Singh v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1004
•2 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1004
File number: MLG 2582 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 2 July 2025 Catchwords: MIGRATION – student (class TU) (subclass 500) visa- review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – genuine temporary entrant criterion – where Tribunal purported to apply Direction No. 69 made under s 499 of the Migration Act 1958 (Cth) (Act) – whether Tribunal failed to engage with relevant considerations under that Direction – whether Tribunal failed to comply with s 499(2A) of the Act – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued Legislation: Migration Act 1958 (Cth) ss 359(2), 476, 499, 499(1), 499(2A)
Migration Regulations 1994 (Cth) sch 2, cls 500.111, 500.211(a), 500.212, 500.212(a)(i)-(iv)
Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, 261 FCR 503
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280
Kaur v Minister for Home Affairs [2019] FCA 2026
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, 274 FCR 646
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 418 ALR 152
McAuliffe v Secretary, Department of Social Security [1992] FCA 731, 28 ALD 609
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, 309 ALR 67
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, 228 CLR 470
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, 275 CLR 582
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 7 May 2025 Date of hearing: 15 May 2025 Place: Melbourne Counsel for the Applicant: Mr G Hughan Solicitors for the Applicant: Melbourne Legal Group Pty Ltd Counsel for the First Respondent: Mr K Sypott Solicitors for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2582 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DALJINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
2 JULY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal (AAT) made on 23 June 2020 in Case No 1907008.
2.A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application for review made to the AAT in Case No 1907008.
3.The first respondent pay the applicant’s costs fixed in the sum of $8,371.30.
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 Gostencnik
INTRODUCTION
In March 2019 a delegate of the (then) Minister for Immigration, Citizenship and Multicultural Affairs refused to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa. In June 2020 the former Administrative Appeals Tribunal (Tribunal) determined the applicant’s review application and affirmed the delegate’s decision. Before the Court is an application made on 20 July 2020 under s 476 of the Migration Act 1958 (Cth) [1] (Act) for judicial review of the Tribunal’s decision which, in substance, alleges the Tribunal erred in failing to comply with s 499(2A) of the Act, because it a breached a condition governing the making of a decision, namely the Tribunal did not comply with Direction No 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No 69).
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
For the reasons explained below, the Tribunal’s decision will be quashed and the review application made to the Tribunal will be remitted to the second respondent for it to determine the application according to law.
BACKGROUND
The applicant is a citizen of India, having arrived in Australia on 7 June 2018 as the holder of a Visitor (Class FA) (Subclass 600) visa. On 3 January 2019, the applicant applied for a student visa to study a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology. In support of the visa application the applicant provided an undated written submission addressing the genuine temporary entrant (GTE) criterion set out under cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth)[2] (Regulations); various high-school and university course statements of results; and a Form 956 appointing a registered migration agent as an authorised recipient to receive and respond to written communications on behalf of the applicant. The applicant’s undated written submission set out his reasons for studying his intended courses of study, his reasons for studying in Australia, and various statistics on the rising economy of the automotive industry in India.
[2] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.
On 15 March 2019, a delegate of the Minister refused the applicant’s visa application, and a notification and copy of the decision record were dispatched to the applicant’s migration agent by email. The delegate was not satisfied that the applicant met the criterion in cl 500.212 of Sch 2 to the Regulations – known as the GTE criterion – which relevantly provides:
500.212
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; and
(iv) any other relevant matter; and
(b) 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); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The delegate considered inter alia: the applicant’s circumstances in his home country; the extent of his ties with Australia; the value of the course/s to the applicant’s future; and the applicant’s immigration history. The delegate referred to the applicant’s written submissions in the assessment and noted that the applicant did not provide any evidence about his ties to his home country, nor did he present any substantial reasons why he chose to study his intended courses in Australia. The delegate also examined the applicant’s previous study and employment history, and considered the applicant was using the student visa to circumvent the migration program. The delegate was not satisfied the applicant intended to stay temporarily in Australia and so did not meet the requirements in cl 500.212. The delegate therefore refused the applicant’s visa application.
