Mittal v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1695
•15 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mittal v Minister for Immigration and Citizenship [2025] FedCFamC2G 1695
File number: ADG 211 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 15 October 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a student visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal made wrong findings on factual issues – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
Migration Act 1958 (Cth) ss 357A, 359, 360, 360A, 362B, 476, 499
Migration Regulations 1994 (Cth) Sch 2, cl 500.212, reg 4.21
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Border Protection v Singh [2016] FCA 575
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
SZTKR v Minister for Immigration and Border Protection [2018] FCA 1613
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of hearing: 9 October 2025 Place: Perth (via Webex) Applicant: The applicant appeared in person Counsel for the First Respondent: Ms E Rogerson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
ADG 211 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHIT MITTAL
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 OCTOBER 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 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 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant applied for a student visa on 6 July 2019. A delegate of the Minister refused to grant the applicant a student visa on 19 September 2019 because the applicant did not meet the genuine temporary entrant requirement in cl 500.212(a) in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision. On 7 June 2021 the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.
The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act). The applicant relies on a single ground which alleges that the Tribunal denied him procedural fairness. The ground also appears to take issue with several of the factual findings made by the Tribunal.
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application to this Court is therefore dismissed.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal recognised that in considering whether the applicant intends genuinely to stay in Australia temporarily for the purposes of cl 500.212(a) in Sch 2 to the Regulations, the Tribunal was required to have regard to Direction No 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction No 69) made under s 499 of the Migration Act.
The Tribunal noted at the time the applicant applied for the student visa, he enrolled in a Diploma of Leadership and Management and an Advanced Diploma in Leadership and Management. He completed the first of these courses but did not commence the second. Instead, he enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management. The Tribunal was not satisfied that the applicant had demonstrated sound reasons for not studying the proposed courses in his home country and noted that there was no supporting evidence to back up the applicant’s claim that the Indian courses did not meet the needs of the modern hospitality industry. The Tribunal noted that the applicant’s proposed courses were very different from his past experience in Information Technology.
The Tribunal accepted that the applicant has personal ties in India, including family comprising of his mother, father, one of his sisters and his son. The Tribunal noted that the applicant was divorced and had recently applied for custody of his son and advised that he would like to bring his son to Australia to spend time with him. The Tribunal expressed concern that the applicant’s intention to bring his son to Australia could lessen his incentive to return to India.
The Tribunal did not consider that the applicant’s economic circumstances would be a significant incentive to return to India upon the completion of his courses in Australia. This finding was made having regard to the financial evidence regarding the applicant’s company in India, the expiry of the lease for the company office and the income the applicant was earning in Australia. The Tribunal considered that any cash held by the applicant could be easily moved between India and Australia and was not a tie to India.
The Tribunal acknowledged there was no evidence that the applicant was using the student visa to avoid military service commitments or because of political or civil unrest in his home country.
In considering the applicant’s potential circumstances in Australia, the Tribunal accepted the applicant lived with his sister and acknowledged he had no other family living in Australia. The Tribunal noted that the applicant found employment as a pasta maker and earns an income which is significantly more than the amount he said he needs for his living expenses. The applicant’s desire to bring his son to Australia raised concerns for the Tribunal, as bringing more family to join him in Australia would decrease his incentive to return to India. The Tribunal found that the applicant’s sister, employment and potential to bring his son to Australia all represent incentives to remain in Australia. These ties, when combined with the sudden change to the proposed courses that would extend the applicant’s time in Australia significantly, led the Tribunal to the view that the applicant was using the student visa to maintain ongoing residence in Australia.
In considering the value of the proposed courses to the applicant’s future, the Tribunal did not consider that the applicant’s proposed study in Australia was consistent with the applicant’s current level of education, which included tertiary level studies in his home country. The Tribunal made an allowance for the applicant changing careers. However, the Tribunal considered the reasons advanced by the applicant in relation to his career change did not adequately explain why he had decided to change careers after starting a seemingly successful business in India.
