Bhogavarapu v Minister for Immigration and Citizenship [2025] FedCFamC2G 1921

1. Before this Court is an application filed on 8 December 2022 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 14 November 2022. The Tribunal affirmed a decision of a delegate of the Minister of Immigration and Multicultural Affairs (delegate) dated 10 November 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (the student visa). A hearing of this matter took place at the Sydney Registry of the Court on 25 September 2025.
2. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. The applicant has raised various grounds for review, all of which are opposed by the first respondent. The applicant claims that the Tribunal fell into jurisdictional error by not recognising agent incompetence resulting in lack of procedural fairness, that the Tribunal should not have made a decision without a hearing, and that the law was applied incorrectly.
4. The application is dismissed for the reasons that follow.

1. The applicant is a citizen of India (Court Book (CB) 17-18). He arrived in Australia on 22 February 2018 as the holder of a Student (Temporary) (Class TU) (Subclass 500) visa (the first student visa). The applicant was granted the first student visa on 14 February 2018 to study a Master of Information Technology (CB 60). His enrolment was cancelled, and his last day of study was 9 August 2018 (CB 42).
2. The applicant changed his course and completed an Advanced Diploma of Information Technology Project Management on 14 February 2020 (CB 60).
3. On 15 March 2020, the applicant applied to the Department for the student visa (CB 1-16). In his application, the applicant proposed to a study an Advanced Diploma of Banking Services Management from 6 April 2020 to 1 October 2021 at the Institute of Business and Management (Advanced Diploma course) (CB 1-2). The application was accompanied by a letter of offer and written agreement from the Institute of Business and Management Australia (CB 23-37).
4. On 25 May 2020, the Department notified the applicant that he had breached condition 8202 of the first student visa because he had changed his course from a higher education level course to a VET level course. The applicant was given 28 days to provide comment on this information (CB 41-44).
5. The applicant did not provide a response (CB 51).
6. On 10 November 2021, the delegate refused to grant the applicant the student visa (CB 49-52) finding that he did not meet the genuine temporary entrant requirements under clause 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
7. On 1 December 2021, the applicant applied to the Tribunal for review of the delegate's decision (CB 53-59). The applicant provided an outline of submissions to accompany his application (CB 60-62).
8. On 3 December 2021, the Tribunal acknowledged the application and invited the applicant to provide material or written arguments for the Tribunal to consider (CB 64-65).
9. On 1 July 2022, the Tribunal requested that the applicant provide further information as outlined in a 'Request for Student Visa Information form' by 15 July 2022 (CB 68-69).
10. On 15 July 2022, the applicant requested a ten-day extension to provide the documents (CB 75). The Tribunal granted the extension later that day, noting that the information was to be received by 25 July 2022 (CB 77).
11. On 25 July 2022, the applicant forwarded the Tribunal various documents including a Confirmation of Enrolment (CoE) for the Advanced Diploma course identifying that the course study period was 8 August 2022 to 4 February 2024 (CB 88).
12. On 4 October 2022, the Tribunal invited the applicant to attend a hearing on 19 October 2022 by way of telephone (CB 90-93).
13. On 9 October 2022, the applicant provided a completed 'Response to Hearing Invitation form' in which he consented to the Tribunal making a decision on the papers without a hearing (CB 95). The applicant requested that the Tribunal grant him an additional three weeks to provide further supporting documents (CB 94).
14. On 11 October 2022, the Tribunal notified the applicant that the presiding member had agreed to postpone the decision until 31 October 2022 (CB 100).
15. On 31 October 2022, the applicant forwarded the Tribunal his supporting documents which included a completed Request for Student Visa Information form containing further information about his past studies and work experience and his current enrolment (CB 103- 117).
16. On 14 November 2022, the Tribunal affirmed the Department's decision not to grant the applicant the student visa (CB 120-133) and notified the applicant on the same day (CB 119).

