Kaur v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 425
•28 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 425
File number: MLG 1456 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 28 March 2025 Catchwords: MIGRATION – student (class TU) (subclass 500) visa – visa refused – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – Tribunal not satisfied applicant is a genuine temporary entrant – whether Tribunal denied applicant procedural fairness – whether Tribunal failed to consider relevant material – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) cls 500.212, 500.212(a), 500.212(b), 500.212(b)(i), 500.212(c)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 1, pt 2, item 3
Cases cited: Bushell v Repatriation Commission [1992] HCA 47, 175 CLR 408
Grant v Repatriation Commission [1999] FCA 1629, 57 ALD 1
Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561, 59 FCR 518
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610
Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332
MZZZWv Minister for Immigration and Border Protection [2015] FCAFC 133, 234 FCR 154
SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390, 168 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 26 February 2025 Date of hearing: 13 March 2025 Place: Melbourne Counsel for the Applicants: The applicants appeared in person Counsel for the First Respondent: Ms C Doyle Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Submitting appearance, save as to costs
Table of Corrections 31 March 2025 In paragraph 32, each reference to the amount of “$5,000.00” is amended to “$6,000.00”. ORDERS
MLG 1456 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP KAUR
First Applicant
PARVINDER SINGH
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
28 MARCH 2025
Amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on 31 March 2025
THE COURT ORDERS THAT:
1.The applicants’ application for judicial review filed on 14 May 2019 is dismissed.
2.The applicants pay the first respondent’s costs fixed in the sum of
$5,000.00.$6,000.00.
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 Gostencnik
INTRODUCTION
Before the Court is an application made under s 476 of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) to affirm the decision of a delegate of the (then) Minister for Immigration and Border Protection refusing to grant the first applicant a Student (Temporary) (Class TU) (Subclass 500) visa. The delegate’s decision to refuse to grant the visa was made on 15 September 2017, and the Tribunal’s decision to affirm the refusal was made on 17 April 2019.
BACKGROUND
The first applicant is a citizen of India and the primary visa applicant in this matter: Court Book (CB) 37; CB14. The second applicant is also an Indian national and the first applicant’s husband: CB16. The first applicant arrived in Australia on 15 July 2009 and has lived in Australia continuously since that time: CB27. On 17 June 2017, the first applicant applied for a student visa, seeking to pursue an advanced diploma in marketing: CB22; CB25. The second applicant and their daughter were listed as accompanying family members in the visa application: CB16-CB19.
The first applicant completed some higher education courses prior to making the visa application the subject of the Tribunal’s decision: CB24. The application was made with the assistance of a registered migration agent, who was appointed by the applicants as the authorised recipient of correspondence in relation to the application: CB20.
On 15 September 2017, a delegate of the Minister refused the first applicant’s application for a student visa on the grounds that she did not satisfy the relevant criteria for grant of a student visa set out in the Migration Regulations 1994 (Cth) (Regulations): CB50-CB51. As members of the same family unit as the first applicant, whose applications for a visa were dependent on the grant of a visa to the first applicant, the second applicant and their daughter were also refused a visa: CB51-CB52. The applicants were notified of this decision by letter dated 15 September 2017, transmitted by email to the address of their migration agent.
The letter enclosed a record of the delegate’s decision and reasons for the refusal decision: CB56-CB62.
On 27 September 2017, the applicants applied to the Tribunal for merits review of the delegate’s decision: CB64-CB66. The applicants provided various documents in support of their application for review, including several certificates from higher education providers, confirmations of enrolment, and a letter setting out the first applicant’s submissions with respect to the request for review: CB67-CB116.
