Yang v Minister for Immigration and Citizenship [2025] FedCFamC2G 1453

1. On 23 February 2024, the applicants lodged an application, under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 30 January 2024. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Student (Temporary) (Class TU) (subclass 500) visas under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided as a time of decision criterion for a student visa:

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. In considering whether an applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction 69, "Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications" (Direction 69), made under s 499 of the Act, which required the Tribunal to have regard to specified factors in relation to:

(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 first applicant (Applicant) and second applicant, citizens of South Korea, are husband and wife respectively. In October 2012, the Applicant first arrived in Australia on a visitor visa. Between his arrival and 2021, the Applicant subsequently held a student visa, a subclass 401 temporary work visa, and a subclass 408 temporary activity visa, as a dependent of the second applicant.
2. On 22 January 2021, the Applicant applied for a subclass 500 student visa on the basis of his enrolment in some theological diploma courses at an educational institution in Australia**.** The second applicant was included in the visa application as a dependent of the Applicant.
3. On 28 February 2022, a delegate of the first respondent refused to grant the applicants the visas on the basis that the Applicant did not satisfy cl 500.212 of Schedule 2.
4. On 8 March 2022, the applicants applied to the Tribunal for review of the delegate's decision.
5. On 3 August 2023, the Tribunal invited the applicants to attend a hearing by telephone on 30 August 2023.
6. On 30 August 2023, the applicants appeared at the hearing before the Tribunal by telephone to give evidence and present arguments, with the assistance of their representative and a Korean interpreter.
7. On 30 January 2024, the Tribunal made a decision affirming the delegate's decision not to grant the applicants student visas.

1. The Tribunal at [15] identified that the issue before it was whether the Applicant satisfied cl 500.212(a) of Schedule 2 and, in considering whether the Applicant satisfied cl 500.212(a), it must have regard to Direction 69 and the factors specified therein.
2. The Tribunal at [17]-[32] summarised the Applicant's evidence given at the hearing in August 2023, and his representative's oral submissions.
3. The Tribunal at [34]-[38], with reference to the factors in paragraph 9 of Direction 69, considered the Applicant's circumstances in his home country. The Tribunal made some findings in the Applicant's favour, including that his family ties in South Korea "would act as an incentive for the applicant to return to his home country" (at [34]) and that "the applicant has provided reasonable reasons for not undertaking the proposed courses of study in his home country" (at [37]).
4. The Tribunal at [39]-[43], with reference to the factors in paragraph 11 of Direction 69, considered the Applicant's potential circumstances in Australia. The Tribunal noted that the Applicant had lived in Australia since 2012 and he now proposed to remain in Australia until 2026 to complete the diploma courses, which would bring the Applicant's stay in Australia to over 13 years. The Tribunal stated at [40] that "this is a significant period of time and raises concerns that the applicant does not intend to remain in Australia on a temporary basis and that he may be using the student visa programme to maintain ongoing residence and to circumvent the intentions of the migration programme". The Tribunal at [41]-[42] noted that the Applicant had strong family and church community ties in Australia "which would present as a strong incentive for him to remain in Australia".
5. The Tribunal at [44]-[46], with reference to the factors in paragraph 12 of Direction 69, considered the value of the course to the Applicant's future. The Tribunal made some findings in the Applicant's favour, such as "the proposed courses of study are relevant to the applicant's stated career plans" and "the proposed course of study may increase the applicant's employment opportunities and the remuneration he could expect to receive".
6. The Tribunal at [47]-[50], with reference to the factors in paragraph 14 of Direction 69, considered the Applicant's immigration history. The Tribunal again found at [49] that "given the length of time the applicant has now spent in Australia on various temporary visas, the Tribunal is concerned that the student visa may be used primarily to maintain residence".
7. As noted above, the Tribunal, in considering the factors in Direction 69, made some findings in the Applicant's favour, and others adverse to the Applicant. The Tribunal at [52] then stated:

On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).

Judicial review application and steps up to hearing on 29 August 2025

1. On 23 February 2024, the applicants lodged an application in this Court seeking judicial review of the Tribunal's decision. The application contained the following ground (as written) (Application):

Ground 1: The decision of the Second Respondent reaches is not reasonable and irrational.