1. The Tribunal identified the visa under review and summarised the procedural history (TD [1- 13]).
2. The Tribunal noted that the applicant consented to the matter being determined without a hearing. The Tribunal stated that the effect of ss 360(3) and 363A of the Act was that the applicant was not entitled to appear before it and the Tribunal did not have power to permit him to appear (TD [10]). The Tribunal observed that the applicant had had a fair opportunity to provide information (TD [11]).
3. The Tribunal summarised the relevant law (TD [14-17]).
4. 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 (TD [15]). The Tribunal noted that the factors in Direction No 69 were not a checklist (TD [16]).
5. The Tribunal considered the applicant's evidence (TD [18-32]).
6. The Tribunal made the following findings and comments (in summary):
   • Applicant's progress in his proposed course of study (TD [19-23] and [29]) The Tribunal was concerned that the applicant had re-enrolled in the Advanced Diploma course after receiving a request from the Tribunal for confirmation of his enrolment (TD [19]). The Tribunal noted that the applicant had failed to provide corroborating evidence that he had taken any positive steps to progress his studies since completing the Advanced Diploma of Information Technology Project Management course in February 2020 (TD [20]). The Tribunal noted that there had been significant delays in the progress of his courses (TD [19]). The Tribunal considered that if the applicant had engaged with and continued the Advanced Diploma course as initially proposed he ought to have completed it over a year before the Tribunal hearing took place (TD [22]). The Tribunal was concerned that the applicant had spent nearly five years onshore and had only completed one Advanced Diploma course (TD [23]). The Tribunal found that the evidence of his study progress as a whole indicated that he was using the student visa programme to maintain residency in Australia (TD [22-23]).
   • Value of the course to the applicant's future (TD [24-25]) The Tribunal found that the applicant had failed to provide sufficient evidence about the relevance to and benefit of his proposed course of study to future employment plans in India. The Tribunal was concerned that the proposed Advanced Diploma course represented a downgrade from his existing bachelor level of education (TD [24]). The Tribunal, however, accepted that it was reasonable that the applicant would choose to study his course in Australia as opposed to India because he believed the education was of a higher standard and that Australia offered a good living environment (TD [25]).
   • The applicant's circumstances in Australia ([26] and [28]) The Tribunal considered that remaining onshore for nearly five years indicated that the applicant had established strong community ties and preferred to remain onshore (TD [26]). The Tribunal considered that the applicant had not provided any evidence of his circumstances in Australia other than the fact that his expenses amounted to AUD27,000 per annum (TD [28]).
   • The applicant's circumstances in his home country ([27-28]) The Tribunal gave no weight to the fact that the applicant had only returned twice to India since his arrival in Australia (TD [27]). The Tribunal found that the applicant's family in India did not provide a significant incentive for him to return home because this was outweighed by strong incentives and desires to remain onshore (TD [27]). The Tribunal found that the applicant's economic circumstances in India did not act as a significant incentive for him to remain in Australia (TD [28]).
   • Immigration history: The Tribunal made no findings in relation to the applicant's change in level of study and related breach of condition 8202 of his previous student visa. The Tribunal accepted that this breach occurred because the applicant's migration agent had been negligent in advising him of his visa conditions (TD [29]). The Tribunal found that the only relevant immigration issue represented by the applicant's evidence was his lack of academic progress (TD [29]).
7. The Tribunal concluded that the factors weighing against the applicant were greater than those falling in his favour. The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and found that he did not satisfy the requirements under cl 500.212 (TD [30-32]).
8. On 14 November 2022, the Tribunal affirmed the decision of the Department not to grant the applicant the student visa (TD [33]).

1. The applicant applied to this Court for judicial review in an application filed on 8 December 2022. The applicant's grounds for judicial review are set out in the application. The applicant seeks orders that the Tribunal Decision be quashed and that the decision be remitted to the Tribunal for reconsideration.
2. On 25 September 2025, the applicant appeared before this Court as a litigant in person. Ms Warren of Sparke Helmore appeared for the first respondent (Minister). An interpreter assisted the Court. The applicant confirmed that he could understand the interpreter.
3. The following documents were before the Court - the initiating application for judicial review, the supporting affidavit of the applicant filed on 8 December 2022, a Court Book (numbering 133 pages and marked as Exhibit 1R) filed 13 January 2023, written submissions of the applicant filed 9 September 2025, and written submissions of the first respondent filed on 23 September 2025.

