Singh v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1386
•2 September 2025
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 (DIVISION 2)
BETWEEN: RAMANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
2 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the second respondent is amended to Administrative Review Tribunal.
2.The application filed on 19 July 2021 is dismissed.
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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.
REASONS FOR JUDGMENT
Judge Marquard
OVERVIEW
Before this Court is an application filed on 19 July 2021 seeking judicial review of a decision dated 16 June 2021 of the second respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision dated 30 September 2019 of the Department of Home Affairs (Department), as delegate of the first respondent, to refuse to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa (Student 500 visa).
This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
A hearing was held at the Sydney Registry of this court on 4 August 2025. The applicant appeared in person. Ms Tahlia Jackson of MinterEllison Lawyers appeared for the first respondent.
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.
…
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).
The Tribunal recorded that the enrolments in the courses the applicant had elected to undertake concluded on 20 August 2021. The Tribunal noted that this resulted in the applicant remaining onshore for two years and two months since his entry to Australia on 19 June 2019. The Tribunal noted that this was a substantial period of time and inconsistent with the applicant’s stay being temporary ([26] of the TD).
The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily ([52] of the TD). Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student ([51] of the TD). The Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa had not been met by the applicant ([53] of the TD).
The Tribunal affirmed the delegate’s decision dated 30 September 2019 ([54] of the TD).
APPLICATION TO THIS COURT AND HEARING
The applicant applied to this Court for judicial review pursuant to s 476 of the Act on 19 July 2021. He stated that the grounds for his application were (reproduced without alteration):
1.The Minister and the Tribunal made a mistake in applying cl.500.212 towards the assessment of Student (Temporary) (class TU) Student (subclass 500) visa.
Particulars:
The Minister and the Tribunal carried out the assessment with a biased focus based on general checklist prepare to help the case officer decide on whether or not I meet cl. 500.212 (a), cl. 500.211 (b) and cl. 500212 (c). The decision is “purported private clause decision” that the Minister and the Tribunal did not properly weigh in the information I have provided in the supporting statement and documents.
2.A holistic approach was not used by the Minister and the Tribunal, and several aspects of my information and immigration history was disregarded.
Particulars:
Information and evidences I have submitted were not regarded holistically. My genuine interest in studying and academic progress was not considered. In addition, I had never breach any condition in Australia and completed my previous studies.
3.The Tribunal failed to consider addition information and supporting documents that were submitted for support.
Particulars:
The Tribunal fully overlooked the additional information and evidences I have provided with the review submission. Moreover with the covid-19 I could not gather more information as lot officer are closed.
4.The Minister and the Tribunal failed to give procedural fairness and natural justice.
Particulars:
Particulars of ground 1 and 2.
The applicant filed an affidavit in support of his application for judicial review on 19 July 2021. The affidavit attached the Tribunal Decision.
On 27 May 2025, I made procedural orders in Chambers. These included an order for the applicant to file an amended application, additional evidence and submissions by 4.00pm on 11 July 2025. The applicant did not avail himself of this opportunity and no further documents were filed.
On 4 August 2025, the applicant appeared before this Court as a litigant in person. Ms Jackson of MinterEllison Lawyers appeared for the first respondent.
The following documents were before this Court – the application for judicial review and the supporting affidavit of the applicant filed on 19 July 2021, which was read at hearing, a Court Book (numbering 211 pages and marked as Exhibit R1) filed 23 September 2021 and written submissions of the Minister filed on 24 July 2025 (First Respondent’s Submissions).
The Court considered the judicial duty to assist unrepresented litigants: Hamod v New South Wales [2011] NSWCA 375. The touchstone at all times remains that of fairness and a trial judge should take steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court to ensure a fair trial (Hamod per Whealy JA at [311] - [313]).
