Sandhu v Minister for Immigration and Citizenship
[2025] FedCFamC2G 796
•3 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandhu v Minister for Immigration and Citizenship [2025] FedCFamC2G 796
File number(s): MLG 2122 of 2019 Judgment of: JUDGE JOHNS Date of judgment: 3 June 2025 Catchwords: MIGRATION – judicial review – student visa – whether the Tribunal failed to consider relevant evidence – whether the Tribunal acted unreasonably – procedural fairness – whether weight given to certain evidence reveals jurisdictional error – no jurisdictional error found – application dismissed. Legislation: Migration Act 1958 (Cth) ss 474, 476
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Division 1 of Part 2 of Schedule 2
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197]
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 91 Date of hearing: 28 May 2025 Place: Melbourne Applicants: In Person Solicitor for the Respondents: Mr M Daly of Mills Oakley ORDERS
MLG 2122 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASPREET KAUR SANDHU
First Applicant
GURSHARAN SINGH CHAHAL
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
3 JUNE 2025
THE COURT ORDERS THAT:
1.The Applicant’s application for judicial review filed on 4 July 2019 is dismissed.
2.The Applicant pay the First Respondent’s costs and disbursements incidental to the proceedings fixed in the amount of $5,400.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JOHNS
INTRODUCTION
Before this Court is an application filed on 4 July 2019 for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (Delegate), to refuse to grant the Applicant a Student (Subclass 500) visa (Student Visa), in which her husband, the second applicant, was included as a dependant.
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed within the 35-day time period prescribed under the Act.
The matter was heard on 28 May 2025 and proceeded in-person at the Melbourne Registry of this Court.
To obtain relief from this Court, the Applicant must show that the Tribunal has fallen into jurisdictional error. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal’s decision. The Tribunal was correct to refuse to grant the visa.
Consequently, the application for judicial review is dismissed.
Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the Act) was amended significantly on 14 October 2024 after the commencement of the Administrative ReviewTribunal (ART) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Consequential Act).
This judgment concerns a decision of the former Administrative Appeals Tribunal (AAT) dated 7 June 2019. As such, references to the Act are to its form at the time of the Tribunal’s decision, unless otherwise stated.
Pursuant to Item 10 of Schedule 16 of the Consequential Act, the ART is substituted as a party in all pending proceedings. Item 25 further provides that pending proceedings are to continue under the new legislative regime. Accordingly, the ART has been substituted as the Second Respondent and there is no need to make any further order.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed jurisdictional error in affirming the decision of the Delegate refusing the student visa.
The Application for a Visa
The primary Applicant (hereafter referred to as the Applicant) is a citizen of India. She arrived in Australia on 24 May 2008 as the holder of a Student (Subclass 573) visa, granted offshore on 8 May 2008 and valid until July 2010.[1]
[1] Court Book (CB) 94.
Since her arrival, the Applicant has held multiple temporary visas in Australia.[2] These include:
(a)Student visa (Subclass 573) (granted on 8 May 2008 and valid until 28 July 2010),
(b)Student visa (granted in September 2010 and valid until July 2011),
(c)Student visa (granted in July 2011 and valid until October 2012),
(d)Student visa (granted in November 2012 and valid until July 2015), and
(e)Temporary Graduate visa (Subclass 485) (granted in December 2015 and valid until June 2017).
[2] CB 96.
Since the Applicant’s arrival in Australia, she has finished various courses.[3] These include:
(a)Certificate IV in Spoken and Written English (May 2008 – June 2008),
(b)Certificate III in Hairdressing (July 2008 – July 2009),
(c)Diploma of Hairdressing Salon Management (August 2009 – March 2010),
(d)Diploma of Management (April 2010 – Aug 2011),
(e)Advanced Diploma of Management (Aug 2011 – Aug 2012),
(f)Certificate III in Painting and Decoration (Oct 2012 – March 2014), and
(g)Diploma of Building and Construction (Management) (April 2014 – April 2015).
[3] CB 9-10, 68.
In addition to the above, records from Provider Registration and International Student Management System (PRISMS) indicate that the Applicant was enrolled in a number of other courses, many of which were recorded as having been cancelled.[4]
[4] CB 68.