1. In Hamod v New South Wales [2011] NSWCA 375 (Hamod), Beazley JA (Giles and Whealy JJA agreeing) referred to the duty of courts to litigants in person, observed that the touchstone remains that of fairness at [313]. The court found that 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: at Hamod at [311] - [313]. Beazley JA outlined the relevant principles in ensuring there is the right balance between impartiality and assisting litigants in person at ([309] - [316]):

.... In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

"A trial in which a judge allows an accused` to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as "fair"."

[310] However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337 ; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666 ; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case (citations omitted)...

1. Similar principles apply in civil matters: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (BKT17) at [22]; MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 (MZAIB) at [100].
2. While it is difficult for many litigants in person to appreciate all the nuances of the law and court processes, it is important to try and accommodate the differences in knowledge and experience between a litigant in person and a legal practitioner. At the hearing before me, I confirmed that the applicant had a copy of the Court Book and the Minister's submissions (Tp 4.24-28). I outlined the role and processes of the Court and explained that jurisdictional error must be demonstrated if the applicant were to succeed in his application. I explained that jurisdictional error is a kind of serious legal error and outlined some common categories, noting that these categories were not exhaustive. I also outlined the well-established principle expressed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 - that a court cannot engage in reviewing the merits of the decision.
3. The applicant was asked if he understood and he said that he did (Tp 3.47 and 4.2-13).

1. The function of this Court is to review the Tribunal Decision and determine whether the Tribunal has fallen into jurisdictional error.
2. Section 476 of the Migration Act provides that this Court has the same original jurisdiction as the High Court. 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.
3. A privative clause as defined in s 474 of the Migration Act is final and not amenable to judicial review. However, 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] HCA 2; (2003) 211 CLR 476.
4. 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 CJ, 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.

CONSIDERATION OF THE GROUNDS OF JURISDICTIONAL ERROR CLAIMED BY THE APPLICANT

1. The Tribunal was required to consider whether the applicant met the legislative criteria for a Student (Temporary) (Class TU) (Subclass 500) visa).
2. 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: s 31(1) and s 31(3) of the Act. A non-citizen must apply for a visa of a particular class: s 45 of the Act.
3. 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. These principles are considered by the Tribunal on review.
4. The criteria for the visa applied for by the applicant are set out in cl 500.2 of the Schedule to the Regulations. Relevantly to this matter, cl 500.212 requires that the applicant is a genuine applicant for entry and stay as a student, having regard to various factors.

1. The applicant has advanced three grounds of jurisdictional error in his application.
2. The Minister in written submissions has contended that there was no jurisdictional error and that procedural fairness was afforded.
3. I have considered each of the applicant's grounds as broadly as possible, and been alert to error, in accordance with the principles set out in the decision in MZAIB at [100].

Ground 1 - incompetence of agent resulting in a lack of procedural fairness

1. The first ground of jurisdictional error alleged was:

The Administrative Appeals Tribunal (AAT) made a jurisdictional error by not giving proper opportunity to the Applicant to prove his claim.

1. The applicant provided particulars of this ground as follows (reproduced without alteration):

The Applicant testified that he believed the agent and his advice and thus did not respond to the natural justice letter. The Tribunal has taken the Applicant's words that the Tribunal could decide in his absence. The Tribunal failed to notice that the Applicant was neither represented properly before the Department of Home Affairs nor the AAT. The tribunal erred by not probing the relevant question or opportunity to the Applicant despite being aware that no agent had been appointed or acknowledged in the file.

