Federal Court of Australia

Sultana v Minister for Immigration and Citizenship [2026] FCA 1283

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3.    The appeal is dismissed.

4.    The Appellants pay the First Respondent’s costs, fixed in the sum of $4,500.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HILL J:

introduction

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): Sultana v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 128 (J). The primary judge dismissed an application for review of a decision of the former Administrative Appeals Tribunal, which affirmed a decision not to grant the Appellants student visas.

2    In this appeal, the Appellants contend that the Tribunal’s decision was illogical or irrational. That ground of review is very difficult to establish, and the Tribunal’s reasons provide a clear and intelligible justification for its decision. The appeal is dismissed, with costs.

background

3    Arrival in Australia (Apr 2016): The First Appellant is a citizen of India. She first arrived in Australia in April 2016, as a dependent on her husband’s student visa (J [3]).

4    Application for student visa (Nov 2018): On 27 November 2018, the First Appellant applied for a student visa to study a Certificate IV course in Commercial Cookery and a Diploma of Hospitality Management. This application listed her husband and son (the Second and Third Appellants) as dependants (J [4]).

5    Delegate refuses application (March 2019): On 26 March 2019, a delegate of the First Respondent (Minister) refused this application (J [5]). The delegate was not satisfied that the First Appellant was a genuine applicant for entry and stay as a student or that she intended to stay in Australia temporarily.

6    Application for merits review (Apr 2019): On 12 April 2019, the Appellants applied to the Tribunal for merits review of the delegate’s decision (J [5]).

7    Appellants lose right to Tribunal hearing (Apr-May 2020): On 23 April 2020, the Tribunal emailed to the Appellants’ migration agent a letter (the “s 359 letter”), which invited the Appellants to provide information showing that the First Appellant met the requirements of the visa, including that she was enrolled in a registered course of study and met the criteria for a genuine applicant for entry and stay as a student. The s 359 letter provided that the information should be received by the Tribunal by 7 May 2020, and that the Appellants would lose the right to a hearing if a response or a request for an extension of time was not received before that date (J [6]).

8    On 24 May 2020, the First Appellant asked the Tribunal for an extension of time, because her “agent forget to send me the email from the AAT” (J [7]). On 25 May 2020, the Tribunal emailed a letter to the Appellants’ migration agent, which stated that the Appellants appeared to have lost their right to a hearing (although that would need to be determined by the Member deciding their matter). The letter stated that, if the Appellants still wished to provide the information, they should do so as soon as possible.

9    First Appellant provides information: The First Appellant completed a “Request for Student Visa Information” form and two Confirmation of Enrolment documents (the “s 359 response”) (J [8]).

10    AAT affirms refusal decision (Jun 2020): On 3 June 2020, the Tribunal affirmed the decision not to grant the Appellants visas (J [9]).

11    First Appellant’s course of studies: The first issue in considering whether the First Appellant was a genuine temporary entrant was the First Appellant’s course of studies in Australia. The Tribunal set out the First Appellant’s academic record: she completed a Bachelor of Science in India in 2003; she finished a Diploma of Business in Australia in about 2016 (although this course was not referred to in her s 359 response); she completed a General English Course in Australia in about 2016; she completed a Certificate IV in Commercial Cookery in March 2020; and at the time was currently studying a Diploma of Hospitality Management and was due to complete this course in October 2020 (Tribunal written reasons (AAT) [19]).

12    The Tribunal stated that the First Appellant had not really given any explanation for her change from Business related studies to hospitality courses. She was not required to provide an explanation, but without one it appeared that her career goals were not well developed (AAT [21]). The Tribunal considered there was only “marginal value” to the First Appellant in completing her proposed studies. She already held a Bachelor of Science from an Indian University. Without any evidence of the type of hospitality work that the First Appellant intended to do on her return, the Tribunal did not consider the First Appellant was likely to be in a better position to secure employment or increase her remuneration if she successfully completed the proposed course. The Tribunal did not consider the proposed study was likely to improve the First Appellant’s employment prospects in her home country, or increase her potential remuneration in her home country or a third country (AAT [23]).

13    The Tribunal was not persuaded that studying a lower-level Diploma course would assist the First Appellant, given she already has a University Degree. As a result, the Tribunal was not satisfied that her proposed course of study represented a genuine attempt to develop her skills, but rather considered that it was being used as a mechanism to remain in this country (AAT [24]).