The Tribunal did not accept the applicant’s claim that he studied the Diploma of Leadership and Management because he has plans to open his own business, noting that he had already established his own business in India which was, apparently, very successful in its first year of operation. The Tribunal was not satisfied the applicant genuinely held an intention to forge a career as a chef and own a restaurant in the future. It rather considered that the applicant enrolled in the proposed courses as they would significantly extend his time residing in Australia.
The Tribunal considered the applicant’s immigration history, noting that he had not previously been refused a visa in Australia, but had been refused a visitor visa to the United Kingdom in June 2019. The Tribunal acknowledged that there was no evidence the applicant had ever had his visas cancelled by Australia or another country and there was no evidence the applicant had breached any of the conditions of his visas in Australia. The Tribunal was concerned about the length of time for which the applicant sought to extend his stay in Australia. The Tribunal considered that the applicant’s sudden decision to spend around $26,000 on four short vocational courses at the age of 40 appeared to be at odds with his previous studies and lengthy work history in the information technology industry, including starting his own business only a year before coming to Australia. The Tribunal expressed concern that the applicant was using the student visa to maintain ongoing residence in Australia.
Taking these matters into account, the Tribunal was not satisfied the applicant intended to genuinely stay in Australia temporarily and therefore found he did not meet cl 500.212(a). The Tribunal was therefore not satisfied that the applicant was a genuine entrant for entry and stay as a student as required by cl 500.212.
THE APPLICATION FOR JUDICIAL REVIEW
The applicant’s judicial review application contains the following sole ground:
I AM APPLYING FOR JUDICIAL REVIEW BECAUSE ADMINISTRATIVE APPEALS TRIBUNAL DID NOT GIVE ME PROCEDURAL FAIRNESS DURING THE REVIEW PROCESS. DURING THE TRIBUNAL REVIEW PROCESS, I WAS ASKED TO FILL OUT AN INFORMATION QUESTIONNAIRE. FEW DAYS LATER I APPEARED BEFORE TRIBUNAL VIA PHONE ON 14TH OF APRIL’2021. I WAS ASKED VARIOUS QUESTIONS. I ANSWERED ALL THE QUESTIONS IN DETAILS. I DEMONSTRATED MY GENUINE INTENTIONS TO STUDY THE COURSES I WAS ENROLLED IN. I ALSO EXPLAINED IN DETAIL THAT WHY I WAS STUDYING THE ENROLLED COURSES. I HONESTLY ANSWERED ALL QUESTIONS ABOUT MY FAMILY, MY TIES TO INDIA AND QUESTIONS ON ALL MATTERS ASKED. TRIBUNAL AFFIRMED THE DECISION AND I HAVE ATTACHED THE TRIBUNAL’S DECISION HERE WITH MY JUDICAL REVIEW APPLICATION. TRIBUNAL MEMBER IN HER DECISION MENTIONS ON VARIOUS POINTS THAT I WAS NOT ABLE TO DEMONSTRATE WHAT WAS REUQIRED FROM ME. FOR EXAMPLE, I DID NOT PROVIDE EVIDENCE THAT INDIAN COURSES DO NOT MEET THE NEEDS OF MODERN HOSPITALITY INDUSTRY. ANOTHER EXAMPLE IS BECAUSE I WANT TO BRING MY SON TO AUSTRALIA DECREASES MY INCENTIVES TO RETURN TO INDIA. THESE CONCLUSIONS ARE INCORRECT. THE PURPOSE OF TRIBUNAL HEARING IS TO PUT FORWARD YOUR POINT. I KNOW FROM MY KNOWLEDGE AND EXPERIENCE THAT INDIAN COOKERY SCHOOLS ARE NOT PROFESSIONALLY RUN. HOW CAN I PROVE IT WITH PHYSICAL EVIDENCE? MY KNOWLEDGE IS MY EVIDENCE. I WANT TO BRING MY SON TO AUSTRALIA SO THAT I COULD MEET HIM. HIS STAY WOULD BE FOR A SHORT PERIOD OF TIME BECAUSE HE IS STUDYING IN INDIA. HE CANNOT LIVE WITH ME HERE IN AUSTRALIA WHILE I AM STUDYING. HE IS WITH MY EX-WIFE. EVEN THE CUSTODY ISSUE IS NOT SETTLED YET. AND EVEN THEN TRIUNAL MEMBER CONCLUDED THAT MY INTENTION TO MEET MY SON DECREASES MY CHANCES TO RETURN TO INDIA. MY SISTER IS ON A TEMPORARY VISA IN AUSTRALIA. MY PARENTS AND SON ARE BACK IN INDIA. THAT IS MORE INCENTIVE ME TO RETURN BACK TO INDIA THAN STAY WITH MY SISTER IN