1. At the hearing before me, the applicant said that the agent had told him that he had submitted the 'visa refusal that I had received' but he 'did not submit it' (Tp 6.33-34). He said that he told the Tribunal that the problem was caused by his agent and not by him. He said that he got a second reminder from the AAT asking if he would like to submit further information. He said that the agent told him that he had already submitted it (Tp 6.40-7.1-4).
2. In this ground, the applicant appears to claim that incompetence of his agent resulted in lack of procedural fairness.
3. There is no evidence from the Court Book or Tribunal Decision that the applicant appointed a lawyer or migration agent for his Tribunal review. The applicant nominated his own address for service of documents in his application to the Department: CB 5. He confirmed in his application to the Department that he did not have an authorised recipient: CB 5. In the application for review to the Tribunal, he provided his own contact details and said that a representative was not appointed to act for him: CB 56. As noted by the Minister in submissions at hearing, the applicant communicated with the Tribunal using his own email address, for example: CB 75, 78 and 94.
4. The applicant has also not adduced evidence to this Court that he had an agent for his Tribunal review.
5. As there is no evidence that the applicant had appointed a representative for his Tribunal review, there can be no jurisdictional error on the basis that the Tribunal failed to recognise that a representative was incompetent, if this is what is being claimed, or that a representative failed to take necessary steps according to timetables set by the Tribunal. If the applicant is claiming that there was an agent 'behind the scenes', there is also no evidence before the Court that such a person existed or was incompetent in the ways described by the applicant.
6. The application to this Court also contains the somewhat contradictory particulars that the Tribunal failed to notice that the:

applicant was neither represented properly before the Department of Home Affairs nor the AAT. The tribunal erred by not probing the relevant question or opportunity to the Applicant despite being aware that no agent had been appointed or acknowledged in the file.

1. These statements appear to suggest that no agent had been appointed, and the Tribunal had a duty to inquire about this.
2. I am satisfied that the Tribunal was aware from the information provided by the applicant that he was unrepresented: CB 56. There was no duty on the Tribunal to inquire about why he was unrepresented. In any event, I am satisfied that the applicant was afforded procedural fairness, notwithstanding that he was unrepresented. This issue is addressed in Ground 2.
3. As to the applicant's reference to his contentions before the Tribunal that his agent had advised him not to respond to the delegate's letter on 25 May 2020 (CB 41), I accept the Minister's submission that clearly the Tribunal acknowledged this submission and did not make adverse findings in relation to it (TD [29]).
4. No jurisdictional error arises in Ground 1.

1. The applicant contended in his application that the second ground of jurisdictional error was that:

The Administrative Appeal Tribunal made jurisdictional error in not analysing the Direction No: 69 'Assessing the genuine temporary criterion for Student visa and Student Guardian visa applications' made under the Section 499 of the Act.

1. He provided particulars of this ground as follows (reproduced without alteration):

a) The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide the decision makers when considering the Applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.' The Tribunal does not even have enough evidence from the Applicant to use as a guide to reach into a decision that the Applicant's circumstances as a whole is not satisfied the genuine temporary entrant criterion. The Tribunal failed to apply the Direction No: 69 "Assessing the genuine temporary criterion for Student Visa and Student Guardian visa applications' made under the Section 49 of the Act. > > b) The Applicant's contention is that the Tribunal erred in not having a hearing, amount to a denial of procedural fairness. The Tribunal did not pursue the Applicant to have an oral hearing and the Tribunal believe that the Tribunal has given the Applicant opportunity to provide evidence and present arguments relating to the Applicant's case. The Tribunal made decision without hearing the Applicant, which is against the universal principle "Audi alteram partem" (audiatur et altera pars) "let the other side be heard". Thus, the Tribunal made a jurisdictional error. > > c) The Tribunal reached into a decision completely based upon the questionnaire filled by the Applicant which was incomplete. The Applicant did not get the opportunity to be represented the case before the Tribunal.