TRIBUNAL PROCEEDING
The applicant applied to the Tribunal for a review of the delegate’s decision on 25 March 2019 and appointed a migration agent as an authorised recipient of correspondence on his behalf. The Tribunal acknowledged receipt of the application by letter dated 29 March 2019, transmitted by email to the applicant’s migration agent. In its letter, the Tribunal noted the validity of the application had not yet been assessed, invited the applicant to provide any material or written arguments for its consideration, and enclosed an ‘Information for review applicants’ factsheet. On 15 April 2020, by correspondence dispatched by email to the applicant’s migration agent, the Tribunal invited the applicant to provide information, in writing, with respect to the course/s of study in which he was then enrolled, and addressing whether he was a genuine applicant for entry and stay as a student. The applicant was invited to do so by completing a ‘Response to Student Visa Information’ form (visa information form). The Tribunal also enclosed with its correspondence a copy of Direction No 69 for the applicant’s reference in respect of the Tribunal’s assessment whether the applicant was a genuine applicant for entry and stay as a student.
On 27 April 2020, the applicant’s migration agent returned a completed visa information form addressing the reasons why the applicant intended to study his selected courses in Australia; his ties to his home country; and his future employment plans. That correspondence enclosed three (3) overseas student confirmations-of-enrolment (COE) showing the applicant was or had been enrolled in the earlier mentioned courses.
By letter on 4 June 2020, the Tribunal invited the applicant to attend a telephone hearing scheduled for 22 June 2020 to give evidence and present arguments relating to the issues in his case. The invitation requested the applicant provide: a copy of his current COE or other document/s showing he was enrolled in a course of study as defined in cl 500.111 and cl 500.211(a) of Sch 2 to the Regulations; and any documents that show his past studies, including attendance certificates, academic transcripts and certificates of completion, as well as documents evidencing any work related to the applicant’s past or intended studies. The Tribunal enclosed with that letter: a copy of Direction No 69 for the applicant’s reference; an ‘Information about hearings – MR Division’ factsheet; and a ‘Response to hearing invitation – MR Division’ form, requesting the applicant confirm his attendance at the hearing and to enclose any additional information the applicant wanted the Tribunal to consider with his reply.
On 16 June 2020, the applicant’s migration agent responded to the Tribunal’s invitation, indicating that the applicant intended to appear at the Tribunal hearing without the assistance of a representative, and provided supporting documents including: an undated written submission by the applicant; evidence of financial capacity; and evidence that the applicant had completed a Certificate III in Light Vehicle Mechanical Technology with Acumen Education.
The applicant’s undated written submission largely recounts the circumstances in his home country; his decision to change his career; and his arrival in Australia – accentuating that the residence of his parents and sister in India is incentive for him to return to his home country. The applicant referred to his research on Artificial Intelligence (AI) killing the Indian IT sector and the workforce – corroborating the reason for his career change on the “worry of being made redundant by automation”. The applicant further highlighted the value of his intended course/s of study to his career and provided research, statistics and news articles substantiating the automotive industry boom in India.
The applicant attended the scheduled hearing on 22 June 2020 with the assistance of a Punjabi interpreter.
TRIBUNAL’S DECISION AND REASONS
On 23 June 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa. The applicant was notified of the decision by letter, transmitted via email to his migration agent on 24 June 2020 enclosing a copy of the Tribunal’s Statement of Decision and Reasons (Decision).
In its Decision, the Tribunal set out the application for review at [1]–[6], concluding that the decision under review should be affirmed. The Tribunal set out the mandatory considerations it was bound to consider, by reference to cl 500.212 of Sch 2 to the Regulations and Direction No 69: Decision at [7]–[10]. The Tribunal acknowledged the supporting documents provided by the applicant prior to the hearing, including: a response to the Tribunal’s s 359(2) request (visa information form); a letter; an affidavit from the applicant’s father; and documents evidencing land ownership in India which the Tribunal recorded as being considered in reaching its decision: at [17]–[18].
The Tribunal recounted the applicant’s submissions in support of his application, noting:
(a)the applicant’s reasons for studying in Australia are because he considered the educational system in Australia to be better than India: Decision at [19];
(b)he has family in India, he last saw his father in January 2020, and he has not returned to his home country since his arrival in Australia: at [19];
(c)the applicant has no employment in Australia: at [19];
(d)he lives with his sister who is a permanent resident, but otherwise claims to have no social ties to Australia: at [23];
(e)he chose to study at Acumen Education because it has a student-focussed approach and prioritises welfare and learning: at [23];
(f)the course the applicant intends to study is at a lower level compared to his previous studies, and the current course/s had no relevance to the subject matter the applicant previously studied: at [25]; and
(g)he wants to work in the automotive sector and intends to open his own workshop on his father’s plot of land in India, and expects to earn about AUD $12,000.00: at [25].
