The applicant contends the Tribunal failed to 'properly consider the overall weight of the relevant evidence', including COVID‑19 hardship and his period of residence and community ties.
The Minister submits that the Court's task is not to reweigh the evidence, that the weight to be afforded to a particular factor is a matter for the Tribunal which may include forming the view that certain factors should be afforded little or no weight: see Plaintiff M1/2021 v Minister for Home Affairs(2022) 275 CLR 582; HCA 17 at 598-599 (per Kiefel CJ, Keane, Gordon and Steward JJ).
I agree with the Minister's submission that Ground two is the applicant merely expressing disagreement with the weight placed on particular matters by the Tribunal, which does not, of itself, constitute jurisdictional error.[21] I further agree with the submission that the weight to be afforded to particular factors is a matter for the Tribunal.[22]
The Minister submits the Court is required to determine whether the reasons demonstrate the Tribunal understood and evaluated the material before it, in light of the prescribed circumstances it was obliged to consider.[23] I agree with the Minister that judicial review in this case does not involve an inquiry into the degree or quality of consideration in the reasoning but rather whether there has been genuine consideration, in the sense of active intellectual engagement, with the evidence and prescribed circumstances.[24]
The Minister submits, and I agree, that the Tribunal properly considered each prescribed circumstance in r 2.41 of the Regulations, as well as the discretionary matters in the PAM3 Guidelines.[25] Each prescribed and discretionary circumstance is expressly addressed in the decision record, and for each circumstance the Tribunal addressed the relevant evidence when making its findings of fact, attributed weight to each consideration or factor in its assessment and gave sufficient reasons for that attribution where significant or greater weight was placed upon one matter over another. For example, the Tribunal placed the greatest weight on r 2.41(a) of the Regulations, as it was of the view the incorrect information submitted by the applicant was significant. There is nothing in the Tribunal's approach which indicates the presence of legal unreasonableness and the Tribunal's conclusion was open to it on the material before it.
Turning to the specific complaints about the Tribunal's assessment, I agree with the Minister's submission that a review of the evidentiary record reveals the Tribunal having expressly considered the applicant's submissions that he would suffer hardship on returning to Malaysia due to the COVID-19 pandemic, as well as that he had community ties owing to his long period of stay in Australia, finding in each case that these were factors weighing against cancellation.[29] I further agree with the Minister that it was plainly open for the Tribunal to afford little or minimal weight to these factors, having found that the applicant's statements on these topics were vague or unsubstantiated.[30]
The Minister submits, and I accept, that the Tribunal was not required to take into account any 'humanitarian discretion'.[31] Again, the Tribunal expressly acknowledged the applicant may have some concerns about the COVID-19 pandemic in Malaysia and general socio-economic conditions, but such broad concerns would not generally invoke protection obligations.[32]
Further, the Tribunal did consider matters that would give rise to hardship as a result of the bridging visa cancellation, including COVID‑19 conditions in Malaysia; the operation of laws that would restrict the making of further visa applications by, or grant of further visas to, the applicant; and potential adverse impact on the applicant's study plans. It accorded those matters weight against cancellation of the bridging visa. Its process of reasoning in relation to such matters was logical and the findings made were open to the Tribunal on the evidence before it.
The Tribunal also took into account the applicant's period of residence in Australia, ties to Australia, absence of other known non‑compliance or criminality, and claimed contribution to Australia. Each of these matters was given only slight or minimal weight for a variety of reasons which related to the insufficient quality of the applicant's evidence. For example, the Tribunal regarded the evidence of ongoing study and contribution to be 'vague' and 'unsubstantiated' and found that the applicant was 'guarded' about present circumstances. Again, the Tribunal's reasons show active engagement rather than a failure to consider.
In essence, the applicant's general complaint misapprehends the Tribunal's task. The Tribunal was required to consider the prescribed and relevant discretionary factors bearing on the exercise of the s 109 cancellation discretion. It did so. That it placed greater weight on the seriousness and intentional character of the non‑compliance - particularly where it bore on identity and migration history - does not bespeak legal error.
The reasons reveal that the Tribunal identified the correct legal framework, addressed each prescribed and relevant discretionary circumstance, and apportioned weight to the relevant considerations. The reasons clearly reveal the Tribunal having demonstrated a sufficient degree of active and intellectual engagement with the material when undertaking its assessment. Ground 2 is, in substance, an impermissible merits challenge and must be rejected.
Accordingly, jurisdictional error is not established by Ground two.
[2]
Finally, as the applicant is a litigant in person, I have also reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection[2017] FCA 1095 at [11] per Flick J. I have not identified any such jurisdictional error.
[3]
As jurisdictional error has not been established, the application must be dismissed.
As a consequence of changes to Ministerial portfolio arrangements, the name of the first respondent is to be amended to Minister for Immigration and Citizenship.
[4]
At the conclusion of the hearing, I heard the parties on the question of costs. The Minister sought costs fixed in the amount of $9,097.93 submitting that the maximum scale amount was applicable because a substantial portion of the legal work in the proceeding was undertaken after 1 September 2025, when the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 GFL Rules) came into force. The applicant was unsure if the amount sought was fair and reasonable and wished the Court to consider his 'salary and other factors'. The applicant did not further particularise his request which I understood to be a request for the Court to consider his limited financial circumstances.
