Kaur v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1064
•11 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1064
File number(s): ADG 349 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 11 July 2025 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider claims or evidence – whether Tribunal’s decision was biased – whether applicant was denied procedural fairness – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 359(2), 360(1), 476
Migration Regulations 1994 (Cth) Sch 2 cll 500.212(a), 500.311
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Fang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2455
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of last submission/s: 28 May 2025 Date of hearing: 11 June 2025 Place: Adelaide Applicants: Self-represented Counsel for the First Respondent: Maria Pappas Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 349 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RUPINDERJIT KAUR
First Applicant
NISHANBIR SINGH
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
11 JULY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
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 GERRARD:
INTRODUCTION
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Student (Temporary) (Class TU) visas (the visas). As will be explained, for the applicants to succeed in this Court, they must establish that the Tribunal decision contains a jurisdictional error. The Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, the application cannot succeed.
BACKGROUND
Ms Kaur (the applicant) is a citizen of India (Court Book (CB) 11-12). She first arrived in Australia on 19 February 2008 as the holder of a student visa and has since been granted a further five temporary visas while remaining in Australia (CB 73-74).
On 24 April 2019, the applicants applied for the visa which is the subject of this application (CB 10-35). Mr Singh (the second applicant) is the husband of the applicant and was named as a member of the applicant’s family unit (CB 13-14). In her application, the applicant indicated she intended to study an Advanced Diploma of Business (CB 27, 59, 73) and provided a written statement and other documents in support of her application (CB 39-54). The applicants appointed a registered migration agent as their authorised representative (CB 36-38).
On 21 June 2019, a delegate of the Minister invited the applicants, via their agent, to comment on information relevant to the application, namely, evidence of the applicant’s ability to meet the genuine temporary entrant criterion (CB 59-62). The applicants’ agent provided a short written response to that invitation (CB 63).
On 19 December 2019, a delegate of the Minister refused to grant the applicants the visas. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 71-82). That criterion relevantly provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) 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…
On 3 January 2020, the applicants applied to the Tribunal for review of the delegate’s decision (CB 83-85).
On 11 March 2021, the Tribunal invited the applicants, through their migration agent, to provide further information in a “Request for Student Visa Information” form by 25 March 2021 (CB 93-94). The Tribunal also provided the applicants with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications’ (Direction 69) (CB 95-99). The applicants provided various documents and information in response to the Tribunal’s invitation (CB 100-142).
On 8 July 2021, the applicants were invited to attend a hearing scheduled for 26 July 2021 (CB 145-147).
On 26 July 2021, the applicant attended the Tribunal hearing with her migration agent, and with the assistance of a Punjabi interpreter (CB 152).
On 3 November 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas (CB 159-167).
On 17 November 2021, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by identifying the visas under review, noting that the applicants applied for the visas on 24 April 2019. The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, the Tribunal noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]).
The Tribunal explained that a delegate of the Minister had refused to grant the visas as the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212(a) in Schedule 2 of the Regulations) (at [3]). Accordingly, the delegate was not satisfied that the second applicant met the requirements of cl 500.311 as a member of the applicant’s family unit (at [4]).
The Tribunal noted that the issue before it was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student (at [9]). The Tribunal set out the relevant legislative provisions in that regard (at [10]).
The Tribunal stated that it was required to have regard to Direction 69 in considering whether the applicant satisfied cl 500.212(a) (at [11]). The Tribunal noted, however, that the factors set out in Direction 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant’s circumstances as a whole (at [12]).