The Tribunal noted that the applicant did not provide any evidence or specific details establishing the benefit of studying in Australia as opposed to studying in his home country, nor was he able to provide any substantial reason for studying his intended course/s of study. The Tribunal considered that the applicant did not demonstrate any clear opportunities that would arise from studying in Australia, and his proposed ties to his home country were insubstantial. The Tribunal found that the applicant’s family did not present as a significant incentive to return to India: Decision at [20]–[22], and considered that the applicant had family ties in Australia that would act as an incentive to remain in Australia: at [24].
At [26]–[27] of the Decision, the Tribunal records that it advised the applicant that it had concerns about the applicant’s statement in relation to the value of the course to his future, considering his prior qualifications and work history. The Tribunal acknowledged that education generally improves employment opportunities, and accepted the information provided by the applicant in relation to opportunities in the automotive industry. However, the Tribunal was not satisfied that the applicant demonstrated the value of his intended course/s of study to his future upon return to India, nor did he provide any objective evidence showing how his intended course/s of study would improve his employment prospects and earning capacity — considering his previous study and work history: Decision at [28]. The Tribunal found that the applicant had “not established that the completion of the courses will improve remuneration prospects in his home country to an extent that is outweighed by the completion of the course in Australia”. The Tribunal was therefore unable to conclude that the applicant’s course had any value to his future: at [29].
The Tribunal assessed the applicant’s immigration history, and noted that the applicant arrived in Australia on a tourist visa, and returned to Australia to apply for a student visa rather than making the application in India whilst he had the opportunity to do so. In the absence of an acceptable explanation for ‘this behaviour’, the Tribunal concluded that the applicant appeared to intend to extend his stay in Australia, and was therefore not a genuine temporary entrant for the purpose of studying in accordance with the requirements of his student visa application: Decision at [30]–[32], [34]. Accordingly, the Tribunal determined that the applicant did not meet cl 500.212 of the Regulations and affirmed the delegate’s decision not to grant the applicant a visa: at [35]–[38].
CONSIDERATION
The applicant’s judicial review application advanced the following grounds of review:
1.The Second Respondent failed to take into account considerations which, in the circumstances were required to be taken into account and thereby failed to exercise it (sic) jurisdiction, or erred in the exercise of its jurisdiction, to assess the Applicant's application for a student visa.
Particulars
(a) Clause 500.212(a) of schedule 2 to the Migration Regulations 1994 ("the Regulations") establishes the "genuine temporary entrant criterion", which must be satisfied by a primary visa applicant for a student visa.
(b) Ministerial Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications ("Direction No. 69") “provides guidance to decision makers on what factors require consideration when assessing [sub-paras (i)-(iv) of clause 500.212(a)] to determine whether the applicant genuinely intends to stay in Australia temporarily" (see Preamble p. 3).
(c) Direction No 69 requires that, in considering the value of the course to the applicant's future, “[d]ecision makers should allow for reasonable changes to career or study pathways” (see para. 12(a)).
(d) The Applicant gave detailed information about his previous work history (three years as software engineer), which the Second Respondent misunderstood (6 months) and the reasons for his intended change of career, including concern over future employment prospects as a software engineer and the difficulty of having to change career in future.
(e) The Second Respondent failed to take this information into account.
(f) Alternatively, the Second Respondent failed to give proper, realistic and genuine consideration to this information.
2.The Second Respondent failed to take into account considerations which in the circumstances, were required to be taken into account and thereby failed to exercise it (sic) jurisdiction, or erred in the exercise of its jurisdiction, to assess the Applicant's application for a student visa.
Particulars
(a) Direction No. 69 requires that decision makers must consider the "value of the course to the Applicant's future"(see para. 12).
(b)The Applicant gave information about his previous work history (three years as software engineer) which the Second Respondent misunderstood (6 months), his annual income ($A10,500), which was less than his expected annual income in the automotive industry ($A12,000), and that he expected to earn even more as a business owner in the automotive industry, although he could not quantify the amount.
(c) The Second Respondent failed to take this information into account.
(d)Alternatively, the Second Respondent failed to give proper, realistic and genuine consideration to this information.
3.The decision of the Second Respondent was unreasonable.