I confirmed that the applicant was in possession of the Court Book and the First Respondent's Submissions. I also outlined the role and processes of the court and explained that for the applicant to succeed in his application, jurisdictional error in the Tribunal Decision must be demonstrated. I outlined for the applicant’s benefit some common categories of jurisdictional error, noting that these categories were not exhaustive and explained that the Court could not engage in reviewing the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272.
During the hearing, I provided the applicant with an opportunity to further particularise each of the grounds of review separately and to make submissions (in accordance with principles in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 per Feutrill J at [22]). It was explained to the applicant that further particularisation or submissions may assist his case. Further, it was suggested that the applicant listen carefully to the submissions of the first respondent so that he could respond to matters raised if he wished to do so.
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 ERROR
Role 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”.
As articulated by the court in SZMTA, jurisdictional error can arise in various ways and the categories are not clearly defined. Categories may overlap: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
It is settled law that the Court cannot review the merits of the Tribunal decision. In Wu Shan Liang the High Court said at 271 to 272:
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (23). The Court continued (24):
"The reasons for the decision under review are not to be construed
minutely and finely with an eye keenly attuned to the perception of error".These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.
.. any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
It follows that disagreement with the merits of a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40].
Legal Principles – student visas
The Tribunal was required to consider whether the applicant met the legislative criteria for a Student (Temporary) (Class TU) (Subclass 500) visa.
Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. The Regulations prescribe the criteria for classes of visas: ss 31(1) and 31(3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a) (ii) of the Act.
The criteria for a Student (Temporary) (Class TU) (Subclass 500) visa are set out in Clause 500.2 of the Schedule to the Regulations.
Relevantly, cl 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; 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.
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) of the Act provides that a person or body (which would include the Tribunal) must comply with a direction given under s 499(1).
Grounds alleged by the applicant
The applicant advanced four grounds of jurisdictional error in his application to this Court.
In the grounds, the applicant referred to errors in the decision of the Department, as well as the Tribunal. This Court has no jurisdiction to review the decision of the Department: s 476 of the Act.
The grounds in the application are referred to below.
Ground 1
The first ground in the application was:
The Minister and the Tribunal made a mistake in applying cl.500.212 towards the assessment of Student (Temporary) (class TU) Student (subclass 500) visa.
The applicant provided particulars of this ground as follows:
The Minister and the Tribunal carried out the assessment with a biased focus based on general checklist prepare to help the case officer decide on whether or not I meet cl. 500.212 (a), cl.500.211 (b) and cl. 500212 (c). The decision is “purported private clause decision” that the Minister and the Tribunal did not properly weigh in the information I have provided in the supporting statement and documents.
At the hearing, the applicant was asked if he wished to make further submissions in relation to this ground or to provide further particulars. He said that he felt that the Tribunal Decision was ‘not good’ and although he came to Australia as a tourist, he was a genuine student (Tp 6.45 – 46, 7.1-2). He said that although he studied Arts in India, he spoke to his father who told him that he should take the opportunity to study business in Australia (Tp 7.23-28). The applicant told the Court that he had wanted to study teaching, but then in Australia he shifted towards business and kitchen management (Tp 7.33-35). He said he was now studying early childhood and in 11 months’ time he would return to India (Tp 7.38-44).
It appears from a consideration of the submissions at hearing considered alongside Ground 1 where the applicant claims the Tribunal did not ‘properly weigh in his information’ that the applicant is alleging that the Tribunal did not consider or actively intellectually engage with his evidence and submissions. If the Tribunal failed to engage in an active intellectual process in dealing with the evidence and making findings of fact it may have constructively failed to exercise jurisdiction.
Failing to consider or intellectually engage with claims/evidence
Principles
A Tribunal must reconsider the merits of the decision under review, ‘in light of the information, evidence and arguments which are relevant to the application, and which are provided to it or which it obtains for itself’: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [44]. The Tribunal is required to engage in an active intellectual process: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 per Lindgren, Rares and Foster JJ at [49]-[50].
In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao), Griffiths, White and Bromwich JJ at [47] observed that in determining whether a decision-maker has engaged in an active intellectual process, the Court must:
…conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case.
