Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1381
File number(s):
MLG 2100 of 2019
Judgment of:
JUDGE FARY
Date of judgment:
28 August 2025
Catchwords:
MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not comply with cl 500.212(a) of the Migration Regulations – whether Tribunal erred by failing to have regard to his passport – found no jurisdictional error on behalf of the Tribunal – application dismissed.
Re Minister for Immigration and Multicultural Affairs; Ex…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1381
Case
[2025] FedCFamC2G 1381
Decision Date
CaseChat Overview and Summary
The matter of Singh v Minister for Immigration and Citizenship involves the Applicant, an Indian citizen, who sought a judicial review of a decision by the Administrative Appeals Tribunal (AAT) that upheld the Minister's refusal to grant the Applicant a student visa. The Applicant's primary contention was that the AAT erred in affirming the Minister's decision that he did not satisfy the requirement under clause 500.212(a) of the Migration Regulations, which necessitates that an applicant genuinely intends to stay in Australia temporarily for the purpose of studying.
The legal issues before the Court were whether the AAT made a jurisdictional error in its decision-making process and whether the Applicant was afforded a fair opportunity to present his case. Specifically, the Applicant argued that the AAT failed to properly consider his passport and other relevant matters, and that he was denied a fair opportunity to provide verbal evidence.
The Court examined the AAT's decision and found that it correctly applied the relevant legal principles and had a proper basis for its conclusion. The Court noted that the AAT had considered the Applicant's circumstances and study history, and was not satisfied that the Applicant intended to genuinely stay in Australia temporarily for the purpose of studying. The Court also found that the Applicant's argument regarding procedural errors did not constitute a jurisdictional error, as the AAT had considered the relevant factors as required by law.
Ultimately, the Court dismissed the Applicant's application for judicial review, finding no jurisdictional error on the part of the AAT. The Court's decision was based on the AAT's careful consideration of the Applicant's circumstances and the evidence before it, and the Court was satisfied that the AAT's decision was lawful and reasonable.
In summary, the Court dismissed the Applicant's application for judicial review of the AAT's decision, finding that the AAT did not make a jurisdictional error in affirming the Minister's decision to refuse the Applicant's visa application. The Court's decision highlights the importance of the AAT's proper consideration of an applicant's circumstances and the evidence before it in making a decision under the Migration Regulations.
Orders
Orders of the court
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Background
Background to the litigation
The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant was a genuine applicant for entry and stay as a student. BACKGROUND The Applicant is a citizen of India. On 20 October 2008, the Applicant arrived in Australia as the holder of a 572 student visa.[2] [2] Court Book (CB) 30. On 19 May 2017, the Applicant applied for the Visa, the subject of these proceedings, based on his enrolment in an Advanced Diploma of Leadership and Management (Diploma).[3] [3] CB 1-17. On 3 August 2017, a Delegate of the Minister refused to grant the Visa application (Delegate’s Decision) on the basis that they were not satisfied that the Applicant had the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212(a) of the Regulations.[4] [4] CB 25-32. On 21 August 2017, the Applicant applied to the Tribunal for review (Review Application).[5] [5] CB 33-34. On 23 August 2017, the Tribunal acknowledged receipt of the Review Application.[6] [6] CB 36-37. On 17 January 2019, the Tribunal wrote to the Applicant with an invitation to provide information by 31 January 2019.[7][7] CB 42-49. On 31 January 2019, the Applicant provided a completed Visa information form to the Tribunal.[8][8] CB 50-61. On 5 February 2019, the Tribunal invited the Applicant to attend a hearing on 20 February 2019.[9][9] CB 63-65. On 13 February 2019, the Applicant wrote to the Tribunal and enclosed documents in support of his Review Application.[10][10] CB 70-85. On 20 February 2019, the Applicant attended the hearing on his own behalf with the assistance of an interpreter.[11][11] CB 86-88. On 7 June 2019, the Tribunal affirmed the Delegate’s Decision (Tribunal’s Decision).[12] [12] CB 95-101. On 12 June 2019, the Tribunal provided written reasons for the Tribunal’s Decision to the Applicant.[13] [13] CB 91. TRIBUNAL’S DECISION The Tribunal’s Decision is at 95 to 101 of the Court Book. The Tribunal outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [6] to [9]. The Tribunal considered the Applicant’s circumstances in Australia as well as his study history. The Applicant provided a Confirmation of Enrolment code (CoE) which stated that he had re-enrolled in the Diploma prior to the hearing. The Tribunal noted with concern that the Applicant was now enrolled in the same Diploma he had been enrolled in at the time of the Delegate’s Decision.[14] The Tribunal found that the Applicant was using his enrolment for the purposes of maintaining ongoing residence in Australia, as opposed to advancing academically.[15][14] CB 97-98 [14]-[15]. [15] CB 98 [16]-[17]. The Tribunal was not satisfied that the Applicant had adequate reasons for failing to undertake studies in India. The Tribunal noted that there was no evidence before it that the Applicant’s Diploma was substantially different from courses he had already completed since arrival in Australia.[16] [16] CB 99 [24].