AUSTRALIA WHO IS NOT EVEN A PERMANENT RESIDENT. SHE ALSO DID NOT AGREE WITH MY STUDY PLANS. EVERY PERSON SHOULD HAVE A RIGHT TO PURSUE A CAREER WHICH IS RELEVANT AT THAT GIVEN POINT OF TIME. REASONS LIKE HAVING STUDIED HIGHER DEGREES IN PAST, CHANGE IN STUDY SHOULD NOT BE REASONS TO REFUSE SOMEONE RIGHT TO FOLLOW A CAREER PATH. I HAVE SEEN MANY AUSTRALIANS CHANGE THEIR CAREER IN MID WAY. LEAVING UNIVERSITIES, CHANGING CAREERS AFTER SPENDINGS YEARS IN ONE ARE VERY COMMON EXAMPLES HERE IN AUSTRALIAN LIFE. I EXPECTED TRIBUNAL MEMBER TO UNDERSTAND THIS HOWEVER SHE DID NOT. I REQUEST THIS COURT TO GIVE ME AN OPPORTUNITY TO FOLLOW MY CAREER PATH.
The evidence before the Court comprises:
(a)an affidavit filed by the applicant with his judicial review application, in which he repeated the grounds in his application and attached a copy of the Tribunal decision;
(b)the court book filed on behalf of the Minister on 14 September 2025; and
(c)an affidavit of service of Dominic Leal Smith filed on behalf of the Minister on 2 October 2025.
CONSIDERATION OF THE APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Procedural fairness before the Tribunal
The assertion in the written ground of application that the applicant was denied procedural fairness
In his ground, the applicant asserts that the Tribunal denied him procedural fairness during the review process. The basis upon which he claims he was denied procedural fairness appears to be that he filled out a questionnaire, appeared before the Tribunal and answered all questions in detail, but the Tribunal found that at various points that the applicant was not able to demonstrate what was required of him. The specific factual matters referred to by the applicant are addressed in another section of this judgment set out below. For present purposes, I observe that procedural fairness is concerned with giving a person a fair opportunity to be heard. The applicant’s disagreement with the findings of the Tribunal on the evidence presented by the applicant is not, of itself, sufficient to demonstrate that the applicant was denied procedural fairness.
In conducting the review, the Tribunal was required to comply with the procedural fairness obligations set out in Division 5 of Part 5 of the Migration Act. That Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 357A(1) of the Migration Act.
I accept the Minister’s submission that the Tribunal complied with its procedural fairness obligations in Division 5 of Part 5 of the Migration Act. I note that:
(a)on 12 February 2021 the Tribunal invited the applicant, pursuant to s 359(2) of the Migration Act, to provide information to the Tribunal and the applicant responded to that invitation;
(b)the Tribunal had regard to the information provided by the applicant in making its decision, as required by s 359(1) of the Migration Act;
(c)on 29 March 2021 the Tribunal sent to the applicant an invitation to attend a hearing on 14 April 2021, as required by s 360 of the Migration Act;
(d)the notice of the invitation to attend a hearing complied with the requirements of s 360A of the Migration Act because:
(i)the notice specified the time and date of the hearing and that the hearing would proceed by telephone;
(ii)the notice was given to the applicant by email at the email address given by the applicant to the Tribunal for the review;
(iii)the period of notice exceeded the prescribed period in reg 4.21(4) of the Regulations; and
(iv)the notice contained a statement of the effect of s 362B of the Migration Act, explaining what may happen if the applicant failed to attend the hearing; and
(e)the applicant attended the hearing on 14 April 2021 and there is nothing before the Court to demonstrate that the invitation to attend a hearing was not a real and meaningful one (including when one has regard to the issue regarding the change of interpreter discussed below).
