Dhillon v Minister for Immigration and Citizenship
[2025] FedCFamC2G 838
•12 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhillon v Minister for Immigration and Citizenship [2025] FedCFamC2G 838
File number(s): SYG 181 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 12 June 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal failed to notify applicant of issue arising in relation to decision under review – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 357A, 360, 425, 476, 499
Migration Regulations 1994 (Cth) cl 500.212 of Sch 2
Cases cited: AZAAD v Minister for Immigration & Citizenship [2010] FCAFC 156; (2010) 189 FCR 494
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 16 May 2025 Place: Parramatta Solicitor for the Applicant: Mr G Bhatia from Ace Legal Partners Solicitor for the Respondents: Mr Z McCaughan from Mills Oakley ORDERS
SYG 181 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP SINGH DHILLON
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
12 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $6,100.
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
JUDGE ZIPSER
INTRODUCTION
On 4 February 2021, the applicant filed an application, under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 January 2021. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided as a time of decision criterion for a student visa:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether an applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (Direction 69), made under s 499 of the Act, which required the Tribunal to have regard to specified factors in relation to:
(a)the applicant’s circumstances in their home country;
(b)the applicant’s potential circumstances in Australia;
(c)the value of the course to the applicant’s future; and
(d)the applicant’s immigration history.
FACTUAL BACKGROUND
In October 2014, the applicant, a citizen of India, arrived in Australia as the holder of a subclass 573 student visa.
On 3 July 2019, the applicant applied for a subclass 500 student visa on the basis of his enrolment in a Diploma and Advanced Diploma of Leadership and Management at an educational institution in Australia.
Accompanying the application was a statement from the applicant in which, among other matters, he claimed that his lack of progress in his academic studies in Australia was due to his mother becoming unwell in late 2015 and his mental health.
On 8 August 2019, a delegate of the first respondent refused to grant the applicant the visa on the basis that he did not satisfy cl 500.212 of Schedule 2.
On 27 August 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 17 December 2020, the Tribunal invited the applicant to attend a hearing by telephone on 6 January 2021.
On 6 January 2021, the applicant appeared at the hearing before the Tribunal by telephone.
Following the hearing, and on the same day, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
TRIBUNAL’S DECISION
The Tribunal at [12] noted that the issue before it was whether the applicant satisfied cl 500.212(a) having regard to the factors in Direction 69.
The Tribunal at [17] noted that the applicant had previously completed a Bachelor of Arts in 2011 in his home country, and opined that the course, the subject of the student visa application, “represents a downgrade from his current level of education which is a cause for concern for the Tribunal”.
The Tribunal at [18] noted the applicant’s poor academic progress during the six years he had been in Australia and was “significantly troubled by this”, and opined that “the applicant’s academic history raises concerns for the Tribunal about the true nature of his intentions onshore and whether he is using the student visa program as a means to circumvent the intentions of the migration program”.
The Tribunal at [19]-[20] considered the applicant’s explanation that in 2017 his mother was unwell and this impacted on his ability to study. The Tribunal commented that “there is no psychological or medical evidence … that provides an adequate account of his mental state at the time”, and the Tribunal was therefore “unable to form any view as to whether the applicant was suffering any clinically diagnosable mental health condition”.
The Tribunal at [23] considered the applicant’s economic circumstances in Australia and concluded that these economic circumstances “are acting as a significant incentive for him to not return to his home country”.
The Tribunal at [25] concluded that the applicant “has established strong ties to the Australian community”.
The Tribunal at [28] expressed concern “that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia”.
The Tribunal at [29], having had regard to all relevant matters, concluded that it “cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily”, and accordingly the applicant did not satisfy cl 500.212.
PROCEDURAL HISTORY
Judicial review application and steps up to hearing on 16 May 2025
On 4 February 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Following a period of inactivity, on 2 April 2025 the parties were notified by the registry of the Court that the matter was listed for hearing on 16 May 2025.
On 15 April 2025, the applicant took steps to file an amended application (Amended Application) which contained one ground as follows (as written):
Ground One: The Tribunal denied the applicant procedural fairness by failing to notify him of an issue that was central to, and determinative of, the Tribunal’s purported decision.
Particulars
1.The Tribunal (CB104 at [28]) noted that the applicant had been in Australia on a student visa “in excess of six years”. The Tribunal stated that factors that led to its purported decision to affirm the decision refusing the applicant a student visa was included what the Tribunal described as “limited overall academic progress the applicant had made in that time”.
2.The applicant had provided both the delegate and the Tribunal (before the hearing) with written explanations for his “limited overall academic progress”.
3.The Tribunal (CB102 at [20]) said:
There is no psychological or medical evidence, beyond the evidence of the applicant himself, that provides an adequate account of his mental state at the time. The Tribunal is therefore unable to form any view as to whether the applicant was suffering any clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental health conditions that ordinary people generally suffer on a day to day basis dealing with life’s stressors, and that this may have been a cause of him effectively doing nothing to get his studies back on track.
4.This issue - considered by the applicant as arising in relation to the decision under review – was not limited to whether the applicant had provided expert psychological evidence supporting his explanation. The issue also required that this expert evidence be of a "clinically diagnosable mental health condition". Further, this expert evidence had to address whether this mental health condition "puts (the applicant's) suffering into a category that goes beyond the ordinary mental health conditions that ordinary people generally suffer on a day to day basis on dealing with life's stressors" - which can be fairly described as an exceptional category. The expert evidence was also required to address whether the condition was causative, whether "this may have been a cause of (the applicant) effectively doing nothing to get his studies back on track". It is clearly a complex multi-limbed issue.
5.This issue was central to, and determinative of, the Tribunal's purported decision.
