Doy v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1539

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Doy v Minister for Immigration and Citizenship [2025] FedCFamC2G 1539  

File number(s):

SYG 1936 of 2023

Judgment of:

JUDGE ZIPSER

Date of judgment:

19 September 2025

Catchwords:

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal required to put to applicant for comment country information on which Tribunal relied – whether denial of procedural fairness – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 65, 357A, 359, 359A, 359C, 360, 363A, 476, 499

Migration Regulations 1994 (Cth) cl 500.212 of Sch 2

Cases cited:

Gehlert v Minister for Immigration & Multicultural Affairs[2024] FCAFC 12

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 64

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; 140 FCR 572

NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262; 133 FCR 89

Roser v Immigration Review Tribunal (No 2) (1992) 29 ALD 182

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252

SZBNW v Minister for Immigration [2004] FMCA 436

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609

VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178

Williams v Spautz (1992) 174 CLR 509

Division:

Division 2 General Federal Law

Number of paragraphs:

50

Date of hearing:

27 August 2025

Place:

Parramatta

Applicant:

In person

Solicitor for the Respondents:

Emily Maker (Sparke Helmore Lawyers)

ORDERS

SYG 1936 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

VITALIS YOSEP S DOY

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	19 SEPTEMBER 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 $8,371.30.

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

1. On 29 November 2023, the applicant lodged 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 2 November 2023. 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.

2. For the reasons that follow, the application to this Court is dismissed.

   LEGISLATION

3. 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.

4. 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

5. In December 2011, the applicant, a citizen of Indonesia, first arrived in Australia on a student visa which was valid until April 2014. Between April 2014 and March 2021, the applicant applied for, and was granted, a further three student visas with the last visa valid until March 2021.

6. On 1 March 2021, the applicant applied for a fifth student visa, being a subclass 500 visa, on the basis of his enrolment in a Certificate IV in Marketing and Communication, a Diploma of Social Media Marketing and an Advanced Diploma of Marketing and Communication at an educational institution in Australia.

7. On 20 October 2021, 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.

8. On 5 November 2021, the applicant applied to the Tribunal for review of the delegate’s decision.

9. On 24 February 2022, the Tribunal invited the applicant to provide information through a ‘Request for Student Visa Information’ form by 10 March 2022 (February 2022 Invitation). The invitation added:

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

10. On 16 March 2022, the applicant provided information to the Tribunal in response to the February 2022 Invitation.

11. On 8 June 2022, the Tribunal wrote to the applicant to advise that, because it had not received a response to the February 2022 Invitation or any request for an extension of time by 10 March 2022, he had lost his entitlement to appear before it. However, the Tribunal undertook not to make a decision before 1 July 2022 and informed the applicant that he could provide any evidence or submission to it before a decision was made. 

12. On 25 July 2023, the Tribunal invited the applicant, under s 359A of the Act, to comment on or respond to information it had obtained about the applicant’s study and immigration history.

13. On 22 August 2023, the applicant responded to the invitation by providing a statement and supporting documents.

14. On 2 November 2023, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant the visa.

    TRIBUNAL’S DECISION

15. The Tribunal at [3]-[4] found the applicant had lost his entitlement to appear before the Tribunal because he did not respond to the February 2022 Invitation within the specified time.

16. The Tribunal at [8]-[11] identified the issue before it was whether the applicant intended genuinely to stay in Australia temporarily and that, in considering this issue, it was required to have regard to Direction 69.

17. The Tribunal at [14]-[29] considered the applicant’s circumstances in Indonesia. The Tribunal at [24] found, “all the evidence set out in this decision … indicates to the Tribunal that Mr Doy is in Australia for reasons other than to study”. The Tribunal at [28]-[29] concluded “the financial evidence … indicates there are circumstances, most likely financial, that present as an incentive for Mr Doy not to return should he be granted a visa to stay in Australia” and “the Tribunal does not believe … that Mr Doy’s circumstances in Indonesia are persuasive evidence that he intends genuinely to stay in Australia temporarily”.

