Singh v Minister for Immigration and Multicultural Affairs

Case •

[2025] FedCFamC2G 667

•

9 May 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 667  

File number(s): BRG 485 of 2024
Judgment of: JUDGE EGAN
Date of judgment: 9 May 2025
Catchwords: MIGRATION – Whether the Tribunal erred in finding that the applicant was not a genuine temporary entrant in Australia for the purpose of undertaking study – no jurisdictional error established – application dismissed.
Legislation:

Migration Act 1958 (Cth), s. 65

Migration Regulations 1994 (Cth), Schedule 2, Cl. 500.212

Division: Division 2 General Federal Law
Number of paragraphs: 18
Date of last submission/s: 7 May 2025
Date of hearing: 7 May 2025
Place: Brisbane
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondents: Ms X Tran, Sparke Helmore

ORDERS

BRG 485 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JASVIR SINGH

Applicant
AND:

MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

9 MAY 2025

IT IS ORDERED THAT:

1.The Application for Review filed on 6 August 2024 be dismissed.

2.The applicant pay first respondent’s costs of and incidental to the Application for Review fixed in the amount of $6,500.

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 EGAN

Introduction

  1. The applicant is a male citizen of the Republic of India who applied for a Student (Temporary) (Class TU) (Sub-class 500) Visa under s. 65 of the Migration Act 1958 (Cth) (the Act) on 25 December 2020.

  2. The applicant’s relevant history was that he first arrived in Australia on 17 January 2014 on a Student Visa. He was granted further student visa’s in 2017 and 2020.

  3. On 25 December 2020, that being the expiry date in respect of his visa granted in 2020, the applicant applied for the student visa based upon confirmation of his enrolment in courses for a Certificate IV in commercial cookery as well as a diploma of hospitality management.

  4. On 1 April 2021, the Department wrote to the applicant raising serious concerns about whether he had an intention to only stay temporarily in Australia. Provider Registration and International Student Management System (PRISMS) Records recorded the following: [1]

    [1]           Exhibit 1 – Court Book (CB) pp. 47 – 48.

    •Confirmation of Enrolment (CoE): 5EF21171 Diploma of Information Technology (Networking) 8 October 2013 to 20 June 2014. Cancelled on 8 November 2013 due to 'Change to CoE/Student Details'. Comments in PRISMS state 'This applicant has deferred until January 2014 intake.

    •CoE 60365822: Diploma of Information Technology (Networking) 28 January 2014 to 5 December 2014. Cancelled on 24 June 2014 due to 'Student Notifies Cessation of Studies' with student's last day of study recorded as 13 June 2014. Comments in PRISMS state 'STUDENT HAS PROVIDED LETTER OF WITHDRAWAL ANDEVIDENCE OF FLIGHTS TO RETURN TO INDIA, ISSUED AND RECEIPTED BY SAI WORLD TRAVEL NUNDAH QLD’.

    •CoE 67MB252: Diploma of Buisiness 14 July 2014 to 12 January 2015. Cancelled on 1 December 2014 due to 'Non payment of fees' with student's last day of study 16 September 2014.

    •CoE 5F1A6821: Bachelor of ln1formation Technology 28 July 2014 to 30 June 2016. Cancelled on 27 November 20·13 due to 'Change to CoE/Student Details'. Comments in PRISMS state 'Deferred to Sem 1 2015'.

    •CoE 6BEF0131 : Diploma of Commerce 12 November 2014 to 24 October 2015. Cancelled on 11 August 2015 clue to 'Student left provider - transferred to course at another provider' with student's last day of study 10 August 2015. Comments in PRISMS state 'The student has been approved ta withdraw and study with another provider. Admission documents have been provided'.

    •CoE 67MBF67: Advanced Dip1loma of Business 19 January 2015 to 3 August 2015. Cancelled on 10 December 2014 due to 'Non-commencement of studies'.