PARTICULARS

1. The Second Respondent does not assess and consider the relevant laws and the Department's policy specially so called "Direction 69" in a proper manner when it reaches the decision. The Second Respondent does not give a proper weigh and consideration on assessment criteria when determines the decision. The Second Respondent should have more weight on relevant criteria which it results in a jurisdictional error.

1. On 19 August 2024, a registrar of the Court made orders, including that, upon the matter being listed for hearing, the applicants file and serve at least 28 days before the hearing any amended application and a written submission.
2. On 10 July 2025, the parties were notified by the registry of the Court that the matter was listed for hearing on 29 August 2025.
3. On about 1 August 2025, a barrister, retained by a solicitor who eventually came onto the record for the applicants, served a submission for the applicants dated 1 August 2025 (AS).
4. On 15 August 2025, the first respondent lodged a written submission (RS) which responded to the submission served on about 1 August 2025.
5. On 25 August 2025, the applicants lodged the written submission dated 1 August 2025.

1. At the hearing in this Court on 29 August 2025, Peter Berg of counsel appeared for the applicants, and Ben Wilson from the Australian Government Solicitor appeared for the first respondent.
2. Mr Wilson tendered a Court Book (CB) which contained the Tribunal's decision and documents before the Tribunal.
3. Mr Berg and Mr Wilson then made oral submissions on behalf of their clients. I refer to the parties' written and oral submissions below.

1. In the following paragraphs I consider the argument advanced by Mr Berg in his written submission dated 1 August 2025, and in oral submissions at the hearing on 29 August 2025. Although the argument is not particularised in the Application, the parties proceeded on the basis that the argument is a particular of the vaguely drafted ground in the Application.
2. A summary of Mr Berg's argument is as follows:

(a) Pursuant to s 499(2A) of the Act, the Tribunal "must comply with" Direction 69: AS [2].

(b) Direction 69 requires the Tribunal to have regard to specified factors in considering whether an applicant satisfies cl 500.212(a). Paragraphs 2 and 5 of Direction 69 indicate that, in relation to the specified factors, the Tribunal must undertake a "balanc[ing]" (paragraph 2) or "weighing" (paragraph 5) process. It follows that, on a proper construction of Direction 69, "the Direction contemplates that ... some factors [may] carry favourable weight in the balance": AS [11].

(c) The Tribunal, in considering the value of the course to the Applicant's future at [44]-[46], "excluded the capacity of this factor to weigh in the applicant's favour": AS [9].

(d) Similarly, the Tribunal, in considering the applicant's immigration history at [47]-[50], made "4 favourable findings" which "favour the view that the Applicant is a genuine temporary entrant" (AS [14]), but gave them "neutral weight only" (AS [16]), and thereby again misapplied Direction 69.

1. I agree with the propositions in paragraph 29(a) and (b) above.
2. For the following reasons, I disagree with the propositions in paragraphs 29(c) and (d).
3. First, whether the Tribunal misunderstood or misapplied Direction 69 in the manner explained by Mr Berg requires a consideration of the whole of the Tribunal's reasons for decision. As stated in paragraph 4 above, Direction 69 required the Tribunal to have regard to specified factors in relation to the following four matters:

(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

(a) concerning the applicant's circumstances in their home country are set out in paragraph 9 of Direction 69;

(b) concerning the applicant's potential circumstances in Australia are set out in paragraph 11 of Direction 69;

(c) concerning the value of the course to the applicant's future are set out in paragraph 12 of Direction 69; and

(d) concerning the applicant's immigration history are set out in paragraph 14 of Direction 69.

1. A review of the Tribunal's decision indicates that, for each of the four matters listed in paragraph 32 above, the Tribunal addressed each of the specified factors set out in Direction 69. In general, on some occasions the Tribunal made a finding in the applicant's favour concerning the factor, on other occasions the Tribunal made a finding against the applicant concerning the factor, and on other occasions the Tribunal made a neutral finding concerning the factor. Where the Tribunal made a neutral finding concerning a factor, the Tribunal member often used the phrase "I make no adverse finding" regarding or in relation to the specified factor.
2. Second, the Tribunal, in considering the Applicant's circumstances in his home country at [34]-[38], considered at [34] the Applicant's family ties to his home country. This consideration reflected the direction in paragraph 9(b) of Direction 69 to "have regard to ... 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". The Tribunal, after referring to evidence concerning the Applicant's close ties to his mother, and his ties to his sister and wife's family, in South Korea, continued at [34]:

I accept that these ties, in particular the presence of the applicant's mother and the filial obligations that he has towards her under Korean culture, would act as an incentive for the applicant to return to his home country, and I take this into account in assessing the applicant's circumstances as a whole.