In Carrascalao at [48], their Honours observed that a finding by the Court that a decision-maker has not engaged in an active intellectual process is not to be made lightly and must be supported by clear evidence. They noted that a court must be watchful that it does not slide into impermissible merits review: Carrascalao at [32].
A mere summary by the Tribunal of the representations of an applicant is not sufficient: Tickner v Chapman (1995) 57 FCR 451 (Tickner) at 271. In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1) the High Court said that the decision-maker must read, identify, understand and evaluate the representations (at [24]). At [24]-[27] per Kiefel CJ, Keane, Gordon and Steward JJ, with Gageler J agreeing, the High Court said (footnotes omitted):
24.Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25.It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness …
26.Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
27.None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
A conclusion that the Tribunal has not engaged in an active intellectual process must be supported by clear evidence bearing in mind that the judicial review applicant bears the onus of proof: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15 at [47].
Consideration/active intellectual engagement in this case
The applicant did not appear at a hearing of the Tribunal. I have considered whether there was active intellectual engagement with the evidence and submissions to the Department and evidence and submissions made in writing to the Tribunal.
I am satisfied that the Tribunal engaged in consideration of the information, evidence and arguments relevant to the application (Applicant WAEE) and an active intellectual engagement in the sense described in Carrascalao, Tickner and Plaintiff MI, discussed earlier in this judgment. The reasons are set out below.
The evidence provided by the applicant to the Tribunal was as follows. In his application for the visa (CB 1-16), the applicant said that he held a current Confirmation of Enrolment for a course in the Vocational Education and Training Sector. He referred to his highest qualification as a Bachelor of Arts from India (2015-2018) and said that he had not been employed in India. In respect of future employment, he said that after his study he would apply for ‘global trading companies in India’. He said that ‘I believe that my qualifications and experience would be a huge benefit for me, and I would be considered as an attractive and competitive candidate for employers in my home country’ (CB 10 and 51). He said that he had always complied with visa conditions. He provided copies of academic certificates, bank statements and documents evidencing his assets in India (CB 18 -97).
In the GTE Statement in 2019 (CB 50-51) the applicant submitted that he came to Australia in June 2019 to visit family members. He said that after university he saw many people from foreign countries travelling and this sparked his interest in foreign language and culture and to work in a global trading company in India. He said that he studied English in India and thought that it would assist to study more advance English and that he could do this through a Business Course. He also wanted to acquire key skills for working in global trading company including communication, teamwork, problem solving and technology and for this reason he planned to take ‘C III and IV Business’. He provided reasons for choosing Greystone College. He said that he was supported by his parents.
In the Request for Student Visa Information questionnaire form provided to the Tribunal (CB 172-181) the applicant said that he had enrolled in Certificate III and IV in Business in August 2019 and was currently studying. He said his parents were in India and his sister in Australia. He provided details of his assets in India. He said that he had studied Bachelor of Arts in India with English literature, history and sociology which he enjoyed. He said that they ‘were not really helping me to get a job in India’. He said that he started with the business courses in Australia because he did not really have any knowledge of business. He said that there were institutions where he could study in India, but the level of study was not compatible. He also said Australian courses encouraged independent thinking and ethics, and global views. He said that he was the main caregiver for his parents in India. He also referenced his volunteer work. He said that he was actively involved in voluntary works in his local area, cleaning areas for orphan kids and teaching them, and helping the socially disadvantaged. He said that his home was ‘the heart’ of his life. He provided details of earning capacity in India, including for persons with Australian qualifications.
He attached documents evidencing his assets in India, bank statements in Australia, documents evidencing his father’s salary, bank transfer, a letter from the Australian Sikh Association concerning volunteer work in Australia and his current Confirmation of Enrolment. He provided documents from Greystone College evidencing his academic progress, including certification that he had completed the Business III Course (12 February 2019) (CB 180-197).
