Patel v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1447

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1447

File number(s): SYG 2527 of 2024
Judgment of: JUDGE SKAROS
Date of judgment: 4 September 2025
Catchwords:  MIGRATION – Judicial Review – whether the Tribunal erred in determining that the applicant was not a genuine temporary entrant – where the Tribunal referred to Ministerial Direction No. 69 instead of Ministerial Direction No. 108 – where this error was not material and did not amount to jurisdictional error – application dismissed  
Legislation:

Migration Act 1958 (Cth) ss 65, 359(2), 476, 499

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

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

Division: Division 2 General Federal Law
Number of paragraphs: 50
Date of hearing: 20 August 2025
Place: Parramatta
Solicitor for the Applicants: Self-represented litigant
Solicitor for the Respondents: Ms Celata, HWL Ebsworth
Solicitor for the Respondents: Submitting appearance, save as to costs

ORDERS

SYG 2527 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

KHUSHBUBEN DHAVALKUMAR PATEL

First Applicant

DHAVALKUMAR JAYESHBHAI 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 11 October 2024 is dismissed. 

2.The First and Second applicants pay the First Respondent’s costs fixed in the 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 8 October 2024 the applicants seek judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 4 September 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…

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Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1447
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[2025] FedCFamC2G 1447
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CaseChat Overview and Summary

In the case of Patel v Minister for Immigration and Citizenship, the applicants sought judicial review of a decision by the Administrative Review Tribunal affirming the refusal of Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958. The first applicant, an Indian citizen, applied for the visa to undertake a course of study in Australia. The delegate of the Minister for Immigration and Citizenship refused 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 because the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. The applicant appealed to the Tribunal, which affirmed the delegate’s decision.

The central issue before the Court was whether the Tribunal erred in its determination that the applicant was not a genuine temporary entrant. The applicant argued that the Tribunal failed to consider her compelling and compassionate circumstances, which included her mother's illness in India and the societal pressure she faced due to her age. The Court examined whether the Tribunal's failure to address these circumstances amounted to a jurisdictional error.

The Court held that the Tribunal's reference to Ministerial Direction No. 69, instead of Ministerial Direction No. 108, was not a material error and did not amount to jurisdictional error. The Court noted that the Tribunal had considered the applicant's personal circumstances, including her study progress, employment history, living costs, and familial ties to India. The Court found that the Tribunal's decision was based on a comprehensive assessment of the applicant's circumstances and did not indicate a failure to consider relevant material. The Court dismissed the application for judicial review.

The Court ordered that the application for judicial review be dismissed with no orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

By application filed on 8 October 2024 the applicants seek judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 4 September 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 applicant arrived in Australia in 2021. The applicant applied for the visa to undertake study in an Advanced Diploma of Civil Construction and Design with course dates from 2 May 2022 to 25 February 2024. The second named applicant is her spouse. The applicant applied for the visa, the subject of these proceedings, on 6 June 2022. On 24 November 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 intended genuinely to stay in Australia temporarily. On 30 November 2022, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant appeared before the Tribunal on 29 August 2024 to give evidence and present arguments, with the assistance of an interpreter in the Gujarati and English languages. On 4 September 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant the student visas. 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 summarised the applicant’s travel history and her circumstances generally, including her study progression, employment, living costs, and economic and familial connections to India. In doing so, the Tribunal considered the applicant’s documents provided in support of the application, including those listed at [11] and [12] of its decision. At [12] the Tribunal set out the relevant details contained in the applicant’s supporting statement. The Tribunal noted that the applicants appeared at the scheduled hearing and that, where relevant, it had recorded their evidence in its consideration. The Tribunal said at [17] that it must have regard to Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. It set out the relevant factors in the Ministerial Direction and said that it should not be used as a checklist, but only as a guide when considering the applicant’s circumstances as a whole.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 4 September 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant the student visas. 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 summarised the applicant’s travel history and her circumstances generally, including her study progression, employment, living costs, and economic and familial connections to India. In doing so, the Tribunal considered the applicant’s documents provided in support of the application, including those listed at [11] and [12] of its decision. At [12] the Tribunal set out the relevant details contained in the applicant’s supporting statement. The Tribunal noted that the applicants appeared at the scheduled hearing and that, where relevant, it had recorded their evidence in its consideration. The Tribunal said at [17] that it must have regard to Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. It set out the relevant factors in the Ministerial Direction and said that it should not be used as a checklist, but only as a guide when considering the applicant’s circumstances as a whole. At [19], the Tribunal considered the circumstances of the applicant in her home country. It noted that her father and grandmother continue to reside there. It accepted that she travelled to India on one occasion and maintained contact with family via telephone and social media. The Tribunal was not satisfied that these circumstances provided a significant incentive for the applicant to return to her home country. The Tribunal considered the applicant's claim that she had an obligation to provide for her parents in-law but noted that it was required to balance this claim with the length of time the applicant was seeking to stay in Australia and the fact she had repeatedly changed her intended course and extended her length of stay onshore. At [20], it noted that the applicant did not have any outstanding military commitments, had no fears of returning to India, and there was no evidence of any civil or political unrest. At [21], the Tribunal considered the applicant's claim that her reason for not studying similar courses available to her in India was because she did not study out of high school and would encounter prejudice as an older student due to the cultural expectation that she should be married with children, especially in her village. The Tribunal considered that there was no institutional or legal impediment to the applicant returning to study in India at age 29 and that there were a variety of locations where the applicant could seek study, not just in her home village. The Tribunal noted that the applicant could study in her home country at a significantly lower cost and fulfill her obligation to care for her family. The Tribunal was not satisfied that the reasons for the applicant not undertaking the proposed study in her home country were reasonable.

Ratio Decidendi

Legal Principle Established

The applicant, who spoke on behalf of herself and the second applicant, was guided through the application and was invited to make oral submissions in support of the grounds of review, which she 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. GROUNDS OF REVIEW The grounds of review advanced in the application (without alteration) are: 1.Compassionate and Compelling Circumstances2.I am not satisfied with the delegates decisions 3.Detailed statement attachedGround one By ground one, the applicant contends that the Tribunal did not consider her compelling and compassionate circumstances. In her written statement, filed with the application, and in her oral evidence at the hearing before me, the applicant sought to explain her personal circumstances in India and Australia, and how they affected her ability to complete her studies. She detailed the circumstances of her mother’s illness in India and how that affected her ability to complete her bachelor’s degree qualifications. She explained the reasons for why she changed her course enrolment in Australia and said she should be provided with a chance to complete her course and that she had faced, and would face, societal pressure in India due to her age. At the hearing before me, the applicant further submitted that the Tribunal had largely focused on her husband’s long stay in Australia rather than limiting its consideration only to her circumstances. She also submitted that she had worked as an accounts clerk in India but did not have bank statements to show that she worked in that role. At the hearing, I discussed with the applicant the Tribunal’s decision and noted that all the matters she had raised appear to have been considered by the Tribunal in its reasons. I noted that while she may not agree with how the Tribunal evaluated her circumstances, she has not explained what serious legal or procedural error she believes the Tribunal made when it considered her and her husband’s circumstances. The applicant said the Tribunal did not give attention to her study progress and that she had completed eight subjects for which she could provide a transcript.