2. The applicant was asked to provide submissions at the hearing. He said that he did not want to make submissions (Tp 7.7-30).
3. The issue of whether the Tribunal correctly applied the legislative framework including Direction No 69 correctly is considered in relation to Ground 3 below.
4. To the extent that the applicant is submitting that the Tribunal erred in making a decision without a hearing the following procedural history is relevant:
   • On 10 November 2021, the Department refused to grant the applicant the student visa finding that he did not meet the genuine temporary entrant requirements under clause 500.212 in Schedule 2 of the Regulations (CB 45-52).
   • On 1 December 2021, the applicant applied to the Tribunal for review of the Department's decision (CB 53-59). The applicant provided an outline of submissions to accompany his application (CB 60-62).
   • On 3 December 2021, the Tribunal acknowledged the application and invited the applicant to provide material or written arguments for the Tribunal to consider (CB 64- 65).
   • On 1 July 2022, the Tribunal requested that the applicant provide further information as outlined in a 'Request for Student Visa Information form' by 15 July 2022 (CB 68- 69). The Tribunal recorded in its decision at [4] that it considered that it would be beneficial for the applicant to provide updated and further information.
   • On 15 July 2022, the applicant requested a ten-day extension to provide the documents (CB 75). The Tribunal granted the extension later that day, noting that the information was to be received by 25 July 2022 (CB 77).
   • On 25 July 2022, the applicant forwarded the Tribunal various documents including a Confirmation of Enrolment (CoE) for the Advanced Diploma course identifying that the course study period was 8 August 2022 to 4 February 2024 (CB 88).
   • On 4 October 2022, the Tribunal invited the applicant to attend a hearing on 19 October 2022 by way of telephone (CB 90-93).
   • On 9 October 2022, the applicant provided a completed 'Response to Hearing Invitation form' in which he consented to the Tribunal making a decision on the papers without a hearing (CB 95). The applicant requested that the Tribunal grant him an additional three weeks to provide further supporting documents (CB 94-98).
   • On 11 October 2022, the Tribunal notified the applicant that the presiding member had agreed to postpone the decision until 31 October 2022 (CB 100).
   • On 31 October 2022, the applicant forwarded the Tribunal his supporting documents which included a completed 'Request for Student Visa Information form' containing further information about his past studies and work experience and his current enrolment (CB 105-117).
   • On 14 November 2022, the Tribunal made a decision without a hearing (CB 120).
5. I am satisfied from the history outlined above that the Tribunal invited the applicant to a hearing as required by s 360(1) of the Act and provided the applicant with fair and reasonable opportunities to present his case, including a number of invitations to provide written evidence.
6. In the decision the Tribunal recorded that it had considered whether the applicant had a fair opportunity to provide evidence and whether it should adjourn under s 363(1)(b) of the Act (TD [8-9]). Section 363 provides:

(1) 'for the purpose of the review of a decision, the Tribunal may:

1. The language of s 363 indicates that the power to adjourn is discretionary. The question for this Court is whether the discretion not to grant an adjournment was exercised in a legally reasonable manner: Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li); per French CJ at [29], per Hayne, Kiefel and Bell JJ at [63] and per Gageler J at [120].
2. In Li, the High Court held at [65] that the exercise of the discretionary powers should be 'legal and regular, not arbitrary, vague and fanciful'. The court considered that an unreasonable decision is where a decision-maker has reached a conclusion so unreasonable that no reasonable decision-maker could have come to it: at [28], or where it lacks _'_evident and intelligible justification': at [76].
3. The Tribunal noted that it was not required to indefinitely defer its decision-making processes, citing Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2001] FMCA 28. The Tribunal found that the applicant had consented to the Tribunal deciding the review without a hearing (TD [10]). The Tribunal found that the applicant had had a fair opportunity to provide information under s 363(1)(b) of the Act (TD [11]).
4. I am satisfied that it was reasonable for the Tribunal to exercise its discretion not to adjourn, for the reasons given by the Tribunal, considering the opportunities to provide evidence which the Tribunal had already offered the applicant, as set out in the preceding paragraphs, the consent of the applicant provided, and the need to progress matters expeditiously.
5. The Tribunal recorded that s 360(2)(b) of the Act provides that if any of the paragraphs in s (2) apply, the applicant is not entitled to appear before the Tribunal, and the effect of s 363A of the Act is that if an applicant has no entitlement to appear before the Tribunal, the Tribunal has no power to permit him or her to appear: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (Hasran) (TD [10]).
6. I note that the applicant consented to a decision on the papers (CB 95). There was no ambiguity in his response (CB 95). In these circumstances, ss 360(3) and 363A of the Act applied so that the Tribunal had no power to permit the applicant to attend the hearing.
7. Section 360(3) provides that as the applicant consented to the Tribunal deciding the review without the applicant appearing before it, the applicant was not entitled to appear before the Tribunal. Section 363A of the Act provides that if a provision states that a person is not entitled to do something, then unless a provision expressly provides otherwise, the Tribunal does not have the power to permit the person to do that thing. In Hasran, the full Federal Court stated that the provision operates to remove any discretion which a tribunal may have had: [25] to [31]. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 67; (2017) 251 FCR 110 per North, Bromberg and Bromwich JJ, the court found the decision in Hasran to be compelling and correct: [52].
8. In line with these authorities, the Tribunal did not have the power to invite the applicant to a hearing because of the operation of s 360(2)(b) and s 360(3) of the Act.
9. As the Tribunal afforded procedural fairness, exercised its discretion reasonably not to adjourn, and was not entitled to grant the applicant a hearing, no jurisdictional error is evident from the processes adopted by the Tribunal.

