Batth v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1224
•6 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Batth v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1224
File number(s): MLG 3866 of 2020 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 6 August 2025 Catchwords: MIGRATION LAW – application for review of a Registrar’s decision – student (subclass 500) visa – application of the genuine temporary student criterion – where the applicant’s application was dismissed due to non-appearance – finding that there are no reasonable prospects of success in the substantive application – application dismissed with costs. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr 13.06, 17.05, 21.02
Migration Regulations 1994 (Cth), cls 500.212, 500.311
Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
FBS18 v Minister for Home Affairs [2019] FCAFC 196
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of last submission/s: 29 July 2025 Date of hearing: 29 July 2025 Place: Melbourne Counsel for the Applicants: The first applicant appeared in person, on behalf of the second applicant Solicitor for the First Respondent: Ms C Lopez of HWL Ebsworth Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3866 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP KAUR BATTH
First Applicant
MANNAT KAUR BATTH
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
6 AUGUST 2025
THE COURT ORDERS THAT:
1.Pursuant to rule 21.02(2)(b) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth), the applicants be granted an extension of time to file their application for review of a Registrar’s decision made on 2 July 2025.
2.The orders made by Registrar Cummings on 2 July 2025 remain in full force and effect.
3.The applicants’ application for review filed 15 July 2025 be dismissed.
4.The first applicant pay the first respondent’s costs of this application fixed in the sum of $1,172.10.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for review of a Registrar’s decision made on 2 July 2025 to refuse to reinstate the applicant’s application for review.
By that decision, the Registrar determined an oral application by the first respondent for the summary dismissal of the applicants’ application for judicial review, after the applicant failed to appear at the call over hearing scheduled on 20 May 2025.
A review of a decision of a Registrar must proceed by way of a hearing de novo.[1] Consequently, the issue before this court is whether the applicant’s application for judicial review ought be reinstated.
[1] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 21.04.
PARTIES
There are currently two applicants to the reinstatement application. The first applicant is the primary applicant for a student visa (class TU) (subclass 500) and is a citizen of India.[2] In her initial application for a student visa, the first applicant included her husband and their three children, all of whom were born in Australia, as dependent applicants.
[2] Court book at page 6.
On 9 November 2019, the applicant withdrew her eldest child from her application on the basis that he had been granted Australian Citizenship and provided a copy of his citizenship certificate to the then Administrative Appeals Tribunal (‘the Tribunal’).[3]
[3] Court book at pages 79 to 83, 151 and 159.
In her application for reinstatement, following the dismissal of her judicial review application for non-appearance which I will discuss in more detail shortly, the applicant advised that her husband had died in India and that her second eldest child had also been granted Australian Citizenship and sought that they be removed from her application. On this basis, therefore, the first applicant and her youngest child are the only remaining applicants to whom this proceeding relates.
BACKGROUND
On 18 September 2019, the applicant applied for a student visa.[4] As stated, she was the primary applicant and her husband and three children, all born in Australia, were noted as dependents on that application.
[4] Court book at pages 1 to 75.
At pages 71 to 75 of the Court Book, a statement was provided as to the genuine temporary entrant (‘GTE’) requirements and a statement of purpose was prepared by or for the primary applicant. The primary applicant says that she was enrolled in a Certificate IV and Diploma of Hospitality Management at the Australian Vocational Education & Training Academy, scheduled to be completed in November 2020. In that letter, the first applicant stated that she had previously completed a Certificate III in Commercial Cookery but felt that it would be better for her career in India if she had further qualifications in hospitality management.[5]
[5] Court book at pages 71 to 75.
The primary applicant further stated that such a qualification would assist her to achieve her goal of seeking a leadership position in a multinational hotel chain in circumstances where there are significant employment opportunities in India in the hospitality industry.[6]
[6] Court book at pages 71.
The primary applicant also addresses why she chose Melbourne as a place to study, rather than to pursue her studies elsewhere and set out details of her family ties to India.[7]
[7] Court book at pages 73 to 75.