The Tribunal confirmed that on 24 March 2021, prior to the hearing, the applicant filed a response pursuant to an invitation to supply visa information about the courses she was studying, and information about her entry and stay in Australia, in accordance with s 359(2) of the Act. In addition to that response, the applicant provided the following supporting documentation (at [16]):
·confirmation of enrolment (COE) No. C30C2880 for the applicant to study a Graduate Diploma of Management (Learning) at the Nova Institute of Technology, commencing on 13 April 2021 and concluding on 12 April 2022;
·Certificate III in Commercial Cookery from Salford College dated 26 September 2014, together with transcript of results and completion letter;
·Certificate IV in Commercial Cookery from Salford College dated 18 May 2015, including transcript of results and letter of completion;
·Student record from Salford College regarding the applicant’s subjects and course records;
·Certificate IV in Commercial Cookery dated 14 December 2016;
·Diploma of Hospitality from Queensford College for the applicant dated 11 July 2017, together with transcript of results;
·Certificate IV in Project Management from Sheffield College dated 14 February 2013, together with statement of results and certificate of completion;
·Diploma of Project Management from Sheffield College dated 4 September 2013, together with units of competency completed;
·Diploma of Business from Salford College for the applicant dated 7 December 2016, together with academic transcript and completion letter and transcript outcomes;
·Advanced Diploma of Business from Swann College dated 18 January 2021, together with academic transcript;
·Certificate IV in Spoken and Written English for the applicant from Cambridge International College, studied from 18 February 2008 to 18 April 2008;
·Certificate from Cambridge International College that the applicant had completed 408 hours of field work within the Diploma of Community Welfare Work dated 29 November 2011;
·Diploma of Community Welfare Work from Cambridge International College dated 6 December 2011, together with results and statement of conclusion; and
·Diploma of Business from Salford College for the applicant dated 7 December 2016 with transcript and completion letter and results.
The Tribunal then set out that, whilst in Australia, the applicant has completed extensive studies in various courses as follows (at [18]):
·February 2008 to April 2008 – completed a Certificate IV in Spoken and Written English from Cambridge International College;
·April 2008 to November 2011 – studied and completed a Diploma of Community Welfare from Cambridge International College;
·March 2012 to September 2012 – studied and completed a Certificate IV in Project Management from Sheffield College;
·October 2012 to April 2013 – completed a Diploma of Project Management from Sheffield College;
·August 2013 to 8 August 2014 – studied and completed a Certificate III in Commercial Cookery at Salford College;
·August 2014 to May 2015 – completed a Certificate IV in Commercial Cookery from Salford College;
·July 2015 to December 2016 – studied and completed a Diploma of Business at Salford College; and
·January 2017 to June 2017 – studied and completed a Diploma of Hospitality at Queensford College.
The Tribunal set out the applicant’s evidence that from July 2017 to May 2019, when she was here on a temporary graduate visa, she was predominantly working in two positions in hospitality, earning $37,000 and $17,000 per annum respectively. The following year, she worked as a kitchen hand earning approximately $23,391 per annum (at [20]). Whilst working in Australia on a full-time basis, the applicant was earning between $50,000 and $60,000 per annum, which the Tribunal found to be a high level of income and provided a substantial financial incentive to remain in Australia (at [21]).
The Tribunal set out that, in her Response, the applicant indicated that if she returned to India and set up her own business, she would expect to earn between AUD25,000 and 35,000 per annum. When compared with the amount she has earnt in Australia relative to the minimum wage, the Tribunal accepted she has a financial incentive to remain in Australia (at [26]-[27]).
The Tribunal also found that the second applicant’s earnings of $50,000 per annum as a bus driver, with a combined income of approximately $90,000 per annum, as well as better overall economic conditions in Australia compared to India, would provide the applicants with a substantial incentive to remain in Australia rather than return home (at [25], [28]).
The Tribunal noted that, at the time of applying to the Tribunal, the applicant was enrolled in and had completed an Advanced Diploma of Business, which she studied from May 2019 to November 2020, and had been enrolled in a Graduate Diploma of Management since April 2021. She claimed she was studying a Graduate Diploma of Management to gain confidence and skills to return to India and start up a restaurant business (at [23]).
