Singh v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 404

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 404

File number(s):

MLG 1448 of 2019

Judgment of:

JUDGE CORBETT

Date of judgment:

27 March 2025

Catchwords:

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa - application for judicial review – alleged denial of natural justice and procedural fairness – alleged misconstruction of cl 500.212(a) of Sch 2 of the Migration Regulations 1994 (Cth) – no jurisdictional error - application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 499, 359AA

Migration Regulations 1994 (Cth) Sch 2 cls 500.212, 500.212(a)

Cases cited:

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 418 ALR 152; [2024] HCA 12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

Division:

Division 2 General Federal Law

Number of paragraphs:

73

Date of last submission/s:

26 February 2025

Date of hearing:

26 February 2025

Place:

Melbourne

Solicitor for the Applicant

The applicant appeared self-represented

Solicitor for the Respondents

Mr A Gardner, Mills Oakley

ORDERS

MLG 1448 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SUKHDEEP SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CORBETT
DATE OF ORDER:	27 MARCH 2025

THE COURT ORDERS THAT:

1.The application for judicial review made 13 May 2019 be dismissed.

2.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the amount of $6,400.00.

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 CORBETT

1. By an application made 13 May 2019, the applicant seeks judicial review of a decision of the second respondent (Tribunal) made 16 April 2019 in which it affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (visa).

2. Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 26 February 2025, marked exhibit “R1”.

   BACKGROUND

3. The applicant is an Indian citizen. He first arrived in Australia on 2 June 2014 as the holder of a Student (Class TU) (Subclass 573) visa (CB 7, 65).

4. The applicant was granted the Subclass 573 visa for the purpose of undertaking a package of studies, including a General English course, an English for Academic Purposes Two course and a Master of Business Advanced course at Queensland University of Technology. These courses were to be completed by December 2016 (CB 7). The applicant’s course of study was cancelled by the course provider for unsatisfactory attendance in October 2014. The applicant subsequently changed courses with a different course provider, the New England College of Technology, and then completed two Certificate courses and a Diploma level course in Automative Technology (CB 23-33, 65).

5. On 16 March 2017, the applicant applied for the visa for the purpose of undertaking an Advanced Diploma of Leadership and Management at the Gateway College of Technology (CB 1-17). In his visa application, the applicant expressed his desire to study the Advanced Diploma of Leadership and Management to gain expertise in the small to large business sector (CB 23).

6. On 6 July 2017, a delegate of the Minister refused to grant the visa on the basis that the delegate was not satisfied that the applicant met the criteria in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 62-6). The delegate was not satisfied that the applicant was a genuine applicant for entry who intends genuinely to stay temporarily in Australia (CB 65).

7. On 26 July 2017, the applicant, with the assistance of a registered migration agent, applied to the Tribunal for review of the delegate’s decision (CB 67-8).

8. On 27 July 2017, the Tribunal wrote to the applicant and requested that he provide the Tribunal with materials or written arguments for the Tribunal to consider (CB 87). Attached to this letter was an ‘Information for migration review applicants – MR Division’ form (CB 91-4).

9. On 7 August 2017, the applicant’s migration agent provided the Tribunal with a statutory declaration signed by the applicant (CB 95-6). The declaration was similar to the Genuine Temporary Entrant (GTE) statement provided to the delegate when applying for the visa (CB 23).

10. On 21 February 2019, the Tribunal sent the applicant’s migration agent an invitation to provide further information (CB 98-105). The applicant completed and returned the form to the Tribunal (CB 106-15).

11. On 14 March 2019, the Tribunal wrote to the applicant and his agent and invited the applicant to attend a hearing to give evidence and present arguments on 9 April 2019 (CB 116-27). Annexed to the invitation was an ‘Information about hearings – MR Division’ form. On 18 March 2019, the applicant’s representative sent a completed ‘Response to hearing invitation – MR Division’ form to the Tribunal (CB 128-31).