The Applicant has also been employed in various roles during her time in Australia. These include working as a:
(a)process worker at Lynch Group between 2012 and 2014,
(b)painter at PSD Painting Services Pty Ltd between October 2014 and March 2018, and
(c)threader at Beauty and Brow Parlour in 2018.
The Applicant currently resides in Victoria with her husband and cousin.[5] Her husband is employed as a full-time bricklayer and has been in that role for approximately one and a half years.[6] The Applicant’s family – namely, her parents and sister – reside in India.[7]
[5] CB 178 at [18].
[6] Ibid.
[7] CB 7 – 8.
On 15 June 2017, the Applicant lodged an application for a Student Visa for the purpose of undertaking an Advanced Diploma of Business. Her husband was included as a secondary applicant.[8]
[8] CB 1 – 39.
Decision by the Delegate
On 11 August 2017, the Delegate refused to grant the Applicant a Student Visa. Because her husband was included in the visa application as a dependant, his application was also refused. The Delegate was not satisfied that the Applicant met the Genuine Temporary Entrant (GTE) criterion under clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[9] In coming to this decision, the Delegate considered that the Applicant:
(a)had been residing in Australia for nine years on temporary visas, including four student visas and a graduate visa, with only limited time (296 days) spent outside Australia[10],
(b)had enrolled in 16 different vocational courses over seven years, many of which were unrelated and involved frequent course switching, which was not consistent with the conduct of someone who is a genuine student[11],
(c)now proposed to undertake a course which would extend her stay in Australia by a further 10 years[12],
(d)had not provided a GTE statement addressing her intentions to study in Australia, despite being requested to do so[13],
(e)may be using the student visa program to maintain ongoing residency rather than undertaking genuine study, as evidenced by her immigration history[14],
(f)had not shown any substantial personal or economic ties to India which would otherwise incentivise her to return[15], and
(g)did not demonstrate how her proposed course would offer any clear improvements to her career prospects in India, particularly considering the number of management-related courses that the Applicant had already completed.[16]
[9] CB 49-55.
[10] CB 51.
[11] CB 51 – 52.
[12] CB 52.
[13] CB 53.
[14] Ibid.
[15] n 13.
[16] Ibid.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.
Application to the Tribunal
On 28 August 2017, the Applicant applied to the Tribunal for review of the Delegate’s decision.[17]
[17] CB 56 – 72.
On 17 January 2019, the Tribunal wrote to the Applicant requesting information under s 359 of the Act.[18] The letter invited the Applicant to provide evidence that she was:
(1)enrolled in a registered course of study; and
(2)a genuine temporary entrant, consistent with the requirements of cl.500.212 of the Regulations and Direction Number 69 – Assessing The Genuine Temporary Entrant Criterion for Student Visa And Student Guardian Visa Applications (Direction 69).[19]
[18] CB 83 – 85.
[19] CB 90 – 96.
On 30 January 2019, in response to the Tribunal’s request, the Applicant provided a completed Student Visa Information Form, in which she outlined her immigration and education history, her work experience in Australia, and her intentions to return to India and establish a business following the completion of her studies.[20]
[20] CB 90 – 102.
On 5 February 2019, the Tribunal invited the Applicant to attend a hearing on 20 February 2019.[21]
[21] CB 104-106.
On 19 February 2019, the Applicant replied to that invitation and provided:
(a)a current Confirmation of Enrolment (CoE) for an Advanced Diploma of Business, with the course scheduled to commence on 25 February 2019 and finish on 23 February 2020[22],
(b)a GTE statement[23], and
(c)various documents relating to her education in India and Australia.[24]
[22] CB 117.
[23] CB 114 – 116.
[24] CB 118-139.
On 20 February 2019, the Applicants attended the scheduled hearing in-person with the assistance of a Punjabi interpreter.[25]
[25] CB 141-144.
On 7 June 2019, the Tribunal affirmed the Delegate’s decision not to grant the Applicants student visas.[26]
[26] CB 150-161.
TRIBUNAL’S DECISION
The Tribunal’s decision is 12 pages long and spans 32 paragraphs. Part of the decision outlines the Regulations ) and Direction 69.