1. It is clear from this finding that the Tribunal weighed this factor in the Applicant's favour. When I directed Mr Berg's attention to this paragraph of the Tribunal's decision, he eventually agreed that the Tribunal weighed this factor in the Applicant's favour. It is clear from this paragraph of the Tribunal's decision that the Tribunal:

(a) understood that factors could weigh in an applicant's favour; and

(b) did not construe Direction 69 as "exclud[ing] the capacity of [a] factor to weigh in the applicant's favour": AS [9].

1. Similarly, the Tribunal at [37] considered whether the Applicant provided reasonable reasons for not undertaking the proposed course of study in his home country. This consideration by the Tribunal reflected the direction in paragraph 9(a) of Direction 69, to "have regard to ... whether the applicant has reasonable reasons for not undertaking the study in their home country ... if a similar course is already available there". The Tribunal stated at [37]:

I accept the applicant has provided reasonable reasons for not undertaking the proposed courses of study in his home country. In particular, I accept that to commence similar studies in South Korea, the applicant would need to once again complete a high school certificate, whereas he is able to enrol in vocational studies in Australia. I also accept that tertiary courses in South Korea are geared towards recent high school graduates, and there may be difficulties for the applicant in attending such courses. I have also had regard to the reasons provided by the applicant in his s.359(2) response, his GTE statement and the written submission from his representative. I accept the applicant's claims regarding his interest in the teachings of certain Australian pastors.

1. I consider that, on a fair reading of [37], the Tribunal also weighed this factor in the Applicant's favour.
2. Third, one of the two focuses of Mr Berg's complaint to the Court concerned the Tribunal's reasoning process at [44]-[46] where the Tribunal considered the value of the course to the Applicant's future. Paragraph 12 of Direction 69 stated:

Decision makers should have regard to the following factors when considering the value of the course to the applicant's future:

1. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
2. relevance of the course to the student's past or proposed future employment either in their home country or a third country; and
3. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

[44] The applicant gave evidence that he intends to return to South Korea in 2026 after he completes the Graduate Diploma of Christian Ministry and Theology. He claims that he intends to work as a pastor in South Korea for two years, following which he will work internationally for two years, after which he will return to South Korea to work as a hospital pastor and undertake work in the ministry. He expressed particular interest in providing pastoral counselling to immigrants.

[45] I note that the written submission from the applicant's representative submits that it would be difficult to assess whether the applicant's studies in Australia would be of benefit to him in terms of employment in the future, and it would be difficult to judge the remuneration he could receive.

[46] Despite this submission, 1 accept that the proposed courses of study are relevant to the applicant's stated career plans. 1 also accept that the applicant currently serves at his church, including having a role as a deacon. I note that the applicant has a Bachelor of Biology, which he completed in South Korea in 1993. He subsequently had a professional career in the pharmaceutical and IT industries, which included roles in management. While the applicant's current studies at the vocational level are below those of his existing qualification at the Bachelor level, I note that clause 12(a) of Direction No. 69 specifies that decision makers should allow for reasonable changes to career or study pathways. I accept the applicant's evidence that he is not motivated to study because of money, and accept his chosen field is an area of passion for him. I also accept that the applicant has provided some evidence of opportunities and remuneration as a pastor, as well as in related roles, upon return to South Korea. I also note that while the applicant has previously held professional roles in South Korea, since arriving in Australia he has worked as a cleaner and his annual salary has been in the range of $14,000 to $23,000 per year. I therefore accept that the proposed course of study may increase the applicant's employment opportunities and the remuneration he could expect to receive. I therefore make no adverse findings in relation to the value of the proposed courses of study to the applicant's future.

1. I consider that a fair reading of the Tribunal's reasons at [46] is as follows:

(a) The first sentence of [46] addresses the factor in paragraph 12(b) of Direction 69. The Tribunal made a finding in the Applicant's favour concerning this factor.

(b) The penultimate sentence of [46] addresses the factors in paragraph 12(a) and (c) of Direction 69. The Tribunal made a finding in the Applicant's favour concerning these factors.