    •CoE 60CB2452: Bachelor of Information Technology 2 March 2015 to 31 December 2016. Cancelled on 24 June 20114 due to 'Non-commencement of studies'. Comments in PRISMS state 'Student return to home country' .

    •CoE 67 MC788: Advanced Diploma of Marketing 1 O August 2015 to 8 February 2016. Cancelled on 26 June 2014 due to 'Change to CoE/Student Details'. It is recorded that you did not undertake any study.

    •CoE 67 MD333: Diploma of Marketing 1 O August 2015 to 8 February 2016. Cancelled on 10 December 2014 due to 'Non-commencement of studies.

    •CoE 76250952: Diploma of Business 7 September 2015 to 3 April 2016. Finished.

    •CoE 6BF12D67: Bachelor of 81Jsiness 11 November 2015 to 21 October 2017. Cancelled on 27 October 2015 due to 'Non-commencement of studies'. Comments. in PRISMS state 'Student will nrot commence on this CoE - Deferral until T1, 2016 Approved'.

    •CoE 67AAE537: Advanced Diploma of Marketing 15 February 2016 to 15 August 2016. Cancelled on 10 December 20·14 due to 'Non-commencement of studies'.

    •CoE 76A7C314: Bachelor of Business (Hospitality and Tourism Management) 16 March 2016 to 3 March 2018. Cancell1ed on 28 April 2016 due to 'Non-commencement of studies'. Comments in PRISMS state 'Student did not commence on this CoE'.

    •CoE 7DFD2614: Advance Diploma of Business 4 April 2016 to 30 October 2016. Finished.

    •CoE 8AB4E762: Bachelor of Business 20 February 2017 to 26 August 2018. Cancelled on 21 August 2018 due to 'Student Notifies Cessation of Studies' and on 24 August 2018 citing there was a 'Change to student enrolment.' with student's last day of study 24 August 2018. Comments in PRISMS state 'Student Failed to enrol in a compulsory study period' and 'CoE was pre,-maturely cancelled for non re-enrolment. The student still has 20 working days to appeal the outcome of the formal complaint'.

    •CoE 9F034C36: Bachelor of Business 20 February 2017 to 26 August 2018. Cancelled on 24 October 2018 due to 'Extension CoE created.'. Comments in PRISMS state 'Implemented intervention strategy'.

    •CoE A1213824: Bachelor of Business 27 August 2018 to 19 May 2019. Finished. Comments in PRISMS 22 May 2019 state 'Extension CoE created.'

    •CoE A9CB8C40: Bachelor of Business 20 May 2019 to 1 September 2019. Finished.

    •CoE AF975556: Graduate Diploma of Management (Learning) 28 October 2019 to 25 October 2020. Cancelled on 4 March 2020 due to 'Non payment of fees' with student's last day of study 3 March 2020.

    On 15 August 2022, a delegate of the Minister refused to grant the visa. The delegate found that the applicant did not satisfy the criteria as set out in Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student. Clause 500.212 relevantly provided as follows:

    Clause 500.212

    The applicant is a genuine applicant for entry and stay as a student:

    (a)  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

    (b)  because 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)  because of any other relevant matter.

  5. The delegate referred to the fact that Visa Condition 8202 regarding attendance and course progress was mandatory for all Student Visa holders. Condition 8202 required the student to be enrolled in a full-time registered course, achieve satisfactory course progress, achieve satisfactory course attendance, and maintain enrolment in a course at the same level or higher than the Australian Qualifications framework level for which they obtained the visa. It was recorded that the PRISMS history showed a study gap for the period from 5 March 2020 until 25 January 2021, and an enrolment gap from 5 March 2020 until 23 December 2020.

  6. The PRISMS history made the delegate concerned that the applicant was not a genuine temporary entrant for the purpose of study as defined in Regulation 500.212 to the Regulations.