Particulars
(a) The Second Respondent considered that the Applicant's immigration history led it to conclude the Applicant “is studying in order that he can extend his stay in Australia rather than being a genuine temporary entrant.”
(b)The only issue the Second Respondent identified to lead to this conclusion was that the Applicant had made his student visa application “on shore” rather than while in India, in the period between his first and second visits to Australia.
(c)However, the Applicant was lawfully entitled to make the student visa application while on shore rather than while in India. In all likelihood it was more convenient to do it this way.
(d)The Applicant had otherwise complied with the conditions of his previous tourist visa and had continued the studies for which he was seeking a student visa.
(e)In the circumstances there is no logical connection between the Applicant's decision to make his application for a student (sic) while in Australia and whether he was a genuine temporary entrant.
By the time the application came to hearing, the applicant no longer relied on particular (c) of ground 2, and particular (e) of ground 3 was amended to correct a typographical error by inserting the word “visa” after the word “student”. I deal with each ground of review below.
Ground 1
By ground 1, the applicant contends the Tribunal erred because it failed to consider the reasons the applicant proffered for his intended change of career. In substance he says the Tribunal did not comply with s 499(2A) of the Act because it breached a condition governing the making of a decision, namely that the Tribunal did not comply with Direction No 69. The applicant contends the Tribunal:
·did not refer to and failed to consider the matter in the last sentence of paragraph 12a of Direction 69 which provides that decision makers “should allow for reasonable changes to career or study pathways” when considering the value of the course to the applicant's future in the context of evaluating whether the applicant was proposing to undertake a course consistent with his level of education and whether that course will assist him in obtaining employment in his home country;
·failed to consider or failed to give proper, realistic and genuine consideration to, or barely engaged with the applicant’s claimed reasons for changing career — the applicant expressed:
·concerns about his inability to obtain employment in his field of education (set out in the applicant’s genuine temporary entrant statement, to which no reference is made in the Decision);
·concerns that artificial intelligence would render his software engineering job (the position he held in India before travelling to Australia) redundant, and at a time when he would be too old to change career or obtain any other employment;
·a long-term interest in automobiles — a passion — which he could turn into a profession;
·erroneously stated the applicant had worked as a software engineer in India for six months, when his written material indicated that he had worked in that occupation for three years — but the applicant accepted that, given his arrival in Australia on 7 June 2018, the actual period in that occupation was more likely about 18 months: see Court Book at 72–73.
The first respondent accepts that the Tribunal did not make express reference to the guidance in paragraph 12a of Direction No 69, but says it was not required to do so. And having regard to the Tribunal’s reasons, the first respondent says it is evident the Tribunal did not consider the applicant’s change of career and study pathway to be reasonable. The first respondent contends the Tribunal referred to the two considerations in paragraph 12a of Direction No 69, and the applicant’s evidence, including that which concerned his change of careers. But the Tribunal was not satisfied that the applicant’s courses would improve his employment prospects or earning capacity, particularly considering his previous study and work history.
As to the applicant's contentions that the Tribunal failed to consider or failed to give proper, realistic and genuine consideration to, or barely engaged with his claimed reasons for changing career as is evident by its failure to refer to [31] of the applicants GTE statement, the first respondent says it was unnecessary for the Tribunal to refer to the genuine temporary entrant statement as it had already referred to the applicant’s evidence of his undergraduate studies and employment in his home country at [14] of the Decision. The first respondent says that the applicant’s criticism of the Tribunal barely engaging with his concerns about AI rendering software engineers redundant, amounts to no more than a complaint that the Tribunal did not describe the applicant’s concerns and interest in the same terms as he did.
As to the applicant’s complaint about the Tribunal’s error in recounting the period of the applicant’s employment as a software engineer in India, the first respondent says the Tribunal’s finding was open, as the applicant gave evidence at the hearing that he had been employed in that position in India for “just six months”: Exhibit R1 - Affidavit of Jeremy Hutton affirmed on 7 May 2025, Annexure JH-1, T.5:10–15.