The assertion that the Tribunal denied the applicant procedural fairness, as set out in the applicant’s ground, does not establish jurisdictional error.
Issue raised at the hearing regarding a change in the interpreter at the Tribunal hearing
At the hearing before this Court, the applicant raised a further procedural fairness issue relating to a change of interpreter at the Tribunal hearing. The applicant submitted that he had to request a change of interpreter twice when his case was before the Tribunal as there was a lot of disturbance and he could not hear properly. He submitted that when the Tribunal scheduled his hearing there were some network issues and because of that the interpreter needed to be changed.
When I invited the applicant to explain why he says this denied him a fair hearing, he submitted that he was new to Australia when the hearing took place and it was his first time appearing at a court or tribunal. When there were problems with the first interpreter, it affected him and he got very nervous that the Tribunal might not understand. There were a lot of things that he wanted to say but because he was very nervous he forgot to mention everything he wanted to say.
In his reply submissions, the applicant submitted that there are many cases heard in the Tribunal where an interpreter is provided, but it was only in his case where they had to ask for two interpreters. There was a disturbance on the line but the applicant does not have any evidence of that. He does not have any evidence why the interpreter was changed.
The migration hearing record in the court book shows that an interpreter (the first interpreter) attended the hearing by telephone. The first interpreter is recorded as having arrived at 10:15am. The hearing commenced at 10:26am and the hearing record suggests that the first interpreter ended at 10:38am. The hearing record further shows that a second interpreter attended a hearing by telephone, commencing at 11:00am and ending at 11:20am. The hearing is recorded as having closed at 11:20am. There is nothing in the migration hearing record, the Tribunal’s reasons or any other document in evidence before the Court to explain the reasons for the change of interpreter.
I accept that there was a change of interpreter at the hearing before the Tribunal. However, this does not of itself demonstrate that the applicant was not afforded a fair opportunity to present his case to the Tribunal. The applicant’s assertion that he became nervous and forgot to mention a few things is not enough to establish that the Tribunal denied the applicant procedural fairness.
Further, as noted by the Minister, the applicant in his ground indicated that he answered all of the questions asked by the Tribunal. This is repeated in the applicant’s affidavit. The Tribunal referred in its reasons to evidence given by the applicant at the hearing. There is nothing in the applicant’s application and affidavit, or the Tribunal’s reasons, to suggest that the applicant had any difficulties understanding questions or explaining himself, because of any interpretation issues or because of any static or other disturbance that may have been present on the telephone line.
The applicant has not established that he was denied a fair hearing because of the change in the interpreter part way through the hearing.
Alleged factual errors
The applicant identifies the following factual issues in his ground, and appears to suggest that the Tribunal made wrong findings on these issues:
(a)the applicant’s evidence that Indian courses do not meet the needs of the modern hospitality industry;
(b)whether the applicant’s desire to bring his son to Australia decreases his incentive to return to India;
(c)whether the applicant’s family circumstances provide a greater incentive for him to return to India than to remain in Australia; and
(d)the applicant’s desire to change his career.
A further factual issue that emerges from both the written application and the applicant’s oral submissions relates to whether the applicant demonstrated that he genuinely intended to study the courses in which he enrolled.
The task of the Tribunal and the approach of the Court in assessing whether the assertions of the applicant can give rise to jurisdictional error
Before turning to each of the specific factual errors that the applicant asserts the Tribunal made, it is appropriate to say something about the task of the Tribunal and the circumstances in which factual errors can give rise to jurisdictional error.