The evidence in the application and GTE statement and the Request for Student Visa Information questionnaire was referred to in the Tribunal Decision ([15-16], [19-20], and [21-22]).
I am satisfied that the Tribunal actively engaged with the evidence, first referring to the relevant law (at [11-12] of the TD) and then making detailed findings about the following:
·That it was not reasonable that the applicant wanted to study in Australia rather than India (taking into consideration the applicant’s statement from the ‘Request for Student Visa Information’ ([20] and [33] of the TD).
·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 but that the applicant was in a favourable position compared to others, (taking into consideration documents provided and submissions) ([40] and [42] and [45] of the TD).
·That the applicant had no concerns about military service, political or civil unrest ([44] of the TD).
·That family ties were not a significant incentive when balanced against earning capacity in Australia ([47] of the TD).
·That there was a real prospect based on the matters before it that the applicant’s reason for undertaking study in Australia was in order to maintain ongoing residency ([20] and [21] of the Decision, where the Tribunal extracted and had reference to the applicant’s GTE Statement to the Department).
·That the applicant had a substantial degree of knowledge about Australia having lived in Australia for more than two years at that time ([35] of the TD). Further, that he had knowledge about the courses he was studying at ILSC Greystone College as he had been studying for 21 months prior to the time of the hearing ([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). Further, the Tribunal noted that the applicant in his Response had outlined that the level of income that employees with a qualification obtained in Australia and good English skills could obtain was A $1,700 per calendar month, well above the national average wage in India A $520 per calendar month ([38] of the TD).
·That the Tribunal would make no adverse findings against the applicant by reason of his failure to return home since arriving in Australia on 19 June 2019, due to the COVID-19 pandemic ([41] of the TD).
·That the applicant had provided volunteer services, referring to a letter from the Australian Sikh Association confirming that the applicant had provided volunteer services to the local temple and Sikh community association ([16] and [48] of the TD).
·That it was unclear as to how 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 had regard to the Provider Registration International Management System (PRISMS) extract ([24] of the TD) and the response ([22] of the TD). In reaching this finding, 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).
·That there were no concerns about breach of his current visa conditions or relationships of concern ([49-50] of the TD). The Tribunal recorded the applicant’s enthusiasm to learn and develop business skills. The Tribunal recorded that his choice of study was not representative of career progression ([30] and [31] of the TD).
The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily ([52] of the TD) based on a consideration of the factors set out above.
I am satisfied from a reading of the Tribunal Decision that the Tribunal considered the evidence and submissions and actively engaged with them. The Tribunal read, identified, understood and evaluated the representations (Plaintiff M1 at [24]) as is evidenced by the detailed references and analysis in the decision, as outlined above. The Tribunal engaged in deliberative thought in considering issues such as incentives in India and Australia, considering the weight to ascribe to those incentives. The requisite level of engagement by the decision-maker was ‘within the bounds of rationality and reasonableness’ (Plaintiff M1 at [25]), given that the findings were based on evaluation open to a decision-maker on the facts.
I initially had some concerns regarding two aspects of the evidence. While the Court must review the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about the decision: Djokovic at [17], the applicant was unrepresented, so I raised the issues with the first respondent (in line with principles in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 (MZAIB) at [100]). An order was made for further written submissions to be filed and served by the first respondent by 12 August 2025 (post hearing submissions of the first respondent).
The first matter was whether the Tribunal considered or gave active and intellectual engagement to the submissions of the applicant that he studied English in India to get work with a global company (CB 50). This issue was relevant to the Tribunal’s finding that there were real prospects that he came to Australia to study, rather than for tourism purposes: [21] and [23] of the Tribunal Decision.
