [39] and [40] and Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277 at [20]. I find there is nothing in cl 500.212(a) of the Regulations or Direction No. 69 which precluded the Tribunal from considering the lack of a written business plan in considering the value of the course to the applicant's future. Therefore, I find that the Tribunal did not misapply or misconstrue what was required for the purposes of assessing the criteria in cl 500.212 of the Regulations or applying Direction No. 69.
3. Accordingly, no jurisdictional error is disclosed by ground 1, particular one and ground 2, particular (b).

Ground 1, particular two and Ground 2, particular (c)

1. Ground 1, particular two and Ground 2, particular (c) contain two alleged jurisdictional errors.
2. First, the applicant's solicitor argued that the Tribunal in reaching the following finding at [38] of its reasons allegedly failed to have regard to and actively engage with the applicant's immigration history as stipulated in [13] and [14] of Direction No. 69 and his record of compliance:

...When all of the findings and evidence that I have just summarised are taken into account, on balance the Tribunal is concerned that a student visa may be used primarily for maintaining an ongoing residence...

1. Second, the applicant's solicitor contended that the Tribunal failed to consider the factors set out at cl 500.212(b) of the Regulations, which were mandatory factors that the Tribunal had to consider.
2. In relation to the first alleged jurisdictional error in ground 1, particular two and ground 2, particular (c), the applicant's solicitor referred me to the decision of Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1861, where the Court said at [38] to [41]:
   1. ...Where a decision-maker is required to have regard to several mandatory considerations, he or she must actively engage with each of the considerations by determining how and to what extent, if at all, each of them might feed into the deliberative process and ultimate decision: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1, at [47]-[54]; Khadgi at [63]. The consideration of the factor in the process of reaching a decision must be genuine: Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462 and 464 (Black CJ), 476 (Burchett J), 495 and 496 (Kiefel J); Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45]; Khadgi at [57].
   2. The Tribunal was obliged to consider those claims and the evidence before it and to actively engage with each of the factors by determining how and to what extent, if at all, each of them might feed into the deliberative process and the ultimate decision: Kumar at [84].
   3. The Tribunal took into consideration the fact that the appellant had no current enrolment in a course of study and that, despite being onshore since 2016, he has not successfully completed a qualification ([15]-[16]). Although the weight to be given to the various factors mentioned within Direction 69 is a matter for the decision maker alone (Kumar at [85]), the Tribunal must at least bring to account in the decision-making process those factors considered to be sufficiently material to the decision. As the High Court observed in ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003, at [14], "there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim or that would be dispositive of the review".
   4. The plain, unequivocal words of the Tribunal that there was no relevant evidence about a range of factors in Direction 69, and which the Tribunal thought fit to mention, leads to the clear inference that the Tribunal overlooked, or chose not to consider, any material other than that contained in the Request for Student Visa Information Form under s 359(2). Contrary to the conclusion reached by the primary judge, by ignoring relevant material, the Tribunal has made a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]- [84].
3. The applicant's solicitor submitted that the Tribunal failed to consider the factors in [13] and [14] of Direction No. 69. He argued that the Tribunal only recounted the applicant's immigration history and circumstances in Australia at [14] and [15] of its reasons but did not actively engage with the evidence and make a finding in relation to the applicant's previous application for Australian visas and movement history. The applicant also said the Tribunal failed to engage with the evidence that the applicant had a "positive" immigration history and had complied with conditions of his previous visa and had not had a visa cancelled as required to be considered under [14(b)] of Direction No. 69.
4. The Full Federal Court in BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 (Collier, Flick and Perry JJ) said at [9] that the Tribunal was required to comply with Ministerial directions when making decisions because s 499(2A) of the Act makes clear that "[a] person or body must comply with a direction under subsection (1)". Therefore, the Tribunal must comply with Direction No. 69, issued under section 499 of the Act, when deciding the GTE criterion for cl 500.212 and must actively engage with the factors identified in that Direction.
5. I find contrary to what was submitted by the applicant's solicitor, the Tribunal did in fact have regard to and did actively engage with the applicant's immigration history as mandated by [13] and [14] of Direction No. 69 for the following reasons.
6. First, at [14] and [15] of its reasons, the Tribunal noted the applicant's immigration history as follows:
   1. The applicant confirmed that he first arrived in Australia on 22 January 2019. The applicant then left for four months and 15 days in April 2019 and returned to Australia in September 2019. That is over two years ago. The applicant confirmed that all of the information contained in the information form he submitted to the Tribunal on 3 September 2021 is correct.
   2. When the applicant first arrived in Australia he was on a visitor visa that was valid from December 2018 to December 2019. The applicant submitted his current student visa application on 15 October 2019 and the applicant was proposing to study a General English course.
7. Second, at [30] of the Tribunal reasons, the Tribunal did engage with the applicant's immigration history and found that based on the applicant's immigration history, it was concerned as to whether the applicant was attempting to use the student visa system as a way to remain in Australia. This was because the Tribunal reasoned at [30] of its reasons that the applicant first arrived in Australia on a visitor visa, the applicant had been in Australia for two years since he arrived in Australia for a second time and was seeking to extend his stay in Australia to January 2023. Further, the Tribunal's concern expressed at [30] was one of the reasons the Tribunal concluded at [38] that based on all the evidence it had summarised, it was concerned a student visa may be used primarily for maintaining ongoing residence in Australia. I find that the foregoing discussion of the Tribunal's reasons demonstrates the Tribunal actively engaged with the applicant's immigration history.
8. Further, the Tribunal at [18] and [19] of its reasons noted the following:

18. Since arriving in Australia the applicant has completed the following study:

a. a general English course between January 2020 and December 2020;

b. a general English course between January 2021 and June 2021; and

1. the applicant is presently studying a Diploma of Leadership and Management that commenced in July 2021 and is scheduled to conclude in January 2023.

19. The applicant has not worked since he arrived in Australia.

1. I find that the fact that the Tribunal at [12] of its reasons noted that it needed to have regard to Direction No. 69, and specifically at [18] and [19] of its reasons (as noted in the preceding paragraph of this judgment) identified the fact that the applicant since arriving in Australia had completed his studies and had not worked in Australia, demonstrates the Tribunal was aware that the applicant had complied with previous conditions of his visitor and student visas.
2. The Tribunal at [38] of its reasons made it clear by using the words "when all the findings and evidence that I have summarised are taken into account", that the Tribunal in finding at [38] that it was not satisfied the applicant intended genuinely to stay in Australia temporarily, was so finding after it weighed up and took into account all the findings and evidence, which included the evidence identified at [14] to [19] of its reasons and the Tribunal's expressed concern at [30] of its reasons, which included the applicant's immigration history and whether the applicant had previously complied with conditions of his previous Australian visas.
3. Therefore, I find that the Tribunal did in fact actively engage with the applicant's immigration history and record of compliance with visa conditions when assessing whether the applicant was a genuine temporary entrant pursuant to cl 500.212(a) of the Regulations.
4. In relation to the applicant's second alleged jurisdictional error in ground 1, particular two and ground 2, particular (c), being the Tribunal's alleged failure to consider the factors set out at cl 500.212(b) of the Regulations, I note this issue was determined by the Full Federal Court in Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 (Dait). The Full Federal Court considered whether the decision-maker was required to consider subtle (b) and (c) of cl 500.212 only if the applicant satisfied subcl (a).
5. Their Honours Jagot, Bromwich and Lee JJ in Dait said the following:
   1. The presently relevant criterion, clause 500.212, requires satisfaction of a single state of affairs. It contains one sentence. The conjunction "because" connects the chapeau with subcl (a), implying a relationship of cause and effect: Pearce DC, Statutory Interpretation in Australia (9th ed, LexisNexis Australia, 2019) (at [12.11]). The conjunction "and" also marries subcll (a), (b) and (c), each of which is connected back to the chapeau by the combined conjunctive effect of the terms "because" and "and". Further, each of subcll (a)(i)-(iv) and (b)(i)-(ii) is connected to its parent and, by extension, to the chapeau, by way of a colon or the conjunction "and". This creates a waterfall effect, brought to a close by the full stop at the end of subcl (c). The combined effect of "because", "and" and the use of colon unites each composite part of cl 500.212, giving rise to "a whole idea or conception: "a genuine applicant for entry and stay as a student": Eros (at [8]). This reading is supported by the verb "is" in the chapeau, which encapsulates a single state of being.
   2. In saying this, subcll (a), (b) and (c) nonetheless demand discrete inquiries as a matter of language and can be read and understood in isolation. Accordingly, satisfaction of cl 500.212 requires the cumulative satisfaction of discrete elements. Each of subcll (a), (b) and (c) are integral elements of the criterion. These elements are bookended by conjunctive devices, which reflect the need for the decision-maker to undertake a piecemeal analysis, and for the applicant to satisfy each step in that analysis in order to qualify as "a genuine applicant for entry and stay as a student". If a decision-maker is not satisfied that an applicant meets subcl (a) or (b) alone, the decision-maker need not continue their inquiry. This is because an adverse finding in relation to either subcl (a) or (b) forecloses any possibility of a favourable outcome.
6. The Full Federal Court in Dait found that despite the fact that subcll (a), (b) and (c) of cl 500.212 of the Regulations combine to become a "whole idea or conception" for what constitutes a genuine applicant for entry and stay as a student, by way of statutory construction each subclause should be read as a discrete element that requires cumulative satisfaction to satisfy the GTE criterion. Accordingly, the decision-maker is not obliged to proceed its analysis to the next subclauses if either subcl (a) or (b) of cl 500.212 is not met. As Jagot, Bromwich and Lee JJ said at [35(4)] in Dait:

...If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the "whole idea or conception" contained in cl 500.212: Eros (at [8]).

1. Therefore, the applicant's ground 1, particular two and ground 2, particular (c), to the extent that it argued the Tribunal erred in not proceeding to consider cl 500.212(b), cannot succeed given the Tribunal found at [39] of its reasons that the applicant did not meet cl 500.212(a) of the Regulations and the Full Federal Court's reasoning in Dait set out at [45] and [46] of this judgment.

1. The applicant's solicitor argued that the Tribunal's finding at [25] of its reasons, that "the applicant's family ties to India do not of themselves constitute a strong incentive for the applicant to return to India. Similarly, the Tribunal finds that the applicant's family ties to Australia do constitute a strong incentive for the applicant to remain in Australia" was legally unreasonable, irrational or illogical. The applicant's solicitor contended that this was so because on the evidence accepted by the Tribunal, that the applicant's parents, wife, daughter, son and sister lived in India, and the applicant's only relative in Australia was his sister, it was logical on the numbers that the applicant had stronger family ties in India. Therefore, the applicant's solicitor submitted that with six family members in India and only one in Australia, the Tribunal's decision at [25] - that there was no strong incentive for the applicant to return to India - was illogical and irrational.
2. The applicant's solicitor relied on Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). In SZMDS, Crennan and Bell JJ stated the following at [132], [133] and [135]:
   1. Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
   2. However, the correct approach is 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...

...

1. 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...

1. As said in SZMDS, "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". The Tribunal in reaching its conclusion at [25] of its reasons based it reasons on "all this evidence", which included the reference to the evidence identified at [22] of its reasons, being to the effect that the applicant had not been back to India since September 2019, and the reference to the applicant's evidence noted at [24] of the Tribunal's reasons, that the applicant was living with his sister who had been in Australia for 14 to 15 years and who was financially supporting the applicant. Therefore, in reaching the conclusion at [25] of its reasons, the Tribunal had regard to the evidence identified, and the finding at [25] of its reasons was based on an analysis of all the evidence. Therefore, the Tribunal was not just counting the number of family members in one place as compared to another place. I find it was open to the Tribunal and reasonable and logical for it to reach the conclusion it did at [25] of its reasons based on all the evidence before it. It was a matter for the Tribunal to weight up the evidence and make a finding as to the applicant's ties in India and if a finding is reasonably open it is not for this Court to engage in a merits review: SZMDS at [132]. Accordingly, I find no jurisdictional error is disclosed by ground 2, particular (a).

1. As no jurisdictional error has been disclosed, the amended application must be dismissed.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.