The criteria for a Student (Temporary) (Class TU) (Subclass 500) visa for which the applicant had applied are found in Sch 2 to the Regulations. Clause 500.212 of Sch 2 contains the “primary criterion” or GTE criterion which has been earlier reproduced. The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act about the performance of those functions and the exercise of those powers. It is uncontroversial that Direction No 69 is one such direction validly given. Pursuant to s 499(2A), a delegate of the Minister to whom a written direction under s 499(1) is directed and the Tribunal as a body having functions or powers under (exercising merit review powers) the Act are obliged to comply with a direction. According to its preamble, Direction No 69 “provides guidance to decision makers on what factors require consideration when assessing [the matters in cl 500.212(a)(i)-(iv) of the GTE criterion], to determine whether the applicant genuinely intends to stay in Australia temporarily”.
Paragraph 12 of Direction No 69 specifies the following:
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a. whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c. remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The Tribunal dealt with the value of the course to the applicant’s future at [25]–[29] of the Decision as follows:
Value of the course to the applicant's future
25. The Tribunal has had regard to the value of the course/s of study to the applicant's future as follows;
Is the course consistent with the applicant's current level of education?
•The current course is at a lower level and of a different subject matter from his previous studies.
Will the course assist the applicant to obtain employment or improve employment prospects?
•The applicant says that he wants to work in the automotive sector and wishes to open his own workshop after obtaining enough experience.
•The applicant was concerned about not being able to find a job in the IT sector as he was concerned about automation.
Relevance of course to past study?
•The applicant has previously completed higher level studies in a very different subject. The current study is not relevant to it.
Expected remuneration using qualifications in home country compared to what is receivable in Australia?
•The applicant expects to earn about 12 000 AUD, he says this as he thinks that the town where he is from is large and people love their cars, new companies are coming over there. He has a plot where he can open his workshop and car wash. It is the land owned by his father.
•He cannot make an estimate about a prospective business earning.
26. The applicant was informed that the value of the course to his future was of significant concern to the Tribunal considering his previous qualifications and work history and he stated in response; I was not satisfied with my job. Before coming here I was thinking of a career change and went to workshops with my brother in law and became interested. I plan to open a workshop in India or companies are investing in India so I can get a job over there. There is a good automotive industry in India and there are a lot of opportunities.'
27. Whilst the Tribunal considers that education generally may improve employment opportunities. The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future. Whilst the Tribunal accepts the information provided by the applicant concerning the opportunities available in the automotive industry in India, the Tribunal has not been provided with any objective evidence as to the course improving employment prospects or adding value to earning capacity for the applicant particularly in light of the applicant's previous study and work history.
28. The applicant has not established that the completion of the courses will improve remuneration prospects in his home country to an extent that is outweighed by the completion of the course in Australia.
29. Considering this the Tribunal is unable to conclude that the course has value to the applicant's future.
It is uncontroversial that the Court’s jurisdiction is supervisory and so the Court is not concerned with untidy phrasing or infelicity in the expression of the Tribunal’s reasons. Reasons for a decision of an administrative decision-maker under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. The reasons are meant to inform and not to be scrutinised over-zealously on judicial review by seeking to discern whether there is some inadequacy in the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259 at 271–2, Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280 at 287, McAuliffe v Secretary, Department of Social Security [1992] FCA 731, 28 ALD 609 at 616.
It may also be accepted that in considering whether the applicant intended genuinely to stay in Australia temporarily, the Tribunal was required to have regard to the various considerations listed in Direction No 69. The Tribunal is not required to engage with considerations that were not the subject of substantial, clearly articulated argument or which otherwise do not arise on the materials. And it was not required to make express reference to a particular consideration it does not consider to be material: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, 274 FCR 646 at [92], Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [15]. But a failure to consider a claim which engages a factor listed in Direction No 69 that is apparent on the face of the material before the Tribunal, or which clearly emerged from that material, may also constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1 at [55], [68], AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, 261 FCR 503 at [18], Kaur v Minister for Home Affairs [2019] FCA 2026 at [30]–[31]. The Court may be entitled to infer that a claim or evidence not mentioned in the Tribunal’s reasons was not considered by the Tribunal to be material to its review and, in some cases, having regard to the claims or evidence omitted from the reasons, it may be readily inferred that, if the claim or evidence had been considered at all, it would have been referred to in the reasons: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [33]–[34].
Also uncontroversial is that jurisdictional error may be established if the Tribunal overlooked or misunderstood a substantial or consequential claim or evidence that relates to a key issue in the review: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, 212 FCR 99 at [111], [113]–[114]. Consideration of the applicant’s claims and evidence by the Tribunal should be proper, genuine and realistic: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, 228 CLR 470 at [37]. And the extent to which the Tribunal engages with the applicant’s claims and evidence depends on the length, clarity and degree of the claims and evidence: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, 275 CLR 582 at [25], but in reviewing the manner and extent of the Tribunal’s engagement with the claims and evidence advanced, the Court should be cautious so as not to venture into an impermissible merits review: Plaintiff M1/2021 at [26].
