Khan v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1440

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Khan v Minister for Immigration and Citizenship [2025] FedCFamC2G 1440

File number(s): SYG 2145 of 2024
Judgment of: JUDGE SKAROS
Date of judgment: 4 September 2025
Catchwords: MIGRATION – Judicial Review – Where Administrative Appeals Tribunal (Tribunal) affirmed the decision not to grant applicant a student visa as it found the applicant was not a genuine applicant for entry and stay as a student as required under cl 500.212 – Whether Tribunal failed to consider the applicant’s circumstances – Whether Tribunal complied with procedural fairness obligations - Direction No. 108 considered – application dismissed
Legislation:

 Migration Act 1958 (Cth) ss 65, 359, 360, 499

Migration Regulations 1994 (Cth) Sch 2 cl 500.212

Cases cited:

LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 52
Division: Division 2 General Federal Law
Number of paragraphs: 54
Date of hearing: 20 August 2025
Place: Parramatta
Solicitor for the Applicant: Self-represented litigant
Solicitor for the First Respondent: Ms Gillespie, Mills Oakley
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 2145 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JAUHAR ALI KHAN

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE SKAROS

DATE OF ORDER:

4 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The Application filed on 4 September 2024 is dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the amount of $6,100.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 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(h) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

JUDGE SKAROS

INTRODUCTION

  1. By application filed on 2 September 2024 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 29 July 2024. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (the Act).

    [1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides…

Continue reading Khan v Minister for Immigration and Citizenship

Sign in free to access the full text

Details
AGLC
Khan v Minister for Immigration and Citizenship [2025] FedCFamC2G 1440
Case
[2025] FedCFamC2G 1440
Decision Date

CaseChat Overview and Summary

The case of Khan v Minister for Immigration and Citizenship involves the applicant, a citizen of India, seeking judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) to affirm a delegate's refusal to grant him a Student (Temporary) (Class TU) visa. The Tribunal found that the applicant did not meet the genuineness requirement for a student visa under cl 500.212 of the Migration Regulations 1994. The applicant's primary contention was that the Tribunal did not adequately consider his personal circumstances and his completion of a Diploma of Leadership and Management.

The central legal issues before the court were whether the Tribunal failed to consider the applicant’s circumstances and whether it complied with procedural fairness obligations. The applicant argued that the Tribunal did not take into account his recent academic progress and the difficulties he faced while attempting to complete his Bachelor of Information Technology. He further contended that the Tribunal did not accord him natural justice and failed to understand his circumstances.

The court considered the scope of judicial review in the context of migration decisions, noting that the court can only grant relief if it is established that the decision of the Tribunal is affected by a jurisdictional error. The court reviewed the Tribunal’s decision to determine if there was any failure to observe applicable requirements of procedural fairness or any material error. The court found that the Tribunal had properly considered the Ministerial Direction No. 108, discussed the applicant’s circumstances, and assessed his genuineness as a student. The Tribunal had invited the applicant to provide information and considered his responses. The court held that the Tribunal had adequately considered the applicant's evidence and circumstances, and did not commit any procedural error.

In conclusion, the court dismissed the applicant's application for judicial review. The decision of the Tribunal was affirmed as it properly exercised its discretion and complied with procedural fairness obligations. The court found no basis for the applicant's claims that the Tribunal failed to recognise him as a genuine student or consider his personal circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