14    First Appellant’s ties to India and Australia: A second issue was the First Appellant’s ties to India and to Australia. The First Appellant’s husband, son and brother were in Australia. Her parents and mother-in-law were in India. The Tribunal found that the First Appellant’s family ties to India did not operate as a significant incentive to return home, but that the presence of her immediate family and her brother “constitute[d] a tie to Australia that operate[d] as a strong incentive for the First Appellant to remain here” (AAT [27]-[28]). The First Appellant owns some property in India. The Tribunal did not consider that overseas owned property constituted an incentive for the First Appellant to return home, because “[p]roperty may be sold or utilised to produce income without the [First Appellant] returning home” (AAT [32]-[33]).

15    Having considered all the evidence, the Tribunal did not consider that the First Appellant was a genuine applicant for a student visa. The Tribunal “[did] not accept that the proposed courses offer any real value to her future career”. The First Appellant’s plans for the future were vague and, although she had produced a job offer to the Tribunal, it was not an enforceable offer of future employment. The Tribunal was concerned that “her family ties to Australia are such that she is attempting to use the student visa as mechanism for her and her family to maintain ongoing residence in Australia” (AAT [38]). On that basis, the Tribunal was not satisfied that the First Appellant intended genuinely to stay in Australia temporarily (AAT [39]).

16    Application for judicial review (Jul 2020, Jan 2025): On 8 July 2020, the Appellants applied to the FCFCOA for judicial review of the Tribunal’s decision. The Appellants filed an amended originating application in Court, without objection, on 23 January 2025 (J [17]). In outline, the amended originating application contended:

    there had been a breach of procedural fairness, because the s 359 letter was invalid but was relied on to deny the Appellants a hearing (ground 1); and

    the Tribunal’s decision was illogical and irrational, particularly the statements in AAT [23] and [38] that the First Appellant’s proposed courses have only “marginal value” or no “real value”, given her existing Indian University qualifications (ground 2).

17    Primary judge dismisses application (Feb 2025): On 6 February 2025, the primary judge dismissed the application for judicial review. Relevantly to the appeal, the primary judge found that the Tribunal’s findings that the proposed courses were not of any real value to the First Appellant were open to it, based on the evidence before it and for the reasons it gave (J [51]).

18    The Appellants’ written submissions correctly accept in this appeal that their failure to provide information within time in response to the s 359 request meant that they did not have a right to a hearing before the Tribunal: see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [25]-[29] (the Court); previous Migration Act 1958 (Cth) ss 360(2)-(3), 363A. The Second Appellant confirmed this position at the hearing.

19    Notice of appeal (Feb 2025): On 28 February 2025, the Appellants filed a notice of appeal, containing the following grounds of appeal:

1.    The Tribunal did not have evidence contrary to my proposed course of study and failed to consider my ties to India which were an incentive for me to return home.

2.     The Tribunal had no adverse information to conclude that my aim was to maintain ongoing residency in Australia.

3.     I maintain that the decision of the tribunal is illogical and irrational based on the evidence provided.

20    On 14 August 2025, the First Appellant asked for her appeal to be referred for pro bono legal assistance, and stated that she was experiencing financial hardship. The First Appellant appeared to appreciate that a party does not have any right to apply for a referral (see Federal Court Rules 2011 (Cth) r 4.13). The Court had previously decided that the appeal was not a suitable one for a referral under r 4.12. The Appellants filed written submissions on 17 August 2026, which set out their arguments on the appeal competently and clearly.

21    Appeal hearing (Aug 2026): The appeal was heard on 31 August 2026. The Second Appellant (the husband) appeared on behalf of the Appellants. He made submissions with the assistance of an interpreter. He largely relied on the Appellants’ written submissions.

consideration

Two general comments

22    As the Appellants do not have a lawyer acting for them in this appeal, I begin with two general comments.

23    Court asks only whether the Tribunal decision was lawful: First, the Court in judicial review proceedings does not determine whether the Tribunal’s decision was correct on the factual merits. Instead, the only issue is whether the Tribunal’s decision was lawfully made. The specific issue before the primary judge was whether the Tribunal’s decision contained a serious legal error, called a “jurisdictional error”. On appeal, this Court asks whether the primary judge was correct to find that the Tribunal’s decision did not contain any jurisdictional error: see DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 at [63] (Rangiah J, with Reeves and Bromwich JJ agreeing); CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [3] (the Court). The Appellants’ written submissions correctly identify this as the issue on appeal, and correctly accept that the Court does not undertake merits review of the visa application.

