Singh v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1386

THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1386

File number(s): SYG 1351 of 2021
Judgment of: JUDGE MARQUARD
Date of judgment: 2 September 2025
Catchwords: MIGRATION – Decision of Administrative Appeals Tribunal to refuse student visa – bias – failure to consider evidence – failure to intellectually engage - procedural fairness
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth) ss 29, 31, 65, 357A, 359, 359A, 360, 424A, 474, 476, 499

Migration Regulations 1994 (Cth) cl 500.212 of sch 2
Cases cited:

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

Hamod v New South Wales [2011] NSWCA 375

Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413

KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15

Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158

NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109

Tickner v Chapman (1995) 57 FCR 451

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549
Division: Division 2 General Federal Law
Number of paragraphs: 136
Date of last submissions: 12 August 2025
Date of hearing: 4 August 2025
Place: Sydney
Applicant: The Applicant appeared in person
Solicitor for the First Respondent: Ms T Jackson of MinterEllison Lawyers
Second Respondent: Submitting appearance save as to costs

ORDERS

SYG 1351 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA…

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Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1386
Case
[2025] FedCFamC2G 1386
Decision Date

CaseChat Overview and Summary

The case of Singh v Minister for Immigration and Citizenship [2025] FCA 1022 involved an Indian national who applied for a Student 500 visa in Australia. The applicant had arrived in Australia on a Visitor visa and subsequently applied for the Student visa to study business courses. The Department of Home Affairs refused the visa, and the applicant sought judicial review of this decision in the Federal Court of Australia. The primary legal issue was whether the Administrative Appeals Tribunal (AAT) had erred in affirming the Department's decision to refuse the visa. The applicant argued that the AAT failed to consider all relevant evidence, did not intellectually engage with the case, and did not observe procedural fairness.

The Court examined the AAT's decision and found that it had considered all relevant factors as per Direction No. 69. The AAT assessed the applicant's circumstances in India, potential circumstances in Australia, value of the course to the applicant's future, and the applicant's immigration history. The AAT found that the applicant had a strong incentive to remain in Australia due to higher earning potential, established family ties, and lack of significant ties to India. The AAT also noted that the courses the applicant planned to study did not align with his educational background or career goals. The Court concluded that the AAT had properly exercised its jurisdiction and did not err in its decision-making process.

Consequently, the Court dismissed the application, affirming the AAT's decision to refuse the Student visa. The Court held that the AAT's decision was lawful and that there was no jurisdictional error. The Court did not find any merit in the applicant's claims that the AAT failed to consider evidence or observe procedural fairness.