TRIBUNAL PROCEEDING
The Tribunal acknowledged receipt of the application on 28 September 2017 by letter of even date, transmitted to the applicants by email to their migration agent: CB117-CB120 enclosing an ‘M15 – Information for review applicants’ form. By letter dated 19 February 2019 and transmitted to the applicants by email to their migration agent, the Tribunal invited the applicants to provide further information in relation to their application by completing a ‘Request for Student Visa Information’ form. The Tribunal’s correspondence noted that the question of whether the first applicant was a genuine temporary entrant was in issue, and that the Tribunal was bound to have regard to Ministerial Direction No. 69 (Direction No. 69) in assessing whether the applicant was a genuine applicant for entry and stay as a student: CB124. A copy of Direction No. 69 was enclosed with the letter: CB126-CB130. The Tribunal also indicated that any information the applicants wished to provide in response to the invitation should be delivered to the Tribunal by 5 March 2019: CB125. The letter indicated that if the applicants did not provide further information within the given timeframe, the Tribunal may decide the review without affording the applicants any further opportunity to provide information: CB125.
Responding to the invitation to provide further information, the first applicant completed a ‘Request for Student Visa Information’ form, in which she set out, inter alia: her travel and visa history; details of her previous and proposed education; information about the first applicant’s ties to each of India and Australia; and her plans for work and education: CB131-CB142. In completing the form, the first applicant indicated consent to the Tribunal deciding the application for review without conducting a hearing: CB132.
TRIBUNAL’S DECISION AND REASONS
By decision made on 17 April 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the applicants and their daughter visas: CB151. The applicants were notified of the decision by correspondence from the Tribunal to the applicants’ migration agent dispatched by email on 18 April 2019, which attached the Tribunal’s Decision Record (Decision): CB150-CB162.
The Tribunal set out at [1]-[5] of its Decision the background of the application for review, and its consideration of the review at [6]-[27]. Dealing first with whether the first applicant satisfied the genuine temporary entrant criteria, the Tribunal recited the relevant statutory provision and noted that in assessing whether the first applicant satisfies cl 500.212(a) of the Regulations – a genuine applicant for entry and stay as a student – the Tribunal was required to have regard to Direction No. 69: at [6]-[9].
Next, the Tribunal noted that the first applicant had previously been granted four student visas, confirmed receipt of various material about her previous studies, and stated that the first applicant had a history of studying “unrelated” courses since her arrival in Australia. The Tribunal proceeded to list several courses previously undertaken by the first applicant, without making further comment in relation to those courses. The Tribunal noted the first applicant was, at that time, enrolled in an Advanced Diploma of Leadership and Management which she expected to complete in September 2019: Decision at [10]-[13].
The Tribunal then turned to consider the relevant circumstances in the first applicant’s home country, noting that the first applicant had said she was not sure if there were similar courses available in India and that: she chose to study the Advanced Diploma in Australia because she was already in Australia; she is more familiar with the Australian education system than the Indian education system; the courses in Australia are taught in English and she has access to a “much wider amount of reference books [which she] can use and go much deeper into the subject matter than an Indian course would”. The Tribunal did not accept as sound the first applicant’s explanation for her preference to study in Australia rather than in India: Decision at [14].
At [14]-[16] of the Decision the Tribunal discusses and accepts that the first applicant has family ties to India. The Tribunal noted that the first applicant had returned to India on three occasions since 2009, and that the cumulative time she had spent in India since first arriving in Australia totalled about six and a half months (or 195 days) compared to her 3564 days in Australia. Relevantly, the Tribunal was not persuaded on the evidence that the first applicant’s ties to India presented a significant incentive to return to India. At [17] the Tribunal discusses the first applicant’s earnings expectations conducting a hairdressing business and assisting in the running of the family farm, but is not convinced by the first applicant’s assertions because of the absence of sufficient evidence as to how the first applicant arrived at the expected income sums. Consequently, the Tribunal reasoned that the first applicant’s economic circumstances in India did not serve as a significant incentive for her to return.
At [19] of the Decision, the Tribunal considered the first applicant’s ties to the Australian community, concluding the first applicant had strong incentive to remain in Australia, taking into account the first applicant’s length of stay in Australia; the presence in Australia of her family members; her involvement in the local Sikh Temple and Sikh community and her daughter’s school community; and the Tribunal’s assessment of her equivocation about whether she would apply for permanent residency in Australia. The Tribunal expressed concern that the first applicant intended to use a further student visa as a vehicle for maintaining ongoing residence in Australia: at [19] and [21].