24    Duty to make sure Court’s processes are fair: Second, a judge has a duty to ensure that a hearing is fair to all parties (that is, both appellants and respondents). If a party does not have a lawyer, the judge may tell them about the practices and procedures of the Court, as relevant, to try to ensure a fair hearing. However, the judge does not give legal or tactical advice to a party who does not have a lawyer, because the judge must be impartial. See generally NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court), and Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court).

25    Importantly, this duty is to ensure that the Court’s processes are fair: the Court must apply the law as it is, and cannot simply make orders to achieve a result that the Court thinks is “fair”.

Was the Tribunal’s decision illogical or irrational?

26    The Appellants’ written submissions clarify that they rely principally on ground 3, and that grounds 1 and 2 are relied on to demonstrate errors in the Tribunal’s consideration of the evidence and in its reasoning.

27    The key points raised in the Appellants’ written submissions are as follows:

(a)    The issue is not simply whether another conclusion was reasonably available, but whether the Tribunal provided a rational basis for the conclusions it reached.

(b)    The fact that the First Appellant held a Bachelor of Science “did not, without more, logically establish that hospitality qualifications would have little or no value to her proposed hospitality career”. Similarly, completion of a Certificate IV in Commercial Cookery “did not, without more, establish that the proposed Diploma in Hospitality Management could not have a further vocational purpose.”

(c)    The question was not simply whether the First Appellant already possessed a university qualification, but whether her proposed course and stated career plans, considered in the circumstances of her application, supported the claimed purpose of her proposed stay. The evidence before the Tribunal identified a proposed career direction in hospitality. The Appellants contend that the Tribunal “did not adequately explain the reasoning connecting those matters”.

(d)    The Tribunal’s reasoning on the First Appellant’s family ties to India did not sufficiently engage with the competing circumstances relied upon by the First Appellant, including her continuing connection with India and her ownership of property there. The Appellants contend that that those matters were relevant evidence which needed to be evaluated rationally in the overall assessment.

28    At the hearing, the Second Appellant also said that he and the First Appellant did not come to Australia to earn money, and said that his father owns a 150-year-old business in India (which I understood to mean a successful business). However, these matters go only to the factual correctness of the Tribunal’s decision.

29    Illogicality or irrationality – general principles: An administrative decision will be invalid if it is “irrational, illogical or not based on findings or inferences of fact supported by logical grounds”: see Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45 at [21] (the Court), and the cases cited. That principle applies not only to the ultimate conclusion, but to findings along the way that are a critical step in the reasoning: see XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [63]-[64] (the Court), and the cases cited. However, a finding by a court that an administrative decision is illogical or irrational is not lightly made: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [33] (the Court).

30    Two other principles are relevant in assessing whether the Tribunal’s decision in this case is illogical or irrational.

(a)    First, a decision-maker under the Act is not required to accept a visa applicant’s claims uncritically: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 (Beaumont J); Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [134] (Kenny J); Minister for Immigration and Citizenship v MZXPA [2008] FCA 185; (2008) 100 ALD 312 at [14] (Sundberg J). The Appellants’ written submissions accept this point. Equally, the Tribunal does not need to possess rebutting evidence before finding that a particular factual assertion is not made out: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [65] (the Court); ABX18 v Minister for Home Affairs [2020] FCA 425 at [41] (Markovic J).

(b)    Second, a decision may be illogical or irrational if it is based on an unwarranted assumption: BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [7]-[8] (Perram J). However, not all assumptions are unwarranted: a decision-maker may permissibly make assumptions that accord with the probabilities of ordinary human experience: see BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532 at [41], [55] (Murphy and O’Bryan JJ); BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [55]-[56] (the Court).

31    Analysis of Tribunal’s reasons: The Appellants’ arguments can be considered in the light of these principles.

32    Tribunal’s reasoning on course of studies: Starting with the Tribunal’s reasons relating to the First Appellant’s course of studies (summarised in [11]-[13] above), the Appellants contend that there is no probative basis for the Tribunal’s conclusion that the proposed course was of “marginal value” or not of “any real value” to the First Appellant’s future career (AAT [23], [38]). For the following reasons, that argument should not be accepted.