  7. The applicant sought review of the decision of the delegate before the Tribunal.

  8. On 2 July 2024, the Tribunal affirmed the decision of the delegate.

  9. On 26 August 2022, the applicant made application for review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal).

  10. On 2 July 2024, the Tribunal affirmed the decision of the delegate to refuse to grant a visa to the applicant.

    Grounds of Review

  11. On 6 August 2024, the applicant filed an Originating Application for Review of the decision of the Tribunal. The grounds of review were as follows:

    1. The Tribunal's decision is infected with jurisdictional error failed to put the Applicant on notice that it had concerns with the genuine student aspect in relation to the Applicant.

    Particulars

    a. The Tribunal at paragraph 64 made speculations stating 'whether the student visa may be used primarily for maintaining ongoing residence'.

    b. The Tribunal should have given weight to the fact that there were no adverse findings or adverse visa history which is indicative of the applicant using his student visa to maintain ongoing residence.

  12. The Court finds that the Tribunal appropriately considered whether the applicant was a genuine temporary entrant into Australia for the purpose of study, or whether he was using the Visa system to stay in Australia for as long as possible. It noted that the applicant had returned to India on three (3) occasions since first arriving in Australia. [2] It further noted that the Tribunal found that the applicant’s study record in Australia was concerning. At [43] – [50] of its reasons, the Tribunal found as follows:

    [2]           [39] of the reasons of the Tribunal.

    43. The applicant first arrived in Australia on 17 January 2014, holding a Student visa, which was granted for the purpose of undertaking a Diploma of Information Technology (Networking). He did not complete this course but transferred to package courses leading to a Bachelor of Business. The applicant completed a Diploma of Business in 2016 and an Advanced Diploma of Business in 2016 but did not successfully complete the Bachelor of Business. He claims that he completed all but six units of the Bachelor of Business, and that he suffered from a mental health condition and then decided to study something which would be academically easier for him. His last enrolment in the Bachelor of Business ended on 1 September 2019. He then enrolled in a Graduate Diploma of Management (Learning) in October 2019, but this enrolment was cancelled on 4 March 2020 because of non-payment of fees. The applicant then remained unenrolled for over 10 months until 25 January 2021, when he commenced the Certificate! IV in Commercial Cookery. This enrolment was then cancelled roughly a year later, on 10 February 2022, because of non-payment of fees. The applicant then remained unenrolled for a period of over 13 months until 17 April 2023, when he commenced the Certificate IV in Kitchen Management.

    44. Of significant concern, the applicant's enrolment in the Certificate IV in Kitchen Management was also cancelled roughly one year later, on 31 January 2024. The reason stated on his PRISMS record is 'Student Notifies Cessation of Studies'. It ls of concern that the applicant attended the hearing on 23 February 2024, seemingly unaware that his enrolment in the Certificate IV in Kitchen Management had been cancelled over three weeks before. The applicant told the Tribunal that he was enrolled in this course and that he would complete it in June 2024. I have concerns that the applicant's evidence indicates that he was either attempting to mislead the Tribunal a1bout the status of his enrolment, or at best indicates that he was not actively attending his college or engaged with his studies and was unaware that his enrolment had been cancelled over three weeks before.

    45. The applicant has now been re-issued with current CoEs for the Certificate IV in Kitchen Management and the Diploma of Hospitality Management which would require him to remain in Australia at least until May 2025. This would bring the length of the applicant's stay in Australia to over 11 years, which is a significant length of time and in itself raises concerns that the applicant is using the Student visa programme to maintain ongoing residence and to circumvent the intentions of the migration programme.