The first respondent submitted in post-hearing submissions that the Tribunal did consider the submission in the applicant’s GTE Statement that the purpose of studying English in India was to work for a global company ([5] of the post hearing submissions of the first respondent). It was submitted that the Court should consider the context of the Tribunal’s reasons ([6] of the post hearing submissions of the first respondent). I accept this submission. It is patently clear that the Tribunal did consider the GTE Statement generally (extracted in [20] of the Tribunal Decision). Reference was made in the extract in [20] of the Tribunal Decision to the applicant studying English for the purpose of entering a global company and obtaining a PTE score in India ([21] of the TD).
Given that the Tribunal clearly considered the GTE Statement, I am satisfied that the Tribunal considered the evidence that he studied English for the purpose of working for a global company. Where it is apparent that a decision-maker has read a document in the course of a review, the inference that he or she has overlooked or not properly considered a particular part is difficult to draw: SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [27].
In Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 (Addo) at [24] and [31], the court observed that it is not incumbent on a decision-maker to give reasons for rejecting evidence. In this case, the Tribunal has rejected evidence that the applicant came to Australia for reasons of tourism and instead found that he obtained a PTE score in India, consistent with ‘performing preparatory steps’ to coming to Australia to study ([21] of the TD). The Tribunal did not refer to the evidence about studying English for the purposes of entering a global company in this consideration, but it is likely that this evidence was rejected as part of the findings that the applicant did not come to Australia for the purposes of tourism. While it may have been preferable for reasons of fairness and clarity to refer to the applicant’s evidence about entering a global company, there is no jurisdictional error resulting from the omission to do so. The Tribunal is not required to make a finding on every piece of evidence: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10; Applicant WAEE at [46].
The second issue raised by me was whether the Tribunal considered or intellectually engaged with the applicant’s submission that although he enjoyed his arts degree, it was not helping him get a job, so he decided to start with a basic business course in Australia (CB 176). The Tribunal found that his courses were not complementary: [30] – [31] of the Tribunal Decision.
The post-hearing submissions from the first respondent did not directly respond to this issue but rather observed that the Tribunal noted that the applicant changed the course from arts to business ([10] of the post hearing submissions of the first respondent). On reflection, I am satisfied that there is no jurisdictional error disclosed by the failure of the Tribunal to refer to the applicant’s evidence that although he enjoyed his arts degree, it was not helping him get a job, when making its findings, for the following reasons.
At [22] of the Tribunal Decision there is an extract from the ‘Request for Student Visa Information’ questionnaire in which the applicant said:
I studied Bachelor of Arts in India with English literature, history, and sociology. These kinds of fundamental knowledge were not really helping me to get a job in India. Of course, I enjoyed however for the future of my career I need to choose another major that I really need.
I am satisfied that this extract was considered by the Tribunal even though not specifically referenced in the consideration. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[65] McHugh J (sitting alone) approved the following observations of the Full Court of the Federal Court in Addo at [24] and [31]:
Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
…
It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.
… it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
It was not necessary for the Tribunal to give reasons for rejecting the evidence. No jurisdictional error arises in relation to this issue.
The third issue raised by me was whether the Tribunal failed to have regard or give actual intellectual consideration to the applicant’s submissions from his GTE statement (at CB 50) that he wanted to complete courses at Greystone College to:
Acquire key skills needed for success in a business environment such as communications, teamwork and problem solving and especially, effectively using business software and technology for communication, reporting and creating financial records.
…
The applicant also stated that he intended to return to India and was going to apply for a global overseas trading company and the fluent English skills and overseas qualification would make him an attractive candidate for employers in India (CB 51).
It was submitted by the first respondent that the Tribunal considered the GTE statement and in [27] stated:
The applicant submitted to the delegate in the GTE Statement that he intended to apply for employment in a global overseas trading company and that the skills he would obtain from the business courses that he is studying would assist him.
The first respondent submitted that the Tribunal observed that the applicant did not provide information on how the courses would assist him in gaining employment and what role he would obtain in an overseas company ([28] of the TD) ([11] of the post hearing submissions of the first respondent).