Ground 3 - correctly applying the law including Direction 69

1. The applicant contended in his application that the third ground of jurisdictional error was that:

The Administrative Appeal Tribunal failed to consider the Applicant's genuine intention to stay in Australia temporarily.

1. He provided particulars of this ground as follows (reproduced without alteration):

The Tribunal accepted the fact that the Applicant has strong personal ties in India, however the Tribunal do not consider this as a significant incentive for the Applicant to return to his home.

1. The applicant was invited at the hearing of this Court to provide further submissions in relation to this ground but refrained from doing so (Tp 7.32-40).
2. In considering whether the Tribunal considered the applicant's 'genuine intention to stay in Australia temporarily', I have also considered the question of whether the Tribunal correctly applied the law including Direction No 69, an issue which was raised in Ground 1.
3. A fair reading of the Tribunal Decision indicates that the Tribunal set out the evidence before it (TD [7], and [19-29]) and referred to the relevant statutory framework (TD [14-17]). The Tribunal noted that it was required to have regard to Direction No 69 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', which the Tribunal noted should be used as a guide only (TD [15-17]). Direction No 69 was annexed to the decision.
4. The Tribunal then proceeded to consider the evidence before it, which included the application, the questionnaire, the response to the s 359(2) letter, the delegate's decision, documents in the Department file and the applicant's submissions of 1 December 2021 (TD [18-29]).
5. The Tribunal took into consideration the lack of academic progress (TD [19-23]) and that in five years the applicant had only completed one Advanced Diploma course.
6. The Tribunal also took into consideration 'vague and generic' submissions about the applicant's employment plans and his downgrade from his existing bachelor's level of education (TD [24]).
7. The Tribunal accepted that the applicant had reasonable reasons for studying in Australia (TD [25]).
8. The Tribunal also considered that the applicant had been in Australia for almost five years so would have established strong ties (TD [26]).
9. The Tribunal found that economic circumstances in Australia did not provide a strong incentive for him to remain in Australia (TD [28]).
10. The Tribunal noted that the applicant had breached condition 8202 of his previous higher education student visa by not maintaining the level of study for which his student visa was granted. The Tribunal noted that he was sent a natural justice letter on 25 May 2020, but he did not respond. In his letter of 1 December 2021, he said that his agent at that time was negligent advising him he could change courses without breaching his visa and that he did not need to respond to the natural justice letter. The Tribunal then stated at (TD [29]):

I therefore make no findings in relation to the applicant's change of level of study (and related breach of his student visa) or his failure to respond to the Department's natural justice letter.

1. The Tribunal noted that there were no visa, travel or immigration issues and he had not disclosed any potential military service obligations or political or civil unrest concerns in India (TD [29]).
2. I am satisfied that the matters considered by the Tribunal in the decision broadly correlate with the factors set out in Direction no 69 and were used as a guide, not a checklist, indicated by the detailed assessment and positive and negative weight ascribed to the factors. The Tribunal then assessed whether the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of Schedule 2 to the Regulations. The Tribunal performed its duty of review, taking into account cogent evidence providing substantial support to the applicant's case (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] to [112]) and considering factors in favour of a finding for the applicant, as well as those adverse to such a conclusion. The Tribunal found that at (TD [30]):

'ultimately the factors weighing against the applicant in this case are greater than those falling in his favour and I am concerned that the applicant is using the visa program as a means of maintaining residence in Australia'.