18. The Tribunal at [30]-[61] considered the applicant’s potential circumstances in Australia. The Tribunal at [53] observed, “although Mr Doy has been in Australia as a student since December 2011, he has not provided evidence that he has successfully completed more than one qualification”. The Tribunal at [61] concluded, “taking into consideration his previous study history, the Tribunal is not satisfied that Mr Doy is genuinely seeking to undertake the proposed courses for the reasons declared” and “Mr Doy’s circumstances in Australia do not support that he intends genuinely to stay in Australia temporarily as a student”.

19. The Tribunal at [62]-[71] considered the value of the proposed course to the applicant’s future. The Tribunal at [71] concluded, “the value of the course to Mr Doy’s future would support that he intends genuinely to stay in Australia temporarily as a student if it was not so significantly outweighed by other factors”.

20. The Tribunal at [72]-[84] considered the applicant’s immigration history. The Tribunal at [84] found, “Mr Doy’s immigration history … does not support that he intends genuinely to stay in Australia temporarily”.

21. After weighing up all the evidence and considerations in Direction 69, the Tribunal found that the applicant did not intend to genuinely study and was only using the student visa program to remain in Australia. Accordingly, the Tribunal at [90]-[93] found the applicant did not meet cl 500.212(a) of Schedule 2 to the Regulations, and affirmed the decision under review.

    PROCEEDING IN THIS COURT

    Judicial review application and steps up to hearing on 27 August 2025

22. On 29 November 2023, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision.

23. Following a period of inactivity, on 10 July 2025 the parties were notified by the registry of the Court that the matter was listed for hearing on 27 August 2025.

24. On 8 August 2025, the applicant took steps to file an amended application (Amended Application) which contained two grounds as follows (as written):

    1. The Tribunal relied on external economic data not given to me but used as reasons for confirming the visa refusal decision by the Department, including:

    a.World Bank figures, Time Doctor salary data, Horizons and Salary Expert wage statistics, Fair Work Commission minimum wage rates, and "LetsMovelndonesia" business-registration costs at paragraphs 25, 26, and 70 of their decision record dated 2 November 2023.

    b. From my search of section 359A on the Tribunal was bound to give applicants like me any information that was not supplied by me that would be part of the reason for confirming the Immigration Department's refusal and then give me a chance to respond and comment. This didn't happen.

    c. By formulating negative findings on material not given to me, the Tribunal denied me procedural fairness, and I believe it acted beyond its power, similar to the case of SZBEL v MIBP (2006).

    2.        I feel like I have been treated unfairly for not being invited to a hearing.

25. On 8 August 2025, the applicant also filed a written submission which, after setting out some background matters, repeated the grounds in the Amended Application. Paragraphs 5 and 6 of the submission contained an acknowledgment that:

    (a)the Tribunal sent the February 2022 Invitation to the applicant on 24 February 2022; and

    (b)the applicant received the invitation but, because the applicant “had a lot on [his] mind”, he “could not respond to the Tribunal until 16 March 2022”.

26. On 22 August 2025, the first respondent filed a written submission (RS).

    Hearing on 27 August 2025

27. At the hearing in this Court on 27 August 2025, the applicant appeared unrepresented, assisted by an Indonesian interpreter. Emily Maker from Sparke Helmore Lawyers appeared for the first respondent.

28. The applicant did not bring to the hearing a copy of the Court Book filed and served by the first respondent in July 2024 or an Amended Court Book (which replaced the Court Book) filed and served by the first respondent in August 2025. Both the Court Book and Amended Court Book contained the Tribunal’s decision and documents before the Tribunal. Ms Maker gave the applicant a second copy of the Amended Court Book.

29. At the commencement of the hearing, I directed the applicant’s attention to the Tribunal’s decision in the Amended Court Book. I explained that the Court’s role was limited to considering whether or not there is a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. With reference to the Tribunal’s decision, I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error in the Tribunal’s decision.

30. I offered the applicant a break of 10 minutes to consider oral submissions he wanted to make to the Court. The applicant took up this opportunity.

31. After the break, Ms Maker tendered the Amended Court Book.

32. I invited the applicant to make oral closing submissions. The applicant explained that the Amended Application and written submission were prepared by a lawyer who charged the applicant $3,000 for the work. The applicant explained why he did not respond to the February 2022 Letter within the required time. He acknowledged that he received the February 2022 Letter, but explained that he forgot to check his email because his father was ill.