33    It is necessary to consider the Tribunal’s reasons as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [60] (French CJ, Bell, Keane and Gordon JJ); BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). There is perhaps an assumption in the statement in AAT [24] that studying a lower level Diploma course would not assist the First Appellant, “given she already has a University degree”, and the similar statement in AAT [23]. The assumption is that a person only undertakes study to secure employment or to increase their remuneration (see AAT [23]). That assumption may well be supported by common human experience. But in any event that is only the start of the Tribunal’s analysis: the Tribunal then considers in detail the First Appellant’s stated intention to switch to the hospitality industry:

(a)    The Tribunal stated that it was “entirely unclear exactly what work the [First Appellant] hope[d] to do upon her return other than a vague reference to finding work in the Hospitality Industry” (AAT [20]). Similarly, the Tribunal stated that “[o]ther than her intention to work in the hospitality industry, it is difficult to understand exactly what type of hospitality related role [the First Appellant] is hoping to undertake when she returns home” (AAT [23]).

(b)    The Tribunal stated that, without an explanation for her changes in studies, it was difficult for the Tribunal to understand the First Appellant’s switch from Science to Business to Hospitality (AAT [21]).

(c)    The Tribunal found that the letter which the First Appellant described as a “job offer” was not a certain job offer at all (AAT [22]).

(d)    The Tribunal found that the First Appellant’s Certificate IV in Commercial Cookery would enable the First Appellant to find suitable employment in the hospitality industry in India. The First Appellant had not demonstrated why she required the additional Diploma course in order to find her employment (AAT [25]).

(e)    The Tribunal found that the First Appellant had not undertaken any research in the availability of hospitality courses in India, and had not advanced any reasonable reasons for not undertaking further study in her home country (AAT [26]).

34    In other words, the Tribunal did not rely on the First Appellant completing her Science Degree or her Certificate IV in Commercial Cooking “without more” to reach its conclusions: cf the arguments in [27](b) above. Those matters raised the question in the Tribunal’s mind whether the First Appellant genuinely did require the further proposed studies to advance her career, but the Tribunal did not treat these matters as conclusive by themselves. The Tribunal considered in detail the First Appellant’s explanation for why she was studying hospitality courses, and found that her explanation lacked any detail and that the job offer in India put forward by the First Appellant was not a job offer. That is, the Tribunal weighed all the evidence before it as a whole, and formed the view that it was not satisfied that the proposed course of study represented a genuine attempt to develop the First Appellant’s skills (AAT [24]). The Tribunal did not require rebutting evidence or adverse information to reject the First Appellant’s claims: see [30](a) above, cf appeal grounds 1 and 2.

35    Tribunal’s reasons on ties to India: The other matter is the Tribunal’s assessment of the First Appellant’s ties to India. The Appellants’ complaint is that the Tribunal’s reasoning did not “sufficiently engage” with the competing circumstances relied on by the First Appellant, and that these competing circumstances needed to be “evaluated rationally”. The Appellants’ arguments go only to the varying weight that the Tribunal gave to different factual matters, and do not demonstrate any legal error in the Tribunal’s reasons. The Tribunal gave clear reasons for not preferring the First Appellant’s continuing connection to India through her parents and in-laws, and through owning property in India: the First Appellant’s immediate family and brother are in Australia, and property in India may be sold or used to produce income without the First Appellant returning home (AAT [27]-[28], [32]-[33]). Those reasons provide a clear and intelligible justification for the Tribunal’s conclusion in AAT [38] that the First Appellant’s family ties in Australia were such that she was attempting to use the student visa as a mechanism for her and her family to remain in Australia.

Conclusions

36    For these reasons, the Appellants’ arguments are rejected, and the appeal is dismissed.

37    Costs: The usual position is that the unsuccessful party pay the legal costs of the successful party. At the hearing, the Second Appellant referred to the Appellants’ existing financial commitments, and questioned how they could pay any further amount in legal costs. However, as explained to him at the hearing, a person’s financial capacity to pay costs is not relevant to whether costs should be awarded: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25], [35] (the Court).

38    The Minister seeks costs in a fixed sum of $4,500. In the case of proceedings to challenge migration decisions, the Federal Court Rules 2011 (Cth) set out an amount that may be claimed if an appeal is discontinued before hearing (currently $5,648), and a higher amount that may be claimed if an appeal is dismissed after hearing (currently $8,907): see Rules r 40.43, Sch 3 items 15.1 and 15.2. I am satisfied that the amount sought by the Minister is reasonable and proportionate, having regard to the nature and complexity of this appeal: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at [18] (Kenny J).

Associate:

Dated:    3 September 2026