At paragraphs 13-23 of their outline of submissions filed on 14 May 2025, the solicitors for the First Respondent (Minister) summarised the Tribunal’s reasons. I have carefully read the Tribunal’s reasons and accept counsel’s summary as comprehensive, fair and properly referenced. I adopt it for the purposes of this judgment (citations omitted):
13.The Tribunal identified that the issue in the present case was whether the applicant was a genuine temporary entrant for entry and stay as a student as required by clause 500.212 of the Regulations
14.In assessing whether the applicant satisfied clause 500.212, the Tribunal noted that it must have regard to Direction No. 69, but the factors specified should not be used as a checklist, but rather a guide
15.The Tribunal summarised the applicant’s evidence in relation to her study, employment and career pathway. The Tribunal examined the applicant’s study history in Australia and was not satisfied, given the “suite of qualifications” in business management already held by the applicant, that the proposed Advanced Diploma of Business would add significantly to her already achieved qualifications. Further, the evidence before the Tribunal was that there was no financial impediment to the applicant setting up her own business in India immediately and her previous study and work experience already met the requirements of her business plan. The Tribunal concluded that these circumstances weighed in favour of a finding that the applicant was using the student visa program to maintain ongoing residence
16.The Tribunal found that the applicant’s ties with Australia were significant, having lived in Australia for 11 years and only having spent 296 days outside of Australia in that time. The Tribunal considered that the applicant had a “well-established pattern of life” in Australia and found that her ties in Australia would present as a strong incentive to remain in Australia
17.The Tribunal noted the applicant’s evidence which indicated that equivalent courses of study in management were available through reputable course providers in India and found that the applicant had not provided reasonable reasons for not undertaking an equivalent course of study in India. It noted that she did not own property, business interests or significant savings in India and was not satisfied that her personal ties to India would serve as a significant incentive to return. The Tribunal also gave weight to the disparity in economic circumstances between India and Australia, and the fact that both applicants sent money home to India to support their parents
18.The Tribunal noted that the applicant had no military service commitments and there was no political or civil unrest in India that would present as a significant incentive not to return
19.The Tribunal found that the evidence did not demonstrate the proposed course was materially relevant to the applicant’s future employment or that it could advance the remuneration the applicant could expect to receive in India
20.The Tribunal considered the applicant’s visa and immigration history, and ultimately gave it no weight
21.Having regard to the number and nature of the vocational courses undertaken by the applicant and considering the 11 years the applicant had spent in Australia and the absence of evidence of the value of the course to the applicant’s future, the Tribunal was not satisfied that the applicant was remaining in Australia primarily for the purpose of undertaking the course
22.The Tribunal found it was not satisfied that the applicant intended genuinely to stay in Australia temporarily and found that the applicant did not meet paragraph 500.212(a)
23.The Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by clause 500.212 and found that the criteria for the grant of a student visa were not met and it followed that the second applicant did not satisfy clause 500.311.[27]
[27] Outline of Submissions filed by Minister for Immigration and Multicultural Affairs on 14 May 2025, [13]-[23].
The Tribunal concluded that the Applicant was not a genuine applicant for entry and stay as a student and he did not satisfy the GTE Criterion.[28] Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant a student visa. Because her husband was listed as a dependant, the Tribunal refused his application as well.
PROCEEDINGS IN THIS COURT
[28] CB 179.
The application
On 4 July 2019, the Applicant filed an application for judicial review in the predecessor of this Court. The Applicant seeks an order that the Tribunal’s decision be quashed, and the matter remitted for reconsideration according to the law.
The Applicant lists 13 of grounds of alleged error. The Applicant’s grounds of review, extracted from his initiating application (without alteration), are as follows:
1. The decision maker failed to apply the rules of procedural fairness.
2.The Member in deciding the matter under review, failed to consider all relevant information and considerations.
3.The Member made an error of law and fact and made a judicial error in reaching a decision that the applicant(s) should not be granted a Student (temporary) (Class TU) visas.
4.The Member failed to acknowledge that I had interest in both Hairdressing and Painting and Decorating.
5.The Member failed to give weight to the fact that I change my course because of the changes in the market in India for demand for hairdressers.
6.The Decision Maker formed a negative opinion about the eleven (11) courses that were recorded against my record as cancelled. These courses were cancelled by Ashmark Pty Ltd, the college that the first-applicant attended. The first-applicant has no idea why the College recorded the cancelled courses against her record. What is evidence is that the first-applicant completed each course that she had enrolled for. The Decision maker says that first-applicant undertook 16 Vocational courses and the courses were not related.
