Mangat v Minister for Immigration and Citizenship
[2025] FedCFamC2G 904
•12 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mangat v Minister for Immigration and Citizenship [2025] FedCFamC2G 904
File number(s): MLG 2589 of 2019 Judgment of: JUDGE BINGHAM Date of judgment: 12 June 2025 Catchwords: MIGRATION– Judicial review of a decision of the Administrative Appeals Tribunal to not grant a student visa – Tribunal undertook a balancing exercise when assessing the factors in Direction No. 53 – jurisdictional error not established – Applicant seeks impermissible merits review – application dismissed with costs Legislation: Migration Legislation Amendment (2016 Measure No. 1) Regulation 2016 (Cth)
Migration Regulations 1994 (Cth) clause 572.223(1)(a)
Cases cited: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 6 May 2025 Date of hearing: 6 May 2025 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2589 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVTAR SINGH MANGAT
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
12 JUNE 2025
THE COURT ORDERS THAT:
1.The Application filed 9 August 2019 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.
3.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
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 BINGHAM
By an application filed in this Court on 9 August 2019 (Application), the Applicant seeks judicial review of the decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
On 11 July 2019 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 572) visa (Visa) (Tribunal’s Decision).
BACKGROUND
The Applicant is an Indian citizen.
The Applicant arrived in Australia on 1 October 2008 on a student visa to study horticulture. The Applicant applied for the Visa on 8 September 2015 (Visa Application) as the primary applicant with the members of his family unit, being his wife and daughters, named as secondary applicants.
Regulation 572.21 provided the criteria to be satisfied at the time of the Visa Application and regulation 572.22 provided the criteria to be satisfied at the time of the decision. The relevant provisions of the Migration Regulations 1994 (Cth) (Regulations) as at 30 June 2016[1] namely clause 572.223(1)(a) provided:
[1] Migration Regulations1994 (Cth), schedule 13, Clause 5404 as at 11 July 2019 provided that the relevant amendments abolishing subclass 572 visas applied in relation to applications made on or after 1 July 2016. The applicable legislative provisions are those in force prior to Migration Legislation Amendment (2016 Measure No. 1) Regulation 2016 (Cth).
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)The Minister is satisfied that 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; […]
When considering whether the Applicant satisfied the criteria in clause 572.223(1)(a) the Tribunal was required to take into account Ministerial Direction No. 53 – Assessing the genuine temporary entrant criterion for Student visa applications (Direction No. 53) made under s 499 of the Migration Act. Relevantly for the purpose of this matter those factors in Direction No. 53 to be taken were conveniently summarised by the Tribunal at paragraph [23] of the Tribunal’s Decision as follows:
•the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•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;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
On 17 May 2016 the Applicant submitted a genuine temporary entrant (GTE) statement to the Department in support of his Visa Application.
Delegate’s Decision
On 20 June 2016, the Delegate decided not to grant the Visa.
The Delegate considered the Applicant’s lack of academic progress, his study history, potential circumstances in Australia, the lack of value of the courses to his future and concluded that the Applicant was using the student visa program to circumvent permanent migration programs.
The Delegate was not satisfied that the Applicant was a genuine applicant for entry and stay in Australia as a student and intends to stay in Australia temporarily.
Application for review to the Tribunal
The Applicant lodged an application for review with the Tribunal on 7 July 2016. An email acknowledging the application was sent to the Applicant the following day on 8 July 2016.
On 9 January 2018 the Tribunal sent the Applicant’s representative an invitation to attend a hearing on 8 February 2018 in Melbourne.
The hearing proceeded on 8 February 2018 (First Tribunal Hearing). The Applicant provided a GTE statement dated 24 January 2018 outlining his academic history, work experience and career objectives to the Tribunal.
On 9 November 2018 the Tribunal received updated PRISMS and movements records with respect to the Applicant and his family members named in the Visa Application. On 14 December 2018 the Tribunal emailed the Applicant an invitation to provide information pursuant to s 359(2) of the Migration Act. The Tribunal requested an update as to the Applicant’s circumstances with respect to his current study, his personal circumstances, immigration history and any other relevant information demonstrating an intention to stay in Australia temporarily.
On the same date, the Tribunal sent an invitation to comment or respond to the updated PRISMS and movement records. The PRISMS information indicated that the Applicant had not enrolled in any further study since 18 March 2018 when he finished a Diploma of Retail Leadership. The updated movement records showed that since arriving in Australia on 15 October 2008 the Applicant had only returned to India twice, in 2011 and 2013, for a total period of eight (8) weeks.
