A decision that involves jurisdictional error is a decision that lacks legal foundation
Recently, I have observed a rise in Visitor SC 600 Visa application refusals, which, in my opinion, result from flawed, inconsistent, or unreasonable decision-making processes. This trend suggests that many refusals may not be based on sound judgment or clear justifications, potentially leading to unfair outcomes for applicants. Decisions that are inefficient, improper or dishonest may constitute maladministration, and individuals affected by poor decision-making can challenge these decisions.
This opinion piece is part of a four-part series examining critical issues in Australian visa decision-making, with a particular focus on errors made by delegates assessing Visitor SC 600 Visa applications. Each part will explore different aspects of the problem and provide insights into how applicants can challenge flawed decisions.
Part 1 – Introduction to the Problem
In this opening section, I will delve into the intricacies of administrative law decision-making, and provide an overview of two real-life cases where individuals were refused a Visitor SC 600 Visa. This section will lay the groundwork for understanding broader concerns with administrative decision-making.
Part 2 – Case Study Analysis
Building on this foundation, I will examine two real-life cases of Visitor SC 600 Visa refusals, to reveal flawed assessments, inconsistent reasoning, and misinterpretation of facts and evidence. I will highlight where in the decision record these errors appear, and will discuss the impact on the applicants. The case study analysis will demonstrate consistent patterns of error, setting the stage for a comparative analysis in Part 3.
Part 3 – Comparative Analysis
I will compare these refusals with two real-life cases where visa applicants were granted a Visitor SC 600 Visa. This section will highlight commonalities in the cases with differential treatment leading to opposing outcomes.
Part 4 – Challenging a Flawed Visa Decision
In the final section, I will provide a comprehensive, step-by-step guide for applicants seeking to contest an unjust Visitor SC 600 Visa refusal. This part will outline all available avenues—including tribunal reviews and other dispute resolution methods—and offer practical strategies for pursuing redress through the Department of Home Affairs.
Administrative law decision-making at the Department of Home Affairs
The Department of Home Affairs (the DHA) has established policies and guidelines to ensure that visa decision-makers, known as delegates, make decisions in accordance with legal principles. These policies are designed to promote lawful, fair, and consistent decision-making processes.
Delegates operate under the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations), which outline the legal requirements for visa decisions. Section 65 of the Act specifies that a visa can be granted if the decision-maker is satisfied that all criteria are met. If not so satisfied, a delegate must refuse to grant the visa. Delegates are authorised to assess applications against these criteria, ensuring compliance with the legislative framework
Delegates are provided with detailed guidelines to assist in interpreting and applying the law. These guidelines cover various aspects of visa processing, including the assessment of character requirements, health criteria, and other eligibility factors. They serve to promote consistency and fairness in decision-making.
The DHA’s lawful decision making checklist for granting visas
The following extract is taken from the DHA’s policy guidelines titled P-Reg-Other-GGA GenGuideA – All visas – Visa application procedures.
"This section summarises the elements for a visa application decision to be lawful.
[Content redacted for copyright reasons].
Delegation
[Content redacted for copyright reasons].
Valid application
[Content redacted for copyright reasons].
Apply the law
[Content redacted for copyright reasons].
Apply the policy
[Content redacted for copyright reasons].
Ascertain the facts
[Content redacted for copyright reasons].
Test the evidence
Test the “facts” or evidence for relevance to prescribed criteria and reliability/credibility.
Remember, when you are recording your decision you should be able to discuss why you give certain weight to, or accept or reject key evidence.
Procedural fairness
[Content redacted for copyright reasons].
Make findings of fact
Make your findings of fact against the relevant migration law, that is, the prescribed criteria for the class/subclass of visa, or the provisions that prevent grant. Consider the issues in a comprehensive manner - explore both sides of a case. Do not ignore evidence that is inconvenient. Consider whether more than one finding of fact, or inference, is possible. If so, indicate why you preferred the finding you came to. Ensure there is evidence for your findings - you should be able to refer to highly relevant evidence in your decision record.