The Tribunal turned next to consider the value of the proposed course of study to the first applicant’s future employment. Noting the first applicant’s evidence to the effect that she intended to return to India, both to open a hairdressing salon and to take over her parents’ farm, the Tribunal found that the first applicant had not established how the Advanced Diploma would assist her in running a hairdressing salon or to help her parents on their farm and that the first applicant already possessed “more than sufficient skills, knowledge and qualifications” to do so: Decision at [21]. The Tribunal expressed concern, given the length of time the first applicant had lived in Australia on student visas while studying varied and unrelated subject areas, that the grant of a further student visa would be used to maintain ongoing residence: at [20]-[21]. At [22]-[23], the Tribunal dealt briefly with the first applicant’s immigration history, observing that since arriving in Australia in July 2009, the first applicant had returned to India on three occasions and had not travelled to any other country in that time. The Tribunal notes (and appears to accept) the first applicant’s claim that she has never made a visa application for any other country, nor has she ever applied for any other type of Australian visa that has not yet been determined.
The Tribunal was ultimately not satisfied the first applicant intended to stay in Australia temporarily, and for that reason, found that she failed to fulfil the criteria at cl 500.212(a) of the Regulations. As the Tribunal found that the first applicant did not meet the requirements for grant of a sub-class 500 visa, it affirmed the delegate’s decision not to grant the first applicant a visa. Consequently, the Tribunal also affirmed the delegate’s decision not to grant visas to the second applicant and the applicants’ daughter: Decision at [24]-[28].
CONSIDERATION
The application grounds contain a background narrative and then raise seven grounds of review, which are reproduced verbatim below:
1.The Department made a procedural error by not correctly assessing information relevant to the applicant’s particular circumstances.
Particulars:
The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition was not considered.
2.The applicants were not afforded natural justice
Particulars:
I was not provided extra time to provide the evidences.
The Member believed on the hearsay evidences of the Home Affairs department and refused the case without asking for additional documents.
I believe that I wasn’t provided a fair opportunity to provide the verbal evidences to the member.
My legitimate expectations to seek review was denied by the Tribunal. AAT and Department of Home Affairs did not provide the decision record for their decision which clearly depicts an error.
3.Tribunal misconstrued condition cl. 500.212 of Schedule 2 to the Regulations. According to tribunal, The Tribunal cannot be satisfied that the applicant is a genuine temporary entrant that is not true as I was enrolled in the registered course. My genuine intentions to studies was denied by the tribunal and mis constituted as non-genuine applicant of visa.
Particular:
The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion. Tribunal misinterpreted cl.500.212(a).
The asked me for the irrelevant questions such as travelling back home since arrival whereas they are aware that the visa I hold don’t have travelling rights and can neither be changed.
4.Despite of the repeated request the member did not provide any time to provide the documents and never gave a detailed decision of the application.
5.Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact.
6.The appellant’s application clearly raises an arguable case and the decision of the tribunal is short and void and mut be overlooked again.
7.Substantial justice was not provided and that’s the reason I want to apply in Federal Circuit Court of Australia.
On 13 October 2021, a Registrar of the Court ordered, inter alia, the applicants to file and serve an amended application with proper particulars of the grounds of application, along with any supplementary court book and written submissions at least 28 days before final hearing. The applicants have not filed any material responsive to the order. At the commencement of the hearing, I explained to the applicants the nature of the Court’s judicial review jurisdiction. I explained that the Court may only grant relief if the applicants establish the Tribunal’s decision is affected by jurisdictional error and that the proceeding before the Court was not another opportunity to present the merits of their case nor was it a review of the merits of the Tribunal’s decision or the first applicant’s visa application. I explained that jurisdictional error involved a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law ... no decision at all’ and is in that sense ‘void’”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610 at [2]. And that jurisdictional error can take many different forms and that the categories are not closed. I gave the applicant some examples of jurisdictional error as including material errors by a decision maker:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)failing to consider a “claim” or a relevant “integer” of a claim;
(h)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(i)failing to observe some applicable requirement of procedural fairness; and
(j)showing actual or there is apprehended bias.