Orders

Orders of the court

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Background

Background to the litigation

The application is dismissed for the reasons that follow.BACKGROUND The applicant is a citizen of India (Court Book (CB) 58). He arrived in Australia on 19 June 2019 as the holder of a Visitor (Class FA) (Subclass 600) (Tourist Stream) visa (CB 204). On 19 August 2019, the applicant applied to the Department for a Student 500 visa (CB 23). In his application he provided details of his background and family, study and employment history. In a letter attached to the application dated 16 August 2019 (GTE Statement to the Department), the applicant said that he planned to study ‘CIII and IV in Business’ from September 2019 (CB 50). On the same day the applicant lodged his visa application, the Department acknowledged the application and invited the applicant to log in to his Departmental account to view the documents required for his application (CB 100-101). On 30 September 2019, the Department refused to grant the applicant the Student 500 visa (CB 102-109). The Department refused the visa as the delegate was not satisfied that the applicant met cl 500.212 of Schedule 2 of Migration Regulations 1994 (Cth) (the Regulations), which requires that the applicant is a genuine applicant for entry and stay as a student because the applicant genuinely intends to stay in Australia temporarily (CB 106-109). Some of the factors taken into consideration by the delegate of the Department were presence of family in Australia, lack of employment in India and the value of the course to his future (CB 107-109). On 9 October 2019, the applicant applied to the Tribunal seeking review of the Department’s decision (CB 110-111). On 15 October 2019, the Tribunal acknowledged the application and invited the applicant to provide material or written arguments for it to consider (CB 114). On 1 February 2021, the Tribunal wrote to the applicant notifying him that it was a requirement of the visa that the applicant be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The applicant was invited to provide relevant information to satisfy the Tribunal that he met these requirements. An attached questionnaire titled, ‘Request for Student Visa Information’ set out specific details about the information requested (CB 122-123). The applicant was notified that the Tribunal was required to have regard to the Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student Visa and Student Guardian visa applications’ (Direction No 69) and a copy was provided. On 15 February 2021, the applicant’s authorised agent emailed the Tribunal and requested a five-day extension for granting the documents (CB 129). The Tribunal granted the extension of time for the applicant to provide the documents (CB 132). The applicant provided a detailed response to the Request for Student Visa Information questionnaire. This included financial and academic documents (CB 133-197). On page two of the ‘Request for Student Visa Information’ questionnaire, the applicant stated (CB 173):Yes, I/we consent to the Tribunal deciding the review without a hearing.…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 16 June 2021, the Tribunal affirmed the decision under review without holding a hearing (CB 202).TRIBUNAL DECISION (TD) 16 JUNE 2021 (CB 202-211) The Tribunal summarised the background to the proceedings ([2-6] and [13] of the TD). The Tribunal set out the relevant legal and policy framework ([9-12] of the TD). The Tribunal summarised the evidence ([15-20], [24], [27] and [33] of the TD). At [20] the Tribunal included an extract from the GTE Statement to the Department. At [22] the Tribunal extracted from the ‘Request for Student Visa Information’ questionnaire. The Tribunal identified that in considering whether the applicant satisfied cl 500.212(a) of Schedule 2 to the Regulations, it must have regard to the factors specified in Direction No. 69, ‘Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications’, made under s 499 of the Act ([11] of the TD). The Tribunal noted that the factors in Direction No 69 were not a checklist ([12] of the TD). The Tribunal made the following findings and comments ([21 – 53] of the TD): (a)circumstances in applicant’s home country: the Tribunal considered the applicant's circumstances in India ([33-47] of the TD). The Tribunal extracted the applicant’s statement from the ‘Request for Student Visa Information’ questionnaire in relation to study in his home country ([33] of the TD). The Tribunal accepted that there may be some minor differences in the content of the courses for study between Australia and India, however it noted that the applicant undertook low level business courses in Australia. The Tribunal found that it was not satisfied that the applicant had reasonable motives to study these business courses in Australia as compared to his home country ([34] of the TD). The Tribunal noted that the economic conditions in India were not as favourable as those in Australia and found that this provided a significant incentive for the applicant not to return home to India ([40] of the TD). The Tribunal noted that the applicant had not returned back to India since his arrival onshore. Although, the Tribunal noted that a failure to return to an applicant’s home country is consistent with an intention to remain in Australia permanently, given the travel restrictions occasioned by the COVID-19 pandemic it made no adverse finding ([41] of the TD).The Tribunal found that although the applicant held approximately A$19,476 in shares in a term deposit in India, this amount was modest in comparison to the amount the applicant could earn in Australia and therefore did not provide a significant incentive for him to return to India ([42] of the TD).The Tribunal also considered that the applicant held no concerns about possible military service commitments or political and civil unrest in India and that this would not present as a disincentive for the applicant to return home ([44] of the TD). The Tribunal found that overall, the applicant was in a good position relative to others in India because his family held substantial property holdings in India, he was well-educated and would be supported in India ([45] of the TD). The Tribunal considered that as the applicant had not seen his family in India for two years, his family ties in India did not provide significant incentive for him to return home when balanced against factors such as his potential of earning higher levels of income and the applicant’s overall circumstances in Australia ([43] and [47] of the TD).