On 14 January 2019 the Applicant provided the Tribunal with written submissions and documentation pertaining to his study including an offer of enrolment for an Advanced Diploma of Marketing and Communication.
The hearing scheduled for 8 March 2019 was postponed as the Applicant returned to India to be with his father who was admitted to hospital. A letter from the hospital confirming this was submitted by the Applicant’s representative.
The Tribunal determined that it could not make a decision based on the additional information that had been provided and on 29 March 2019 invited the Applicant to a second hearing. The Tribunal requested that the Applicant provide written submissions addressing six (6) issues or questions. Written submissions as requested were provided to the Tribunal on 16 April 2019.
The hearing proceeded on 23 April 2019 (Second Tribunal Hearing). The Applicant appeared at the Second Tribunal Hearing.
THE TRIBUNAL’S DECISION
On 11 July 2019 the Tribunal affirmed the Delegate’s Decision. The Applicant was notified of the Tribunal’s Decision on 12 July 2019.
The Tribunal accepted the Applicant’s evidence that his wife and daughters, the secondary applicants in the Visa Application, left Australia for India on 14 March 2018 and accepted that there are no disincentives for him to return to India. The Tribunal concluded that the Applicant’s incentives to remain in Australia do not outweigh his significant incentives to return home.
The Tribunal was concerned that the Applicant has completed his study at the vocational education level in circumstances where when he originally came to Australia with the intention to study at the higher education level. The Applicant had not achieved studies at the higher education level despite being in Australia for over 10 years at the time of the Second Tribunal Hearing. The Tribunal concluded that the Applicant is not proposing to stay in Australia to progress academically and is using the student visa program to maintain residence in Australia for as long as possible.
Having considered the Applicant’s circumstances, immigration history and other relevant matters, the Tribunal was ultimately not satisfied that the Applicant intended to stay in Australia temporarily and therefore did not meet cl 572.223(1)(a).
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court pursuant to s 477 of the Migration Act on 9 August 2019 within 35 days of the date of the Tribunal’s Decision.
On 18 February 2025 Orders were made for the Applicant to file, at least 28 days before the hearing, any amended application and written submissions. The Applicant did not file material in accordance with these Orders.
This matter was heard on 6 May 2025 and proceeded in person (Hearing). The Applicant appeared in person. I confirmed with the Applicant at the commencement of the Hearing that he did not require the assistance of an interpreter. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
The Applicant relied upon the following documents:
(a)The Application filed on 9 August 2019; and
(b)The Affidavit of the Applicant sworn and filed on 9 August 2019.
The Minister relied upon the Response filed 22 August 2019; an Outline of Submissions filed on 22 April 2025; and the authorities referred to in the List of Authorities filed on 5 May 2025. The Minister also tendered the Court Book filed on 4 March 2025.
The Applicant relied on 15 grounds of review (Grounds of Review):
1. I am applicant, lodging judicial review for the decision received from AAT for my student subclass 572 visa application
2. I make the following affidavit based on best of my knowledge.
3. I lodged my application for subclass 572 visa on 10/09/2015
4. I received decision to refuse my application from Department of Immigration and Border Protection, based on clause 572.223(1) on 20/06/2016
5. Thereafter, I lodged my application to review the decision in Administrative Appeals Tribunal
6. On 11/07/2019, AAT affirmed the delegate's decision.
7. I am applicant, lodging judicial review for the decision received from AAT for my student subclass 572 application as I strongly believe that despite of that tribunal member agrees with the facts attached to my case, they give decision against my appeal.
8. I state that the evidences which I have provided have not weighed properly due to which Tribunal failed to assess my incentives to leave Australia upon completion of my studies.
9. I state that, I have provided enough evidences that my family has already left Australia and now my children already enrolled in school in our home country. They have adjusted themselves in the new environment.
10. I state that, AAT member has acknowledged the fact that my family in India is a strong reason for me to return to my home country but still affirms the department's decision that I have no reasons to return after the completion of my studies.
11. I state that, I have notified AAT members that I have applied Permanent visa for United States of America which is currently under processing
12. In the decision record, (Page 10, reference no.11), it is mentioned "dear Eden, dear Eden, blah blah blah blah to return home". I state that I do not know this person Eden and believe that the Tribunal member might have mistaken my matter with some other. Due to which, the department's decision to refuse my visa has been affirmed.