6.This issue will hereafter for convenience be described in the applicant's outline of submissions as the "expert psychological/medical evidence, exceptional category, causative issue".
7.The Tribunal failed to adequately notify the applicant of this complex multi-limbed expert psychological/medical evidence, exceptional category issue and, accordingly, denied him procedural fairness (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
On 15 April 2025, the applicant also filed a written submission (AS).
On 6 May 2025, the first respondent filed a written submission.
Hearing on 16 May 2025
At the hearing in this Court on 16 May 2025, Gaganjot Bhatia from Ace Legal Partners appeared for the applicant, and Zac McCaughan from Mills Oakley appeared for the first respondent.
A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal.
The solicitors made oral submissions which supplemented their written submissions. The submissions are addressed below.
CONSIDERATION
The Tribunal stated at [19]-[20]:
19. The applicant has made submissions and given evidence that his mother has a heart condition and became acutely unwell in late 2017 and he returned home to be with her during this time and that it impacted him emotionally and his ability to study. Sickness and death of applicant’s and their family members are unkind life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they must deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.
20. There is no psychological or medical evidence, beyond the evidence of the applicant himself, that provides an adequate account of his mental state at the time. The Tribunal is therefore unable to form any view as to whether the applicant was suffering any clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors, and that this may have been a cause of him effectively doing nothing to get his studies back on track.
It is contended in ground 1 that the Tribunal “failed to adequately notify the applicant of” (see particular 7 in ground 1) the issue at [20] and thereby denied the applicant procedural fairness.
Section 360(1) of the Act provided at the time of the Tribunal’s decision:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
As explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL), taking into account s 357A of the Act, the obligation of the Tribunal to afford procedural fairness to an applicant at a hearing was regulated by s 360 of the Act and, subject to the limited possible exception explained in SZBEL at [49], there would only be a jurisdictional error if the Tribunal failed to raise with an applicant an “issue arising in relation to the decision under review”. The High Court stated at [35] and [47]-[48]:
[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
…
[47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways …
[48] Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
In SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 (SZHKA) at [103] Besanko J stated in relation to the identical provision in s 425(1) of the Act:
An invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review is an essential part of the review conducted by the Tribunal … I would add the following observations on the third argument advanced by the first respondent. The argument assumes that a broad meaning is to be given to the word issues in s 425(1) and that there is a far-reaching obligation on the Tribunal to advise the applicant for review of the issues. Those assumptions require examination. In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue. In addition to these considerations, it must be remembered, as the High Court pointed out in SZBEL 228 CLR 152, that there may be many ways in which it will become apparent to an applicant for review that a particular matter is an issue.
His Honour, after recording two matters which the appellants contended were “issues” within the meaning of s 425(1), continued at [113]-[115]:
[113] …Whether a matter such as this constitutes an issue depends upon two requirements.
[114] The first is that the matter play a part in the Tribunal member’s decision on the application for review. Matters not playing any part cannot, in my view, be said to arise in relation to the decision.
[115] The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
For the following reasons, ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
First, an issue considered by the Tribunal at [18]-[20] was the applicant’s poor academic progress during the years he had been in Australia on a student visa. The applicant, in a statement accompanying his protection visa in May 2019, sought to explain his poor academic progress by stating that an illness suffered by his mother “broke [him] completely”, caused him “ongoing stress” and to become “physically and mentally weak” and “stressed out and psychologically traumatised”, which in turn caused him to “[miss] out the core [component] of [his] studies”, “not pass any of [his] subjects due to ongoing stress” and “missed whole semester again”: CB 25. The applicant added in a statement provided to the Tribunal in August 2019 that, as a result of various matters including his mother’s poor health: (CB 48)
I was in depression, psychologically unsettled and emotionally unstable within this time frame.
Thus, it was the applicant, not the Tribunal, who raised as an issue for consideration by the Tribunal whether the applicant had a mental health condition which explained his poor academic progress. Consistent with comments in SZBEL at [35] and [47] and SZHKA at [103], the statutory obligation in s 360(1) does not require the Tribunal to notify an applicant of an issue about which the applicant is already aware, such as if the applicant raised the issue with the Tribunal.
Second, as stated in SZBEL at [40], “it is for the applicant for a protection visa to establish the claims that are made”. In the present matter, the applicant sought to explain his poor academic progress to the Tribunal by stating that his mother’s illness caused him to develop a mental health condition which in turn prevented him from progressing and completing his academic studies. However, the applicant did not provide medical evidence in support of the mental health condition. The Tribunal at [20] principally commented on the lack of medical evidence. As stated in SZBEL at [48], “procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”.
Third, even if the lack of medical evidence was an “issue arising in relation to the decision under review”, in circumstances where the “applicant for judicial review of the Tribunal’s decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal” (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67]), the applicant has not tendered a transcript of the Tribunal hearing before the Court to establish that the Tribunal did not put the applicant on notice of this issue at the hearing.
Fourth, with reference to the discussion in SZHKA (see paragraphs 33 and 34 above), I do not consider that the lack of medical evidence was “substantial enough to constitute an issue”. The lack of medical evidence was not “critical to the Tribunal’s findings”, or “a determinative factor in the mind of the Tribunal”, or a “matter the Tribunal considers may be important to its decision”: SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404at [79]. It was not a “central and determinative issue on the review” (AZAAD v Minister for Immigration & Citizenship [2010] FCAFC 156; (2010) 189 FCR 494 at [102]).
COSTS
At the end of the hearing, the parties made submissions on costs. Mr McCaughan sought costs in the sum of $6,100 which was less than the first respondent’s solicitor/client costs. Mr Bhatia did not object to this amount. I consider the amount reasonable. I will make the costs order sought by the first respondent.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 12 June 2025
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