12. On 1 April 2019, the applicant’s representative provided the Tribunal with a confirmation of enrolment dated 6 March 2019 for an Advanced Diploma of Leadership and Management course (CB 133-4).

13. On 9 April 2019, the applicant appeared before the Tribunal and was assisted by his agent and an interpreter (CB 138-40).

    TRIBUNAL DECISION

14. On 17 April 2019, the Tribunal delivered reasons dated 16 April 2019 in which the member affirmed the delegate’s decision to refuse to grant the applicant the visa (Decision) (CB 147-54).

15. In the Decision, the Tribunal set out the background of the review application and correctly considered the primary criteria for a Student (Class TU) (Subclass 500) visa as set out in Pt 500 of Sch 2 to the Regulations (CB 148 [7]-[8]).

16. The Tribunal had regard to the policy guidelines in Ministerial Direction No. 69 made under s 499 of the Migration Act 1958 (Cth) (Act) and correctly identified that the guidelines should not be used as a checklist, rather, are intended only to guide decision makers when considering an applicant’s circumstances (CB 149 [9]-[10]). As required by Direction No. 69, the Tribunal invited the applicant to make submissions relating to any other relevant matters for the purpose of assessing the application and considered the applicant’s circumstances as a whole (CB 154 [39]-[40]).

17. In accordance with the procedures in s 359AA of the Act, the Tribunal recorded that it put to the applicant that it had a copy of the applicant’s enrolment records from the PRISIMS database. The Tribunal informed the applicant of the relevance of the records to the review and explained the consequences of the Tribunal relying on the information contained therein. It confirmed that the applicant understood the consequences of the information being relied upon by the Tribunal. It offered the applicant an opportunity to seek an adjournment to consider the information and asked whether he wished to seek an adjournment or to comment on or respond to the information at the hearing. The applicant elected not to seek an adjournment, and the hearing proceeded that same day (CB 149 [11]).

18. The Tribunal considered whether the applicant had reasonable reasons for not undertaking the proposed course of study in his home country of India, if a similar course is already available there. It considered the applicant’s evidence that he had been in Australia for five years and “cannot start again in India as the study is totally different and not as good” (CB 149 [13]).

19. The Tribunal had regard to the applicant’s evidence that he holds a Bachelor of Commerce degree which he obtained in India in 2013. The Tribunal considered that the applicant has two younger brothers, his mother, father and grandparents in India and contacts them approximately three to four times a week and acknowledged evidence that the applicant has friends in India with whom he regularly contacts. The Tribunal considered that the applicant was supported financially by his father during the course of his studies in Australia. It acknowledged that the applicant had not returned to India since his arrival in Australia in 2014, whilst noting that he was unable to travel while on a Bridging Visa C (Class WC) (Subclass 030) (CB 149 [14]).

20. The Tribunal then considered the applicant’s evidence that he did not have any employment experience in India but hoped to work as a manager in the automotive industry. The Tribunal noted that the applicant had not made plans or inquiries in relation to seeking employment to fulfil his stated intention (CB 150 [15]). The Tribunal considered the applicant’s anticipated earnings of 100,000 Indian Rupees per month upon completion of the proposed course of study, and that at the time of the review, the applicant was working as a fitter and technician at Isuzu for 38 hours per week and received a net income of approximately $800.00 per week (CB 150 [16], [19]). The Tribunal later acknowledged that the remuneration the applicant hopes to earn in India is less than his income working full-time in Australia at the time of the review application (CB 151 [28]).