13. Though it is decided by the Tribunal that the current course is not relevant to my previous study, I firmly believe that the course will add value to my academic knowledge. This study would help me start a career in future in USA.
14. AAT member stated that I never had an intention to live in my home country because of USA application and Australian study visas. But my intention was not to live in Australia from the start because I had applied for USA long time back. However, as a matter of fact I had no plans to live here long-term shows that we were staying here temporarily and met the temporary entrant requirements, which AAT failed to consider
15. To lodge my application for judicial review, I am attaching copy of decision record provided by AAT through email.
CONSIDERATION
Grounds 1 to 6 and 15
The Minister submitted in writing that Grounds 1 to 6 and 15 merely restate facts and that the Applicant’s grounds of review were to be found at Grounds 7 to 14 of the Application. The Minister submitted that Grounds 1 to 6 and 15 are narrative and did not reproduce them in their written submissions or address them in oral submissions because they do not allege any error.
I asked the Applicant whether he agreed with the Minister’s submission and he said he did and consequently proceeded to address me on Grounds 7 to 14 as contained in his Application. I also asked the Applicant to address me on each of the Grounds 7 to 14.
As a matter of convenience I shall deal with Grounds 7 to 14 in the subject matter groupings applied by the Minister in oral submissions.
Ground 7
The Applicant submitted orally that he provided enough evidence that he would not stay in Australia as his family are in his home country and that he had enough reason to go back but the Tribunal did not believe him.
The Minister submitted that Ground 7 is predominantly narrative but may be said, on a beneficial reading, to allege irrationality because the Tribunal agreed with facts that the Applicant presented on the Applicant’s incentive to return to India yet handed down a decision against him.
The Minister submitted that the Tribunal’s Decision that the Applicant was not a genuine temporary entrant was not irrational because one of the criteria to be considered was the Applicant’s circumstances in his home country. It was submitted that the Applicant’s circumstances in India weighed in his favour but that those favourable matters were outweighed by other factors such as the value of his course of study.
Essentially the Tribunal undertook a balancing exercise when assessing the factors in Direction No. 53 as is indicated by the consideration of the circumstances in his home country and his incentive to return at paragraphs [33], [50], [51] and [52] of its decision and those in relation to the value of the Applicant’s course of study at paragraphs [53] to [87]. I agree with the submissions of the Minister. The favourable factors relating to a significant incentive to return to his home country and not remain in Australia was considered by the Tribunal to be outweighed by the by the Tribunal’s “great concern”[2] as to that value of the course of study to the Applicant’s future. It was open to the Tribunal upon weighing the factors to conclude that the Applicant was not a genuine temporary entrant.
[2] Tribunal’s Decision, [75].
In so far as the Applicant seeks a review of the merits of the Tribunal’s Decision it is impermissible for me to do so.
The Applicant has not identified a jurisdictional error. Ground 7 must be dismissed.
Grounds 8 to 10
With respect to Ground 8 the Applicant submitted that the error with respect to this ground was the same as the error alleged in Ground 7. It was submitted with respect to Ground 9 that the Tribunal did not accept that the Applicant’s children were enrolled in school in India and that the Tribunal did not believe this to be true despite the evidence. The Applicant stated that the error alleged in Ground 10 was the same as that alleged with respect to Grounds 7 to 9.
The Minister submitted that Grounds 8 to 10 concern the Tribunal failure to consider the Applicant’s evidence about his incentives to return to India including the Applicant’s wife and children being there and the fact that the children were enrolled in school. It was submitted that this was comprehensively considered by the Tribunal. I agree. The Tribunal accepted: that the wife and the children had returned to India and did not have a right to re-enter Australia at paragraph [28]; and that the Applicant’s children were enrolled in school in India at paragraph [31] of its Decision. Further the Tribunal found at paragraph [33] that the presence of the Applicant’s birth family and his wife and children in India meant that the Applicant had a significant incentive to return to his home country and at paragraph [55] that concerns regarding his incentive to remain in Australia had been largely ameliorated by the wife and children returning to India.
I repeat paragraph [36] of these Reasons. The incentives to return to India were considered by the Tribunal but were outweighed by the Tribunal’s grave concern as to the value of his course of study to his future. It was open to the Tribunal upon weighing the factors to conclude that the Applicant was not a genuine temporary entrant.
I also agree with the Minister’s submission that in so far as the Applicant was inviting the Court to examine the merits of the Tribunal’s decision it is impermissible for me to do so.