(b)potential circumstances in Australia: the Tribunal considered the applicant's evidence regarding his family and assets in Australia. At [2], the Tribunal extracted the applicant’s statement from his ‘Request for Student Visa Information’ response in relation to the courses of study to be undertaken in Australia at ILSC Greystone College Sydney. The Tribunal accepted the applicant’s evidence that he came to Australia to visit family. The Tribunal found that there is a real prospect based on the matters before it that his reasons for undertaking study in Australia were to maintain ongoing residency with his family in Australia ([21] of the TD). The Tribunal considered that the applicant had a substantial degree of knowledge about Australia after more than two years of residence ([35] of the TD). The Tribunal considered that the applicant also had a substantial degree of knowledge about the courses he was studying at ILSC Greystone College as he had been studying there for 21 months ([36] of the TD). The Tribunal found that the applicant’s lack of income in Australia did not provide him with an incentive to return home as his expenses and tuition costs were being met by his family ([37] of the TD). The Tribunal found that on the evidence before it, the applicant would receive a higher level of income if he were to obtain a job in Australia than he would if he obtained a similar job in India and this provided him with a substantial financial incentive to remain in Australia ([39] of the TD). The Tribunal made no adverse findings against the applicant by reason of his failure to return home since arriving in Australia on 19 June 2019, having considered that travel restrictions had been in place due to the COVID-19 pandemic ([41] of the TD).The Tribunal noted that the applicant had come to Australia, amongst other things, to visit his sister, cousins and friends whom all resided in Australia. The Tribunal found that the evidence before it suggested that the applicant had developed close relations and friends in Australia, noting in particular a letter from the Australian Sikh Association confirming that the applicant had provided volunteer services to the local temple and Sikh community association. The Tribunal found that the combination of these factors demonstrated that his circumstances in Australia provided him with a strong incentive to remain in Australia ([48] of the TD). (c)value of the course to the applicant’s future: the Tribunal considered the applicant's evidence regarding his plans to apply for employment in a global overseas trading company in India. The Tribunal extracted the applicant’s statement from his ‘Request for Student Visa Information’ response in relation to his future plans ([27] of the TD). The Tribunal found that it was unclear as to how these lower-level courses would enable him to achieve his goal, noting that he had already completed a bachelor level degree in India ([28] of the TD). The Tribunal found that the current course, the Certificate IV in Business, would only marginally improve the applicant’s employment prospects and remuneration in India ([29] of the TD). The Tribunal noted that the applicant had changed his initial career path from arts to business ([30] of the TD). The Tribunal recorded that the applicant’s primary objective in undertaking studies in Australia was improvement of his English skills, however found that the applicant should have undertaken intensive English studies as compared to undertaking the selected business courses ([31] of the TD). The Tribunal accepted that it was important that allowance be made for reasonable changes to occur in career and study pathways. The Tribunal found that in the applicant’s case when there had been changes to study through undertaking short vocational education training (VET) courses, including the Certificate IV in Business, that this was not a reasonable change to a career and study pathway. The Tribunal was not satisfied that the courses the applicant was studying revealed any progression in his course of study and was inconsistent with the applicant’s level of education ([32] of the TD). (d)applicant’s immigration history: The Tribunal was satisfied that based on his conduct the applicant had come to Australia for the purpose of undertaking study and such purpose was inconsistent with the purpose of his tourist visa ([23] of the TD). The Tribunal identified no concerns that the applicant had been refused any other visa or had a visa cancelled in Australia or elsewhere, or that he was in breach of his current visa conditions. The Tribunal also accepted that the applicant was not in any relationship of concern ([49-50] of the TD).

Ratio Decidendi

Legal Principle Established

Further written submissions of the first respondent were filed on 12 August 2025 in response to queries made by me at the hearing.CONSIDERATION OF CLAIMED GROUNDS OF JURISDICTIONAL ERRORRole of this Court The applicant has claimed that the Tribunal Decision fell into jurisdictional error. The function of this Court is to review the Tribunal Decision and determine whether the Tribunal has fallen into error. Section 476 of the Act provides that this court has the same original jurisdiction as does the High Court in relation to migration decisions. The High Court, under s 75(v) of the Constitution, 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. A privative clause as defined at s 474 of the Act is final and not amenable to judicial review. The Court can grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The role of judicial review was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) per Allsop J, Besanko and O’Callaghan JJ at [17] as follows: …an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (LPDT), the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [3] (footnotes omitted):Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can 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. The categories of jurisdictional error were similarly considered by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81] (footnotes omitted):The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]: "What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have the jurisdiction to make it”.