Patel v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1445
•4 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1445
File number(s): SYG 2153 of 2024 Judgment of: JUDGE SKAROS Date of judgment: 4 September 2025 Catchwords: MIGRATION – whether the Tribunal erred in finding the first named applicant did not intend to genuinely stay in Australia temporarily – whether the Tribunal’s reference to Ministerial Direction No. 69 instead of Ministerial Direction 108 amounts to jurisdictional error – no jurisdictional error on the part of the Tribunal – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 357A, 359(2), 360
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
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 21 August 2025 Place: Parramatta Solicitor for the Applicants: Self-represented litigants Solicitor for the First Respondent: Ms Ren, HWL Ebsworth Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2153 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PANKAJKUMAR JAYANTIBHAI PATEL
First Applicant
DAXABAHEN PANKAJKUMAR PATEL
Second 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 29 August 2024 is dismissed.
2.The First and Second Applicants pay the First Respondent’s costs in the fixed amount of $5,600.
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 29 August 2024, the applicants seek 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) in refusing to grant the applicants’ Student (Temporary) (Class TU) visas 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 first applicant (the applicant) is a citizen of India. The second applicant is his spouse.
The applicant arrived in Australia on 5 May 2018 on a student visa. On 30 May 2022, he applied for the visa, the subject of these proceedings, to complete his Master of Information Systems.
On 14 December 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 22 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 Gujarati and English languages.
On the same day (being 29 July 2024), the Tribunal made a written decision affirming the delegate’s decision to refuse the applicant the visa.
THE TRIBUNAL’S DECISION
The dispositive issue before the Tribunal was whether the applicant intends genuinely to stay in Australia temporarily as required by cl 500.212(a).
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 and set out the relevant factors to which it must have regard.
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 noted that prior to arriving in Australia the applicant had completed a Bachelor of Computer Application in India in 2012 and that he worked as a Database Administrator.
At [16] and [17], the Tribunal set out the applicant’s past enrolment in various courses and study Australia.
At [18], the Tribunal expressed its concern that the applicant had been onshore for over six years and had not completed any courses. The Tribunal considered the applicant’s explanations, but it was not persuaded that he could not complete his studies due to the COVID-19 pandemic, his family's health and the challenges of an online learning environment.
The Tribunal was concerned that the applicant’s multiple and varied changes in courses and course providers were driven by a desire to maintain residence onshore, particularly where the applicant had been studying in an online environment prior to the end of 2021 and yet elected to cease studying with a course provider when he only had four units left because the learning environment continued to be remote.
At [19], the Tribunal accepted that the study was consistent with the applicant's current level of education. It also accepted that his study in Australia was relevant to and likely to assist and improve his future stated career.
At [20], the Tribunal noted that the applicant’s proposed course would take him to a period of proposed stay in Australia of 7 years, which was difficult to reconcile with the meaning of 'temporary' stay in relation to student visas. In considering the evidence as a whole, the Tribunal was concerned that the applicant was using the student visa program as a means of maintaining residence in Australia.
At [21], the Tribunal set out the applicant’s employment history in Australia. The Tribunal noted his evidence that he was currently not working so he could focus on his study and that his wife was not working as she had given birth to their first child. The Tribunal noted that the applicant was being financially supported by family. While it was concerned that the economic circumstances of the applicants may act as an incentive for them to remain in Australia, the Tribunal made no firm findings in that regard given neither of them were working at the time.
At [22], the Tribunal noted that the applicant was part of a religious and cultural association in Australia, and that he, his wife and their newborn child were living with his sister and brother-in-law in Australia. The Tribunal considered that these circumstances, together with the length of the stay in Australia, indicated the applicant had established strong ties to the Australian community acting as a strong incentive to remain onshore.
At [23], the Tribunal noted that the applicant had returned to India in 2019 and acknowledged that due to COVID-19 restrictions he was not able to travel from early 2020 to 2022. It noted that the applicant's parents and brother lived in India and that he spoke to them daily, however, it did not consider that this supported a conclusion that the applicant's community ties to India was a significant incentive for him to return. The Tribunal considered that any incentive for the applicant to return to India was outweighed by his desires and incentives to remain in Australia.