The Applicant has not identified a jurisdictional error in Grounds 8 to 10. Grounds 8 to 10 must be dismissed.
Grounds 11 and 14
It was the Applicant’s submissions with respect to Ground 11, that the Tribunal was notified that he had applied for a permanent visa for the United State and that the Tribunal must have been thinking that he was going to stay by himself in Australia for as long as possible. In regard to Ground 12 the Applicant submitted that: he had applied for the visa to go to the United States in 2010; he always intended to go back to his home country, get his children and move to the United States; and that he did not understand why the Tribunal did not agree with him that he did not intend to stay in Australia because he had already applied for permanent residency in the United States.
The Minister submitted that these grounds appear to challenge the Tribunal’s consideration of the Applicant’s evidence with respect to his application for permanent residency in the United States in 2010 despite the Tribunal ultimately affording little weight to that visa application when considering the relevant factor as there was no evidence the Applicant had sought permanent residency in Australia. It was also contended that the assertion by the Applicant that the Tribunal found that he did not intend to live in his home country because of the United States permanent residency application was not correct. I agree, the Tribunal did not make any such finding.
It was further submitted that these grounds should be dismissed as it was permissible for the Tribunal to consider this evidence and the Tribunal’s reasons reflect the reasoning process which concluded on a neutral finding that discloses no error. I agree with these submissions the Tribunal considered the evidence and placed little weight upon it when assessing the GTE criteria.
To the extent that the Applicant asks me to review the merits of the Tribunal’s Decision it is impermissible for me to do so.
The Applicant has not identified a jurisdictional error. Grounds 11 and 14 must be dismissed.
Ground 12
Ground 12 concerns footnote 11 at paragraph [51] of the Tribunal’s Decision. Paragraph [51] contained a footnote which stated, “The Tribunal obtained updated movement records for the dependent applicants on 21 February 2019 which confirmed that they departed Australia on 14 March 2018 all on Bridging A (Subclass 010) visas which is information the Tribunal considers is favourable to and supports the claims made by the applicant in relation to his incentives dear Eden, dear Eden, blah blah blah to return home”.
The Applicant submitted that the Tribunal referred to someone else and mixed up the decision which in turn affected the Tribunal’s Decision. In response to a question from me the Applicant clarified that the only disagreeable part on the footnote was that part where the Tribunal stated “dear Eden, dear Eden, blah blah blah to return home”.
The Minister submitted that text is a typographical error that amounts to an inadvertent and irrelevant insertion that did not affect the exercise of the Tribunal’s power. The Minister further submitted that the paragraph particularly and Tribunal’s Decision considered Applicant’s circumstances specifically.
This reference in the footnote is clearly a proofing error and has no material effect on the Tribunal’s findings. The Applicant has not identified a jurisdictional error with respect to Ground 12. Ground 12 must be dismissed.
Ground 13
Ground 13 relates to the Applicant assertion that the Tribunal’s finding that the Applicant’s course of study would not add value to the Applicant’s academic knowledge. The Applicant submitted that he was getting into management courses so he could start a business. He also submitted that a degree from Australia is more relevant and that the Tribunal had wrongly disagreed with this premise and the value of the course of study.
At paragraph [79] the Tribunal found that the evidence about the Applicant’s career plans to be unconvincing for a variety of reasons and that the Applicant was only able to explain his career plans and reasons for enrolling in the proposed course of study in the most general of terms.
The Minister submitted that the Tribunal was not obliged to further consider the Applicant’s claim with respect to the value of the Advanced Diploma gained in Australia if he were to move to the United States because he did not articulate claims regarding the value of his course of study to a career or any career plans in the United States.
It is clear from paragraphs [78], [79] and [87] of the Tribunal’s Decision that there was not articulation of the Applicant’s plans or the benefit to him of the proposed course of study would have in establishing a career in the United States. In these circumstances the Tribunal was not obliged to further consider claims that were not clearly articulated.[3]
[3] SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, [82].
The Applicant disputes the Tribunal’s findings and in reality seeks an impermissible merits review.
The Applicant has not shown a jurisdictional error with respect to Ground 10, it must be dismissed.
CONCLUSION
The Application for Judicial Review filed 9 August 2019 is dismissed.
The Minister sought costs fixed in the amount of $5,400 being a sum below that prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $5,400.
Orders will be made accordingly.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 12 June 2025
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