33. I asked the applicant if there was an error in the Tribunal’s decision. The applicant replied that he did not think there was an error in the Tribunal’s decision. In light of this answer, I asked the applicant if he wanted to discontinue the proceeding. The applicant asked, if he discontinued the proceeding, whether he could then appeal to a higher court. I replied “no”. The applicant then said he did not want to discontinue the proceeding.

34. Ms Maker, in her oral submissions, principally relied on the first respondent’s written submission filed on 22 August 2025.

    CONSIDERATION

    Ground 1(a) and (b) in Amended Application

35. The Tribunal at [25], [26] and [70] of its decision relied on information which it did not put to the applicant for comment. The applicant complains in ground 1 (a) and (b) that the Tribunal, by relying on this information without giving the applicant an opportunity to comment on the information, breached s 359A of the Act.

36. Section 359A relevantly provided at the time of the Tribunal’s decision:

    (1)      Subject to subsections (2) and (3), the Tribunal must:

    (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)      invite the applicant to comment on or respond to it.

    …

    (4)      This section does not apply to information:

    (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b) that the applicant gave for the purpose of the application for review; or

    (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    (c) that is non‑disclosable information.

37. The Tribunal stated at [25]:

    Mr Doy has listed his residence in Indonesia as in Bali and claims he owns an apartment in Jakarta but did not make any claims to earn income from the apartment. Indonesia's gross national income per capita reached USD 4,580 (AUD 7,200) in 2022, which, according to the World Bank database, showed a significant increase of 9.8% from 2021.8 But the average annual salary remains only IDR 146,000,000 (AUD 14,400),9 with the average salary in Jakarta being slightly lower (IDR 104,000,000).10 The average annual salary in Bali, where Mr Doy claims to reside, is IDR 200.773.887 (AUD 19,880) or an hourly rate of IDR 96,526, just under AUD 10 per hour.11 That is compared to Australia's minimum wage of AUD 23.23 per hour.12 In the s.359 response, Mr Doy claims that in 2016 he earned AUD 25,000 (that is AUD 31,200 in 2023).13 Even Mr Doy's evidence in the s.359 response is that by working at his cafe fulltime he expects to earn around AUD 2,000 per month in Bali, less than he earned in Australia in 2016 as a driver for Go Logistics (presumably part-time since he was the holder of a visa with work restrictions and claims to also have been studying fulltime).

38. Footnote 8 appears to refer to a website which contains information from a World Bank database. Footnote 9 refers to “Time Doctor website”. Footnote 10 refers to “Horizons website”. Footnote 11 refers to “Salary Expert website”. Footnote 12 refers to “Fair Work Commission website”. Hence, these footnotes refer to the sources of “external economic data”, (see opening sentence of ground 1) specified in particular (a) of ground 1.

39. For the following reason, this complaint by the applicant concerning the Tribunal’s reasons at [25] does not identify a jurisdictional error in the Tribunal’s decision. As stated at RS [31], pursuant to s 359A(4)(a) of the Act, the obligation in s 359A(1) to “give to the applicant … clear particulars of any information that the Tribunal considers would be the reason … for affirming the decision that is under review” did “not apply to information” “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. The country information in footnotes 8 to 11 is such information, that is information which falls within s 359A(4)(a): see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16].

40. The Tribunal at [26] referred to a clause of the Republic of Indonesia’s 1945 Constitution. It appears from the language in ground 1(a) and (b) that the applicant does not complain about the Tribunal’s reliance on the 1945 Constitution. In any event, as stated by the first respondent at RS [32], the clause of the 1945 Constitution to which the Tribunal refers also falls within s 359A(4)(a). Further, it does not appear that the clause of the 1945 Constitution was “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17].

41. The Tribunal at [70] stated:

    Even if the Tribunal were to accept this, Mr Doy has not provided any information about how he plans to capitalise the business. According to country information, just registering a local business requires IDR 50,000,000 (AUD 4,950)14 before the costs of premises, fit out, stock, and staff.

42. Footnote 14 refers to information from the website “Letsmoveindonesia.com” which is also specified in ground 1(a). Again, this information is country information which falls within s 359A(4)(a).

