Khan v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1440
•4 September 2025
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
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.
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.
The Tribunal also considered the applicant’s community ties in India, including that he speaks daily to his parents, brother and sister who live in India, that he is part of a local religious community there and that he has family and friends in India whom he intends to spend time with. The Tribunal noted that the applicant had returned to India twice for 17 days in 2019 and 15 days in 2020. The Tribunal noted the applicant’s community ties to India, but did not consider that it was as a significant incentive for him to return and that it was outweighed by his desire to remain onshore.
Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212. As such, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.
APPLICATION TO THIS COURT
The application for judicial review was filed on 2 September 2024. The applicant also filed an affidavit annexing the Tribunal’s decision. It was not necessary for the Court to take this affidavit into evidence as the Tribunal’s decision was included in the Court Book filed by the Minister on 11 July 2025, which was tendered at the hearing (Exhibit CB) and is in evidence.
The matter was listed for hearing on 20 August 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 8 July 2025.
At the hearing on 20 August 2025, the applicant appeared in person and was assisted by an interpreter in the Urdu and English languages. The Minister was represented by Ms Gillespie of Mills Oakley.
Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
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.
It is well established that a failure to consider evidence may amount to jurisdictional error. I am not satisfied that this is what occurred in the present case. At [15]–[16], the Tribunal expressly considered the applicant’s completion of his Diploma of Leadership and Management and commended him on his recent academic progress. It also had regard to his evidence about the difficulties he experienced in completing a bachelor’s degree. The Tribunal also accepted the difficulty faced by the applicant and considered that he had been applying himself to his studies since January 2023.
Further, as submitted by the Minister, the issue before the Tribunal was not whether the applicant was a ‘genuine student’ or whether he complied with visa conditions, but it was whether he intended genuinely to stay in Australia temporarily.
I am satisfied that the Tribunal properly engaged with the applicant’s claims and considered all the evidence before it but, for reasons it gave, which were open to it on the evidence before it, was not satisfied that he was a genuine temporary entrant.
Grounds one and two do not disclose any error on the part of the Tribunal.
Ground three
Ground three constitutes a bare statement that the applicant had informed the Tribunal that his parents, brother and sister remained in India, that he missed them and that he had strong reasons for struggling to complete his bachelor’s degree.
To the extent that this ground contends that the Tribunal failed to consider the applicant’s ties in India and reasons for not completing his initial studies at the bachelor’s degree level, this has not been made out.
As submitted by the Minister, the Tribunal expressly considered the applicant’s family ties in India and his close relationship with them at [20] of its decision. While the Tribunal accepted his family constituted an incentive for him to return to India, the Tribunal considered that this did not outweigh the applicant’s incentives to remain in Australia. The weight given to evidence is a matter for the Tribunal, and the applicant has not established any unreasonableness or irrationality in the Tribunal reasoning or conclusions.
Ground three does not disclose any error on the part of the Tribunal.
Ground four
By ground four, the applicant contends that the Tribunal failed to consider that he was (at the time) enrolled in an Advanced Diploma of Leadership and Management course which was due to be completed in 2026.
The Minister submitted that while the Tribunal did not expressly reference the Advanced Diploma of Leadership and Management, it was plainly aware that the applicant was enrolled as it had the PRISMS search before it: see [24]–[25] of the Tribunal’s reasons.
It is evident from its reasons, that the Tribunal was aware that the applicant was enrolled. The Tribunal expressly stated at [16] that since January 2023 the applicant had been applying himself to his studies and commended him on his recent academic progress. The concern for the Tribunal, however, as expressed at [16] of its reasons, was the applicant’s failure to satisfactorily explain why he had not completed any courses or units in a period of over four years despite being onshore on either a student visa or an associated bridging visa.
The Tribunal was entitled to assess and weigh the evidence before it in the way that it did, and I am unable to identify any apparent legal error in its reasoning or conclusions.
Ground four does not disclose any error on the part of the Tribunal.
Ground five
By Ground five, the applicant contends that the Tribunal failed to understand his circumstances and afford him justice. This ground was unparticularised and not expanded upon by the applicant when invited to address it in his oral submissions.
As submitted by the Minister, on a fair reading of the Tribunal’s decision it is apparent that the Tribunal plainly complied with its procedural fairness obligations. The Tribunal issued the applicant with a letter, pursuant to s 359(2) of the Act and invited him to provide information regarding his enrolment and that he is a genuine applicant for entry and stay as a student: CB 103. The applicant responded to that invitation within the prescribed timeframe. The Tribunal also complied with its obligation under s 360 of the Act and invited the applicant to appear before it at a hearing, which he attended.
The applicant has not identified any failures by the Tribunal to comply with any of its procedural fairness obligations.
Ground five does not disclose any error on the part of the Tribunal.
Additional ground: Ministerial Direction 108
As a model litigant, the Minister raised a possible issue, that being the Tribunal’s reference to (and application of) Ministerial Direction 108, which came into effect on 23 March 2024, when the application was on foot.
It was submitted that the Tribunal considered the circumstances of the applicant in accordance with Ministerial Direction 108 and that it was plainly correct in doing so: Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 52 at [34]–[35] (Singh).
The Minister submitted that, in any event, the contents of Direction No. 108 were ‘substantively indistinguishable’ to the contents of Direction No. 69: Singh at [36]–[38].
I accept the Minister’s submission that the applicable Ministerial Direction was Direction No. 108.
Direction No. 108 was issued by the relevant Minister under s 499 of the Act. It commenced on 23 March 2024 and, relevantly, applies in relation to Student visa applications made before 23 March 2024 but ‘not finally determined on that date’: see part 1 of Direction No. 108. As the application for the student visa had not been ‘finally determined’, as provided for under s 11A of the Act, when the Tribunal was considering its decision, the Tribunal was required to apply Direction No. 108.
Even if I am wrong in that regard, I do not consider any error that may have been committed by the Tribunal in applying Direction No. 108 (and not Direction No. 69, which applied at the time of the visa application), was material. This is because, as submitted by the Minister, the content of the two Directions was ‘substantively indistinguishable’.
Accordingly, this further ground does not disclose any jurisdictional error on the part of the Tribunal
CONCLUSION
As none of the grounds raised establish jurisdictional error, the application for judicial review must be dismissed.
COSTS
The Minister sought an order that the applicant pay the Minister’s costs fixed in the sum of $6,100. The applicant did not wish to make submission on the issue of costs. I am satisfied that costs should follow the event. Having regard to the work undertaken and the scale costs for a standard migration matter, I am also satisfied that the costs sought in this matter are reasonable and will so order.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 4 September 2025
0
6
2