Kaur v Minister for Immigration and Citizenship

Case [2025] FCA 931

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Citizenship [2025] FCA 931  

Appeal from: Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 818
File number: SAD 190 of 2024
Judgment of: CHARLESWORTH J
Date of judgment: 12 August 2025
Catchwords: MIGRATION – appeal from order dismissing an application for judicial review of a migration decision – grounds of appeal seeking impermissible merits review of the migration decision – appeal dismissed   
Legislation:

Migration Act 1958 (Cth) ss 65, 474, 499

Migration Regulations 1994 (Cth) cl 500.212

Cases cited:

BEF15 v Minister for Immigration and Border Protection [2016] FCCA 2607

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 818

Khaling v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 573

Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 25
Date of hearing: 30 July 2025
Counsel for the Appellant: The Appellant appeared in person
Counsel for the First Respondent: Ms B Rayment
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice

ORDERS

SAD 190 of 2024
BETWEEN:

BALJINDER KAUR

Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

12 AUGUST 2025

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

CHARLESWORTH J

  1. This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) dismissing an application for judicial review of a decision of the former Administrative Appeals Tribunal:  Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 818.

  2. The Tribunal affirmed a decision of a delegate of the then-named Minister for Home Affairs not to grant the appellant a Student visa under s 65 of the Migration Act 1958 (Cth).

  3. For the reasons given below, the primary judge did not err in dismissing the application for review of the Tribunal’s decision.

  4. It follows that the appeal must be dismissed.

    THE TRIBUNAL’S DECISION

  5. The appellant (Ms Baljinder Kaur) is a citizen of India.  She has resided in Australia since 2008 as the holder of successive visas issued in January 2011, November 2011, August 2013, August 2014 and December 2016.

  6. For the appellant to succeed on her application for the visa to which this appeal relates, it was necessary that the Minister (and hence the Tribunal) be satisfied that the criteria…

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Kaur v Minister for Immigration and Citizenship [2025] FCA 931
Case
[2025] FCA 931
Decision Date

CaseChat Overview and Summary

In Kaur v Minister for Immigration and Citizenship, Baljinder Kaur, an Indian citizen residing in Australia since 2008, appealed against an order dismissing her application for judicial review of a decision made by the Migration Review Tribunal. The Tribunal had dismissed Kaur's application for a visa based on its finding that she intended to stay in Australia indefinitely rather than temporarily, contrary to the requirements of the Migration Act 1958 (Cth). The primary judge dismissed Kaur's application for judicial review, finding that the Tribunal's decision was not affected by jurisdictional error.

The legal issues before the court were whether the Tribunal's decision was affected by jurisdictional error and if the primary judge erred in his interpretation and application of the law. Kaur argued that the Tribunal failed to provide her with procedural fairness and did not consider all the evidence before it. The court considered Kaur's submissions and found that the primary judge had correctly interpreted and applied the law. The court found that the Tribunal had considered all the documents upon which Kaur had relied and had properly understood her claims. The court further found that the Tribunal's decision was open to it based on the evidence and the law.

The appeal was dismissed, and the orders of the primary judge were upheld. The Federal Court found no jurisdictional error in the Tribunal's decision and no error on the part of the primary judge in his interpretation and application of the law.