Do not act under direction
[Content redacted for copyright reasons].
Record the decision
Record your decision. A decision record should make it clear whether your decision is to grant or to refuse the visa (or the cancel the visa, as the case may be) and set out your reasoning process with reference to the prescribed criteria.
[Content redacted for copyright reasons].
When setting out your reasons:
use plain language that makes it clear what you are doing, for example “I find that ...”, “I accept that ...”, “I reject that ...”, “I acknowledge that ...”, “I took into account that ...”, “I found this to be irrelevant ...”
[Content redacted for copyright reasons].
Notify the applicant
[Content redacted for copyright reasons]."
Administrative law decision-making 7-step process
The decision-making process typically comprises seven steps, as follows.
Step 1: Lodgement and Initial Processing
An applicant lodges their application online via ImmiAccount or through a paper-based process, where applicable
The application must be accurate and complete, including all required supporting documents
The DHA assigns a case officer (delegate) to assess the application.
Step 2: Identity Verification and Background Checks
The applicant’s identity is verified using passport details and biometric information, where required
The DHA conducts security and character checks, where required, including Australian police checks, international criminal history checks (if the applicant has spent time in another country for 12 months or longer), and national security screenings, particularly for applicants from high-risk countries.
Step 3: Assessment Against Visa Criteria
Delegates must adhere to the code of procedure in Subdivision AB, Division 3 of Part 2, of the Act, which exhaustively sets out the procedural steps that must be followed to deal “fairly, efficiently and quickly with visa applications"
Delegates consider and assess the application form and all available supporting documentation, to determine whether the applicant meets the legal requirements under the Act and the Regulations. Supporting documentation means any document (including certain departmental supplementary forms) provided in support of an applicant's claim they satisfy prescribed criteria
Delegates decide the weight to be given to supporting documents provided by the applicant. Delegates can attribute no weight to a piece of evidence, but this must be done reasonably, lawfully, and in accordance with principles of procedural fairness, and the decision must also be justified and supported by logical reasoning.
Step 4: Requests for Further Information (RFI)
If necessary, delegates may send an applicant a Request for Further Information (RFI). Applicants are usually given 28 days to provide documents or explanations
If a delegate does not receive a response from an applicant within the specified timeframe for responding, the delegate can proceed to make a decision without further warning or notice to that applicant. If an application is incomplete, the delegate will likely refuse the application.
Step 5: Health and Character Checks
Some visitor visa applicants may require a medical examination with an approved panel physician. The delegate reviews health examination results to ensure the applicant meets the health requirement (“public interest criteria”). If the applicant has a serious medical condition that may burden Australia's healthcare system, the visa may be refused
Character assessments include:
reviewing past criminal records
checking for immigration violations (e.g., overstaying visas, previous refusals)
assessing involvement in organised crime, fraud, or security concerns.
Step 6: Decision by a section 65 Delegate
A delegated decision-maker assesses the application based on all submitted evidence
The decision is made under natural justice principles, meaning:
the applicant has the right to provide information
any adverse findings should be based on evidence, not assumptions
The officer either grants or refuses the visa.
Step 7: Notification of Decision
If approved, the applicant receives a visa grant notice with details such as:
visa conditions (eg no work, main health insurance policy, no further stay)
visa expiry date and travel validity.
If refused, the applicant receives a refusal letter, which includes:
the reasons for refusal, citing specific legislation
whether the applicant has a right to appeal at the Administrative Review Tribunal (the ART)
any reapplication restrictions (for example, section 48 bar for onshore refusals).
Reasoned decision-making
The above extract from the DHA demonstrates that delegates are required to execute their delegated decision-making function according to established rules of law and internal procedures. They follow a strict but sometimes subjective process in making decisions. Discretion in decision-making is where many delegates run afoul.