One of the criteria the applicant was required to meet for the grant of a student visa was cl 500.212 in Sch 2 to the Regulations, which provides:
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.
The applicant needed to satisfy each of subcll (a), (b) and (c) to qualify as a genuine applicant for entry and stay as a student. An adverse finding in relation to (a) alone would foreclose the possibility of a successful outcome and the Tribunal would not then be required to consider subcll (b) and (c): Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25 (Dait) at [31]-[32], [35].
The Tribunal focused on whether the applicant met cl 500.212(a) and identified at [6] of its reasons that the issue in the case was whether the applicant intends genuinely to stay in Australia temporarily. As explained by Allsop CJ in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [12]-[13], cl 500.212(a) is concerned with the applicant’s genuine intention as to length of stay and nothing else. The Tribunal recognised in its reasons that in considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to consider Direction No 69, which requires it to have regard to factors in relation to:
(a)the applicant’s circumstances in their home country, potential circumstances in Australia, 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;
(c)if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
(d)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.
The Tribunal correctly identified that the factors specified in Direction No 69 are not to be used as a checklist but rather are intended 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.
The Tribunal was required to actively engage with each of the factors in Direction No 69 and determine how and to what extent they fed into the ultimate decision, with the weight to be given to each factor a matter for the Tribunal: Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 at [84]-[85].
Most of the matters raised by the applicant relate to the Tribunal’s consideration of the factors set out in Direction No 69.
The applicant largely expresses disagreement with the findings of the Tribunal and the weight given to the various factors. As submitted by the Minister, this invites the Court to engage in impermissible merits review. An incorrect finding of fact by the Tribunal is not, of itself, sufficient to establish jurisdictional error: SZTKR v Minister for Immigration and Border Protection [2018] FCA 1613 at [14]-[15]; Minister for Immigration and Border Protection v Singh [2016] FCA 575 at [52]-[54].
In circumstances where the applicant is self-represented, I have considered whether the factual findings made by the Tribunal, and complained about by the applicant, were open to the Tribunal on the evidence before it. I have considered whether the Tribunal decision was illogical or irrational, noting that ‘[i]f probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion’: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] (Crennan and Bell JJ).
The applicant’s evidence that Indian courses do not meet the needs of the modern hospitality industry
The Tribunal said at [13] of its reasons:
Considering the applicant only decided to study the proposed courses, which are very different to his previous studies and work experience in the Information Technology field, the Tribunal is concerned that the applicant may not considered the cooking and hospitality courses that are available in India. The applicant has does not appear to have any first-hand experience with hospitality schools and courses taught in India. He provided no evidence of how Indian courses are lacking, for example course descriptions or information from Indian education provider websites. In other words, there is no supporting evidence to back up the applicant’s claim that the Indian courses are not meeting the needs of the modern hospitality industry. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated sound reasons for not studying the proposed courses (or similar courses) in his home country.
In his ground of application, the applicant claims that the Tribunal’s finding that he did not provide evidence that Indian courses do not meet the needs of the modern hospitality industry is incorrect, because the evidence is his own knowledge and experience that Indian cookery schools are not professionally run.
In his oral submissions to this Court, the applicant submitted that there is a major difference between how courses are conducted in Australia and India. There is more stress on theory in India, whereas in Australia there is more kitchen experience.
The applicant’s submissions to the Court invite the Court to impermissibly review the merits of the Tribunal’s finding. It is evident from the Tribunal’s reasons that the Tribunal was aware that the applicant claimed Indian courses were not meeting the needs of the modern hospitality industry and considered his assertion. The Tribunal at [13] was noting the lack of independent corroborative evidence to support the applicant’s assertion, in circumstances where the applicant did not have any first-hand knowledge. The reasoning of the Tribunal was open to it on the evidence before it.