7.The first-applicant says that she undertook Hairdressing course because of her interest. After visiting India, she realised that the market for hairdressing was not there in India. As she had interest in business and painting and decorating, she went on to do further studies in that area.
8.The first-applicant undertook a Diploma course in Building and Construction (Management) and completed the course successfully. The course entails all aspects of management of a business.
The first-applicant then proposed to undertake a course in Advanced Diploma of Business. The Decision maker has concluded that since the course will extend my stay in Australia in excess of 10 years, that he has serious concerns about the true nature of my intention in Australia. Such a conclusion lacks any basis in my circumstance and situation. This course is aimed at acquiring business skills in sales and marketing, in contrast to management skills. It will enhance my knowledge and assist me to run my own business. Mere management skills, I believe, without sales and marketing skills do not support the running of a successful business. The decision maker have failed to see the difference and nexus between this course that I propose doing and the management course I undertook.
9.The first-applicant is therefore a genuine Student and have been deprived the opportunity of doing the course (Advance Diploma in Business) that will enhance my prospects of running a successful business in the future.
10.The records of the first-applicant speaks for itself that she was enrolled and completed each course successfully.
11.In deciding whether the first-applicant satisfy cl.500.212(a) the Tribunal had regard to Direction No. 69, “ assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ , made under s499 of the Act. The directions requires the Tribunal to have regard to a number of specified factors. The Directions should not be used as a checklist but are intended only to guide decision makers when they consider the applicant’s circumstances as a whole.
12.The decision maker failed to apply the guidelines as in the Directions. The decision maker failed to take the first-applicant’s circumstances as a whole as detailed above.
13.If the decision maker had considered all the first-applicant’s circumstances and her circumstances as a whole, the decision maker would have granted the first-applicant the Student Visa as the circumstances as a whole shows that the first-applicant is a genuine student.
Case management
On 22 July 2019, the Minister filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted that the application failed to articulate or establish any jurisdictional error on the part of the Tribunal.
On 28 February 2022, the Minister filed a bundle of relevant documents (Court Book).
On 12 February 2025, a Registrar of this Court issued an Order (Registrar’s Order) programming the matter for a final hearing.
The Registrar’s Order amended the name of the:
(a)First Respondent to ‘Minister of Immigration and Multicultural Affairs’, and
(b)Second Respondent to ‘Administrative Review Tribunal’.
The Registrar’s Order also directed the:
(a)Applicant to file any amended application, written submissions, and further evidence 28 days before the hearing, and
(b)Minister to file any written submissions and further evidence in response 14 days before the hearing.
On 16 April 2025, the matter was listed for final hearing before this Court on 28 May 2025.
The Applicant did not file an amended application or written submissions, despite being requested to do so.
On 14 May 2025, the Minister complied with the Registrar’s Order by filing written submissions.
Therefore, the materials before the Court are as follows:
(a)the application for judicial review dated 4 July 2019,
(b)a Court Book numbering 189 pages filed 1 March 2022 (marked as Exhibit R1), and
(c)an outline of written submissions filed by the Minister on 14 May 2025.
The judicial review hearing
At the hearing, the Applicant appeared before the Court without legal representation. The Minister was represented by Mr Matthew Daly, solicitor, of Mills Oakley.
The Court confirmed with the Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
To assist the Applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the Applicant that this Court cannot review the merits of the Tribunal’s decision or grant the Applicant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Based on the Applicant’s responses the Court is confident they properly comprehended the scope and purpose of the hearing. The Court is further satisfied that the hearing provided the Applicant with meaningful way to engage with the Court.
Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
Before this Court, the Applicant made submissions in support of the grounds set out in their application. Those submissions are considered below. However, generally it can be observed that the Applicant was not able to identify error in the Tribunal’s decision. Rather, at its highest, the grounds express an emphatic disagreement with the result at the Tribunal stage. This is insufficient to establish jurisdictional error.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 14 May 2025.