When delegates have discretion in their decision-making, they should as a matter of competent administration, engage in a process of analysis of addressing both sides (for and against); this process is often referred to as "weighing competing arguments", "balancing considerations", or "reasoned decision-making."
Key Terms for This Approach
Balancing Test
A method used in legal and administrative decision-making where both competing interests or arguments are assessed before reaching a conclusion.
Example:
A tribunal member might say, "While the applicant has strong ties to their home country, their limited travel history raises concerns about compliance. However, on balance, the evidence supports the granting of a visa."
Weighing Competing Arguments
This involves objectively evaluating both the strengths and weaknesses of the arguments on each side.
Example:
In a merits review case, a member might acknowledge the concerns about overstaying risks while also recognising the applicant’s strong financial position and family commitments back home.
Two-Sided Analysis (For and Against Approach)
This refers to structuring a decision by systematically presenting supporting and opposing arguments before concluding.
Example:
"On one hand, the applicant has sufficient financial resources; on the other hand, their employment status is unstable, which may impact their likelihood of returning home."
Merits-Based Assessment
A decision-making approach in administrative law where all relevant factors are considered holistically rather than applying a rigid rule.
This is commonly used in tribunals such as the Administrative Review Tribunal (the ART).
Structured Reasoning Framework
A method used by judges, tribunal members, and decision-makers to justify conclusions through a logical and transparent process.
Example:
"Taking all relevant factors into account, while there is some risk of non-compliance, the applicant’s overall circumstances suggest they are a genuine temporary entrant."
When Can a Decision-Maker Attribute No Weight to Evidence?
Delegates may give no weight to a piece of evidence in the following situations:
A. The Evidence is Unreliable or Lacks Credibility
If the evidence is inconsistent, contradictory, or unverifiable, the decision-maker can disregard it.
Example:
An applicant submits a bank statement, but the issuing bank denies its authenticity. The decision-maker can lawfully attribute no weight to it.
B. The Evidence is Irrelevant to the Legal Criteria
If the evidence does not address the legal requirements of the decision, it may be disregarded.
Example:
A visitor visa applicant submits evidence of property ownership, but the decision is based on employment stability. The officer may give no weight to property ownership if it does not directly address the Genuine Temporary Entrant (GTE) requirement.
C. The Evidence is Speculative or Unsupported by Facts
If an applicant presents personal opinions or assumptions without objective support, the decision-maker can dismiss it.
Example:
An applicant claims they will return home because they "love their country," but provides no financial, family, or employment ties. The officer may attribute no weight to this statement.
D. The Evidence is Outweighed by Stronger, Conflicting Evidence
If other evidence contradicts the claim, the decision-maker can attribute greater weight to more reliable documents.
Example:
A visa applicant provides a letter of employment, but payslips and tax records indicate no active income. The officer may give no weight to the letter.
When is it Unlawful to Attribute No Weight to Evidence?
Delegates must not arbitrarily dismiss evidence without proper reasoning. It may be unlawful to attribute no weight in the following cases:
A. Failure to Consider Material Evidence
A decision-maker must consider all relevant evidence before making a determination.
Example:
If an applicant submits strong financial and family ties, but the officer ignores this evidence and refuses the visa on overstay risks, the decision may be legally flawed.
B. Applying Bias or Assumptions Instead of Objective Review
Evidence must not be disregarded based on generalisations.
Example:
A decision-maker dismisses an applicant’s employment documents solely because they are from a high-risk country. This could constitute unlawful bias.
C. Failure to Provide Reasons for Giving No Weight to Evidence
A decision-maker must explain why a piece of evidence was not given weight, especially if it is material to the case.
Example:
If a tribunal refuses an appeal by stating "we give no weight to the applicant’s financial records" without explanation, this may breach procedural fairness.
Legal Consequences of Arbitrary Disregard of Evidence
If delegates improperly attributes no weight to relevant evidence, the decision may be:
i) considered a denial of procedural fairness rendering the decision “no decision at all”
ii) challenged at the Administrative Review Tribunal (ART)
iii) subject to judicial review for jurisdictional error.