21. The Tribunal then went on to consider the applicant’s circumstances in India. Based upon the evidence put before the Tribunal, the Tribunal made the following findings (CB 150 [18]):

    a.The applicant provided reasonable reasons for not undertaking the proposed course of study in his home country.

    b.The applicant does have family ties to his home country. Given the length of time in Australia, the absence of travel home and the uncertainty of any prospective employment upon the applicant’s return the Tribunal finds these circumstances are not a significant incentive to return.

    c.The applicant is supported financially during his study in Australia by family and does not have any planned or arranged employment in India. The applicant currently works full time in Australia and enjoys a higher income than he expects to receive on returning to India which is a significant incentive not to return home.

    d.The applicant does not have any military service commitments which would provide a significant incentive not to return home.

    e.There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely.

    f.There is no relevant evidence regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

22. The Tribunal expressed concern that the applicant was using the student visa programme to circumvent the migration programme, “as the applicant had enrolled in a series of courses in different areas of study” (CB 150 [21]). The Tribunal addressed these concerns with the applicant and considered the applicant’s evidence that he had once enrolled in an Advanced Diploma of Hospitality because his visa was about to expire. The Tribunal made the following assessment (CB 151 [21]):

    [21]…The Tribunal was concerned that the applicant’s primary intention in enrolling in this course was for the purpose of maintaining residence in Australia, not for any reasonable change in career aspirations. The applicant stated that once he started undertaking the Advanced Diploma of Hospitality course, it involved cooking with meat and as a Sikh he wanted to get away from that. The Tribunal considers that a student studying hospitality management in Australia would be reasonably aware of the contents of the course prior to commencing that course of study. He stated that his intention was to open a good business in India but he needed money and his intention was to stay here for two years to collect good money and go back to India and start a good business. The Tribunal has concern that the applicant is primarily utilising the student visa programme to maintain his presence in Australia and the applicant’s economic motivations indicate that the applicant does not intend to genuinely stay in Australia temporarily. The applicant’s oral testimony did not allay these concerns.

23. The Tribunal also took into consideration that the applicant had ceased study in the Advanced Diploma of Leadership and Management course in mid-2017 and did not study for a period of seven to eight months. It considered the applicant’s evidence that this was due to a number of reasons, including a motor vehicle accident that occurred in March 2017. It further considered evidence that the applicant’s brother, who resided with him during the relevant time, was involved in a domestic violence matter and that his brother’s wife threatened the applicant in relation to his student visa. The Tribunal acknowledged these events caused financial and significant stress to the applicant and was therefore unable to continue his studies (CB 151 [22]).

24. In considering the applicant’s circumstances in Australia, the Tribunal made the following findings (CB 151 [24]):

    a.The applicant has family with whom he maintains contact in Australia. The applicant has a network of friends and is involved in the community through the Sikh Temple and full-time work. Given the period of time the applicant has been in Australia, the Tribunal is satisfied the applicant has developed friendships in Australia through work and study and finds this social, emotional and financial connection to Australia provides a strong incentive to remain.

    b.The applicant’s pattern of enrolment and length of study provides evidence of the student visa programme being used to circumvent the intentions of Australia’s migration programme.

    c.The applicant’s student visa application is being used primarily to maintain ongoing residence in Australia.

    d.The applicant has a good knowledge of living in Australia, primarily through the length of time the applicant has been in Australia and has a good understanding of the proposed course of study, education provider and his current study and living arrangements in Australia

25. The Tribunal expressed concern that the applicant undertook a series of lower-level VET courses in Australia in a number of subject areas “which are inconsistent with this already attained Bachelor of Commerce”. It acknowledged the applicant’s evidence that he loved cars and that the courses offered him a good opportunity to enter the automative industry (CB 151 [25]). The Tribunal acknowledged that the applicant sought a managerial position and wanted to complete his studies and make good money in India, although had not commenced searching for employment in India (CB 151 [26]).