Whilst I acknowledge the applicant may have difficulty paying costs, the applicant's financial standing is not a sound basis upon which to rest an argument that the Minister should otherwise be denied all or part of the costs incurred in defending this matter. Impecuniosity is not a principled basis for reducing the quantum of what would otherwise be a just order as to costs: see Northern Territory v Sangare[2019] HCA 25; (2019) 265 CLR 164; HCA 25 at [35] (per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ), as applied in the migration judicial review context by Perram J in Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCA 64 at [8]. As the High Court said in Sangare at [27]:
[5]
In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.
[6]
That said, I am also not persuaded by the Minister's submission that the maximum scale amount under the 2025 GFL Rules is appropriate in the circumstances. The Court Book had been filed in 2022; it was brief, and the Minister was not required to address any written submissions filed by the applicant. In those circumstances, I determine that an award of costs fixed in the amount of $8,000.00 is fair and reasonable. I will so order.
[7]
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.
[8]
[8] Written submissions of the Minister filed 15 October 2025 (MS), p5 at [21].
Minister for Immigration and Citizenship [2026] FedCFamC2G 67
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Cases Cited (7)
By way of an originating application filed in this Court on 13 October 2021, the applicant raised two grounds of review (reproduced below without alteration):
The AAT made jurisdictional errors by failing to give the applicant natural justice and procedure fairness as the hearing was done in a perfunctory way via telephone with an incompetent interpreter often cross talking me or the member.
The AAT also failed to properly consider the overall weight of the relevant evidence provided by the applicant, particularly evidence in favour of the appellants' case that can warrant an consideration of humanitarian discretion including Covid-crisis and his long period staying and connection in Australia (no reflection or mention of such thinking process in the AAT decision).
In this judicial review proceeding, the Court's task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth of Australia(2003) 211 CLR 476; HCA 2.
The Court has also scrutinised the application, the materials before the Tribunal and the Tribunal's decision to identify any jurisdictional error, noting the Court's obligations towards litigants in person as outlined in MZAIB v Minister for Immigration and Border Protection[2015] FCA 1392; (2015) 238 FCR 158; FCA 1392 at [58]-[77], [100] and [112]-[113]. At hearing before me, the applicant was asked to explain the basis of each of his grounds, especially where they were unparticularised, and to indicate whether there was anything the Tribunal had done or not done throughout the review application process, including at the Tribunal hearing, which he considered unfair or unreasonable.
Despite confirmation that he understood the nature of this opportunity to further particularise his grounds or make oral submissions to support his case, the applicant elected not to do so. Mr Wang addressed the Court on behalf of the Minister.
The materials before the Court include:
The Minister acknowledges the Tribunal must provide a competent interpreter where the applicant is not proficient in English.[15] Further, the Minister notes that not every departure from the standard of interpretation necessary to afford an applicant a proper opportunity to give evidence or make submissions will be sufficient to establish jurisdictional error.[16] Any errors of interpretation must be material if they are to be jurisdictional errors.[17]
The Minister submits, and I agree, that the applicant did not put any evidence before the Court to suggest there was any error in interpretation, or significant deficiencies in the quality of the interpretation, or the interpreter could not interpret Mandarin and English, so as to render the Tribunal hearing unfair.[18] Further, the Minister correctly observes that the applicant has not expressed which aspects of his evidence were not adequately presented to the Tribunal owing to the interpreter's alleged incompetence.[19]
The applicant contends that the interpreter interrupted him or the Tribunal member at the hearing. However, in the absence of any evidence to sustain this claim, and any detail in the Tribunal's reasons to suggest that any such interruptions had occurred, I do not accept the applicant's contention and thereby do not find error as a consequence. Rather, a review of the reasons reveals the Tribunal has recorded aspects of the applicant's oral evidence, comprehended and discussed that evidence throughout its decision, and at several points, considered that parts of that evidence weighed against the cancellation of his visa.
In my view, the applicant has not demonstrated or made any discernible argument in relation to exactly how the interpretation was so inadequate such that it affected his ability at hearing either to convey the substance of his evidence and arguments or to respond to the issues raised by the Tribunal to a sufficient degree such that the hearing can be described as unfair. There is no evidentiary basis for the claim that incompetent interpreter behaviour denied the applicant a real and meaningful opportunity to present his case: see BZAID v Minister for Immigration and Border Protection[2016] FCA 508; (2016) 242 FCR 310; FCA 508 at [52(4)].
As to interpretation, the Tribunal was required to ensure the applicant had a fair opportunity to give and test evidence with the assistance of a competent interpreter, given his reliance on Mandarin. That said, not every departure from ideal interpreting amounts to jurisdictional error. Materiality must be shown: there must be a realistic possibility that any error in interpretation could have affected the Tribunal's exercise of power. Here, the applicant identified no specific mistranslation, omission, or instance in which the interpreter's performance prevented him from conveying evidence or submissions material to the determinative issues.
(2015) 238 FCR 158
(2019) 265 CLR 164
(2016) 242 FCR 310
(2022) 275 CLR 582
(2003) 211 CLR 476
Instead, the record shows the Tribunal understood the applicant's oral evidence, summarised it, weighed it at several points (including where it favoured the applicant), and gave reasons for the limited weight ultimately accorded.[20] Absent concrete examples of misinterpretation or prejudice, the applicant's ground reduces to assertion and does not rise to jurisdictional error.
Accordingly, jurisdictional error is not established by Ground one.