The critical weak points in decision-making
Administrative decision-makers seem to be encountering difficulties when it comes to both "testing the evidence" and "making findings of fact". In the process of "testing the evidence", they must assess the reliability, relevance, and credibility of the information presented—a task that can be challenging when evidence is ambiguous, contradictory, or incomplete, and straightforward when evidence is explicit, consistent, or complete.
When making "findings of fact", decision-makers must draw clear and supported conclusions based on the evaluated evidence. However, this step can be problematic if they fail to distinguish between substantiated facts and mere assumptions, leading to decisions that are not fully justified by the evidence.
Delegates are not adequately "testing the evidence" for relevance to prescribed criteria and reliability/credibility. This deficiency is the core root of delegates ascribing little weight to key evidence. Delegates are also failing to adequately justify their preferred finding when more than one finding of fact or inference is possible. They are not considering the issues in a comprehensive manner. Instead, they are looking for any reason to support a refusal. They are committing errors in weighting the evidence and have misplaced reliance on a weaker premise. This means that, rather than giving appropriate credence to the stronger, more supported assumption, a delegate erroneously prioritises the less substantiated one, which can lead to unsound conclusions. Delegates are not relying on highly relevant evidence to support their findings. Instead, they are ignoring evidence that is inconvenient or referring to the absence of evidence to support a fact that is not even a contention (it was not something that needed to be proven or was disputed). This is often called a "non sequitur," "straw man argument," or "irrelevant reasoning error." In legal and administrative contexts, this could also be classified as a "jurisdictional error" or "error of reasoning."
Key Terms for This Type of Error
Non Sequitur ("It Does Not Follow")
A conclusion that does not logically follow from the premises.
Example:
A visa officer states, "There is no evidence that the applicant has ever visited New Zealand," even though the applicant never claimed they had.
Straw Man Argument
Misrepresenting a position and then arguing against it.
Example:
A tribunal decision states, "The applicant failed to prove they were not a criminal," when criminal history was never an issue in the case.
Error of Reasoning (Illogical or Irrational Decision-Making)
A legal decision that relies on irrelevant reasoning or non-existent contentions.
Example:
A refusal letter states, "There is no evidence that the applicant owns property in their home country," when property ownership was never required as evidence of ties to home.
Jurisdictional Error (Irrelevant Considerations)
In Australian administrative law, a jurisdictional error occurs if a decision-maker takes into account irrelevant considerations or fails to consider relevant ones.
Example:
A visa is refused because the officer notes "There is no evidence that the applicant has children," even though the applicant never claimed to have children as a factor in their application.
Burden of Proof Fallacy
This occurs when a decision-maker demands evidence for something that does not need to be proven.
Example:
"The applicant failed to provide proof that they are not seeking to work in Australia," even though they submitted sufficient evidence of their genuine visitor intent.
Implications of This Error
Grounds for Appeal or Review
If a delegate (or tribunal member) relies on an absence of evidence for a fact that was never relevant, the decision may be legally flawed and open to challenge.
Breach of Procedural Fairness
If an applicant is penalised for failing to prove something they were never required to prove, it may constitute a denial of natural justice.
Common Reasons for Visitor SC 600 Visa Refusals
Typically, delegates resort to clauses 600.211 and 600.212 to refuse Visitor SC 600 Visa applications. Other common reasons for Visitor SC 600 Visa refusals typically stem from clause 600.213:
i) health or character concerns
ii) failing a public interest criterion
iii) providing misleading or false information.
Visitor SC 600 Visa application refusals attributed to clause 600.213 are outside the scope of this opinion piece. Clauses 600.211 and 600.212 are extracted below.
Subclass 600 - Visitor Schedule 2 Migration Regulations 1994
600.211
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and
(c) any other relevant matter.