At [24], the Tribunal noted the applicant’s evidence that the Master of Information Systems was not available in India and was satisfied that he had provided reasonable reasons for undertaking his studies in Australia rather than his home country.
At [27] and [28], the Tribunal indicated that it had considered all the evidence and submissions before it and while it acknowledged that some matters were in the applicant’s favour, it considered these were outweighed by circumstances which led it to conclude that the applicant was using the student visa program as a means of maintaining residence in Australia.
Having regard to applicant's circumstances, the Tribunal concluded at [28] that it was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212.
At [30], the Tribunal also found that the second applicant did not satisfy cl 500.311 as a family unit of a person who satisfies the relevant primary criteria.
APPLICATION TO THIS COURT
The application for judicial review was filed on 29 August 2024 and advanced one ground of judicial review.
The applicant also filed an affidavit annexing the Tribunal’s decision. The affidavit contained nine paragraphs which were a combination of statements, complaints about the Tribunal’s decision and what appear to be additional grounds of review. It was not necessary for the Court to read this affidavit into evidence because: (a) the Tribunal’s decision was already included in the Court Book filed by the Minister on 4 June 2025; and (b) the content of the affidavit was largely in the nature of a submission as to why the applicant satisfies the criteria for the student visa. The contents of the affidavit have nevertheless been taken into account as either submissions or additional grounds of review.
The matter was listed for hearing on 21 August 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 9 July 2025.
At the hearing on 21 August 2025, the applicant appeared in person and was assisted by an interpreter in the Gujarati and English languages. The Minister was represented by Ms Ren of HWL Ebsworth Lawyers.
The Court Book was tendered into evidence and marked Exhibit CB.
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 S157/2002 v 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.
GROUND OF REVIEW
The ground of review advanced in the application (without alteration) is:
1.Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with.
At the hearing the applicant was provided with the opportunity to speak to the ground raised in his application. In oral submissions, the applicant did not expound upon his written grounds, instead raising merits-based arguments about his visa being refused while he had continued studying, that he did not receive a positive outcome from the Tribunal, that he was unable to study due to COVID-19 and that his wife had arrived in Australia.
By ground one, the applicant appears to allege a breach of procedural fairness by the Tribunal on the basis that it failed to act in his ‘best interests’.
As submitted by the Minister, this ground is misconceived. In the context of considering whether the applicant satisfies a particular criterion for the visa, the Tribunal does not have a general obligation to act in the best interest of an applicant. The role of the Tribunal is to conduct an independent review of the application and make the correct or preferable decision on the material before it: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [47]–[51].
The Tribunal’s procedural fairness obligations are set out in in Division 5 of Part 5 of the Act, which is an exhaustive statement of the natural justice hearing rule: s 357A.
The applicant has not identified any process or procedure that the Tribunal failed to comply with when conducting the review.
The Minister submitted that the Tribunal complied with its procedural fairness obligations. It was submitted that on 13 March 2024, the Tribunal invited the applicants to provide information, pursuant to s 359(2) of the Act, in relation to the applicant’s entry and stay in Australia as a student. The invitation informed the applicants that it was a requirement of the visa that the applicant is enrolled in a registered course of study, and that he is a genuine applicant for entry and stay as a student: CB 84–86.
It was noted that on 23 March 2024, a new ministerial direction, Ministerial Direction No. 108, replaced Direction No. 69 as the relevant direction to assessing the genuine temporary entrant criterion. It was contended that while the s 359(2) letter had attached a copy of the then Ministerial Direction No. 69, this did not result in any error given Direction No. 108 contained the same content as Direction No. 69: cf. CB 88–92 and CB 185–189.
It was submitted that the applicants were also represented by their migration agent during the review and that the representative attended the Tribunal hearing. It was noted that the applicants had provided a further response on 27 March 2024, to which the Tribunal had regard: [14]–[15], [21]–[25].
The Minister submitted that the Tribunal complied with its obligation under s 360(1) of the Act by inviting the applicant to attend a hearing, which was conducted in person on 28 June 2024. It was noted that the applicant attended the hearing and was assisted by his representative: CB 170. It was submitted that the Tribunal applied the same criteria as the delegate, such that the applicant would have been on notice of the dispositive issue from the delegate's decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35].