Whether the applicant’s desire to bring his son to Australia decreased his incentive to return to India
The Tribunal recorded in its reasons that the applicant ‘advised that he would like to bring his son to Australia to spend time with him’: Tribunal’s reasons at [14]. At [20], the Tribunal said:
He recently applied for custody of their 6 year old son, about 3 or 4 months ago. He said because of the Covid-19 pandemic, he cannot return to India. However, when asked whether or not he wants to bring his son to Australia if he is granted custody, he replied “absolutely I will bring my son to Australia, if it wasn’t for Covid”.
The Tribunal expressed concern that the applicant’s intention to bring his son to Australia to join him here could lessen his incentive to return to India: Tribunal’s reasons at [14], [20], [21].
In his ground of application, the applicant asserted that:
(a)he wants to bring his son to Australia so that he could meet him;
(b)his stay would be for a short period of time because the son is studying in India;
(c)the son is with the applicant’s ex-wife and the custody issue is not yet settled; and
(d)even in those circumstances, the Tribunal concluded that the applicant’s intention to meet his son decreases the chance he will return to India.
In his oral submissions to the Court, the applicant submitted that he has a child from his first marriage and was asked if he was going to go back to see his child. He had been working as a chef and studying for six years. The Tribunal took that into account as a reason for not granting the visa.
On the evidence before the Tribunal, it was open to the Tribunal to consider that the applicant’s desire to have his son come and live with him in Australia could decrease his incentive to return to India, and to take this into account as part of its overall consideration of the applicant’s circumstances.
Whether the applicant’s family circumstances provide a greater incentive for him to return to India than remain in Australia
The Tribunal acknowledged that the applicant had personal ties to India, including his mother, father, one of his two sisters and, at the time of the Tribunal decision, his six year old son: Tribunal’s reasons at [14]. The Tribunal noted that the applicant lived with his sister in Australia, who remained here on a temporary graduate visa: Tribunal’s reasons at [18]. The Tribunal considered that the applicant had ties to Australia, namely his sister residing here albeit on a temporary visa: Tribunal’s reasons at [21]. As discussed above, the Tribunal expressed concern that the applicant’s intention to have his son come to Australia may reduce his incentive to return to India.
In his ground of application, the applicant asserted that his parents and son are back in India and that is more incentive for him to return to India than stay with his sister in Australia, who is not even a permanent resident.
The Tribunal took into account the applicant’s potential circumstances in Australia and his circumstances in India, as it was required to do under Direction No 69. Consideration of his family members formed part of this. The Tribunal referred in its reasons to the applicant’s ‘incentive’ to return to India or remain in Australia, based on various factors. It was open for the Tribunal to reason the way it did on the evidence before it.
The applicant’s desire to change his career
The Tribunal was required to consider the value of the proposed courses to the applicant’s future. It did this, in part, at [23]-[24] of its reasons, where it said:
23.The Tribunal has also had regard to the value of the proposed courses to the applicant’s future. The first matter of note is that the applicant has previously studied at a tertiary level in his home country, having completed a Diploma of Computer Science and a Bachelor of Technology in 2006. Studying at a Certificate II to Advanced Diploma level is not consistent with the applicant’s current level of education.
24. Whilst the Tribunal makes an allowance for a change in careers, the applicant’s sudden interest appears at odds with his work history. He has not moved from job to job, nor from industry to industry. Rather, he completed his computer science studies and then became an Information Technology Executive, an Information Technology Administrator, promoted to Senior Administrator, and most recently has opened own information technology business. Even at the time he was providing information to the Department in support of his student visa application in 2019, he was still apparently intent and focussed on this business. He told the Tribunal that he became interested in becoming a chef after he started working a casual job in Australia as a pasta maker in 2020. The Tribunal put to the applicant that it was having difficulty accepting his sudden change in career interest. He said in response that since coming to Australia he continued to operate the business with a manager in India. However, since coming to Australia the business has not been doing so well. No evidence in a downturn in business was presented to the Tribunal in support of this assertion. The Tribunal does not accept the applicant’s claim explaining why he has decided to change careers after starting up a seemingly successful business in India, that he would suddenly decide upon a career as a chef after working a casual job manufacturing pasta, which is not a job that even involves work in a restaurant environment.