As mentioned earlier, the primary applicant filed a ‘Withdrawal of a visa application’ form in respect of one of the children Abhiraj Singh Bath and the reason for the withdrawal was given as:[8]
Abhiraj Singh Batth got his citizenship on 21 of October 2019.
So that’s why we want to withdraw his application
Thanks.
[8] Court book at page 82.
This request was acknowledged and actioned by the Department of Home Affairs (‘the Department’) by letter dated 11 November 2019.[9]
[9] Court book at pages 85 to 86.
By letter dated 20 November 2019, the applicants were advised of the refusal of the student visa.[10] The delegate set out their reasons for refusing the visa. In essence the delegate was not satisfied that the applicant met the genuine temporary entrant requirements in clause 500.212 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
[10] Court book at pages 88 to 94.
The delegate noted that whilst the primary applicant has family in India, she has lived in Australia since 2008 and all three of her children were born in Australia.[11] The delegate also noted that the primary applicant advised that her oldest child had obtained Australian citizenship and noted:[12]
I find that the presence of the applicant’s spouse and children one of which is an Australian Citizen in Australia reduces her incentive to return to their home country on completion of her studies.
[11] Court book at page 97.
[12] Court book at page 97.
The delegate also considered the applicant’s study history and future proposed study.[13]
[13] Court book at page 97.
The delegate found the primary applicant did not satisfy the requirements of a genuine temporary entrant and therefore did not meet the requirements for the issue of a student visa. Having reached this finding in relation to the primary applicant, the delegate also concluded the other applicants did not satisfy the requirements of clause 500.311 and therefore decided against the granting the visas sought.[14]
[14] Court book at page 98.
On 21 November 2019, the primary applicant filed an application for review with the Tribunal. The applicants were represented by a migration agent at this time.[15]
[15] Court book at pages 108 to 111.
By letter dated 9 June 2020, the Tribunal invited the applicants to provide information, namely addressing the two requirements that the first applicant was required to meet, namely that she was:[16]
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
[16] Court book at page 120.
By email dated 15 June 2020, the applicants’ migration agent notified the Department that he no longer acted for the applicants in this matter. Relevantly, in this email, the migration agent said:[17]
For future correspondence, clients wish to be communicated through their email ID …@yahoo.com.
[17] Court book at page 127.
This is the email address included in the Change of Contact details form completed by the first applicant dated 13 June 2020.[18]
[18] Court book at pages 129 to 130.
In the information provided to the Tribunal, the primary applicant set out her history of educational study in Australia which dates back to September 2008 and includes a variety of courses in a broad range of areas including, Community Welfare, Business, Management, Commercial Cookery, Nursing and Hospitality management.[19]
[19] Court book at pages 138 to 139.
By letter dated 22 September 2020, the applicants were invited to attend a hearing, scheduled for 7 October 2020.[20]
[20] Court book at pages 147 to 149.
The applicant provided a submission to the Tribunal which is set out at pages 168 to 174 of the Court Book. Relevantly, in this document, the applicant addresses the concerns raised by the delegate’s decision.
The applicant also provided the Tribunal a job offer letter in India which she appears to have accepted on 8 August 2020.[21]
[21] Court book at pages 179 to 181.
The applicant attended a hearing at the Tribunal on 7 October 2020.[22] Later that same day, the Tribunal handed down its decision in which it affirmed the delegate’s decision not to grant the applicant a student visa.[23]
[22] Court book at pages 182 to 184.
[23] Court book at pages 186 to 189.
TRIBUNAL DECISION
In its decision dated 7 October 2020, the Tribunal considered the applicant’s visa history and study history as well as the amount of time that she has returned to India whilst studying in Australia. Relevantly, the Tribunal considered the applicant’s circumstances in India, including her reasons for not studying there and her personal ties to India, and economic circumstances in Australia as an incentive not to return to India.[24]
[24] Tribunal’s statement of reasons dated 7 October 2020 at paragraphs [9] to [30].
At paragraph [19], the Tribunal found that the applicant had ‘not provided any specific details establishing benefits to be gained by studying the proposed course in Australia as opposed to studying in his (sic) home country considering the financial outlay required to study in Australia’.