After the Minister made their submissions, the Court invited the Applicant to respond to what the Minister’s representative had said. The Applicant made further submissions also considered below.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
In Bhasker v Minister for Immigration and Multicultural Affairs[29] his Honour Judge Fary summarised the role of the Court in judicial review proceedings:
48. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
49. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[30]
50. “The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[31]
51. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[32] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error 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”.[33] Different kinds of error may overlap.[34] The categories are not closed.[35] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[36]
52. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[37] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[38] It has been described as an “undemanding” standard.[39]
[29] [2025] FedCFamC2G 620
[30] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[31] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[32] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[33] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[34] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[35] LPDT at [3].
[36] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
[37] LPDT at [7].
[38] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[39] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu.[40]
[40] (1999) 197 CLR 611 at [40].
CONSIDERATION
At the hearing before the Court, the Applicant was invited to make submissions about:
(a)why they believe the Tribunal made a jurisdictional error; and
(b)each of the 13 grounds of review in the judicial review application.
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds. To the extent that the Applicant made more general submissions, those submissions largely invited the Court to engage in impermissible merits review of the Tribunal’s decision. As this Court explained to the Applicant at the hearing, the Court cannot consider for itself whether the Applicant meets the criteria for a Student visa. To the extent that the Applicant’s submissions invite the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal’s decision.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. I incorporate (without repetition) paragraphs 28 to 49 of the Minister’s outline of submissions.
Ground 1
1.The decision maker failed to apply the rules of procedural fairness.
By this ground, the Applicant contends that the Tribunal failed to afford her procedural fairness. However, the Applicant did not particularise any failings. At the hearing, the Court asked the Applicant what aspect of procedural fairness was denied to her. In response, the Applicant conceded that “there is nothing wrong with the procedure.” Instead, the Applicant focused her disagreement with the outcome of the Tribunal’s decision. She referred to the Tribunal’s finding that she had missed or cancelled some courses (a finding which does not in fact appear in the Tribunal’s decision), but did not otherwise suggest that she was denied a fair opportunity to address those issues.
The materials before the Court show that the Tribunal complied with its statutory obligations and afforded the Applicant the opportunity to present her case. On 17 January 2019, the Tribunal invited the Applicant to provide information in support of her enrolment and her status as a genuine temporary entrant.[41] In response, on 30 January 2019, the Applicant provided a completed Student Visa Information Form.[42] On 19 February 2019, the Applicant provided further information to the Tribunal (a COE in her proposed course, a written GTE statement and information regarding her education in India and Australia).[43] On 20 February 2019, the Applicant attended the hearing with her husband with the assistance of a Punjabi interpreter, where she was given the opportunity to give oral evidence and make submissions in support of her case. The process followed by the Tribunal was procedurally fair.
[41] CB 83.
[42] CB 90 – 102.
[43] CB 114 – 137.
The fact that the Applicant does not accept the Tribunal’s decision, does not mean that she was denied procedural fairness. Nothing in the materials before this Court support of this ground. Consequently, ground one is dismissed.
Ground 2
2.The Member in deciding the matter under review, failed to consider all relevant information and considerations.
This ground is another bare assertion made by the Applicant. Again, it is not supported by evidence or particulars.
At the hearing, the Court invited the Applicant to identify any specific information that was put before the Tribunal but not considered. In response, the Applicant referred to her “certifications” as having been overlooked. When asked to specify which certification, she identified the Advanced Diploma of Management. The Court then directed the Applicant to the part of the Tribunal’s decision which expressly recorded that the Applicant had completed a Diploma of Management.[44] After being shown this reference, the Applicant accepted that the Tribunal had in fact considered this material and stated that she may have been mistaken.
[44] CB 177 at [16].
The Court is satisfied that the Tribunal considered all the Applicant’s claims and information before coming to its determination. A review of the Tribunal’s decision reveals a detailed account of the Applicant’s immigration history, her education, and stated motivations.[45] The Tribunal considered all of her qualifications and her claim that the proposed course would allow her to establish a painting business in India.[46] The Applicant’s complaint appears to be that the Tribunal did not give her explanations the weight she believed they deserved. That is not the same as a failure to consider. The degree of weight to be given to evidence is a factual question for the decision-maker alone.[47]
[45] CB 175 – 178.
[46] Ibid.
[47] see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ.
No jurisdictional error arises in this ground. Ground two is dismissed.
Ground 3
3.The Member made an error of law and fact and made a judicial error in reaching a decision that the applicant(s) should not be granted a Student (temporary) (Class TU) visas.