Orders

Orders of the court

1. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that the appeal must be dismissed.THE TRIBUNAL’S DECISION The appellant (Ms Baljinder Kaur) is a citizen of India. She has resided in Australia since 2008 as the holder of successive visas issued in January 2011, November 2011, August 2013, August 2014 and December 2016. For the appellant to succeed on her application for the visa to which this appeal relates, it was necessary that the Minister (and hence the Tribunal) be satisfied that the criteria for the visa were fulfilled: Act, s 65. They included the criterion in cl 500.212(a) of the Migration Regulations 1994 (Cth), known as the temporary entrant criterion. It relevantly provided:(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; … The decisive question before the Tribunal was whether the appellant fulfilled the requirement in cl 500.212(a). In considering that question, the Tribunal applied a direction issued by the Minister under s 499 of the Act, which identified the matters to be taken into account. Addressing those matters, the Tribunal made the following findings:(1)since arriving in Australia in 2008, the appellant had returned to India on only three occasions;(2)on the appellant’s own account, she had been enrolled in approximately 15 courses over 13 years, ranging over a number of different subject areas;(3)there was a lack of evidence that the course selected for the current visa application was of value to the appellant’s future, considered in the context of her extensive study history;(4)the selected course was a “repeat of earlier studies” and would not enhance the appellant’s employment prospects;(5)that factor, combined with the “sheer length of time” the appellant had spent in Australia and the unstructured nature of her course of study, support a conclusion that her conduct was consistent with an intention to remain in Australia indefinitely;(6)the appellant held “reasonably strong personal ties to India”. However, they did not present a strong incentive for her to return;(7)as the appellant had no employment secured in India, there were no “strong economic or financial ties” that constituted an incentive to return; and(8)the appellant had an economic incentive to remain in Australia as she had part time employment in the food and hospitality industries in Australia and possesses no other work experience.PROCEEDING BEFORE THE PRIMARY JUDGE To succeed on her application for judicial review at first instance, it was necessary for the appellant to show that the Tribunal’s decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. On that application, the appellant relied on a single ground of review, expressed as follows:My primary ground of this application is that Tribunal did not provide me procedural fairness. Member made his decision based on some errors. Member believed that my intended courses were same as previously completed. Whereas previously completed similar courses were studied in 2008-2010. I wished to update my courses to modern and current courses. Academics courses keep on changing as per the requirements of time. I wanted to gain most up to the date qualifications before returning to my home country. I have always been a geuine temporary entrant. I have completed most of the enrolled studies. Please refer to my detailed affidavit and supporting documents. Member also concluded I did not have enough reasons to go back. Whereas my mother is there in India and my father is not alive. In future, I am the only one to take care of my mother because my brothers won’t. I have strong ties to India. I was enrolled in current courses just to update myself and start my career journey in a professional manner.

Ratio Decidendi

Legal Principle Established

The grounds and submissions otherwise contain a contention that the primary judge erred in failing to find that the Tribunal did not consider “all the elements and documents” before it. That allegation may be characterised as a contention that the primary judge committed appealable error in rejecting the ground of review that asserted a breach of procedural fairness by the Tribunal or a failure to take into account material evidence or submissions (or perhaps both). The contentions also contain an unparticularised allegation that the primary judge failed to afford her natural justice.CONSIDERATION The allegation that there was a breach of the rules of procedural fairness in the proceeding at first instance was not elaborated upon in oral submissions, nor was the Court taken to any evidence capable of supporting such an allegation. The reasons of the primary judge summarise the guidance that had been given to the appellant about the limits of his Honour’s role on the application for judicial review and there is no suggestion that summary is inaccurate. The primary judge was plainly aware of the need to interpret the appellant’s sole ground for judicial review as broadly as possible, and it is apparent that his Honour did so: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158. On appeal, the appellant did not suggest that the primary judge had misunderstood the essence of her complaints. The primary judge explained why each of the appellant’s contentions should be rejected. In doing so, his Honour undertook an assessment as to whether the Tribunal had properly understood the case the appellant had presented on her review application. His Honour concluded that the appellant’s contentions had been properly understood and that it was open to the Tribunal to reject the contentions on the material before it for the reasons that it gave. The appellant has not identified any error affecting that aspect of the judgment. In addition, the primary judge invited Counsel for the Minister to draw to his attention any matter that might give rise to concerns or doubts about the Tribunal’s decision and his Honour went on to consider submissions put forward in response to that invitation. The primary judge rejected the submissions of the Minister to the effect that the appellant’s complaints about the Tribunal’s decision were an attempt to invite the Court to engage in impermissible merits review. His Honour did so without the benefit of submissions from the appellant on that topic. The primary judge concluded that the Tribunal had indeed taken into account all of the documents upon which the appellant had relied. His Honour identified that the Tribunal had correctly identified the courses the appellant had completed and that it had found her behaviour to be more consistent with a person who was attempting to maintain ongoing residence in Australia. His Honour continued:Again, the Court accepts the Minister’s submissions in this regard. To the extent that the applicant is asserting that the Tribunal either did not have regard to, or did not understand, her claims in respect of her reasons for enrolling in the course that is not made out. It is clear from the Tribunal’s decision that it appreciated the applicant’s claims in this respect but did not agree that there was any value to these courses. Similarly, the Tribunal did consider the applicant’s evidence that she had completed most of the courses. However, the Tribunal found that her enrolment history and the types of courses she engaged in were not consistent with the pathway of a genuine student and more consistent with a person who was making repeat applications to extend her stay in this country. That was a finding which was open on the evidence and one which the Tribunal was entitled to make.