(c) The Tribunal, in the last sentence of [46], having made findings in the Applicant's favour concerning the factors in paragraphs 12(a), (b) and (c) of Direction 69, recorded the obvious point that it made no adverse finding concerning any of the factors in paragraph 12 of Direction 69. To similar effect, as stated by the first respondent at RS [32], "the statement at [46] that the Tribunal 'therefore' made 'no adverse findings in relation to the value of the courses to the first applicant's future' reflects no more than an observation that the Tribunal did not make any adverse findings where it could have otherwise done".

1. Mr Berg contended that the last sentence of [46] should be read differently to the way explained in paragraph 41(c) above. He contended that, in light of the word "therefore", the Tribunal "excluded the capacity of [any of the factors in paragraphs 12(a), (b) and (c) of Direction 69] to weigh in the applicant's favour": AS [9]. I disagree. For reasons explained in paragraphs 35 to 38 above, it is clear the Tribunal understood that some factors in Direction 69 could weigh in an applicant's favour. The interpretation of the last sentence of [46] explained in paragraph 41(c) above is a more likely and sensible interpretation of the Tribunal's reasons at [46].
2. Fourth, the second of the two focuses of Mr Berg's complaint to the Court concerned the Tribunal's reasoning process at [47]-[50] where the Tribunal considered the Applicant's immigration history. Paragraph 14 of Direction 69 stated:

When considering the applicant's immigration history, decision-makers should have regard to the following factors:

a. Previous visa applications for Australia or other countries, including:

1. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined ..., were granted, or grounds on which the application(s) were refused; and

2. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

b. Previous travels to Australia or other countries, including:

1. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
2. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
3. the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
4. if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any noncompliance

1. The Tribunal at [47]-[49], in considering the factor in paragraph 14(b)(iii) of Direction 69, made the following findings:

[47] .... Given the length of time the applicant has remained in Australia, as well as the presence here of his immediate family unit since at least October 2012, I have concerns that the Student visa may be used primarily for maintaining ongoing residence.

[48] ...

[49] ... Given the length of time the applicant has now spent in Australia on various temporary visas, the Tribunal is concerned that the Student visa may be used primarily to maintain residence.

1. The Tribunal at [50], in considering the remaining factors in paragraph 14 of Direction 69, stated:

I make no adverse findings regarding the remaining factors relating to the applicant's immigration history. There is nothing to indicate that the applicant has applied for any other classes of visa which are yet to be fully determined. I accept that the applicant has not previously had a visa application refused or a visa cancelled or considered for cancellation. There is nothing to suggest he has not complied with the conditions of his visas in Australia. There is also no evidence of any adverse migration or visa history to other countries. However, for the reasons set out above, I have concerns regarding clause 14(b)(iii) of Direction No. 69

1. In the first sentence of [50], the Tribunal made an upfront finding that it "makes no adverse finding regarding the remaining factors" in paragraph 14 of Direction 69. In the next four sentences, the Tribunal provided reasons in support of the upfront finding in the first sentence, which reasons addressed the factors in paragraph 14(a)(i), (b)(ii), b(i), (b)(iv) and (a)(ii) respectively. In the last sentence of [50], the Tribunal referred back to its findings at [47]-[49] concerning the factor in paragraph 14(b)(iii) of Direction 69 which weighed against the Applicant. Nothing in this reasoning process suggests that the Tribunal "has excluded the capacity of this factor to weigh in the applicant's favour": AS [9].
2. Mr Berg contended at AS [14] and in oral submissions that the Tribunal at [50] made "4 favourable findings" which "favour the view that the applicant is a genuine temporary entrant". I disagree that the Tribunal's observations at [50], that "the applicant has not previously had a visa application refused or a visa cancelled or considered for cancellation" or that there was no evidence that the applicant "has not complied with the conditions of his visas in Australia", were "favourable findings" or "favour the view that the applicant is a genuine temporary entrant". In any event, Mr Berg did not contend that, in relation to these factors, it was not open to the Tribunal to "make no adverse findings" regarding these factors.
3. For the above reasons, the ground in the Application does not identify a jurisdictional error in the Tribunal's decision.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Wilson sought costs in the amount of $5,400, which was less than the first respondent's solicitor/client costs, against both applicants if the application was dismissed. Mr Berg did not oppose this order. The amount claimed by the first respondent is reasonable. I will make this order.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.