    Ground 1(c) in Amended Application

43. By ground 1(c), the applicant contends the Tribunal denied the applicant procedural fairness “by formulating negative findings on material not given to me”. The “material not given to me” was the country information specified in ground 1(a). This complaint by the applicant does not identify a jurisdictional error in the Tribunal’s decision. First, Division 5 of Part 3 of the Act, titled “Part 5-reviewable decisions: conduct of review”, contains provisions concerning the conduct of a review by the Tribunal. Section 357A(1) states that Division 5 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. Section 359A appears to deal with the “matter” of “the provision of information, more generally relevant and adverse, for comment”: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [42]. The applicant has not persuaded me that his complaint the subject of ground 1(c) involves a separate “matter” within the meaning of s 357A(1) which might be subject to an obligation to accord procedural fairness. Second, even if the common law obligation of procedural fairness applied to the matter the subject of the applicant’s complaint in ground 1(c), I am not persuaded the Tribunal’s failure to put the country information to the applicant for comment involved a denial of procedural fairness, since the country information was not a “foundation” for an important conclusion by the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; 140 FCR 572 at [143]), or “significant to the decision” (NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262; 133 FCR 89 at [15]).

    Ground 2 in Amended Application

1. The applicant complains that he was “treated unfairly for not being invited to a hearing”. However, as stated by the first respondent at RS [39]-[40]:

   (a)The “applicant does not appear to dispute that he received the s 359 invitation and that he did not respond by 10 March 2022”.

   (b)By virtue of the combination of ss 359C(1), 360(2) and (3) and 363A, “the applicant lost the entitlement to appear before the Tribunal, and the Tribunal did not have power to invite the applicant to appear before it”: see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; 183 FCR 413.

   (c)In any event, by letter dated 8 June 2022, “the Tribunal gave the applicant an opportunity to provide any further evidence or make any arguments to be before it made its decision and undertook not to make a decision until 1 July 2022”.

2. Further, by letter dated 25 July 2023 the Tribunal invited the applicant to comment on or respond to potentially adverse information by 8 August 2023, and the applicant provided information in response to this invitation.

3. I am not persuaded the applicant was denied procedural fairness. Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.

   Concluding observation about abuse of process

4. As stated above, the applicant appeared to acknowledge during the hearing on 29 August 2025 that there is no error in the Tribunal’s decision, but he did not want to discontinue the proceeding because he could not then appeal from the outcome of this proceeding to a higher court. The applicant’s response suggests he may have continued this court proceeding “for a collateral purpose … of extending the period of [his] stay in Australia”, which is an abuse of the process of this Court: see SZBNW v Minister for Immigration [2004] FMCA 436 at [16]; see also Roser v Immigration Review Tribunal (No 2) (1992) 29 ALD 182 at 186, which in turn relied on Williams v Spautz (1992) 174 CLR 509 at 529. Judgments of this Court and the Federal Court of Australia, upon publication, become available through databases of Australian court decisions to readers globally. Findings which may suggest the applicant is using court proceedings for a collateral purpose, in published judgments of Australian courts, may have adverse consequences for the applicant in the future, for example in relation to obtaining visas in Australia or other countries in the future or in relation to his reputation. The applicant should give careful consideration to attempting to use court processes for the sole or predominant purpose of further extending the period of his stay in Australia.

   COSTS

5. At the conclusion of the hearing, I invited submissions from the parties on costs. Ms Maker sought an order that the applicant pay the first respondent’s costs in the amount of $8,371.30, which was less than the first respondent’s solicitor/client costs.

6. The applicant stated that he cannot not afford to pay this amount. However, that the applicant might have difficulty meeting a costs order “does not provide a principled basis for not making a costs order”: Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 64 at [8]. The applicant, by making and progressing the application to hearing, has forced the first respondent to incur legal costs. His limited financial position does not affect a determination of an appropriate amount in the present matter.

7. In circumstances where the scale amount is $8,371.30, which is “a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case” (Gehlert v Minister for Immigration & Multicultural Affairs[2024] FCAFC 12 at [69]), I consider the amount sought by the first respondent is reasonable. I will make this order.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       19 September 2025