After referring the applicant’s family ties in India, the Tribunal concluded at paragraph [20] that it did not ‘consider them an incentive to return in and of themselves and particularly when balanced against the family ties that the applicant has in Australia.’
At paragraph [21], the Tribunal said that it did not consider ‘that the applicant has strong economic or financial ties that constitute an incentive to return to her home country.’
At paragraph [22], the Tribunal considered the applicant’s ties to Australia, including the fact that all of her children were born in Australia, and the eldest is an Australian citizen as well as having a sister who lives in Perth who is a permanent resident.
In relation to her study, the Tribunal noted that the applicant had been enrolled in a series of short and inexpensive vocational courses of various subjects which do not evidence a logical progression or plan.[25]
[25] Tribunal’s statement of reasons dated 7 October 2020 at paragraph [22].
At paragraph [23], the Tribunal noted that the length of time that the applicant had been living in Australia (12 years) of itself indicates an intention to remain on a more permanent basis and the Tribunal place significant weight on this together with the fact that the courses that the applicant has undertaken are not consistent and ‘do not display a progression in level’.
The Tribunal at paragraph [25] also placed significant weight on the fact that the applicant’s spouse and children are in Australia with her which would be a disincentive to her returning to India, particularly given that her oldest child is an Australian citizen and all three of her children were born here.
The Tribunal put to the applicant its concerns about the disparate course that she had undertaken and did not find her explanations to be reasonable or compelling.[26] At paragraph [28], the Tribunal noted that whilst it is possible for students to change study pathways, the applicant’s changes to her studies over a long period of time ‘are not consistent with the behaviour of a genuine student.’
[26] Tribunal’s statement of reasons dated 7 October 2020 at paragraph [27].
Having regard to all of these factors, the Tribunal concluded at paragraph [30] that the applicant was enrolling in a series of courses ‘not with the primary intention of studying and progressing academically but rather to use the student visa program to extend stay in Australia’.
At paragraphs [31] and [32], the Tribunal considered the value of the courses undertaken by the applicant to her future and concluded that in the circumstances of this matter, it did not ‘accept that these skills are beneficial to the applicant beyond having the impact of prolonging an already lengthy stay in Australia.’
The Tribunal considered the applicant’s immigration history and concluded that the length of time she has spent in Australia is indicative that she does not desire to remain temporarily.[27]
[27] Tribunal’s statement of reasons dated 7 October 2020 at paragraph [33].
The Tribunal found that the applicant did not satisfy the requirement that she be a genuine applicant for entry and stay on a temporary basis as required by cl 500.212.[28]
[28] Tribunal’s statement of reasons dated 7 October 2020 at paragraphs [38] and [39].
Having reached this conclusion in relation to the primary applicant, the Tribunal then concluded that the dependent applicants did not satisfy the requirements of cl 500.311.[29]
[29] Tribunal’s statement of reasons dated 7 October 2020 at paragraph [40].
On this basis the Tribunal affirmed the delegate’s decision not to grant the applicants a Student (Temporary) (Class TU) visas.[30]
[30] Tribunal’s statement of reasons dated 7 October 2020 at paragraph [42].
JUDICIAL REVIEW APPLICATION
On 2 November 2020, the primary applicant filed an application for judicial review of the Tribunal’s decision, nominating her husband and two of her children as dependent applicants.
On 20 May 2025, the matter came before Registrar Cummings and orders made that day, record that there was no appearance for or by the applicants. Other than procedural orders made on that day regarding the name of the first and second respondents, the following relevant orders were made by Judicial Registrar Cummings:
3.The application for judicial review be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
4.The first and second applicants pay the first respondent’s costs fixed in the sum of $3,900.