    46. Since arriving in Australia over 10 y1sars ago, the applicant has successfully completed only the Diploma of Business and Advanced Diploma of Business. I have considered the applicant's stated reasons for his lack of further progress with his studies. I do not consider that these reasons, even when they are considered cumulatively, address the concerns raised about the applicant's PRISMS record and enrolment history. I have considered the medical evidence provided by the applicant, which includes medical certificates from Dr Dip Chand, one of which is dated 28 June 2018 and stated that he examined the applicant that day and in his opinion the applicant is suffering from adjustment disorder with anxiety and depression. This letter also attaches a 'Formal complaint form' to Torrens University, in which the applicant states that his health is not good, he is depressed and not mentally good, and that he needs help so he can finish his studies. The second certificate of Dr Chand is dated 13 October 2021 and states that the applicant has a medical condition and will be unfit for work/school/study from 7 June 2021 to 13 October 2021 , inclusive. A third medical certificate was provided on 12 March 2024 for the purpose of requesting a postponement of the hearing. This certificate certifies that Dr Chand examined the applicant on 12 March 2024 and that the applicant is suffering from a medical condition and will be 'unfit for work I university' from 8 to 15 March 2024, inclusive. I have also noted the medical information about the applicant's grandfather, and the death certificate which indicates he passed away in February 2018. I have also considered the explanation the applicant has provided in his GTE statement to this Department, in which he also refers to the death of his grandfather, to stress and headaches, failing subjects, not having any family in Australia, as well as the COVI D-19 pandemic.

    47. I have also considered the transcript the applicant has provided from APM College of Business and Communication and Torrens University, which indicates that in 2018 the applicant only attempted four subjects, three of which he failed, and that in 2019 he attempted eight subjects, of which hie failed five.

    48. While I note the medical certificate which indicates the applicant was unfit for study from 7 June 2021 to 13 October 2021, I note that this period does not overlap with the periods when the applicant was not enrolled! in any course of study from March 2020 to January 2021 and from February 2022 to August 2022. The applicant claimed that he would provide further medical certificates, but despite being given 14 days to do so, and despite the passing of almost three months since the April 2024 hearing, he has not provided any further documentation to support his claims. I consider that the applicant has not provided sufficient explanation for why he was not enrolled for these two significant periods of time which add up to over two years. I consider this to be a very long time to remain unenrolled and find it relevant in considering the applicant’s intentions in remaining in Australia. Even though I accept the medical evidence which indicates the applicant suffers from depression and anxiety, I do not accept that he has provided sufficient explanation for these two very lengthy periods of non-enrolment.

    49. Further concern about the applicant's stated intentions is raised by the concerns I have already voiced regarding the cancellation of the applicant's enrolment in the Certificate IV in Kitchen Management in January 2024, with the applicant either unaware of this cancellation or attempting to mislead the Tribunal about the status of his enrolment Despite being given 14 days to provide a copy of a transcript or record of results for his current course of study or for his previous enrolment in the Certificate IV in Commercial Cookery, the applicant has not provided such a document. Given my concerns about his evidence at the February 2024 hearing regarding his enrolment in the Certificate IV in Kitchen Management, I give little weight to his claim that he is currently performing well in this course and note the lack of any independent evidence in support of this claim.

    50. Overall, I consider that the length of time the applicant has remained in Australia and his enrolment history during this time ra1ise concerns that the Student visa is being used to maintain ongoing residence and to circumvent the intentions of the migration programme.

  13. The Tribunal did not accept the applicant’s account as to why he was not enrolled in any course for substantial periods of time. It was open to the Tribunal to make such finding. It did not accept the applicant’s claim that he was performing well in his course of study because there was no evidence to that effect.

  14. The Court finds that it was open to the Tribunal, based upon all of the evidence before it, to find that the applicant had breached condition 8202 of his Student Visa from 4 March 2020 until 24 December 2020 when he was not enrolled in any course.

  15. There was ample evidence to support the Tribunal’s finding that the applicant was not a genuine temporary entrant for the purpose of study in Australia. The Tribunal did not err in so finding.

  16. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

  17. The grounds of review are without merit and are dismissed.

  18. The Court will hear the parties as to costs.

I certify that the preceding nineteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge .

Associate:

Dated:       9 May 2025


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