Returning first to paragraph 12a of Direction No 69 which may be broken down as follows: - when assessing the value of the course to the applicant’s future, that which is relevant and to which the decision maker should have regard:
·whether the student is seeking to undertake a course that is consistent with their current level of education; and
·whether the course will:
·assist the applicant to obtain employment; or
·improve employment prospects
in their home country.
And in considering these matters allowance should be made for reasonable changes to career or study pathways.
As the first respondent pointed out, the Tribunal noted at [25] the applicant’s evidence that he wanted to work in the automotive sector and to open his own workshop after obtaining enough experience. The Tribunal also noted the applicant’s concerns about not being able to find a job in the IT sector as he was concerned about automation. At [26] the Tribunal appears to record some of the applicant’s evidence about his reasons for changing his study and career pathways. It records that the applicant said, “[he] was not satisfied with [his] job”, that he had been contemplating a change in career and after looking at some (automotive) workshops, he wanted to work in one, eventually opening his own. He said that India has a good automotive industry with lots of opportunities. The Tribunal’s recording of the applicant’s evidence is incomplete. The Transcript of the Tribunal’s hearing records the applicant’s complete answer as “but I was not satisfied with my job and earnings that I was getting from that job”: Exhibit R1, Annexure JH-1, T.6:39–40
At [27] the Tribunal concludes the applicant did not demonstrate “the value of the proposed course to his future”. It accepted the applicant’s evidence about the opportunities available in the automotive industry in India but reasoned that there was an absence of “any objective evidence as to the course improving employment prospects or adding value to [the applicant’s] earning capacity” given previous study and work history, which is a reference to his existing qualifications and his job as a software engineer in India.
Two things are apparent from this analysis. First, there is no evident consideration whether the applicant’s proposed course of study and career changes amounted to reasonable changes to career or study pathways. The first respondent’s contention — that it is evident the Tribunal did not consider the applicant’s change of career and study pathways to be reasonable, cannot be accepted simply because the Tribunal concluded that it was not satisfied that the applicant’s courses would improve his employment prospects or earning capacity. It is in the making of that assessment that the Tribunal is required to consider the reasonableness of the changed pathways. Noting the applicant’s evidence at [25] does not amount to engaging with it. One cannot discern from the Tribunal’s reasons whether it considered that evidence in the context of assessing whether his explanation for wanting to undertake the proposed course of study and to make a career change into the automotive industry in India amounted to reasonable changes to career or study pathways. And if not, then why not?
Second, the Tribunal has given no consideration to, nor did it make any finding about, whether the proposed course would assist the applicant to obtain employment in his home country. Paragraph 12a of Direction No 69 requires consideration, inter alia, whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Two matters here arise that require an assessment. The first is whether the course will assist the applicant obtaining employment in his home country. The second is whether the course will improve the applicant’s employment prospects in his home country. If the course assists the applicant in obtaining employment, then this will be a factor that would weigh in his favour. As is evident from the Tribunal’s analysis at [27], its consideration is confined to the second matter. The Tribunal accepted “the information provided by the applicant concerning the opportunities available in the automotive industry in India” which appears to be relevant to the first matter, but the Tribunal concludes that the applicant had not provided “any objective evidence as to the course improving employment prospects” which is concerned only with the second matter. Nor is there any consideration about whether the applicant’s explanation for wanting to undertake the proposed course of study and to make a career change into the automative industry in India, were reasonable changes to his career, in the context of assessing whether the proposed course would assist the applicant to obtain employment.