On 4 June 2025, the applicants filed an application in a proceeding (‘AIP’) in which the following orders were sought:
1. The order made on 20 May 2025 by Registrar Cummings in this proceeding be set aside
2. The second applicant be removed from this proceeding as he is now deceased
3. The third applicant be removed form (sic) this proceeding as he is now an Australian Citizen
4. The proceeding be reinstated and listed for final hearing
5. Any other orders as this Court deems appropriate
In support of her AIP, the applicant filed an affidavit affirmed 3 June 2025 in which she deposed to the following:
·she filed her application for judicial review in October/November 2021;
·in early 2022 her husband went to India;
·after her husband went to India, she started to receive threatening phone calls from people he had borrowed money from and not repaid;
·as a result of these threats she changed her phone number;
·in January 2023, her brother gave her his old phone and she tried to set up her email on her phone but was unable to do so, so she set up a new email address; and
·as she had access to her old email on her old phone, she would check it regularly, about once or twice a month.
In this context, the applicant then deposes:[31]
8.I last checked my old email on 27 May 2025 and noticed that there were 2 emails from the court, one on 2 May 2025 advising of the court date of 20 May 2025, and the second email of 20 May 2025 advising that my application had been dismissed as I failed to appear at the court hearing of 20 May 2025.
[31] Affidavit of Mandeep Kaur Batth affirmed 3 June 2025 at paragraph [8].
She further states that she contacted her migration agent who said she would need to make an application and explain why she did not attend the hearing date.[32]
[32] Affidavit of Mandeep Kaur Batth affirmed 3 June 2025 at paragraph [9].
The applicant then goes on to say that her husband passed away in India on 2 August 2022 and therefore, she requests that his application be removed from the proceeding.[33] She also said that the third applicant, her son Harnoor Singh Batth, became an Australian Citizen in 2024 and hence she requests that his name also be removed as an applicant in these proceedings.[34]
[33] Affidavit of Mandeep Kaur Batth affirmed 3 June 2025 at paragraph [11].
[34] Affidavit of Mandeep Kaur Batth affirmed 3 June 2025 at paragraph [12].
The matter proceeded before Registrar Cummings on 2 July 2025 where the applicant appeared on her own behalf and on behalf of the now second applicant Mannat Kaur Batth.[35]
[35] Orders of Registrar Cummings dated 2 July 2025.
Registrar Cummings refused the application and dismissed the applicant’s reinstatement application. He also ordered that the first applicant pay the first respondent’s costs fixed in the sum of $2,483.25.[36]
[36] Orders of Registrar Cummings dated 2 July 2025.
The first applicant filed an application for review of Registrar Cummings’ decision on 15 July 2025 seeking that the orders he made be set aside.
It is not in dispute that the applicant’s application for review was filed outside the 7 day time limit for such applications in r 21.02(1) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’). Rule 21.02(2) provides that that time limit may be extended, among other things, with the consent of the parties to the proceeding.
To the extent that the applicant sought an extension of time for the filing of her application for review, the Minister’s representative indicated that the Minister consented to that extension being granted. In those circumstances, an extension of time was granted to the applicants to file the application for a review of Registrar Cummings decision made on 2 July 2025.
Rule 21.04 of the Rules relevantly provides:
(1)The review of an exercise of power by a Registrar must proceed by way of a hearing de novo.
(2)In the review, the Court:
(a) may receive as evidence any affidavit or exhibit tendered before the Registrar; and
(b) may with leave receive further evidence; and
(c) may receive as evidence:
i. any transcript of the proceeding before the Registrar; or
ii.if there is no transcript – an affidavit sworn by a person who was present at the proceeding before the registrar as a record of the proceeding.
There was no issue taken that about the Registrar’s decision to dismiss the applicant’s application for non-appearance pursuant to rule 13.06(1)(c) of the Rules.
The issue before me is therefore whether the court, as currently constituted, should set aside the orders made on 20 May 2025, dismissing the applicant’s application for non-appearance and thereby reinstate the applicant’s substantive application for judicial review of the Tribunal’s decision of 7 October 2020.
The court has the power to make such an order pursuant to rule 17.05(2)(a) of the Rules which provides:
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party …
This is a discretionary power which must be exercised judicially.
In FBS18 v Minister for Home Affairs [2019] FCAFC 196 (‘FBS18’), the Full Court of the Federal Court of Australia noted at [24] that the applicant in that case referred to a statement by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (‘MZYEZ’) at [7]:
In circumstances, where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement. ([sic])
(Ryan J’s emphasis.)