By application filed on 2 September 2024 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 29 July 2024. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (the Act).[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. BACKGROUND The applicant is a citizen of India. He arrived in Australia on 9 June 2015 on a Subclass 500 (student) visa. The applicant applied for the visa, the subject of these proceedings, on 24 August 2021. On 28 November 2022, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily. On 19 December 2022, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant appeared before the Tribunal on 29 July 2024 to give evidence and present arguments, with the assistance of an interpreter in the Urdu and English languages. On the same day (being 29 July 2024), the Tribunal made a written decision affirming the delegate’s decision refusing to grant the applicant the visa.THE TRIBUNAL’S DECISION The dispositive issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student under cl 500.212. The Tribunal identified that it must have regard to Ministerial Direction No. 108 (the Ministerial Direction), ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The Tribunal noted that it had a discussion with the applicant regarding the considerations in the Ministerial Direction. The Tribunal summarised the applicant’s travel history and his circumstances generally, including his study progression, employment, living costs, and economic and familial connections to India. In doing so, the Tribunal considered the PRISMS search conducted on 25 July 2024, to ensure the applicant was enrolled in his course, which he was, the completed questionnaire and other material. The Tribunal noted the applicant’s reasons for choosing to study in Australia and the circumstances of his arrival on the student visa, being to study a Bachelor of Information Technology, which he did not complete as he found it too difficult. Prior to arriving in Australia, the applicant completed year 12 in 2017 in India. The applicant was able to undertake a Diploma and Advanced Diploma of Leadership and Management. The Tribunal was concerned with the fact that the applicant did not commence the course until after his student visa was refused, and that he completed the course in January 2023. The Tribunal found that the applicant had not completed a course prior to this. The Tribunal considered that the applicant did not satisfactorily explain his failure to complete any courses or units in a period of over four years.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On the same day (being 29 July 2024), the Tribunal made a written decision affirming the delegate’s decision refusing to grant the applicant the visa.THE TRIBUNAL’S DECISION The dispositive issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student under cl 500.212. The Tribunal identified that it must have regard to Ministerial Direction No. 108 (the Ministerial Direction), ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The Tribunal noted that it had a discussion with the applicant regarding the considerations in the Ministerial Direction. The Tribunal summarised the applicant’s travel history and his circumstances generally, including his study progression, employment, living costs, and economic and familial connections to India. In doing so, the Tribunal considered the PRISMS search conducted on 25 July 2024, to ensure the applicant was enrolled in his course, which he was, the completed questionnaire and other material. The Tribunal noted the applicant’s reasons for choosing to study in Australia and the circumstances of his arrival on the student visa, being to study a Bachelor of Information Technology, which he did not complete as he found it too difficult. Prior to arriving in Australia, the applicant completed year 12 in 2017 in India. The applicant was able to undertake a Diploma and Advanced Diploma of Leadership and Management. The Tribunal was concerned with the fact that the applicant did not commence the course until after his student visa was refused, and that he completed the course in January 2023. The Tribunal found that the applicant had not completed a course prior to this. The Tribunal considered that the applicant did not satisfactorily explain his failure to complete any courses or units in a period of over four years. The applicant stated the education system in India is less interactive, and an Australian qualification will stand out, bring international exposure and is more practical. The Tribunal considered that the applicant’s personal circumstances had changed since making his application. Pursuant to s 359 of the Act, the Tribunal wrote to the applicant on 14 March 2024, inviting him to provide information about the courses of study he was undertaking and to complete the questionnaire. The applicant responded to this request on 27 March 2024. The Tribunal considered the applicant’s personal ties in Australia, being his sister who lives onshore with her spouse and three children, whom he sees twice a month. The Tribunal was concerned with the applicant now living in Australia for over six years and proposing to extend his study, which it considered would present as a strong incentive for him to remain in Australia. At [22] of its decision, the Tribunal considered the applicant’s evidence as to his economic circumstances in Australia and India and found that the economic circumstances of the applicant would present a significant incentive for him not to return to his home country. The applicant has been working onshore since February 2019 as a traffic controller.

Ratio Decidendi

Legal Principle Established

The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in the application, which he did.CONSIDERATION The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that: The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32]. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.GROUNDS OF REVIEW The grounds of review advanced in the application (without alteration) are:1. The Tribunal had evidence that I completed my Diploma of Leadership and Management from January 2023 and July 2024 and commended me on my recent academic progress and that from January 2023 I was committed to my studies.2. Therefore the Tribunal failed to recognise me as a genuine student and failed to take into account that when I came to Australia I started my degree but was struggling to continue Bachelor of Information Technology Degree because I could not continue with it.3. I explained to the Tribunal that I have my parents as well as one brother and one sister in India and when I left home I missed them and I had strong reasons troubling me with the continuation of bachelor degree.4. Therefore the Tribunal failed to consider my circumstances and the fact that I am now enrolled in an Advanced Diploma of Leadership and Management which will be completed by 2026.5. Currently I believe the Tribunal failed to understand my circumstances and accord me natural justice and fairness especially I provided evidence of complying with my student visa since January 2023.Ground one and two By Grounds one and two, the applicant complained that the Tribunal failed to consider the study he had completed (the Diploma of Leadership and Management) and the struggles he experienced in attempting to complete the Bachelor of Information Technology. In oral submissions, the applicant contended that the Tribunal failed to consider that he was a genuine student and that he had complied with his student visa conditions.