The Tribunal noted that, whilst in Australia, the applicant has completed three certificates, four diplomas, an Advanced Diploma, and is now undertaking a Graduate Diploma, across business, hospitality and project management. She has had extensive work experience in restaurants and cooking whilst in Australia. The Tribunal found that, having regard to the applicant’s qualifications and circumstances, she is more than suitably qualified to open a restaurant or go back to India to work as a chef. The Tribunal considered that her current course would only provide a marginal improvement in employment prospects and remuneration upon return to India (at [24]).
Whilst acknowledging that it is important to allow for reasonable career changes to study pathways, the Tribunal found this is not the case where an applicant has merely decided to change careers through undertaking short vocational education training courses. The Tribunal noted that it was unclear how a Graduate Diploma of Management would assist her or provide her with skills in establishing a restaurant, but accepted that this course is a higher-level course and does reveal academic progression in regard to her studies (at [29]-[31]).
In considering the applicant’s Response for why she wanted to study in Australia, the Tribunal ultimately did not accept the applicant has a reasonable motive for undertaking the Graduate Diploma of Management in Australia (at [34]). The Tribunal further noted that the applicant has been studying in Australia for a very long period of time, and if she wanted to complete this particular course, she could have done so a long time ago (at [35]).
The Tribunal noted that the applicant confirmed in her genuine temporary entrant statement to the delegate that she would return to India after completing her Advanced Diploma at Swann College. The Tribunal noted the applicant had again changed career paths and decided to remain in Australia to undertake these studies. The Tribunal did not accept the applicant’s evidence, that she was persuaded to remain in Australia due to the COVID-19 pandemic and travel restrictions, as being a reasonable basis to apply for a new student visa (at [32]).
The Tribunal noted that the applicant has been in Australia for 13 years and eight months, and if she completes her current course, would extend to 14 years and two months. The Tribunal found that such length of stay is a very long period of time, is not temporary, and is inconsistent with the purpose of a student visa (at [33]).
The Tribunal set out that the applicant has returned home to India on four occasions, for a total of ten months, since arriving in Australia in 2008. The Tribunal noted that her last visit to India was in January 2019. The Tribunal considered that, due to her relatively few visits to India for a combined total of 10 months in the last 13 years, her conduct is more consistent with someone intending to remain in Australia rather than return home (at [37]).
The Tribunal noted there were no military service commitments or circumstances of political and civil unrest that would present a significant incentive for the applicant not to return to India (at [38]).
With respect to financial ties in India, the Tribunal set out the applicants’ evidence that they have two properties back in India, namely, agricultural land worth AUD340,000 and a house worth AUD55,000. The Tribunal found that, considering the mother-in-law and a friend live in the house complex, the agricultural land is looked after under contract and provides them with income, and considering their economic circumstances in Australia more widely, their asset position in India does not provide significant incentive to return (at [39]).
The Tribunal found that, based on the evidence and circumstances in their home country, including their assets, education and family support, together with the assets of their families relative to others in that country, the applicants are in a good position and it would provide some incentive for them to return home (at [40]).
The Tribunal identified the applicant’s personal ties in India, noting that she has her mother, sister-in-law and mother-in-law who reside there. While these relationships would ordinarily provide some incentive to return home, she has not seen her mother in person since January 2019. Noting this, as well as her economic circumstances and high level of wages earnt in Australia, the Tribunal found that such ties do not provide her with significant incentive to return home (at [43]).
The Tribunal then identified the applicant’s ties to Australia, namely, her spouse, daughter and son, as well as her brother who resides in Melbourne. The applicant claimed she has no other relatives or friends here, but conceded she has met some friends as a result of her living and studying in Australia. The applicant also gave evidence that she has resided for the last five years in Findon. The Tribunal found, in light of her stable accommodation, the duration and stability of her employment in well paid jobs, and her ties with family members here, that there is a strong incentive to remain in Australia rather than return home (at [44]).
The Tribunal found there was no evidence to indicate any other visa refusals or immigration issues either in or outside of Australia (at [45]).