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 12 June 2019, the Tribunal provided written reasons for the Tribunal’s Decision to the Applicant.[13] [13] CB 91. TRIBUNAL’S DECISION The Tribunal’s Decision is at 95 to 101 of the Court Book. The Tribunal outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [6] to [9]. The Tribunal considered the Applicant’s circumstances in Australia as well as his study history. The Applicant provided a Confirmation of Enrolment code (CoE) which stated that he had re-enrolled in the Diploma prior to the hearing. The Tribunal noted with concern that the Applicant was now enrolled in the same Diploma he had been enrolled in at the time of the Delegate’s Decision.[14] The Tribunal found that the Applicant was using his enrolment for the purposes of maintaining ongoing residence in Australia, as opposed to advancing academically.[15][14] CB 97-98 [14]-[15]. [15] CB 98 [16]-[17]. The Tribunal was not satisfied that the Applicant had adequate reasons for failing to undertake studies in India. The Tribunal noted that there was no evidence before it that the Applicant’s Diploma was substantially different from courses he had already completed since arrival in Australia.[16] [16] CB 99 [24]. The Tribunal further noted that since arrival in Australia, the Applicant had only returned to India once in 2011.[17] The Tribunal did not accept the Applicant’s explanation that he had “lost his passport, and did not know exactly how to get another one”.[18] The Tribunal noted that the Applicant had provided a photocopy of his passport to the Department of Immigration and Border Protection (Department) and during the hearing.[19] [17] CB 98 [18]. [18] CB 98 [18]. [19] CB 98 [19]. The Tribunal noted that the Applicant had maintained steady employment in Australia since arrival, and that he was currently employed. The Tribunal was satisfied that the Applicant had significant economic incentives to remain in Australia. The Tribunal was not satisfied that the Applicant intended to genuinely stay in Australia temporarily as required by cl 500.212 of the Regulations.[20][20] CB 101 [37]-[38].PROCEEDINGS IN THIS COURT On 3 July 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act. On 20 June 2025, Orders were made by Registrar Munro of this Court for the name of the First Respondent be amended to “Minister for Immigration and Citizenship”. For the name of the Second Respondent be amended to “Administrative Review Tribunal”. For the matter be listed for final hearing. That the Applicant file and serve at least 28 days before the hearing: any amended application, written submissions and any additional evidence. That the First Respondent file and serve at least 14 days before the hearing: written submissions and any additional evidence. That the First Respondent file and serve at least 7 days before the hearing: an Affidavit of Service of the Court Book, written submissions and additional evidence where the Applicant is self-represented. The Court noted that the Applicant had retained a copy of the Court Book and that their contact details as set out in the Application remained current.
Ratio Decidendi
Legal Principle Established
Clause 500.212 of Schedule 2 of the Regulations provides:The applicant is a genuine applicant for entry and stay as a student because: a. the applicant intends genuinely to stay in Australia temporarily, having regard to: i.the applicant’s circumstances; and ii.the applicant’s immigration history; and iii.if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; andiv.any other relevant matter; andb. the applicant intends to comply with any conditions subject to which the visa is granted, having regard to: i.the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); andii.the applicant’s stated intention to comply with any conditions to which the visa may be subject; andc. because of any other relevant matter.CONSIDERATION The Applicant’s seven Grounds of Review are identical to the grounds used in at least five other cases:(a)Singh v Minister for Immigration and Multicultural Affairs;[49](b)Singh v Minister for Immigration and Multicultural Affairs;[50](c)Kaur v Minister for Immigration and Multicultural Affairs;[51](d)Singh v Minister for Immigration and Multicultural Affairs;[52] and(e)Masood v Minister for Immigration and Citizenship[53] (Masood).[49] [2024] FedCFamC2G 879.[50] [2024] FedCFamC2G 1091.[51] [2025] FedCFamC2G 425.[52] [2025] FedCFamC2G 404.[53] [2025] FedCFamC2G 1240.Ground 1 Ground 1 is that: The Department made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances. Particulars:The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition was not considered. At [71] of Masood, I said in relation to an identically worded Ground 1:Section 476(2)(a) of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to a “primary decision”, which is defined to include privative clause decisions or purported privative clause decisions, reviewable under Part V, which includes the Delegate’s Decision. These comments have equal application to the present case. I do not have jurisdiction to determine Ground 1. Even if Ground 1 was intended to address the Tribunal’s Decision, I see no error constituted by a failure to consider “previous immigration history” or “compliance with visa conditions”. The requirements of Direction 69 were correctly identified by the Tribunal.[54]. The Tribunal considered the Applicant’s previous immigration history at [10], [11], [13] and [18] to [20][55] and the Applicant’s compliance with visa conditions at [32], [33] and [35].[56][54] CB 97 [8]. [55] CB 97-98 [10], [11], [13] and [18]-[20]. [56] CB 100 [32]-[33] and [35]. Ground 2 Ground 2 is that: The applicants were not afforded natural justice.Particulars: I believe that I wasn't provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs did not provide the decision record for their decision which clearly depicts an error.