26. At paragraph [27] of the Decision, the Tribunal made the following findings with respect to the applicant’s changes to his career and study (CB [151 [27]):

    [27] The Tribunal recognises it is important to allow for reasonable changes to career and study pathways. Overall however the Tribunal found the applicant’s testimony unconvincing. This is not simply a case where the applicant has decided to change career paths through study. The applicant already holds a Bachelor of Commerce. He has completed English study and completed two courses in mechanics prior to enrolling in an Advanced Diploma of Leadership and Management and Advanced Diploma of Hospitality Management, neither of which were completed. The applicant’s oral testimony was that he enrolled in the Advanced Diploma of Hospitality course as his visa was going to expire. The Tribunal does not consider this to be reasonable and finds the course was primarily undertaken to maintain the applicant’s residence in Australia

27. The Tribunal considered that the applicant had no prior work experience before travelling to Australia to study. The Tribunal queried what additional benefit the Advanced Diploma of Leadership and Management would provide the applicant beyond his already attained qualifications, and it considered the applicant’s evidence that it would “allow him to handle bigger management and his intention was to return to India to work in the automotive industry in May 2020” (CB 152 [28]).

28. In considering the value of the proposed course to the applicant’s future, the Tribunal made the following findings (CB 152 [30]):

    a.The course is not consistent with the applicant’s current level of education and represents a regression from his already attained Bachelor of Commerce.

    b.Given the applicant’s previous history of employment and the qualifications already attained, the Tribunal finds the current proposed course of study is of limited value to the applicant in relation to his stated future goals and aspirations. Had the applicant genuinely held his stated intention of returning to India to work as a manager in the automotive industry, given his qualifications and experience gained in Australia over the past five years, he could have already done so.

    c.The current proposed course is relevant to proposed future employment intentions of the applicant in his home country. The Tribunal does not however consider the change in study paths reasonable. While the course appears relevant to the applicant’s career aspirations, the Tribunal finds that the qualifications already held by the applicant will enable him to implement those intentions and the proposed course of study provides limited additional value in relation to the applicant’s prospective employment.

    d.The remuneration the applicant can expect in his home country is less than the applicant’s current income while undertaking full-time work in Australia and this presents a strong incentive for him to remain in Australia.

29. The Tribunal considered the applicant’s evidence that he had not previously applied for visas in other countries. It accepted the applicant’s evidence that he had not returned to India for visits due to restrictions in his Bridging Visa C (Class WC) (Subclass 030), on the advice of his migration agent that he was required to work on a full-time basis. The Tribunal made no unfavourable finding to the applicant in this regard (CB 153 [32]).

30. At paragraph [34], the Tribunal made the following findings (CB 153 [34]):

    [34] The applicant has spent a long period of time in Australia undertaking a series of short and inexpensive courses. The Tribunal was concerned that the applicant was enrolling in these courses for the primary purpose of maintaining his residence in Australia. The applicant told the Tribunal this was not the case and he was studying so he could open a good business in India with “working hoses and all good tools.” The Tribunal was concerned that this testimony was inconsistent with the applicant’s previous evidence that he intended to return home to work as a manager in the automotive industry.

31. The Tribunal further considered evidence by the applicant’s migration agent that the applicant “intended to apply for a temporary resident visa for two years” and to be eligible to do so, the applicant needed to obtain his student visa and complete his proposed course of study, being the Advanced Diploma of Leadership and Management. The Tribunal made the following findings on this evidence (CB 153 [35]):

    [35]…This concerned the Tribunal as it is indicative of an intention inconsistent with being genuinely in Australia temporarily for the purpose of study

1. The Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily and was not satisfied that the applicant met the criteria in cl 500.212(a) of Sch 2 of the Regulations (CB 154 [40]-[42]). The Tribunal was not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212 (CB 154 [43]) and concluded that the criteria for the grant of a Student (Temporary) (Class TU) (Subclass 500) visa was not met (CB 154 [44]).

2. The Tribunal affirmed the delegate’s decision to refuse to grant the visa (Decision) (CB 154 [43]).

   PROCEEDINGS IN THIS COURT

3. On 13 May 2019, the applicant filed an application for judicial review in this Court (CB 167-71). The application contained the following grounds of review (verbatim) (CB 169-70):

   1.The Department made a procedural error by not correctly assessing information relevant to the applicant’s particular circumstances

   Particulars:

   The department of immigration and border protection failed to consider the other relevant matter in support of any case and previous immigration history and compliance with the visa condition was not considered

   2.The applicants were not afforded natural justice.