The Tribunal cumulatively considered the duration of time the applicant has spent in Australia, the extensive qualifications she already has, her work experience, and the fact that the qualifications she is seeking to undertake do not advance her career path, and ultimately found that the applicant is using her student visa as a means to maintain ongoing residence in Australia (at [46]-[47]).
The Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily in accordance with cl 500.212(a) of the Regulations (at [48]-[49]). The second applicant, therefore, was unable to meet the requirements under cl 500.311 (at [51]).
The Tribunal affirmed the delegate’s decision not to grant the visas (at [52]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 17 November 2021 contains eight grounds of review as follows (without alteration):
1.My name is Rupinderjit Kaur and I am primary applicant of Student visa application.
2.I applied for Student visa application by 24th April 2019 which was refused by 19th December 2019.
3.I applied for merit review application with Administrative Appeals Tribunal within 21 days from the date of refusal.
4.My hearing was conducted on 26th July 2021, the member conducted the PRISMS Checks in regards to my enrolment which effectively conveyed that I have completed Diploma of community welfare in year 2008 from Cambridge International College and successfully completed it in 2011. I want to learn about management so I started Certificate IV in Project Management in March 2012 from Sheffield College and completed it in September 2012. I completed my Diploma in Project Management from same college in year 2013. During that time period I came to know about commercial cookery study option and I can't resist myself from taking admission in that stream so I completed my certificate III and IV in hospitality (commercial Cookery) from Salford College in year 2015. I want to start my own business so I started Diploma in Business from the same college in 2015 and completed it by year 2016. Later I realized that I have lack of hospitality skills knowledge and wherever I go for job selection they demanded certificate III, IV and Diploma in hospitality, so after conversing with my husband I started Diploma of hospitality from Queensland College in January 2017 and successfully completed it by June 2017. In the same year I applied for Temporary Graduate Visa which was granted. I was unsure about my career in the starting phase of my study but later I realized that I can't get satisfaction in my studied field so I change my study from nursing background to cookery as I got satisfaction in pursuing that. My dream is to be open my own food business in my home country and for this I have to learn advanced knowledge of business running setup so I am applying for advanced diploma of business at Swann College.. Moreover, I have 97% attendance record as well. Currently I am doing Graduate Diploma of Management. Administrative appeals Tribunal made Jurisdictional Error by not considering my study which I completed during my stay in Australia.
5.The grounds of the application for my case to be re-considered by Federal Circuit Court as I feel that I did not get fair decision from AAT.
6.I believe that I wasn’t provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs have stated that I do not meet the criteria for a Subclass 500 visa. However, I did mention these points in my Hearing statement and I provided all the relevant and necessary evidence in my hearing.
7.My application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.
8.Substantial justice was not provided and that’s the reason I want to apply in Federal Circuit Court of Australia
The applicant also filed an affidavit with that judicial review application on 17 November 2021, annexing a copy of the Tribunal’s decision.
The applicants appeared before the Court on 11 June 2025 without legal representation. The Court confirmed with the applicants that they had received copies of the Court Book and the Minister’s submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 17 November 2021 (the affidavit being taken as read and in evidence at the hearing on 11 June 2025), a Court Book numbering 167 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 28 May 2025, and an affidavit of Maria Pappas affirmed and filed on 28 May 2025 which annexes a complete copy of the Tribunal decision (being taken as read and in evidence at the hearing on 11 June 2025).
The applicants were not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282 at [41]. Accordingly, at the hearing of this matter, the applicants were invited to tell the Court what they believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355);
(e)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(f)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28] (Li); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445).
However, it was also explained to the applicants that this was not an exhaustive list and they should tell the Court what they believe the Tribunal did wrong. In response, the applicant told the Court that she came here to study in 2008 but her circumstances are now different and she needs to stay in Australia for her children who are citizens.
The Court reminded the applicant that it does not have the power to grant a visa and asked her again if there was anything wrong about the Tribunal’s decision. The applicant said that she needs to do more study in Australia and that the Tribunal’s decision was not fair because she needs a visa.