During the hearing of the judicial review application, the applicants were unable to explain or elaborate on the review grounds in their application. The first applicant said that their lawyer had prepared the grounds of review. The application to the Court bears no indication that it was prepared by a lawyer. In any event the applicants could not elaborate on the grounds of review contained in their application nor provide any particulars or examples of the errors the Tribunal is said by those grounds to have made. I deal with each ground below.
Ground 1
By ground 1, the applicants allege the “Department” made a procedural error by failing to consider “other relevant matter(s) in support of [the first applicant’s] case”, her immigration history and her compliance with visa conditions. This is a complaint about the decision of the delegate, not the Tribunal’s decision. The Court is not empowered to review the delegate’s decision and the ground, on its face, does not disclose jurisdictional error and so must fail. Reading ground 1 as a complaint that the Tribunal failed to consider the matters alleged, the complaint cannot be made out. First, the ground does not particularise, nor did the applicants explain at the hearing, how the Tribunal is said to have not “correctly assessed information relevant to the first applicant’s particular circumstances. Second, the particulars provided do not explain, nor did the applicants during the hearing explain or identify what “other relevant matter” the Tribunal failed to consider. Third, as noted earlier, the Tribunal’s decision discloses a consideration of the applicant’s immigration history. Fourth, as the Tribunal was not satisfied the first applicant met the criteria under cl 500.212(a), it was not required to proceed any further in considering the remainder of matters in cls 500.212(b) and (c). The first applicant’s record of compliance with any condition of a visa previously held by her fell for consideration under cl 500.212(b)(i) in connection with the question whether the first applicant intends to comply with any conditions subject to which the visa is granted. Since each matter in cls 500.212(a), (b) and (c) must be satisfied, if cl 500.212(a) is not satisfied then clause cl 500.212 cannot be met and paras (b) and (c) need not be considered.
Ground 1 therefore does not disclose jurisdictional error and so fails.
Grounds 2, 4 and 5
Grounds 2, 4 and 5 variously complain of a denial of procedural fairness and it is convenient to deal with these together. The allegations contained in these grounds are baseless. The applicants provided the Tribunal with written submissions and various supporting documents which accompanied their application for review: CB63-CB116. The Tribunal informed the applicants that if they wanted to provide the Tribunal with any further material or written arguments for it to consider, they should do so as soon as possible: CB119. The Tribunal also invited the applicants to provide additional information by completing a ‘Request for Student Visa Information’ form: CB124. The Tribunal alerted the applicants to the fact that the Tribunal was required to have regard to Direction No. 69 and provided the applicants with a copy: CB124-CB130. The applicants responded by furnishing further information and documents they considered relevant to the review and indicated consent to the Tribunal deciding the review without a hearing: CB131-CB147. There is no suggestion that the consent was not informed or that consent was vitiated by fraud. That the applicants did not give oral evidence was the product of the consent given to the conduct of the review in the absence of a hearing, not a denial of procedural fairness.