As the applicant has not had the benefit of legal representation, I have also reviewed the material in the Court Book and the Tribunal’s decision to ascertain whether the Tribunal had failed to afford the applicant procedural fairness: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [59]–[77]. In that regard, I am unable to identify any failure on the part of the Tribunal to comply with its procedural fairness obligations and accept the Minister’s submissions that the Tribunal has so complied. The decision, which is summarised above at [8]–[21] of this judgment, discloses that the Tribunal had considered the relevant matters it was required to consider by Ministerial Direction No. 108, that the applicant was given an opportunity to give evidence in relation to those matters and that the Tribunal had regard to that evidence as part of its consideration. The Tribunal’s conclusions and findings were open to it for the reasons it gave. No error is detected in the Tribunal’s reasoning.
In relation to the issue of the Ministerial Direction No. 69 being superseded by Direction No. 108 during the course of the review before the Tribunal, I accept the Minister’s submission that the provision of Direction No. 69 to the applicant on 13 March 2024 (prior to the commencement of Direction No. 108), as part of the s 359(2) invitation, does not amount to an error, let alone a jurisdictional error, given that both Directions, in respect of the circumstances that must be considered by decision makers when assessing the genuine temporary entrant criterion are, in substance, the same.
For these reasons, the ground raised in the application does not disclose jurisdictional error.
Further grounds raised
In the affidavit accompanying the application, which has been taken into account as submissions, the applicant raised the following:
6. I would like to confirm that I have provided all required documentation and have met every condition necessary for the visa application. I have consistently demonstrated that I am a genuine applicant with a clear intention to comply with all relevant regulations.
…
8. I sincerely, request that you give due consideration to the compelling and compassionate circumstances. May I request you to look into the grounds that when I lodged my student visa.9. So I meet my all criteria but still they said you not meet cl .500.212 of Schedule 2 of the Migration Regulations 1994 (Cth). I think I am become a victim of procedure fairness issue/matter here as Administrative Appeals Tribunal has an error in my decision. This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects.
To the extent that these ‘grounds’ seek to invite the Court to consider the applicant’s compelling and compassionate circumstances and that he is a genuine applicant for entry and stay as a student, this is impermissible. This Court has no jurisdiction to consider the merits of the Tribunal’s decision, nor can it consider for itself whether the applicant satisfies a criterion for the student visa: Wu Shan Liang at [31].
If the allegation is that the Tribunal failed to consider the applicant's compassionate and compelling circumstances for not completing any courses in the period of six years he had been in Australia, I accept the Minister’s submission that these grounds fail on the facts.
As submitted by the Minister, the Tribunal considered at [18] the reasons provided by the applicant for why he had changed course providers, but it was not persuaded by his explanations. The Tribunal was also not persuaded by the applicant's explanations that he could not complete his studies due to the challenges of an online learning environment and that he worked best with face-to-face learning given he had been studying remotely prior to the end of 2021: at [16] and [18].
As to the applicant’s concerns about COVID-19 and his family’s health issues, I accept the Minister’s submission that there was no evidence before the Tribunal that the applicants were affected by any health issues at the time of the Tribunal's decision.
I accept the Minister’s submission that it was open to the Tribunal to infer from the length of time the applicant had remained in Australia, that the applicant intended to use the student visa program to maintain residence: [18], [20], [27]. The Tribunal’s reasons were not affected by unreasonableness or illogicality, nor was the weight it gave to the various factors it was required to consider under Direction No.108. In that regard, it was open to the Tribunal to conclude at [27] that the evidence in favour of the applicant was outweighed by the evidence against him.
The further matters raised by the applicant do not disclose any jurisdictional error on the part of the Tribunal
CONCLUSION
As the ground in the application and further grounds raised by the applicant do not establish jurisdictional error, the application for judicial review must be dismissed.
COSTS
The Minister sought an order that the applicants pay the Minister’s costs fixed in the sum of $5,600. The applicant did not wish to make any 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, the Court is satisfied that the costs sought in this matter are reasonable and will so order.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 4 September 2025
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