Patel v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1445

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 

  1. 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.…

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Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1445
Case
[2025] FedCFamC2G 1445
Decision Date

CaseChat Overview and Summary

In Patel v Minister for Immigration and Citizenship, the applicants sought judicial review of a decision by the Administrative Appeals Tribunal (now the Administrative Review Tribunal) affirming a decision of the Minister for Immigration and Citizenship to refuse their Student (Temporary) (Class TU) visas. The applicants, an Indian citizen and his spouse, sought to extend their stay in Australia to complete a Master of Information Systems. The delegate of the Minister refused the visa application on the grounds that the applicant did not satisfy the genuine temporary entrant criterion under the Migration Act 1958 and the Migration Regulations 1994. The Tribunal affirmed the delegate’s decision, concluding that the applicant did not genuinely intend to stay in Australia temporarily.

The legal issues before the court were whether the Tribunal erred in finding that the applicant did not intend to genuinely stay in Australia temporarily and whether the Tribunal's reference to Ministerial Direction No. 69 instead of Ministerial Direction 108 amounted to a jurisdictional error. The court noted that the Tribunal must consider Ministerial Direction No. 108, which sets out the relevant factors for assessing the genuine temporary entrant criterion for student visas. The court assessed whether the Tribunal had correctly applied this direction and identified any jurisdictional error in its decision-making process.

The court found that the Tribunal did not commit a jurisdictional error. It correctly applied Ministerial Direction No. 108 and considered the relevant factors, including the applicant's travel history, study progression, employment, living costs, and connections to India. The Tribunal was not persuaded by the applicant's explanations for the delays in completing his studies, considering them inconsistent with a genuine temporary stay. The court further held that any reference to Ministerial Direction No. 69 was not material, as it did not affect the outcome of the decision. The court emphasised that it was not the role of the Tribunal to act in the best interests of the applicant but to make the correct or preferable decision based on the material before it.

The application for judicial review was dismissed. The court found no jurisdictional error in the Tribunal's decision and confirmed that it was not to review the merits of the Tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.