Kumar v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 296
•3 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 296
File number(s): SYG 422 of 2021 Judgment of: JUDGE KAUR-BAINS Date of judgment: 3 March 2025 Catchwords: MIGRATION – judicial review – student visa – challenge to the Tribunal’s finding who was not satisfied the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 – application dismissed Legislation: Migration Act 1958 (Cth) ss 29, 31, 45, 65, 476, 477, 499
Migration Regulations 1994 (Cth) cl 500 in Schedule 2
Direction No. 69
Cases cited: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095
Hamod v New South Wales [2011] NSWCA 375
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 3 March 2025 Place: Sydney Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr A Sharma of HWL Ebsworth Lawyers ORDERS
SYG 422 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUKESH KUMAR KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
3 MARCH 2025
THE COURT ORDERS THAT:
1.The application is 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 Kaur-Bains
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 18 February 2021. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to refuse the applicant a Student (Temporary) (Class TU) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.
Essentially, the applicant says he was studying at the time of the Tribunal’s decision, and he does intend to genuinely stay temporarily in Australia as a student. The applicant contends the Tribunal was wrong when it found it was not satisfied the applicant was a genuine applicant for entry and stay as a student.
For the reasons set out below, I find no jurisdictional error in the Tribunal’s decision.
TRIBUNAL’S DECISION
On 18 February 2021, the applicant appeared before the Tribunal by telephone, assisted by an interpreter in the Hindi language ([5] of the reasons).
Enrolment in Registered Institution
On 5 October 2020, the applicant was studying the Diploma of Business, which was due to conclude on 4 April 2021 (CB 95). The applicant was enrolled in the Advanced Diploma of Business which was due to start on 5 April 2021 and was due to be completed on 3 April 2022 (CB 95). Thus, the Tribunal accepted the applicant was enrolled at the time of its decision ([16] of the reasons).
Genuine Temporary Entrant Criterion
The Tribunal was not satisfied the applicant was a genuine applicant for entry and stay as a student for the following reasons:
(a)The Tribunal found the applicant’s family in India was not a significant incentive for him to return, as he had been keeping in touch with them electronically for the previous two years ([24] of the reasons).
(b)The Tribunal found the applicant’s family in Australia was a significant incentive for him to remain, as his brother was an Australian citizen who supported him financially ([25] of the reasons).
(c)The applicant was not enrolled in any studies between September 2019 and September 2020 ([32] of the reasons). The Tribunal accepted the applicant’s medical condition (an infection in his genitals requiring circumcision and six to eight weeks of rest, and depression) may have prevented him from studying for a period, but it found that the medical evidence did not explain why the applicant was unable to or was not enrolled in a course of study for the entire year from September 2019 ([32] of the reasons). Further, the applicant did not have any medical evidence of his depression ([30] of the reasons). The Tribunal was concerned the applicant’s primary purpose in applying for a student visa was to remain in Australia ([32] of the reasons).
(d)The Tribunal found the applicant could not meaningfully explain the value of the diplomas to his future plans ([38] of the reasons).
RELEVANT LAW
Section 29(1) of the Act gives the Minister power to grant a non-citizen a visa to travel to and enter, or to remain in, Australia. There are prescribed classes of visa and regulations may prescribe the criteria for visas of a specified class: s 31(1) and (3) of the Act. A non-citizen who wants a visa must apply for a visa of a particular class: s 45 of the Act.
After considering a valid application for a visa, the Minister must grant the visa “if satisfied” of the various matters identified in s 65(1)(a) of the Act. One of the matters of which the Minister or his delegate must be satisfied is that the criteria prescribed by the Act or Migration Regulations 1994 (Cth) (Regulations) for the visa have been met: s 65(1)(a)(ii) of the Act. If the Minister is not satisfied of the matters identified in s 65(1)(a), the Minister is to refuse to grant the visa: s 65(1)(b) of the Act.
Cl 500.2 of schedule 2 of the Regulations sets out the primary criteria relevantly as follows:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
…
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian
or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfied cl 500.212(a) of the Regulations, the Tribunal was required to have regard to Direction 69, which was made under s 499 of the Act (Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [27] and [28]). The “Genuine temporary entrant criterion” was defined in Direction 69 as referring, inter alia, to cl 500.212(a) of the Regulations.