I accept that a reading of the Tribunal Decision indicates that the Tribunal did consider whether the courses at Greystone College would contribute to a career in a global company generally and that it can be inferred that the Tribunal considered the evidence that the applicant had provided about specific skills he thought would assist, as set out in (CB 50). In [22] of the Tribunal Decision, the Tribunal extracted the following paragraph from the applicant’s statement:
In this course, I could acquire key skills needed for success in a business environment such as communication, teamwork, business ethics, global business issues, problem-solving, and especially, effectively using business software and technology for communication, reporting, and creating financial records.
As considered earlier at [74] in this judgment, a decision-maker is not required to cite all evidence, or to provide reasons where this evidence is rejected. Here the Tribunal has cited the evidence ([15-20], [24], [27] and [33] of the TD). In [20] of its Decision, the Tribunal quoted an extract from the GTE Statement to the Department. At [22] of its Decision, the Tribunal extracted from the ‘Request for Student Visa Information’ questionnaire, including the information about the possible value of the course to the applicant’s future. The Tribunal extracted the applicant’s statement from his ‘Request for Student Visa Information’ questionnaire in relation to his future plans ([27] of the TD).
The Tribunal then went on to identify 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 findings in relation of the value of the course to the applicant’s future.
The Tribunal found that it was unclear as to how lower-level courses would enable the applicant to achieve his goal, noting that he had already completed a bachelor’s degree in India ([28] of the TD). These findings were open to the Tribunal, and it was not necessary for it to refer to those items of evidence which had been rejected: (Addo) at [3] and [24].
I am satisfied that there is no jurisdictional error due to failure to consider or actively engage with evidence or submissions.
Bias
At the hearing before me, I outlined for the applicant the relevant legal principles relating to bias, given that the applicant had stated in Ground 1 in his application for judicial review that the Tribunal carried out the assessment with a ‘biased focus’. It was explained to the applicant that if in fact he was alleging bias it would need to be clearly proved. The applicant indicated that he could not point the Court to any part of the Court Book or the Tribunal Decision which indicated that the Tribunal Member was biased. When asked to clarify if he was claiming bias or some other kind of error, the applicant said that he had ‘no words’ (Tp 8.43-46 – 9.4). He did not press the issue of bias.
Actual bias arises where a decision-maker was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at [71]-[72].
Apprehended bias may arise where the Tribunal conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant's case: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
Allegations of bias must be “distinctly made and clearly proved”: Jia Legeng at [72].
The applicant has not articulated with any precision or clarity the allegation of bias and has said that he cannot direct the Court to parts of the Tribunal Decision which illustrate that the Tribunal Member was biased (Tp 8.43-46 – 9.4). It would in any event be rare for an allegation of bias to be established based upon the reasons for decision alone: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [18]. Ordinarily it would be necessary to show some conduct on the part of the decision-maker which would indicate bias, and no such conduct has been presented.
I am satisfied that there is no jurisdictional error in the Tribunal Decision arising from actual or apprehended bias.
Weight
The applicant was asked at the hearing of this Court what he meant in Ground 1 that the Tribunal carried out the assessment with a biased focus based on a general checklist, and that the Tribunal did not properly ‘weigh in the information’. He said that the Tribunal did not properly consider that he applied for a Diploma of Business and was studying (Tp 9.27-39). He said that he had nothing further to submit in respect of Ground 1 (Tp 10.1 -4).
In written submissions, the first respondent claimed that the Tribunal did not use Direction No 69 as a checklist, but rather as a guide when considering the applicant’s circumstances as a whole ([15] of the first respondent’s written submissions). At the hearing before me, Ms Jackson elaborated, stating that the Tribunal in [12] of its Decision had recorded that Direction No 69 was to be used as a guide not a checklist. It was also argued that as the applicant had provided evidence in relation to each factor in Direction No 69, it was incumbent on the Tribunal to consider each of the factors (Tp 12.30-38).