In his ground of application, the applicant asserted that the Tribunal did not agree with the applicant’s study plans, but every person should have a right to pursue a career which is relevant at that given point in time. The applicant disputed that having a higher degree in the past or changing a study option should not be a reason to refuse someone the right to follow a career path. He has seen many Australians change their career and he expected the Tribunal to understand this.
In his oral submissions to the Court, the applicant asserted that his student visa application was rejected mainly because he has experience in information technology for 12 years. He submitted that when he came from India and was divorced, he wanted to get into a different environment and changed to a cooking course as he had family business in hospitality. The applicant further submitted that when he came to Australia the first time he came as a visitor. He noticed that a lot of people change their career and that kind of change is common in Australia. However, his visa was rejected because he tried to change from one career to another. The applicant further submitted that a person wanting to continue study should not be treated as a negative point, it should be treated as a positive.
It is not a fair characterisation of the Tribunal’s reasons to suggest that the Tribunal refused to grant the applicant a student visa mainly because of his past experience in information technology, or because of his proposed career change. Rather, the value of the proposed course to the applicant’s future was one of several factors the Tribunal took into account in assessing the applicant’s circumstances in accordance with Direction No 69. The Tribunal’s assessment of the applicant’s evidence in relation to the reasons for wishing to study the courses was relevant to this. Again, the findings made by the Tribunal were open to it on the evidence before it.
The applicant’s submissions regarding the genuineness of his intention to study
In his reply submissions to the Court, the applicant submitted that it had been mentioned he was not a genuine student. He has a degree and studies in India, he continued studies in Australia and achieved good results. The applicant questioned why it is then said that he is not a genuine student.
This misunderstands the focus of the Tribunal’s reasons. The Tribunal did not find that the applicant did not intend to undertake the courses he enrolled in. Rather, the Tribunal found that the applicant did not genuinely intend to stay in Australia temporarily and therefore did not meet cl 500.212(a). In these circumstances, the applicant was unable to satisfy the Tribunal that he was a ‘genuine applicant for entry and stay as a student’ for the purposes of cl 500.212: see Dait, referred to at [35] above.
Overall consideration of the Tribunal’s approach to its task
Overall, I am satisfied that the Tribunal considered the various factors it was required to consider under Direction No 69 and made findings that were open to it on the evidence.
Ultimately, having regard to the various factors, the Tribunal formed the view that the applicant was ‘using the student visa in order to maintain ongoing residence in Australia’ and was not satisfied that he intended genuinely to stay in Australia temporarily: Tribunal’s reasons at [22] and [33]. The Tribunal therefore found that the applicant did not satisfy cl 500.212(a). The Tribunal decision was not illogical or irrational.
The applicant’s oral submissions to the Court about his future intentions
In his oral submissions to the Court, the applicant submitted that he is 43 years old and has been in Australia for six years. He has learned new things in Australia including new cuisines like Italian dishes. He wants to continue in his current career and set up a business in Australia. His business will benefit Australia and it will benefit him and he wants to use his skills here. The applicant submitted that he is passionate about cooking. He wasted 12 years in the information technology sector, but now he has studied and worked in Australia for some time. He has reached a peak of his career and wants an opportunity to prove himself in Australia.
These matters relate to the applicant’s present wishes and future intentions. They do not assert or establish any jurisdictional error in the Tribunal decision. As I explained to the applicant at the hearing, the Court does not have the power to consider for itself whether he meets the criteria for the grant of the student visa and the Court cannot grant him any type of visa.
CONCLUSION
The applicant has not established that the Tribunal made a jurisdictional error, either by the ground in his application or by the matters raised in his oral submissions at the hearing. It follows that his judicial review application to this Court must be dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 15 October 2025
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