The Tribunal’s conclusion at [28] is concerned with improving remuneration prospects and its ultimate conclusion at [29] that it is “unable to conclude that the course has value to the applicant's future” is reached without any evident consideration of important aspects of paragraph 12a of Direction No 69. The Tribunal noted the applicant’s claimed reasons for changing career but, save for accepting the applicant’s evidence about job opportunities in the automotive sector in India, it did not engage with them in the sense of making any findings about or evaluating whether those reasons were reasonable when considering the matters in paragraph 12a of Direction No 69. And it failed altogether to consider whether the applicant’s proposed course would assist him to obtain employment. The applicant’s case was, in part, that he wanted to undertake the proposed course so that he would have the requisite qualifications to obtain employment in the automotive sector in India and ultimately to run his own business in the sector. He sought to change careers because he was unable to obtain employment in his chosen field for which he was then qualified, and was concerned about the impact artificial intelligence would have on the viability of his work as a software engineer. There is no finding one way or the other whether this pivot in both study and career pathways was reasonable. Much less is there any assessment whether the proposed course would assist the applicant to obtain employment in India.
The applicant has made good ground one.
For completeness the applicant’s contention that the Tribunal erred in recounting the period of the applicant’s employment as a software engineer in India is rejected. I agree with the first respondent that the Tribunal’s finding was open. Although the documents suggested a longer period (which itself was inconsistent) the applicant’s sworn oral evidence at the hearing was that he had been employed in that position in India for “just six months”.
Ground 2
By ground 2, the applicant contends that the Tribunal failed to give proper consideration to the value of the proposed course to his future. The contention is in two parts. First, and related to ground 1, the applicant contends that while his expected remuneration as an employee was not much higher than his employment as a software engineer, the Tribunal’s approach to this consideration (including its failure to allow for reasonable changes to career) demonstrates it failed to actively engage with his claims. The applicant accepts that the proposed course is at a lower level (certificates and diploma compared to a bachelor’s degree) and involves a different subject from his previous studies, but he says the Tribunal ignored the reasonable explanation for the change.
The first respondent contended that to the extent this part of ground 2 alleges that the Tribunal failed to consider the applicant’s “reasonable explanation” for changing careers, it relied on its submission on that point responsive to ground 1. I do not accept that, properly construed, paragraph 12 of Direction No 69 required the Tribunal to make the allowance in respect of its consideration of the remuneration the applicant could expect to receive in the home country or third country. This is because the allowance for reasonable changes to career or study pathways is intended for the matters in paragraph 12a. Considerations of the remuneration the applicant could expect to receive in the home country or third country, compared with Australia, using the qualifications to be gained from the proposed course of study, arise under paragraph 12c. I accept that if allowance is made when considering the matters in paragraph 12a, that may impact the assessment and the weight to be given to the matters in paragraphs 12b and 12c, but there is no separate requirement that the said allowance should be made when considering matters in paragraphs 12b and 12c.
The second part of ground 2 contends error in the Tribunal’s consideration and application of paragraph 12b of Direction No 69 — relevance of the course to the student’s past or proposed future employment either in their home country or a third country. The applicant contends that at [25] of the Decision, the Tribunal asked itself about the “Relevance of course to past study?”. It answered that: “The applicant has previously completed higher level studies in a very different subject. The current study is not relevant to it”. The applicant contends the Tribunal’s conclusion is incongruent with paragraph 12b of Direction No 69 which required the Tribunal to inquire about the relevance of the proposed course to the applicant’s past or proposed future employment either in his home country or a third country. The applicant says that as the Tribunal did not make this inquiry or ask itself this question, the Tribunal committed jurisdictional error.
The first respondent accepts that paragraph 12b of Direction No 69 required the Tribunal to consider the “relevance of the course to the student’s past or proposed future employment either in their home country or a third country”. But the first respondent says that although the Tribunal’s restatement of the requirement in paragraph 12b was inept, when the Tribunal’s analysis of the value of the course to the applicant’s future is read as a whole, it is evident the Tribunal considered the matters raised by paragraph 12b. This, according to the first respondent, is because the Tribunal at [26]–[27] of the Decision: referred to its “significant concern” about the automotive studies in light of the applicant’s “previous qualifications and work history”; accepted the applicant’s evidence about opportunities available in the automotive industry in India; but was not satisfied that the proposed courses would improve his employment prospects or earning capacity.