As referred to earlier in this judgment, the Tribunal considered the applicant’s study and enrolment. The Tribunal also considered numerous other factors which broadly collated with Direction No 69. The decision did not demonstrate that the Tribunal was using Direction No 69 as a checklist, and the Tribunal expressly stated that they were not doing so. The Court has already found earlier in this judgment that there was active intellectual engagement with the evidence and submissions in a manner that was not suggestive of using some form of a formula or checklist.
To the extent that the applicant is claiming that more weight should have been ascribed to his Diploma of Business or other evidence, the Court observes that the weight to be given to evidence was a matter for the Tribunal pursuant to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, per Mason J at [41].
There is no jurisdictional error disclosed in Ground 1.
Ground 2
The second ground advanced in the application for judicial review was:
A holistic approach was not used by the Minister and the Tribunal, and several aspects of my information and immigration history was disregarded.
The applicant provided particulars of this ground as follows:
Information and evidences I have submitted were not regarded holistically. My genuine interest in studying and academic progress was not considered. In addition, I had never breach any condition in Australia and completed my previous studies.
At the hearing before me, the applicant said that he did not wish to provide further particulars or submissions and relied on what he had stated in his application (Tp 10.6-32).
In this ground, the applicant appears to contend that evidence he adduced about having a genuine interest in studying and his academic progress and immigration history was not considered.
The first respondent submitted that the ground failed on a factual level, as the Tribunal had considered the interest in studying and academic progress and that he had not breached visa conditions (Tp.13.1-16).
The Tribunal did consider the applicant’s genuine interest in studying (TD [20-34]). As claimed by the first respondent, the Tribunal ‘reproduced large extracts of the applicant’s genuine temporary entrant statement’(Tp.13.7-9). The Tribunal also observed that the ‘applicant was keen to learn and develop business skills’ (TD [31]).
The Tribunal also considered the applicant’s academic progress. At [36] of the Tribunal Decision, the Tribunal noted that the applicant had a substantial degree of knowledge about the courses he is studying and the course provider.
The Tribunal expressly acknowledged that the applicant had not breached any visa conditions (TD [50]).
To the extent that the applicant is claiming that the Tribunal failed to consider evidence of his study and immigration history this fails at a factual level. To the extent that he claims a different decision should have been reached on the basis of the evidence, this is an impermissible invitation for the Court to engage in merits review: Wu Shan Liang at 272.
Ground 2 does not disclose any jurisdictional error.
Ground 3
The third ground advanced in the application was:
The Tribunal failed to consider addition information and supporting documents that were submitted for support.
The applicant provided particulars of this ground as follows:
The Tribunal fully overlooked the additional information and evidences I have provided with the review submission. Moreover with the covid-19 I could not gather more information as lot officer are closed.
At the hearing before me, the applicant was asked if he wished to make further submissions in relation to this ground. He said that he relied on what he had stated in his application. I asked the applicant if there was specific evidence which he believed the Tribunal overlooked. In response, the applicant referred to his certification, college report and a letter from the Sikh Association (Tp 11.5-9).
In this ground the applicant again contends that evidence was not considered by the Tribunal.
The first respondent contended that the Tribunal referred to the information provided by the applicant pursuant to s 359(2) of the Act (TD [16]) and considered the evidence ‘throughout its decision’. At the hearing before me, Ms Jackson reiterated that the Tribunal referred to the applicant’s positive immigration history at [50] of the Tribunal Decision and to his interest in studying at [31] and [36] of the Tribunal Decision and by extracting large portions of his statement (Tp 13.18-45). It was submitted that he referred to college reports and his enrolment in the Certificate III and IV in Business at [16], [48] and [19] of the Tribunal Decision (Tp 13.34 -14.1). At [16] the Tribunal referred to the letter from the Sikh Association. I am satisfied that the applicant’s evidence about these matters was considered by the Tribunal.
It is also settled authority that the Tribunal was not required to consider every piece of evidence submitted: Applicant WAEE per French, Sackville and Hely JJ at [46].