By this ground, the Applicant contends that the Tribunal made an “error or law and fact” but does not provide any particulars.
At the hearing, the Court asked the Applicant to identify a specific error of law or fact. The Applicant could not do so. Instead, the Applicant reiterated her belief that the Tribunal had erred in finding that she was not a genuine temporary entrant. When asked if the Applicant simply disagreed with the Tribunal’s decision, she said “Yes”.
The Tribunal’s role is to make evaluative findings based on the material which is before it. No legal or factual error has been identified. Accordingly, ground three is dismissed.
Ground 4
4.The Member failed to acknowledge that I had interest in both Hairdressing and Painting and Decorating.
At the hearing, the Applicant conceded that the Tribunal had considered her interest in both hairdressing and painting. The Tribunal’s decision expressly refers to those interests.[48] Accordingly, ground four is dismissed.
[48] CB 152 – 153 at [12] – [14].
Ground 5
5.The Member failed to give weight to the fact that I change my course because of the changes in the market in India for demand for hairdressers.
To the extent that the complaint is that the Tribunal did not give weight to evidence, that does not give rise to jurisdictional error.[49]
[49] see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ.
If, read sympathetically, by this ground, the Applicant contends that the Tribunal failed to consider that her changed career path was due to a change in market conditions in India, that ground also fails. This is because the Tribunal did consider this in its reasons.[50] At the hearing, when the Court asked if the Applicant wished to say anything further in support of this ground, the Applicant responded, “no comment”.
[50] CB 152 at [12].
No jurisdictional error has been identified in this ground. Accordingly, ground five is dismissed.
Ground 6
6.The Decision Maker formed a negative opinion about the eleven (11) courses that were recorded against my record as cancelled. These courses were cancelled by Ashmark Pty Ltd, the college that the first-applicant attended. The first-applicant has no idea why the College recorded the cancelled courses against her record. What is evidence is that the first-applicant completed each course that she had enrolled for. The Decision maker says that first-applicant undertook 16 Vocational courses and the courses were not related.
By this ground, the Applicant disputes that she failed to complete the courses which were recorded as cancelled on the PRISMS data. However, the Tribunal did not consider this material in its reasons. These matters were considered by the delegate, but that it not a decision this Court can review. Ground six must fail.
Ground 7
7.The first-applicant says that she undertook Hairdressing course because of her interest. After visiting India, she realised that the market for hairdressing was not there in India. As she had interest in business and painting and decorating, she went on to do further studies in that area.
This ground is a reformulation of ground 5. The Tribunal considered the Applicant’s explanation that she initially pursued hairdressing but, after a visit to India, she determined that a different course would be more appropriate for her.[51] Nevertheless, the Tribunal was not satisfied that this claim demonstrated a genuine intent to remain in Australia temporarily for the purpose of study.
[51] CB 152 at [12].
When asked at the hearing if the Applicant wished to say anything further in support of this ground, the Applicant said “No”.
No jurisdictional error arises in this ground, and ground seven is dismissed.
Ground 8
8.The first-applicant undertook a Diploma course in Building and Construction (Management) and completed the course successfully. The course entails all aspects of management of a business.
The first-applicant then proposed to undertake a course in Advanced Diploma of Business. The Decision maker has concluded that since the course will extend my stay in Australia in excess of 10 years, that he has serious concerns about the true nature of my intention in Australia. Such a conclusion lacks any basis in my circumstance and situation. This course is aimed at acquiring business skills in sales and marketing, in contrast to management skills. It will enhance my knowledge and assist me to run my own business. Mere management skills, I believe, without sales and marketing skills do not support the running of a successful business. The decision maker have failed to see the difference and nexus between this course that I propose doing and the management course I undertook.
By this ground, the Applicant contends that the Tribunal failed to appreciate the relevance of an Advanced Diploma of Business in sales and marketing to her proposed painting business. She claimed that, although she had previously studied business management, she lacked sales and marketing skills that the proposed course would provide.
The Tribunal considered this submission but was ultimately not satisfied that the new course would substantially advance her career, particularly given the broad scope of her prior qualifications.[52] It found that the proposed course appeared to extend her residence in Australia rather than to meet a genuine need.[53] This finding was open to the Tribunal based on the material before it.
[52] CB 179 at [29].