   Particulars:

   I was not provided extra time to provide the evidences

   The member believed on the hearsay evidences of the Home affairs department and refused the case without asking for additional documents

   I believe that I wasn’t provided a fair opportunity to provide the verbal evidences to the member.

   My legitimate expectation to seek review was denied by the tribunal. AAT and Department of Home Affairs did not provide the decision record for their decision which clearly depicts an error

   3.Tribunal misconstrued condition 500.212 of Schedule 2 to the Regulations. According to tribunal, the Tribunal cannot be satisfied that the applicant is a genuine temporary entrant this is not true as I was enrolled in the registered course and future prediction that the tribunal considered was provided by the agent not the applicant itself. My genuine intentions to studies was denied by the tribunal and mis constitute as non-genuine applicant of visa

   Particular:

   The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion. Tribunal misinterpreted cl.500,212(a).

   The asked me for the irrelevant questions such as travelling back home since arrival whereas they are aware that the visa I hold I don’t have travelling rights and can neither  be changed.

   4.Despite of the repeated request the member did not provide any time to provide the documents and never gave a detailed decision of the application

   5.Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact

   6.The appellant’s application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.

   7.Substantial justice was not provided and that’s the reason I want to apply in federal circuit court of Australia.

4. The application was supported by an affidavit of the applicant affirmed 13 May 2019 which annexed the Tribunal’s Decision Record and notification of the Decision (CB 174-200). The affidavit also set out the following (verbatim) (CB 174):

   1.I am the primary applicant of my student visa application. After the partial competition of my studies, I applied for the visa extension that can help me to complete my studies.

   2.Department of home affairs refused my case as they think that I am not genuine student so I applied for the review of my decision.

   3.Administrative Appeals Tribunal did not consider the actual reason for the refusal and made a conclusion without law and facts hence the decision of AAT is effected by jurisdiction error.

5. The application for judicial review was listed for hearing before this Court at Melbourne on 25 February 2025. The applicant appeared self-represented and where required, was assisted by an interpreter fluent in the Punjabi and English languages. The applicant’s command of the English language was good, and the assistance of the interpreter was rarely required. Mr Gardner appeared on behalf of the Minister.

6. The Court confirmed at the hearing that the applicant received a copy of the Court Book prepared on behalf of the Minister and the Minister’s outlines of written submissions dated 12 February 2025.

   APPLICANT’S SUBMISSIONS

7. Noting that the applicant was unrepresented, the Court gave the applicant the opportunity to elaborate on his grounds of review and to inform the Court of the basis on which the Tribunal made any jurisdictional error.

8. To assist the applicant, the Court informed him that this Court must only turn its attention to the issue of jurisdictional error by the Tribunal in its Decision, and that the Court cannot conduct a merits review of the Tribunal’s decision not to grant the visa. Rather, the function of the Court is restricted to determining if the Tribunal made a material jurisdictional error or significant mistake in arriving at the Decision.

9. The Court invited the applicant to address each of the seven grounds contained in his application for judicial review. In response, the applicant said, “I can’t mention anything on this”.

10. The Court explained the Tribunal’s Decision to the applicant, namely that the Tribunal affirmed the decision of the delegate to refuse to grant the applicant the visa on the basis that it found the applicant to be using the visa to circumvent the migration programme and to stay in Australia permanently. The applicant responded, “when the visa expired in 2017, my application was delayed by my migration agent. I couldn’t apply for…anything because I didn’t have any study or work rights, went back to agent…after 9 or 10 months I found out I had work rights and started again in my job”.

11. The applicant further submitted, “I explained I don’t have any study or work rights, they [the Tribunal] didn’t ask what documents I could present on that day, just refused the application and that is why I am here. When Registrar asked if I was studying again, I said in the last ten months I had no work rights so I couldn’t study. After that hearing, they [the Tribunal] didn’t ask any further documents and dismissed the matter”.