(see also Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] – same observation)
In considering these matters, the court in FBS18 observed that these matters are not mandatory considerations as such, but rather guidelines to assist the court to ultimately determine what is in the interests of the administration of justice. Relevantly at paragraph [50] the Court said:
In our opinion the primary judge was required to consider whether or not it was in the interests of justice to reinstate the applicant’s application. This is what his Honour did, by reference to the factors that he considered to be significant. We would infer that the absence of any explicit consideration of other factors meant that the primary judge did not consider them to be material.
In FBS18, the Judge at first instance did not reinstate a proceeding notwithstanding that he had formed a preliminary view that there was a serious issue to be tried. In that case, the primary Judge also formed a view about the applicant’s lack of truthfulness particularly about the reason for his non-attendance in the first place. At paragraph [60], the Court noted:
We consider there to be nothing in MZYEZ at [7] inconsistent with our reasons or conclusion: we do not consider that Ryan J was setting out mandatory relevant considerations for the exercise of the discretion to reinstate which require specific reference in all cases. Neither, in our view, did the Full Court do so in BVG17 v BVH17 [2019] FCAFC 17 at [34] where the Full Court again referred to whether an order (for an extension of time) was in the interests of justice.
In this instance, the applicant has provided an explanation as to why she did not attend the call over before Registrar Cummings on 20 May 2025. In her oral submissions, the primary applicant acknowledged that she had failed to update her phone number, and her email address as required. She explains in her affidavit, however, that she still had her old phone and through that phone, she had access to her old email address. However, she says that she did not check it daily and therefore, missed the message from the court about the listing of this matter for a call over.
On balance, I am satisfied that the applicant has provided an explanation as to why she did not attend the call over. In essence, she was not aware of it because of her change to her mobile phone and her email. The applicant upon becoming aware of the order made in her absence, took immediate action to seek to have that order set aside. Having regard to these matters, I accept that there was a reasonable explanation given as to why the applicant did not attend the hearing on 20 May 2025.
As to prejudice to the Minister, I am not satisfied that the Minister would suffer any prejudice if the application were to be reinstated which could not be cured by a costs order.
The key issue in my view in this instance is the prospect that the applicant would achieve a different outcome if the matter were reinstated and the substance of the applicant’s grounds of review were fully aired at a final hearing. Ultimately, if the merits of the substantive application are so weak that there is no reasonable prospect of the application succeeding, it would not, in my view, be in the interests of the administration of justice to allow the reinstatement of the substantive application.
In the application for review of the decision of the Tribunal filed by the applicant on 2 November 2020, the applicant raises three grounds of review, which are as follows:
1.I wish to seek judicial review of the student visa refused due to clause 500.212 of Schedule 2 to the Migration Regulations 1994 as the AA member did not consider me to be the genuine student despite of all relevant evidence such as my economical and personal tie ups with my home country.
2.I am putting in my judicial review application so that all of the primary criteria in cl 500.211 to cl 500.218 can be reassessed so that my personal circumstances and also my previous immigration history can be taken into account and also the presence of a job offer in my home country shall be taken as a positive point as well.
3.In considering whether I satisfied the cl 500.212(a), the Tribunal failed to consider my supporting documentation in line with the Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act, hence I seek judicial review of the same.
Ground 1
Notwithstanding orders made on 6 June 2025 for the applicants to file and serve an outline of written submissions and any additional affidavits in support of the application for reinstatement, no such documents were filed by the applicants.
It is apparent from the Tribunal’s decision that it considered the evidence given by the applicant about her financial and personal ties with India. Relevantly, at paragraph [18] of the Tribunal’s decision, the member specifically refers to the applicant’s parents, sister and brother who remain living in India. The Tribunal also noted the primary applicant’s evidence that her family has land in India which is used for farming and that she herself has no assets of her own either in Australia or in India. Similarly, the Tribunal referred to the applicant’s ties to India at paragraph [20], but notes that these are not considered to be an incentive for the applicants to return to India, in and of themselves, particularly when weighed against the ties to Australia, including her sister in Perth and that her eldest child is an Australian citizen and the amount of time that she and her family have now lived in Australia.