The Court drew the applicant’s attention to the written grounds in her application and invited her to expand upon what she meant about not getting a fair decision from the Tribunal. The applicant said it was because the Tribunal had determined she was only studying in order to extend her stay. The second applicant was invited to but did not expand upon the applicant’s oral submissions.
CONSIDERATION
The application for judicial review is set out above. Although containing recognisable grounds of jurisdictional error, the application largely takes a narrative approach to something more closely resembling submissions. This is not uncommon with self-represented applicants, and the Court recognises the difficulties litigants-in-person often have in articulating their arguments. Having regard to this, the Court has endeavoured to interpret those grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). In this respect, the Court was greatly assisted by the Minister’s submissions which identify and address the grounds which emanate from the applicants’ application. The Court has adopted a similar approach in its consideration of the complaints raised by the applicants with respect to the Tribunal’s decision.
Did the Tribunal fail to consider the courses which the applicant had completed in Australia?
At paragraph four of her application, the applicant contends that the Tribunal did not take into consideration the study she had already completed during her stay in Australia.
As correctly observed by the Minister, the Tribunal expressly referred to the applicant’s educational history in Australia at [16] and [18] of its decision, including a number of courses which the applicant refers to in the grounds of her application. In assessing whether the applicant met the genuine temporary entrant criterion, and in accordance with the Direction 69 guidelines, the Tribunal summarised the history and considered the value of those courses at [22]-[24]. It is thus clear that the Tribunal did indeed consider the applicant’s study history in reaching its findings.
No jurisdictional error arises in respect of this ground.
The applicants claim they did not receive a fair Tribunal decision and request that the Court reconsider their case
At paragraph five of her application, the applicant asks the Court to reconsider her case as she did not get a fair decision from the Tribunal.
Taken at its highest, the Minister submitted that this could be interpreted as an allegation that the Tribunal’s decision was biased. The Court accepts that a broad reading of an allegation of an “unfair hearing” aligns with a ground alleging bias. However, the Court also accepts the Minister’s submission that, in the absence of any particulars to support the applicant’s claim, such an allegation has not been distinctly made or clearly proved (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). Counsel for the Minister acknowledged the applicant’s claim in oral submissions that the Tribunal decision was not fair because they need the visas. The Minister submitted that needing a visa is not a reason for a ground of bias and that it should be rejected. The Court agrees that the applicants have not met the threshold required for establishing a ground of bias in respect of the Tribunal’s decision.
The Minister further submitted that the Tribunal’s reasons are fair and balanced, having regard to the applicant’s oral and documentary evidence and the relevant factors in Direction 69. In particular, the Minister cites paragraph [30] of the Tribunal’s decision as an example of a fair and balanced finding wherein the Tribunal accepted that the Graduate Diploma of Management is a higher level course and did in fact reveal academic progression with respect to the applicant’s studies. The Court has reviewed the Tribunal’s reasons and agrees that there is nothing in the Tribunal’s decision to suggest it did not make a fair decision.
To the extent that the applicant asks the Court to reconsider their case, the Court accepts the Minister’s submission that this an invitation for the Court to engage in impermissible merits review and should be refused (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36).
No jurisdictional error arises in respect of this ground.
Did the applicants receive a fair opportunity to provide oral evidence at the Tribunal hearing?
At paragraph six of the application, the applicant contends that she was not given a fair opportunity to present oral evidence to the Tribunal and that she was denied her right of review by the Tribunal.
Interpreting this ground as an allegation that the applicant was denied procedural fairness, the Minister submits that this ground is not made out. The applicants were invited to appear before the Tribunal to give evidence and present arguments pursuant to s 360(1) of the Act. The Tribunal decision and hearing record indicate that the applicants attended that hearing along with their appointed representative and with the assistance of a Punjabi interpreter, but that only the primary applicant gave oral evidence at the hearing (CB 152, 160).