12. The Court asked what further documents the applicant would have provided to the Tribunal upon request. The applicant responded, “Diploma of Leadership…I provided on the hearing date and no other documents…the Tribunal asked what I was doing, I supplied my work experience”.

13. The Court inquired whether the applicant had explored any employment opportunities in India which related to his proposed course of study. In reply, the applicant submitted, “no, when I finished after that I was looking at jobs in Australia. I got a job in Adelaide and moved, then worked as a mechanic… from the last five years I continued working in that job”.

14. The applicant continued and said, “main reason they asked was whether I was genuine student…the last ten months I had no work rights, I didn’t have a Certificate of Enrolment for the study, maybe that was the issues, they asked why I hadn’t studied in the last ten months”. The Court clarified that on 1 April 2019, the applicant’s then migration agent provided a Certificate of Enrolment dated 6 March 2019 to the Tribunal, ahead of the hearing on 9 April 2019 (CB 133-6). The applicant then told the Court that from 2017 to 2018, he was not aware what work or study rights he had.

    MINISTER’S SUBMISSIONS

15. The solicitor for the Minister, Mr Gardner, stated that the oral submissions made by the applicant partly echoed the grounds of review as pleaded in the application. Mr Gardner took the Court through each of the grounds.

16. Mr Gardner submitted that ground one raises a complaint against the findings of the delegate of the Minister. Given the Court does not have the jurisdiction to review the delegate’s decision as it is a primary decision, ground one is misconceived and cannot succeed.

17. Ground two asserts that the applicant was not afforded natural justice by the Tribunal because he was not given additional time to provide the Tribunal with evidence and because the Tribunal relied on the findings of the delegate without requesting further documents. It was submitted that the Tribunal invited the applicant to provide further information (CB 98-105), to which the applicant responded (CB 106-15). The hearing invitation dated 14 March 2019 also requested that the applicant provide all documents with which he intended to rely on to establish that he met the criteria for the visa (CB 117-20). Mr Gardner submitted that in the Decision, the Tribunal referred to information obtained (the PRISMS records) pursuant to s 359A of the Act and expressly put the information to the applicant pursuant to s 359AA of the Act. At the hearing, the Tribunal also invited the applicant to seek an adjournment if he required additional time, however, the applicant elected to respond to the information and proceed with the hearing. The Tribunal therefore complied with its procedural fairness obligations, and it cannot be said that the applicant was not afforded natural justice or a meaningful hearing.

18. Ground three asserts that the Tribunal misconstrued cl 500.212(a) of Sch 2 to the Regulations. The solicitor for the Minister submitted that this ground simply expresses disagreement with the Tribunal’s Decision and seeks impermissible merits review by this Court. Mr Gardner submitted that the Tribunal correctly considered cl 500.212(a) of Sch 2 of the Regulations and correctly had regard to Direction No. 69. Mr Gardner stated that the applicant complained that the Tribunal asked irrelevant questions, however, it was submitted that the applicant’s immigration history, including his previous travel to Australia or other countries, was a relevant factor that the Tribunal was required to consider.

19. Grounds four and five repeat that the Tribunal did not provide the applicant with any time to provide documents. The solicitor for the Minister submitted that for the reasons outlined in relation to ground two, grounds four and five are not made out. The applicant was given adequate notice to prepare and present his application for review.

20. Grounds six and seven submit that the applicant “clearly raises an arguable case”. Mr Gardner submitted that there were no particulars of these grounds, and they were meaningless. The arguable case was not identified and the “injustice” was not explained in any way by the applicant.

21. At the conclusion of the Minsiter’s submissions, Mr Gardner tendered the Court Book which was designated exhibit “R1”.

    REPLY

22. In response to the Minister’s submissions, the applicant said, “from 15 March 2017 I didn’t know I had study or work rights…not aware of what I could do, that’s why I was stuck for nine or ten months”.