Direction 69 makes clear that the Tribunal, in considering the Genuine temporary entrant criterion, should have regard to:
(a)The applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to their future. This involves, inter alia, considering reasons for not undertaking the study in the home country, personal ties to the home country and to Australia, economic circumstances of the applicant that would present a significant incentive not to return home, evidence that the student visa programme was being used to circumvent the intentions of the migration programme, whether the student visa was being used to maintain ongoing residence and the value of the course to the applicant’s future.
(b)The applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries and previous travel to Australia or other countries, the amount of time the applicant has spent in Australia and whether the visa may be used primarily for maintaining ongoing residence.
(c)Any other relevant information, including information that may be either beneficial or unfavourable to the applicant.
Part 2 of Direction 69 specifies that the factors in the Direction are not to be used as a checklist, instead stating that:
1.… The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
GROUNDS IN THE APPLICATION
The applicant’s application filed on 16 March 2021 contained the following grounds for judicial review (as per original):
1 AAT DID NOT CONSIDER MY APPEAL.I AM DOING MY STUDY.
2 I AM GENUINE TEMPORARY ENTRANT.
PROCEEDINGS BEFORE THE COURT
The applicant appeared at the hearing before me as a litigant in person, assisted by a Hindi interpreter. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I explained the Tribunal’s decision to the applicant. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application, affidavit of the applicant filed on 16 March 2021 and the Minister’s written submissions filed on 18 February 2025. The applicant confirmed the Minister sent him his written submissions before the hearing. Before the hearing started the interpreter interpreted the Minister’s submissions for the applicant. The applicant did not provide any written submissions.
GROUND 1
When asked to expand upon ground 1, the applicant said that at the time of the Tribunal hearing, on 18 February 2021, he was studying and enrolled in a registered course as referred to at [5] of this judgment. Therefore, the applicant was expecting the Tribunal to give him the visa. The applicant said the Tribunal was wrong not to grant him the visa.
The Minister contends it is not in dispute that, at the time of the Tribunal hearing, the applicant was enrolled in a registered course for the purposes of cl 500.211 of the Regulations. However, the Minister said the dispositive issue for the Tribunal was whether it was satisfied the applicant was a genuine temporary entrant as required by cl 500.212(a) of the Regulations. The Tribunal did consider that issue and was not satisfied the applicant was a genuine temporary entrant. The Minister says the applicant is seeking a merits review of the Tribunal’s decision, which is not permitted.
I find the Tribunal’s reasons disclose it was aware the applicant was studying at the time of its decision as it had a copy of the PRISMS record (see [6] of the reasons), which records clearly that, at the time of the Tribunal hearing, the applicant was studying the Diploma of Business (see CB 95). Further, the Tribunal at [16] of the reasons also noted the applicant was currently enrolled in the Diploma of Business. The Tribunal was not required, by any legislative requirements or otherwise, to accept the applicant was a genuine applicant for entry and stay as a student, just because he was studying at the time of the Tribunal’s decision, as the applicant is suggesting. I find it was open to the Tribunal for the reasons, set out at [6] of this judgment, for it not to be satisfied the applicant was a genuine applicant for entry and stay as a student.
I find no jurisdictional error is disclosed by ground 1.
GROUND 2
The applicant says the Tribunal wrongly found he did not intend to stay temporarily as a student in Australia and it should have found he did intend to stay temporarily.
The Minister says the applicant is seeking to ask this Court to consider his application for a student visa afresh, which is not permitted. I find the applicant is seeking to ask this Court to engage in merits review. I explained to the applicant this Court has no power to grant the applicant the visa.
I find the reasons of the Tribunal at [8] to [11] disclose it was aware of the correct statutory test and it, for the reasons set out in [6] of this judgment, was not satisfied the applicant was a genuine applicant for entry and stay as a student, which state of satisfaction was open on the evidence before it.
Given the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error but found none: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11].
No jurisdictional error is disclosed by ground 2.
CONCLUSION
As no jurisdictional error has been disclosed, the application must be dismissed.
COSTS
I will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 3 March 2025
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