The Minister submitted that the Tribunal clearly considered the applicant’s oral evidence, in particular, with respect to her employment in an Indian restaurant and at a nursing home (at [19]), her decision to remain in Australia because of COVID-19 travel restrictions (at [32]), and with respect to the two properties back in India and how those properties are being used (at [39]). This is noted throughout the Tribunal’s reasons at the aforementioned paragraphs.
The applicant asserts that she mentioned the visa criteria in her hearing statement and that she provided all the relevant and necessary evidence at the hearing. The Minister acknowledged that the applicants provided a statement addressing the genuine temporary entrant criterion with their initial visa application, that they responded to the Request for Student Visa Information form, and that the primary applicant gave oral evidence at the Tribunal hearing. However, the Minister submitted it was a matter for the Tribunal as to how it assessed and what weight it attributed to that evidence (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]).
It is apparent to the Court that the applicants were given ample opportunity to provide oral evidence at the Tribunal hearing in addition to their previous statements and responses. Further, it is clear from the Tribunal’s decision that it considered that evidence. In the absence of any evidence to suggest otherwise, the Court finds that the Tribunal complied with its procedural fairness obligations and no error arises with respect to the Tribunal’s findings.
No jurisdictional error arises in respect of this ground.
Was the Tribunal’s decision ‘short and void’?
At paragraph seven of the application, the applicants contend that the decision of the Tribunal is “short and void” and should be overlooked.
Counsel for the Minister helpfully noted that the copy of the Tribunal decision filed in the Court Book contained only 9 of 15 pages due to an administrative error. The Minister rectified this by filing an affidavit on 28 May 2025 which annexes a complete copy of the Tribunal decision. In any event, the missing six pages relate only to the replication of the Direction 69 guidelines which the Minister submitted the applicant had already been provided with and was on notice about at the time of delegate’s decision. The Court accepts that no jurisdictional error arises from this administrative oversight.
With respect to the length of the Tribunal’s reasons, brevity alone is not indicative of jurisdictional error (Fang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2455 at [19]). What matters is whether the Tribunal’s reasons display an intellectual engagement with the claims and material that have been submitted before it.
As discussed earlier in these reasons, it is clear that the Tribunal had appropriate regard to the evidence before it and assessed that evidence properly in light of the Direction 69 guidelines. The applicants have not advanced any particulars to suggest how the Tribunal’s findings should fail in this respect. In that light, the Court finds that the Tribunal’s decision is neither short nor “void” of intellectual consideration, and in fact contains a comprehensive analysis of the applicants’ oral and documentary evidence.
No jurisdictional error arises in respect of this ground.
Were the applicants denied ‘substantial justice’?
At paragraph eight of the application, the applicants contend that “substantial justice was not provided” and this is the reason they have applied to this Court.
To the extent that this ground is a complaint about the “statutory exhortations or aspirations” of the Tribunal, the Minister submitted that this does not amount to a failure of the Tribunal to perform its statutory duty (citing Li at [98] per Gageler J as he then was), and in event, lacks sufficient particularity to succeed. There is clearly force to that submission in the absence of any clarification to this ground either in written submissions or at the hearing of this matter.
Further, counsel for the Minister, whose client is subject to a direction to behave as a model litigant, submitted she had independently reviewed the Tribunal decision herself and was otherwise unable to find any legal error in the Tribunal’s decision. It is also not evident to the Court that a denial of substantial justice, or any other potential arguable error, arises in respect of the Tribunal’s decision.
No jurisdictional error arises in respect of this ground.
The Court is satisfied that, even adopting the broad approach referred to in [48] of these reasons, no jurisdictional error is apparent. At the hearing, the applicants told the Court that now that they have had children, they wish to remain in Australia for them. That is entirely understandable and the Court empathises with their situation. However, the Court has been unable to ascertain any jurisdictional error either arising out of their application or independently.
CONCLUSION
The application for judicial review, supporting affidavit and any additional submissions advanced by the applicants at the hearing have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 11 July 2025
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