23. The Court informed the applicant that in the Decision, the Tribunal considered the course that the applicant had enrolled in, namely the Advanced Diploma of Leadership and Management, with which he ceased study in mid-2017 and considered the applicant’s study history and that he had completed a Certificate III and IV in Automative Mechanical Diagnosis and a Diploma of Automotive Technology prior to enrolling in the Advanced Diploma of Leadership and Management and an Advanced Diploma of Hospitality Management (neither of which were completed) (CB 152 [27]). The Court clarified that the Tribunal did not merely consider the time period with which the applicant held a Bridging Visa C (Class WC) (Subclass 030), rather, it considered the entirety of his study history and whether this demonstrated an intention to return to India.

24. The Court invited any further comment from the applicant as to whether the study history was incorrectly described or identified by the Tribunal, to which the applicant responded “no”. This concluded the applicant’s submissions.

    CONSIDERATION

25. The function of this Court is to review the Decision and determine whether the Tribunal has fallen into error by failing to conduct the statutory task of reviewing the application for the visa in accordance with law.

26. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang), the High Court said at 272:

    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. 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.”

27. Therefore, it is not for this Court to review the merits of the Decision or to reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings. The weight to be given to the evidence was in the domain of the Tribunal and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Tran)).

28. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 418 ALR 152; [2024] HCA 12 (LPDT), the plurality said at [3]:

    [3]…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.

29. The Decision contains a very thorough and detailed analysis of the applicant’s claims and evidence. In Wu Shan Liang at 272, the Court warned against construing the decision under review “minutely and finely with an eye keenly attuned to the perception of error”. The applicant’s grounds of review in the application for judicial review seek to disagree with the findings of the delegate of the Minister and the Tribunal rather than identify errors of the kind referred to by the Court in LPDT. This Court cannot give weight to those complaints because to do so would involve impermissible merits review. Each of the grounds of review are addressed as follows.

    Ground one

30. This is a complaint about the findings of the delegate of the Minister. The Tribunal undertook a review of the delegate’s decision. In doing so the Tribunal considered the application for the visa afresh with the benefit of the additional evidence and statutory declaration submitted by the applicant and his migration agent. The delegate’s decision is not the subject of this application for judicial review. Ground one is misconceived in that regard.

31. The Decision reflects a very detailed and thorough consideration of the evidence before the delegate and of the further evidence of the applicant provided before and at the Tribunal hearing. The Tribunal did consider the applicant’s immigration history and compliance with the conditions of his previous student visa. It did so after clearly stating the statutory test it was required to apply and the guidelines for assessing student visa applications in Direction No. 69. The Tribunal also put to the applicant in accordance with s 359AA of the Act, information that it obtained from the Provider Registration International Student Management System (PRISMS) database. The Tribunal also put to the applicant concerns it held in relation to his pattern of studies and intentions to return to India. The applicant was invited to comment and did so. The Tribunal did not accept aspects of the applicant’s asserted intention as it was entitled to do. There is nothing apparent from the reasoning in the Decision to reflect that the Tribunal took into account an irrelevant consideration or ignored relevant material. Ground one does not identify the “relevant matter in support of my case” that the applicant asserts was not properly considered, but the Decision identifies the claims made by the applicant as to why he was a genuine temporary entrant but was not satisfied on the evidence that his claims were genuine. That is a matter of weight for the Tribunal and not this Court (see Tran at [5]).

    Ground two

32. The applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments (CB 118–24). The applicant did so with the assistance of a registered migration agent. The applicant submitted evidence in support of his application including a completed Request for Student Information (CB 106–15), a Certificate of Enrolment (CB 134) and a Response to hearing invitation (CB 129). The Tribunal also considered the statutory declaration and GTE statement provided by the applicant. In accordance with s 359AA, the Tribunal informed the applicant of the PRISM database report and invited him to comment and adjourn the hearing if required. The applicant gave evidence and presented his arguments at the hearing on 9 April 2019. There was no failure to provide the applicant with a fair opportunity to give evidence or to be heard. The Decision does not reflect a mere repetition of the delegate’s decision but records the consideration of the application based on the further evidence and new evidence provided.

