Dhaliwal v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1077

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Dhaliwal v Minister for Immigration and Citizenship [2025] FedCFamC2G 1077

File number: MLG 2855 of 2020
Judgment of: JUDGE GOSTENCNIK
Date of judgment: 14 July 2025
Catchwords: MIGRATION – student (subclass 500) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – genuine temporary entrant criterion – whether Tribunal’s decision legally unreasonable – whether Tribunal’s decision affected by reasonable apprehension of bias – whether Tribunal gave genuine and active intellectual consideration to the applicant’s evidence – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued
Legislation: Migration Regulations 1994 (Cth) sch 2, cls 500.212, 500.212(a)
Cases cited:

Charara v Commissioner of Taxation [2016] FCA 451

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337

Jatin v Minister for Immigration and Border Protection [2019] FCA 150

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, 240 FCR 158

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, 231 FCR 437

Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227, 256 FCR 1

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, 131 FCR 102
Division: Division 2 General Federal Law
Number of paragraphs: 62
Date of last submission/s: 28 April 2025
Date of hearing: 12 May 2025
Place: Melbourne
Counsel for the Applicant: Mr A Aleksov
Solicitors for the Applicant: Clothier Anderson Immigration Lawyers
Counsel for the First Respondent: Mr S Crock
Solicitors for the First Respondent: Clayton Utz
Counsel for the Second Respondent: Submitting appearance, save as to costs

ORDERS

MLG 2855 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JASPREET SINGH DHALIWAL

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GOSTENCNIK

DATE OF ORDER:

14 JULY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.A writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal (AAT) made on 17 July 2020 in Case No 1831379.

3.A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application for review made to the AAT in Case No 1831379.

4.The first respondent pay the applicant’s costs fixed in the sum of $8,371.30.

Note: The form of the order is subject to…

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Dhaliwal v Minister for Immigration and Citizenship [2025] FedCFamC2G 1077
Case
[2025] FedCFamC2G 1077
Decision Date

CaseChat Overview and Summary

The case of Dhaliwal v Minister for Immigration and Citizenship involves an Indian citizen who applied for a Student visa to pursue vocational courses in automotive technology in Australia. The applicant arrived in Australia on a visitor visa and subsequently applied for a student visa. The delegate of the Minister for Immigration and Citizenship refused the visa application, which was subsequently affirmed by the Administrative Appeals Tribunal (AAT). The applicant sought judicial review of the AAT's decision, challenging it on three grounds: the legality of the AAT's finding that the applicant intended to reside in Australia, the apprehension of bias due to the AAT's cross-examination of the applicant, and the adequacy of the AAT's consideration of the applicant's reasons for seeking to study in Australia.

The legal issues before the court were whether the AAT's decision was legally unreasonable, whether the AAT's decision was affected by a reasonable apprehension of bias, and whether the AAT gave genuine and active intellectual consideration to the applicant's evidence. The court assessed the AAT's decision against these grounds, considering the evidence and arguments presented by the applicant. The court found that the AAT's decision was legally unreasonable as it was based on insufficient evidence and failed to adequately consider the applicant's circumstances and explanations. Additionally, the court held that there was no reasonable apprehension of bias due to the AAT's cross-examination. However, the court concluded that the AAT's failure to give sufficient intellectual consideration to the applicant's evidence amounted to a jurisdictional error.

As a result, the court issued a writ of certiorari to quash the AAT's decision and a writ of mandamus to compel the Minister to reconsider the applicant's visa application with due regard to the applicant's evidence and the correct legal principles. The court's decision underscores the importance of a fair and reasoned assessment of visa applications, ensuring that decision-makers consider all relevant evidence and apply the correct legal standards.

Orders

Orders of the court

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Background

Background to the litigation

The amended application helpfully recasts 25 review grounds into three. First, the applicant contends the Tribunal’s finding that the second tourist visa was obtained with an intention to reside in Australia is legally unreasonable. Second, the applicant says the Tribunal’s decision is affected by apprehended bias, in that the Tribunal cross-examined the applicant during the hearing. Third, the applicant maintains the Tribunal failed to undertake a sufficient intellectual effort to “consider” the applicant’s explanation for wanting to study in Australia. BACKGROUND The applicant is a citizen of India who arrived in Australia on 18 December 2017 as the holder of a visitor visa. On 7 September 2018, the applicant applied for a Student visa with the assistance of a migration agent to pursue various vocational courses relating to automotive technology. The Department of Home Affairs acknowledged receipt of that application by letter dated 7 September 2018, transmitted by email to the applicant’s migration agent. The application included a statement by the applicant setting out his reasons for choosing to study in Australia, purporting to demonstrate that he is a genuine temporary entrant. On 23 October 2018, a delegate of the Minister refused the applicant’s visa application. The applicant was notified by letter of even date, transmitted by email to his migration agent which enclosed a copy of the delegate’s decision record. The delegate’s decision record notes the criteria against which an application for a student visa must be assessed, including relevantly the ‘genuine temporary entrant’ criterion set out at cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth)[1] (Regulations) and Ministerial Direction No 69 (Direction No. 69) which sets out factors to which a decision-maker must have regard when assessing whether an applicant is a genuine temporary entrant.[1] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force. The delegate appears to have been concerned that the applicant’s statement addressing the genuine temporary entrant criterion was vague and that he did not provide any convincing evidence to support his claims. The delegate noted that the applicant’s intended course of study in Australia appeared to be a step backwards when compared with the applicant’s level of education and his extant pursuit of vocational education in India. The delegate was not satisfied that the applicant’s proposed study in Australia would improve the applicant’s career prospects in his home country. The delegate was also concerned that, although the applicant may have had family ties to India, he also had family in Australia, and on balance, his ties to India did not constitute a significant incentive to return to India. The delegate was not satisfied that the applicant intended to stay in Australia temporarily and so refused the application.TRIBUNAL PROCEEDING