The Tribunal concluded at paragraph [21] that it did not ‘consider that the applicant has strong economic or financial ties that constitute an incentive to return to her home country’.[37] This finding was reasonably open on the evidence before the Tribunal. This is particularly so when regard is had to the balance of the Tribunal’s reasons which gave due consideration to the other matters raised by the applicant relevant to the consideration of the genuine temporary entrant criterion.
[37] Tribunal’s statement of reasons dated 7 October 2020 at paragraph [21].
Ground one has no reasonable prospects of success if the matter were to be reinstated. Rather, by ground 1, the applicants do little more than express a disagreement with the conclusions reached by the Tribunal and effectively seek impermissible merits review.
Ground 2
Without in any way being critical of the applicant who appeared without legal representation, ground 2 lacks clarity. At the hearing before me, the applicant was invited to comment on these grounds, but did not expand on them in any way.
When asked if there was anything that she wished to say about the grounds in her substantive application, the primary applicant simply said that she would like her application to be reinstated and that she did not have anything at this stage to say about the grounds of review in that application.
I agree that if by ground 2 the applicant seek the court to assess her claims against the criteria for a student visa, clearly this is not the role of the court on a judicial review application.
To the extent that by ground 2, the applicant claims that the Tribunal did not consider certain matters that it was required to consider in determining her claim, then I agree with the submissions made by the Minister that such a claim does not have reasonable prospects of success.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered the primary applicant’s circumstances, both in Australia and in India. It also considered her immigration history, and the job offer that the applicant has put before the Tribunal as evidence, no doubt, of her intention to return to India once she had completed her studies. In relation to the latter issue at paragraph [31], the Tribunal stated:[38]
•The applicant told the Tribunal during the hearing that she was planning on working at a restaurant and provided a document that contained an offer of a job at a hotel. The job offer has been made by a friend who she met at her brother’s wedding. He owns a hotel that he has had for over two years. The document indicates a start date of April 2020 but it appears to be a typo and is meant to reflect 2021. The Tribunal does not accept this document as being a formal contract of employment nor does it consider such an offer to be evidence of an intention by the applicant to return to India.
[38] Tribunal’s statement of reasons dated 7 October 2020 at paragraph [31].
Having regard to the Tribunal’s reasons, any claim that the Tribunal failed to have regard to evidence put forward by the applicant in support of her visa application, has no reasonable prospects of success.
Ground 3
By ground 3, the primary applicant claims that the Tribunal failed to have regard to the documentation provided in support of her visa application in a manner consistent with Ministerial Direction No. 69 (‘Direction 69’).
Again, when read as a whole and fairly, this ground has no reasonable prospects of success. It is clear that the Tribunal was well aware of Direction 69 as it is expressly referred to at paragraphs [9] and [10] where the Tribunal relevantly said:[39]
[39] Tribunal’s statement of reasons dated 7 October 2020 at paragraphs [9] and [10].
9.In considering whether the applicant satisfied cl 500.212(a), the Tribunal must have regard to Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•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;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
10.The Direction indicates that the factors specified should not be used as a checklist but rather, 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.
Having identified the Direction 69, what it required and how it was to be used, the Tribunal then went on to consider each of the relevant matters raised by the applicant’s evidence in the balance of its reasons.
Ground 3 therefore has no reasonable prospects of success.
Rather, by ground 3, the applicant again expresses disagreement with the Tribunal’s conclusions and invites the court to engage in impermissible merits review.
CONCLUSION
In circumstances where the applicant’s grounds of review in the substantive application do not have reasonable prospects of success, I am not satisfied that it is in the interests of the administration of justice to reinstate that application.
In those circumstances, the appropriate orders are those sought by the first respondent, namely:
(1)The orders made by Registrar Cummings on 2 July 2025 stand.
(2)The applicants’ application for review filed 15 July 2025 be dismissed.
The Minister also seeks their costs of this application fixed in the sum of $1,172.10. In circumstances where the applicants have been wholly unsuccessful, it is appropriate that the first applicant be ordered to pay costs of the first respondent.
I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 6 August 2025
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