33. Ground two does not identify any “additional documents” that the applicant sought to rely but was prevented from relying on, and there was no evidence put before this Court by the applicant of further documentation that was available to the Tribunal but not considered. This ground is rejected.

    Ground three

34. This ground does not identify how the Tribunal misconstrued the Regulations or applied the wrong legal test. The complaint appears to be that because the applicant was enrolled in a registered course of study it then follows that he was a genuine student for entry and stay as a student who intends to stay temporarily in Australia. That is not the test. The test requires the consideration of the applicant’s circumstances, immigration history, and any other relevant matters. Direction No. 69 provides guidelines for the consideration of those matters by a decision-maker. The Tribunal correctly identified the test and guidelines and considered the applicant’s claims and evidence. However, the Tribunal was not satisfied after considering the applicant’s history, circumstances and evidence that he intended genuinely to stay in Australia temporarily. Therefore, he did not satisfy cl 500.212(a) of Sch 2 of the Regulations and the criteria for the visa were not satisfied.

35. The evidence upon which these conclusions were reached was set out in the Decision at paragraphs [14]-[17], [19]-[22], [25]-[28], [31]-[35] and [37]–[38]. Having identified and considered that evidence, the Tribunal concluded that cl 500.211(a) of Sch 2 of the Regulations was not satisfied. The reasoning of the Tribunal was logical and clear. The applicant’s travel and visa history was a relevant consideration that the Tribunal was entitled to explore in assessing the applicant’s intentions. It was not an irrelevant inquiry that resulted in jurisdictional error. This ground is also rejected.

    Ground four

36. There is nothing in the Decision that records a request for more time within which to provide documents. The applicant was represented by a registered migration agent and the applicant completed both the Request for Student Information Form and the Response to hearing invitation. No other documents have been identified by the applicants as relevant that were not produced. There is also no evidence of “repeated requests” by the applicant or his agent for more time. The Tribunal did give a detailed decision on the application for review and this ground is otherwise unclear and confusing. This ground does not disclose jurisdictional error and is dismissed.

    Ground five

1. This ground appears to be a repetition of ground four. There is no evidence to suggest that there was a request for more time that was unreasonably ignored or refused by the Tribunal. Nor is it clear what further evidence or documents the applicant sought to rely on that were not before the Tribunal and considered in the Decision. No error by the Tribunal is apparent and without proper particulars or an explanation from the applicant (which was not forthcoming at the hearing before this Court), this ground is meaningless and is also dismissed.

   Grounds six and seven

2. These grounds are also unclear and unparticularised. The “arguable case” is not identified by the applicant and appears to be reference to a different legal test. The role of this Court is to assess the Decision and the conduct of the review by the Tribunal for jurisdictional error. That the applicant believes he has an “arguable case” is irrelevant to the Court’s function and jurisdiction under s 476 of the Act. For the reasons given above, there was no failure by the Tribunal to afford procedural fairness to the applicant or any other recognised form of jurisdictional error of the kind identified in LPDT or injustice revealed by the Decision, or from any evidence produced by the applicant. These grounds are also rejected.

3. Noting that the applicant appeared before this Court without legal assistance, the Court also scrutinised the Decision for jurisdictional error after considering the materials in the Court Book and the applicant’s oral submissions (see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [15], [77], [100], [112]-[114]). No discernible or material jurisdictional error could be identified.

   COSTS

4. At the conclusion of the Minsiter’s submissions, Mr Gardner submitted that in the event that the application for judicial review is dismissed, the applicants be ordered to pay the Minister’s costs and disbursements fixed in the sum of $6,400.00. This sum claimed is appropriate, less than the amount permitted by Pt 2, Div 1 of Sch 2 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) and it is within the discretion of the Court to order.

   ORDERS

5. The application for judicial review made 13 May 2019 be dismissed.

6. The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the amount of $6,400.00.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

Associate:

Dated: 27 March 2025