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 17 July 2020, the Tribunal affirmed the delegate’s decision and notified the applicant by letter dated 20 July 2020 transmitted by email to his migration agent. The notification letter enclosed the Tribunal’s Statement of Decision and Reasons (Decision) together with an ‘Information about decisions’ fact sheet and a copy of Direction No. 69.TRIBUNAL’S DECISION The Tribunal’s decision begins with a summary of the background to the review application, including a summary of the procedural history: Decision at [1]–[6]. That which follows from [8]–[11] is an outline of the considerations which the Tribunal considered relevant to the assessment of whether the applicant ought be granted a visa, before turning to consider the applicant’s claims and evidence from [12]–[51], but noting at [7] and concluding at [52]–[53] that the decision under review should be affirmed. The Tribunal set out the requirements for the grant of a student visa: Decision at [10], noting first that the applicant must satisfy cl 500.212(a) of Sch 2 to the Regulations requiring the applicant be a ‘genuine temporary entrant’, then noting the mandatory considerations in Direction No. 69, which included:(a)the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to the applicant’s future;(b)the applicant’s immigration history, including visa and travel history; and(c)any other relevant information provided by the applicant or otherwise available to the decision-maker. The Tribunal noted that these factors are not applied as a checklist and are intended only to guide the decision-maker to reach a decision whether an applicant is a genuine temporary entrant: at [11]. The Tribunal made various observations and comments about the applicant’s immigration history. The Tribunal noted the applicant first arrived in Australia in December 2017 as a tourist for the purpose of visiting family, before returning home to India less than a month later: Decision at [12], [22]. Upon his return to India, he continued his studies there, but did not complete his course of study before returning to Australia to visit his family in June 2018, this time for three months: at [22]–[24]. The applicant told the Tribunal that he did not have a return airfare booked but that he had sufficient funds to purchase such airfare and intended to do so: at [26]. The Tribunal asked the applicant whether he intended to remain in Australia upon his second visit to Australia rather than to depart as required by his visitor visa. The applicant said that he had not intended to remain in Australia: at [27]. The applicant conceded that his tourist visa expired in August 2018 and accordingly he was obliged to depart Australia, but that he did not do so: at [26]. It appears from the Decision that because the applicant had recently visited his family, the Tribunal did not accept he had returned to Australia for a second time within six months for the purpose of visiting his family again: Decision at [27]. The Tribunal concluded, rather, that the applicant had come to Australia with the intention of residing in Australia: at [27].

Ratio Decidendi

Legal Principle Established

The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Therefore, he did not meet the requirements of cl 500.212(a) of Sch 2 to the Regulations and the Tribunal affirmed the decision not to grant the applicant a visa: Decision at [51]–[52].CONSIDERATION As earlier noted, by his amended application, the applicant sets forth three grounds of review as follows:1.The Tribunal’s findings that the second tourist visa was obtained with an intention to reside in Australia are legally unreasonable.2.The decision is affected by a reasonable apprehension of bias, in that the Tribunal cross-examined the applicant at (sic) hearing. 3.The Tribunal failed to undertake sufficient intellectual effort to “consider” the applicant’s explanation as to why he sought to study in Australia.Ground 1 At [27] of the Decision, the Tribunal found that the applicant’s purpose in obtaining a second tourist visa was to secure residency in Australia. In so doing the Tribunal reasoned:27. When questioned about whether he had intended on his second visa to Australia to remain and study and that he had travelled here solely for the purposes of undertaking study, the applicant reiterated that he had only come here on the second occasion to visit family. Considering that the applicant had only been to Australia less than 6 months earlier to visit his “brother” and that he had also come to Australia without a return airline ticket, the Tribunal does not accept that the applicant had come to Australia in accordance with the terms of his visa to be a tourist. Rather, the Tribunal considers that he had come to Australia on the second occasion with the intention of residing here. The applicant contends that the Tribunal’s finding was legally unreasonable. The applicant says the Tribunal appears to have relied on the fact that he had not booked a return flight home for the end of his stay. But the applicant contends that in the context of holding a three-month visitor visa and his evidence that he had funds to purchase a return ticket, it was a matter of common-sense that a person would not buy a return ticket to allow for variations to one’s return travel plans. The applicant says that, even if, in his mind one possibility at the time of arrival was to pursue studies in Australia, that is a “far cry” from holding an intention to reside in Australia. He says it is too much to base such finding on the one circumstance of the applicant not having a return ticket on arrival. The applicant also submits that the extent that another circumstance contributing to the Tribunal’s finding might be that the applicant had been to Australia only six months earlier, it was “impossible to understand” how this fact could have any bearing on whether the applicant’s intention at his second arrival in Australia on a visitor’s visa, was permanent residency. The applicant says that many people make multiple visits to Australia within a six-month period for touristic reasons, especially where the touristic reason is to visit family or friends. He says that taken together, there was an insufficient basis to justify the finding made, within the boundaries of legal reasonableness.