I do not accept the first respondent’s contention. At [25] of the Decision the Tribunal records that it “has had regard to the value of the course/s of study to the applicant's future as follows”. Thereafter the Tribunal addressed that which it considers arises from paragraph 12 of Direction No 69. The first two questions it poses for itself are directed to the matters in paragraph 12a, the third is directed to paragraph 12b, and the fourth to paragraph 12c. The answer given to the third question is set out earlier, but is plainly comparing the proposed study with the applicant’s previous study. It does not direct attention to the value of the course by reference to its relevance to the applicant’s past or future employment in India or another country. Contrary to the first respondent’s contention, the Tribunal’s analysis at [26]–[27] does not make evident that the Tribunal considered paragraph 12b in assessing the value of the course to the applicant’s future. In these paragraphs the Tribunal was setting out it’s reasoning and conclusions as to some of the matters in paragraph 12a. The reasoning is concerned with whether the proposed course would improve the applicant’s employment prospects and whether it added value to his earning capacity, in assessing the value of the course to the applicant’s future.
But paragraph 12b of Direction No 69 requires consideration of the value of the course to the applicant’s future having regard to the relevance of the course to the student’s past or proposed future employment, either in their home country or a third country. In the present context, this required the Tribunal to consider whether the proposed course was relevant to the applicant’s proposed future employment, which on his evidence was in the automotive sector in India. The Tribunal did not answer that question as it was required to do by reference to paragraph 12b of Direction No 69 and the applicant’s evidence and claims which engaged with that question.
The applicant has made good this part of ground 2.
Ground 3
By ground 3, the applicant contends the Tribunal erred in concluding or inferring that the fact he applied for a student visa while in Australia rather than in India when he had an opportunity to do so meant that the applicant was studying so he could extend his stay in Australia, rather than being a genuine temporary entrant. The applicant says that reasoning and conclusion is illogical. The Tribunal’s impugned finding is made in the context of considering the applicant’s immigration history as follows:
31. The Tribunal considers that the applicant arrived in Australia on a tourist visa initially and then returned to Australia (sic) apply for his student visa rather than doing so in India when he had the opportunity to do so. The Tribunal considers that the application did not provide a reasonable explanation for this and that it is not behaviour that is indicative of a genuine student intending on staying in Australia temporarily.
32. The Tribunal considers that the applicant is studying in order that he can extend his stay in Australia rather than being a genuine temporary entrant here for the purpose of studying and progressing academically.
The applicant says that there was no logical connection between the fact that he applied for a student visa while in Australia rather than in India, and the Tribunal’s assertion or conclusion that the applicant’s behaviour is thus not indicative of a genuine student intending to stay in Australia temporarily. He says that as this bears no logical connection, the Tribunal’s decision is attended by jurisdictional error.
The first respondent contends there is no illogicality, and it was open to the Tribunal to conclude that the fact the applicant made the application for the visa onshore, and the absence of a reasonable explanation for having done so, was indicative of him not being a “genuine student intending on staying in Australia temporarily”.
I agree with the first respondent. It may be accepted that if there is no logical connection between the evidence and the inferences or conclusions drawn by the Tribunal then jurisdictional error in the form of illogicality or irrationality may be shown: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [135]. But that is not the present case in respect of the impugned passages.
As the first respondent correctly noted, the Tribunal recorded at [11]–[12] of the Decision that the applicant decided he wanted to study in Australia after his first visit. He told the Tribunal that he decided not to apply for a student visa while in India after his first visit because he already held a tourist visa. The visa application was made, in Australia, near the end of the duration of the applicant’s visitor visa at which point the applicant was entitled to a bridging visa until the determination of his visa application. Although these matters are not expressly referred to in the impugned paragraphs, it is evident that the Tribunal’s concerns about the timing of, and the applicant’s location at the time of, the visa application, were directed at these matters. It was entitled to regard his explanation for the timing and location as not reasonable. I accept that it was open to the Tribunal to therefore be concerned about the place and timing of the application given what flows, and to connect the manner of the application with the impugned motive. And whilst reasonable minds might differ on the conclusion to be reached, I do not consider that the Tribunal’s reasoning nor its conclusion is illogical or irrational, because it was open for a logical or rational person to reach the same conclusion on the material before the Tribunal.
Ground 3 fails.
DISPOSITION
The applicant has made good ground one and part of ground two of his review grounds. Both are species or examples of the same error. Contrary to the requirements in s 499(2A) of the Act, the Tribunal did not comply with Direction No 69 made under s 499(1). The error is material because the decision the Tribunal made could realistically have been different had there been no error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [14]. That possibility is not one that is fanciful or improbable.
The Tribunal’s decision will be quashed, and the review application will be remitted to the second respondent for it to determine the application according to law.
The first respondent will be ordered to pay the applicant’s cost’s fixed in the sum of $8,371.30.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 2 July 2025
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