[53] Ibid.
No jurisdictional error arises in this ground and ground eight is dismissed.
Ground 9
9.The first-applicant is therefore a genuine Student and have been deprived the opportunity of doing the course (Advance Diploma in Business) that will enhance my prospects of running a successful business in the future.
By this ground, the Applicant contends that she was denied of the opportunity to study her proposed course (Advance Diploma of Business). The denial of the visa did not prevent the Applicant from undertaking the study. Before the Court the Applicant conceded that she ultimately did not pursue the course because she was awaiting the outcome of her judicial review application. The Court notes that there was nothing preventing the Applicant from pursuing her course while this review application was underway. That the Applicant simply chose not to, is a matter for her.
This ground, as presently framed, is not capable of supporting a finding of jurisdictional error. Accordingly, ground nine is dismissed.
Ground 10
10.The records of the first-applicant speaks for itself that she was enrolled and completed each course successfully.
This ground traverses earlier submissions. The Tribunal did accept that the Applicant had completed various courses. It did not find that she had failed to study, but rather it was the nature, number, and the sequencing of those courses which did not demonstrate a genuine temporary entry for the purpose of study.[54] This finding was open to the Tribunal on the basis of material before it.
[54] n 38.
No jurisdictional error arises in this ground. Accordingly, ground ten is dismissed.
Ground 11 and 12
11.In deciding whether the first-applicant satisfy cl.500.212(a) the Tribunal had regard to Direction No. 69, “ assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ , made under s499 of the Act. The directions requires the Tribunal to have regard to a number of specified factors. The Directions should not be used as a checklist but are intended only to guide decision makers when they consider the applicant’s circumstances as a whole.
12.The decision maker failed to apply the guidelines as in the Directions. The decision maker failed to take the first-applicant’s circumstances as a whole as detailed above.
By this ground, the Applicant contends that the Tribunal failed to apply Direction 69 in its reasons in an appropriate manner. At the hearing, the Court asked the Applicant to elaborate on this ground and the Applicant replied, “no comment”.
A review of the Tribunal’s decision discloses a methodological assessment of Direction 69 against the Applicant’s claims and evidence. The Tribunal considered all the relevant factors in its decision, including the Applicant’s circumstances in Australia and India, her immigration status, course progression, and future intentions. There is no basis to suggest that the Tribunal failed to apply the Direction in a proper manner.
No jurisdictional error arises in this ground. Accordingly, grounds 11 and 12 are dismissed.
Ground 13
13.If the decision maker had considered all the first-applicant’s circumstances and her circumstances as a whole, the decision maker would have granted the first-applicant the Student Visa as the circumstances as a whole shows that the first-applicant is a genuine student.
This is not a proper ground of review. Instead, it is speculative and assumes a different result would have followed had the Tribunal taken a different view of the Applicant’s circumstances. That the Applicant disagrees with the Tribunal’s decision is not a basis for a jurisdictional error.
Accordingly, ground 13 is dismissed.
COSTS
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were not affected by jurisdictional error. Accordingly, the Court orders that the application for judicial review is dismissed.
In its submissions the Minister sought orders that included an order that the “first and second applicants … pay [the Minister’s] costs fixed in the amount of $5,400,” being less than scale[55].
[55] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
The Court explained to the Applicant that:
(a)it had not made a decision about their application,
(b)the Minister is seeking costs in the event that it is successful,
(c)in deciding the question of costs, the Court is required to consider
(i)whether the Applicant should pay any costs at all, noting that the usual rule in courts in Australia is that an unsuccessful party pays the party/party costs of the successful party, and
(ii)if the Court is so satisfied that the Applicant should pay costs, how much the Applicant should pay.
The Court then invited the Applicant to make a submission about costs in the event that they are unsuccessful, and their application is dismissed. The Applicant indicated that she understood that she would have to pay if she lost, but that she was struggling financially after COVID.
The Court is satisfied that costs ought to follow the event, and that it is appropriate to make an order in the amount sought by the Minister having regard to the scale and the extent of work undertaken as evidenced by the court file.
DISPOSITION
Accordingly, the Court orders that the application for judicial review is dismissed. The Court further orders that the First Applicant and the Second Applicant pay the First Respondent’s costs fixed in the amount of $5,400.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 3 June 2025
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