600.212
The applicant has:
(a) adequate means to support himself or herself; or
(b) access to adequate means to support himself or herself;
during the period of the applicant’s intended stay in Australia.
Key factors to consider in Visitor SC 600 Visa decision-making
For Visitor SC 600 Visa applications, key factors delegates will consider include but are not limited to the following:
i) genuine intention to stay temporarily in Australia (clause 600.211)
ii) purpose of an applicant’s proposed visit to Australia, including the duration of intended stay and planned activities (clause 600.221, or 600.231, or 600.241)
iii) previous visa compliance (clause 600.211)
iv) intention to comply with subclass 600 conditions (clause 600.211)
v) financial capacity, ability to support oneself for the proposed visit (clause 600.212)
vi) ties to home country or usual country of residence that are an incentive to leave Australia (clause 600.211)
vii) ties to Australia and incentives to remain in Australia (clause 600.211)
viii) health and character requirements (clause 600.213)
ix) sponsorship by an eligible family member (clause 600.224, or 600.232)
x) offers of financial support and accommodation by family and friends in Australia (clause 600.211)
xi) employment and financial circumstances in an applicant’s home country or usual country of residence (clause 600.211)
xii) economic landscape in an applicant’s home country or usual country of residence (clause 600.211)
xiii) reliability of claims and evidence provided by an applicant (clause 600.211).
Case studies
After exploring the intricacies of administrative law decision-making and the principles that underpin these processes, we can now turn our attention to how these theories play out in practice. The following case study subjects provide concrete examples of flawed visa decisions, demonstrating how deviations from sound legal reasoning and procedural fairness can significantly impact real-life outcomes for visa applicants.
Applicant 1
Material facts
Male, aged in his 30s, from a high-risk country
Degree qualified in an occupation on Australia’s Medium and Long‑term Strategic Skills List
Has a positive skills assessment for migration to Australia
Has stable employment; more than eight (8) years’ experience in his skilled occupation
Currently working full-time as a consultant for an organisation based in a low-risk country (remote contractor arrangement); he has held this skilled position for three (3) years eight (8) months
Current annual retainer equivalent to AUD salary range 115,000 -130,000; this salary would place him in the top 1% of income earners in his country of origin
Genuine savings and assets above AUD 50,000
Co-owner of business
No previous travel to Australia
Immediate family members reside in country of origin.
Contentious facts (from Home Affairs' perspective)
Ties to Australia (EOI and desire to migrate)
Country of origin.
Reasons for proposed visit to Australia
Invited by an Australian permanent resident to visit and stay at their home for four (4) months
As an aspiring migrant, he wanted to take this opportunity to explore Australia’s regions.
Evidence provided
CV
Income payments x three years
Letter from organisation confirming remote contractor arrangement, start date, position, retainer
Cover letter addressing reasons for the proposed visit and incentives to return home
Letter of invitation from Australian permanent resident friend.
Applicant 2
Material facts
Female, aged in her 50s, from a high-risk country
Lives with elderly mother
Savings above AUD 10,000
No previous travel to Australia
Immediate family members reside in country of origin.
Contentious facts (from Home Affairs' perspective)
Full-time carer for her elderly vision impaired mother
Unverified income source
Ties to Australia (romantically linked to an Australian citizen).
Reasons for proposed visit to Australia
Invited by an Australian citizen to visit and stay at their home for up to three (3) months
The applicant and her invitee wish to explore a romantic relationship.
Evidence provided
Bank statements covering three months
Family book
Letter from the applicant’s Australian citizen romantic interest and his supporting evidence of identity, home ownership and financial resources
Photos of the couple when the Australian citizen visited the applicant
Submissions addressing the legal criteria and incentives to return home.
To be continued under Part 2
Up next, in Part 2, I will conduct a detailed analysis of each case, examining the decision records to determine whether the delegates’ conclusions are reasonable, consistent, and supported by sound evidence, or whether they contain flaws.