At the hearing before me, Ms Jackson responded to the claim that the applicant could not gather more information as the offices were closed due to the COVID-19 pandemic. She noted that on 1 February 2021 the Tribunal invited the applicant to provide further information, which he did (CB 173). She submitted that the Tribunal then referred to this evidence (Tp 13.18-27). I am satisfied that no jurisdictional error arises out of a failure to provide an opportunity to source evidence due to the COVID-19 pandemic.
Ground 3 does not disclose jurisdictional error.
Ground 4
The fourth ground advanced in the application was:
The Minister and the Tribunal failed to give procedural fairness and natural justice.
The applicant provided particulars of this ground as follows:
Particulars of ground 1 and 2.
At the hearing before me, the applicant was asked if he wished to make further submissions in relation to this ground. He said that it was his genuine concern to study in Australia (Tp 11.16 -43). I asked him if he claimed that the Tribunal processes were unfair. He said that he was concerned, because he was a genuine student and had completed two courses (Tp 11.41 - 12.1-4).
It is apparent from this answer that the applicant feels aggrieved by the Tribunal findings and would like this Court to make a different decision on the findings. Such a wish comprises an invitation for the Court to engage in merits review, which it does not have jurisdiction to do.
While the applicant’s answers at the hearing suggest that he does not have concerns about procedural fairness, for completeness as this claim was advanced in his application, I am satisfied that the Tribunal complied with procedural fairness obligations under Division 5 of Part 5 of the Act (an exhaustive statement of the natural justice hearing rule: s 357A of the Act; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 per Heerey, Conti and Jacobson JJ).
The Tribunal provided the applicant with opportunities to adduce evidence and make submissions. On 15 October 2019, the Tribunal acknowledged the application and invited the applicant to provide material and 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 (CB 122). 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 under s 359(2) of the Act, 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. The Tribunal granted an extension to provide documents (CB 132). The applicant then provided a detailed response to the Request for Student Visa Information questionnaire (CB 133-197). This included financial and academic documents.
As pointed out by the first respondent, the applicant consented to the Tribunal deciding the review without the applicant appearing before it (CB 173), pursuant to s 360(2)(b) of the Act (Tp 13.23-27). As the applicant consented to the review being determined without a hearing, the applicant was not entitled to appear: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 per Jacobson, Gilmour and Foster JJ at [25]–[30].
At the hearing before me, I raised with the first respondent the issue of whether the finding that there were real prospects that the applicant came to Australia to study should have been put to the applicant.
The first respondent submitted, citing SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR), that the Tribunal’s finding that the applicant came to Australia for the purposes of study equated to subjective appraisal of the applicant’s evidence and did not constitute ‘information’ within the meaning of s 359A of the Act ([8] of the first respondent’s post hearing submissions). The High Court in SZBYR at [18] said that it was difficult to see how the Tribunal's disbelief of the appellants' evidence arising from inconsistencies could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1), the equivalent section of the Act for protection visas. The Court referred to the observations of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at 476‑477 that the word ‘information’[24]:
"does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
I accept that in this case, the conclusion reached by the Tribunal that the applicant came to Australia for study rather than tourism, was a step in the reasoning process and not information which needed to be disclosed to the applicant. I accept that there no jurisdictional error emerges due to this omission.
In summary, I am of the view that the Tribunal complied with procedural fairness obligations and that no jurisdictional error is disclosed.
I am satisfied that no jurisdictional error is revealed in the Tribunal Decision.
AMENDMENTS TO THE ACT AND CHANGES OF NAME
The Act was amended on 14 October 2024 after the commencement of the Administrative Review Tribunal (ART) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Consequential Act).
This judgment concerns a decision of the former Administrative Appeals Tribunal. References in this decision to the Act are to the Act 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.
In the circumstances, this Court has made an order substituting the ART as the second respondent in this proceeding.
CONCLUSION
No jurisdictional error has been disclosed in the Tribunal Decision.
The application filed on 19 July 2021 is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 2 September 2025
0
32
3