1. This ultimate finding was a matter for the Tribunal. This Court cannot engage in review on the merits by reaching a different finding.
2. I am satisfied that the Tribunal correctly applied the law including Direction 69.
3. As to the particular concern that the applicant has raised - that the Tribunal accepted that he had strong personal ties to India but did not consider this a significant incentive to return to India, I note that the Tribunal had regard to his ties to India at [27] of the Tribunal Decision. The Tribunal noted that the applicant had returned home twice to India since his arrival in Australia, but that COVID-19 made international travel virtually impossible between 2020 and 2022. The Tribunal noted that his parents and siblings live in India and that his personal ties in India acted as an incentive for him to return, but that the Tribunal considered those ties were outweighed by his incentives and desires to remain onshore.
4. The concern of the applicant appears to be the weight given to his personal ties to India. The weight to be ascribed to the evidence was a matter for the Tribunal, as part of its fact-finding function: Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at 281-282. A Court cannot review the merits of a Tribunal decision, or reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 per RD Nicholson J at [5].
5. I am satisfied that no jurisdictional error arises in this ground.

Additional ground - failure to consider personal circumstances, health or misleading advice

1. I have considered the submissions provided by the applicant to this Court, which raise additional grounds of review. The applicant submitted that he came to Australia with a clear purpose to pursue higher education, gain skills and build a career that would make his family proud. He said that he aspired to complete a master's degree in information technology and return home to a well-paid job and to support his family ([2] of the Applicant's Submissions). He submitted that he faced challenges in Australia with homesickness, unfamiliarity with the culture and loneliness. He claimed that he developed depression and found it hard to study ([4] of the Applicant's Submissions). He submitted that his education consultant persuaded him to enrol in a diploma course, and he trusted his advice and was misled from his original goal, and when he completed the diploma course, his visa had expired ([6] of the Applicant's Submissions). He submitted that he developed diabetes ([7] of the Applicant's Submissions). He claimed that the Tribunal did not adequately consider his personal circumstances, health conditions or the misleading advice ([10] of the Applicant's Submissions).
2. As to the applicant's claims about his poor health including claims of depression and diabetes, this evidence was not before the Tribunal. I accept the submissions of the Minister that the Tribunal is not obliged to deal with issues which are not articulated, and which do not squarely arise from the materials ([39] of the Minister's Submissions): NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FC (NABE) at [58]. In NABE the court held that a claim not expressly advanced would attract the review obligation when apparent on the face of the material before the Tribunal, without dependence on constructive or creative activity by the Tribunal (at [58]). These claims were not apparent on the face of the material before the Tribunal.
3. The Tribunal had regard to the applicant's claim that he relied on misleading advice which led to him downgrading his course ([38] of the Minister's Submissions). The Tribunal made no adverse findings in relation to this (TD [29]). The Tribunal also referred to the applicant's homesickness (TD [27]). While the Tribunal did not refer in the decision to 'culture shock and loneliness' there was evidence about this before the Tribunal in the 'Statement of Genuine Temporary Entrant' (CB 84) and I accept that the Tribunal considered this statement, given that there are other references to this document (TD [24], [25] and [28]). A decision-maker is not required to reference every piece of evidence before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]. The Tribunal is also not required to make a finding on every piece of evidence: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10.
4. The applicant's claim that he had a clear purpose to pursue higher education, and that he wanted to return to India to a well-paid job to support his family, as well as claims about culture shock and loneliness are in essence submissions about his intentions as well as justifications for lack of course progress. Consideration of these matters was a matter for the Tribunal, and the submissions appear to invite this Court to engage in impermissible merits review. It was for the Tribunal to make relevant findings on the evidence: AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6 per Markovic, Thomas and Banks-Smith JJ at [21], and the role of this Court is only to assess whether there was jurisdictional error in the Tribunal Decision.
5. There is no jurisdictional error established in the additional grounds raised in the submissions.

1. The application is dismissed.
2. I will hear the parties as to costs.

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.