As to the applicants’ contention that the Tribunal failed to provide them “extra time” to provide documents in the face of repeated requests, there is no evidence of any such request having been made, and at the hearing the applicants did not explain if, when or by whom such requests were said to have been made. In the circumstances, the Tribunal was not required to afford the applicants any further opportunity to provide any further material beyond that which it had already offered and given that the applicants consented to the review being determined without a hearing, no occasion to give oral evidence arose. The applicants’ contention that the Tribunal believed the ‘hearsay evidence’ of the Department is obscure, but to the extent that it is an allegation that the Tribunal failed in its duty to conduct a review, the allegation is not made out. The Tribunal on review must consider for itself whether it is satisfied the first applicant’s student visa application should be granted. The review conducted by the Tribunal is a merits review involving a consideration of the application for review, and the arguments and claims advanced, afresh: MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133, 234 FCR 154 at [60], [66]; Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561, 59 FCR 518 at 529, [36]; SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390, 168 FCR 1 at [20]. The Tribunal operates in an inquisitorial manner, and is under a duty to arrive at the correct or preferable decision on review according to the material before it, determining the substantive issues which arise on that review without restricting itself to any case advanced by the applicant: MZZZW at [56], [66]; Grant v Repatriation Commission [1999] FCA 1629, 57 ALD 1 at [17]-[18]; Bushell v Repatriation Commission [1992] HCA 47, 175 CLR 408 at 424-425; Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [10], [93].
In essence, the Tribunal is required, within the limits of the applicable law, to bring its own perspectives, approach and reasoning to the claims made by the applicant: MZZZW at [60]. It is to exercise its own independent judgment in deciding a review. And as the Full Court in MZZZW explained, part of the statutory task to consider the applicant’s claims afresh and to make that which the Tribunal considers is the correct and preferable decision, includes exposing the Tribunal’s reasoning for making material findings of fact and setting out the material on which those findings are based.
It seems clear enough on a review of the Decision and the material in the CB that the Tribunal conducted a de novo review of the merits of the delegate’s decision, as it was required to do. The Decision discloses that the Tribunal considered the applicants’ supporting documentation and the information available to it. It appears to have made its own independent assessment. The applicants’ complaint that the Tribunal failed to provide reasons for its decision is baseless and plainly incorrect. The materials in the CB show, as earlier noted, that the applicants were provided with a letter notifying them of the Tribunal’s decision and attaching a copy of the Decision by email dispatched on 18 April 2017. The first applicant also attached a copy of the Decision to her affidavit filed with the judicial review application on 14 May 2019.
Grounds 2, 4 and 5 do not disclose jurisdictional error and fail.
Ground 3
Ground 3 is dressed up as a contention that the Tribunal misconstrued the relevant provisions of the Regulations. In substance, it is no more than a quarrel with the outcome of the review. The applicants do not say how the Tribunal misconstrued the relevant provision or how the provision should properly be construed. Instead, they assert that the Tribunal’s conclusion that she is not a genuine temporary entrant is “not true” because the first applicant was enrolled in a registered course and her “genuine intentions to study was denied”. I agree with the first respondent that the applicants’ contention invites the Court to engage in impermissible merits review.
In any event, it seems clear from the Tribunal’s reasons that it assessed the first applicant’s student visa application by reference to the matters in Direction No. 69, assessed the material before it relating to those matters, and made findings which appear open on the material before it. As for the applicants’ complaint that the Tribunal erroneously considered her travel to India in conducting its review, that complaint must be rejected. The first applicant’s travel history was plainly relevant to assessing her circumstances in India and Australia, her ties to India, and whether those ties would serve as a significant incentive to return to her home country. It was therefore relevant to the Tribunal’s obligation to have regard to Direction No. 69.
Ground 3 does not disclose jurisdictional error and fails.
Grounds 6 and 7
Grounds 6 and 7 do not allege any jurisdictional error. The allegations made are a generalised and unparticularised plea (wrongly) of having established an arguable case, and a plea for relief because substantial justice is said not to have been provided by the Tribunal. These grounds fail.
The applicants’ judicial review application will be dismissed.
Costs
The first respondent seeks an award of costs in the amount of $6,000.00 in the event the judicial review application fails. The amount is less than the amount currently fixed by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration matter determined at final hearing. There was no cogent reason advanced by the applicants why such an order ought not be made and I consider the amount sought to be reasonable and reflective of the reasonable costs incurred by the first respondent. The applicant is to pay the first respondent’s costs fixed in the sum of $6,000.00.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 28 March 2025
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