Deol v Minister for Immigration and Citizenship [2025] FedCFamC2G 1710

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicants seek judicial review of a decision of the first respondent (Tribunal) made 7 May 2020. The Tribunal affirmed a decision of a delegate of the second respondent (Minister) to refuse to grant the first applicant a Student (Subclass 500) visa (visa) on the basis that the first applicant was not a genuine temporary entrant within the meaning of cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
2. The second and third applicants are members of the same family unit as the first applicant. The second applicant is the wife of the first applicant, and the third applicant is their child.
3. On 13 May 2025, a registrar of the Court ordered that the first and second applicants be appointed litigation guardian for the third applicant.
4. 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 and designated exhibit 'R1.'
5. From the Court Book, the following background facts can be established.

1. The first and second applicants are citizens of India. The first applicant arrived in Australia in November 2008 to study a Certificate III and Diploma of Hospitality Management at the Austech Institute for Further Education (CB 12, 25).
2. Thereafter, the first applicant studied a series of other vocational diploma and advanced diploma courses until 2018 (CB 13-16).
3. On 9 April 2018, the first applicant applied for the visa seeking to study a Diploma of Accounting at Elite Education Vocational Institute in Sydney (CB 1-24). The first applicant claimed that this further course would assist him to seek a career opportunity as an entrepreneur in his home country (CB 25).
4. On 25 May 2018, a delegate of the Minister refused to grant the applicants the visa (CB 87-95).
5. On 5 June 2018, the applicants applied to the Tribunal to review the delegate's decision (CB 97-99).
6. On 12 November 2019, the Tribunal invited the applicants to provide information pursuant to s 359(2) of the Migration Act 1958 (Cth)(Act) that demonstrated that the first applicant was enrolled in a registered course of study and that he was a genuine applicant for entry and stay as a student (CB 117-118).
7. On 22 November 2019, the applicants provided a response to the s 359 invitation (CB 124).
8. On 25 November 2019, the applicants filed a Request for Student Visa Information form together with other supporting documents (CB 132-143). In that document, the first applicant expressed consent to the Tribunal deciding the review without a hearing (CB 133).
9. On 7 May 2020, the Tribunal affirmed the decision of the delegate to not grant the visa (CB 147 - 158) (Decision).

1. In the Decision, the Tribunal noted that it was not the task of the Tribunal to make the applicants' case (CB 151 [6]).
2. The Tribunal identified the criteria required to satisfy cl 500.212 of the Migration Regulations 1994 (Cth) (Regulations) and also referred to the guidelines in Ministerial Direction No. 69 for assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69) (CB 152 [9]-[12]).
3. The Tribunal then considered the available evidence. In doing so, the Tribunal weighed the evidence favourable and unfavourable to the first applicant's claim to be a genuine temporary entrant (CB 153 [13]-[18]). In [19] of the Decision (CB 154), the Tribunal expressed its concern that the first applicant completed a series of short, inexpensive courses within the vocational educational training sector over an extended period of time (eleven years). The Tribunal concluded at [20] that the courses undertaken by the first applicant 'are disparate and of general benefit to his stated career plan of establishing a restaurant'. Further, that if the first applicant intended to stay in Australia temporarily, he would not have studied so broadly and rather would have focused on more specific courses to carry into effect his career plan (CB 155 [21]). The proposed further course of study added little incremental value to the first applicant's future plans (CB 155 [22]).
4. The Tribunal then considered the first applicant's personal circumstances and connections to Australia and India, including the first applicant's travel history (CB 155-157 [23] - [34]). Having considered all the information provided the Tribunal was not satisfied that the first applicant intends genuinely to stay in Australia temporarily (CB 157 [35]). The Tribunal found that the criteria in cl 500.212 of the Regulations were not met (CB 157 [36] - [38]). The Tribunal affirmed the delegate's decision not to grant the visa.
5. The applicants filed an application with this Court for judicial review on 12 May 2020. In that application, the applicants identified one ground of review, as follows:

The AAT refused to overturn the Department decision not to Grant me my student visa and has denied procedural fairness and provide justice.

1. On 26 August 2020, a registrar of the Court ordered the applicants to file and serve any amended application for review, written submissions and further evidence 28 days before the date fixed for a final hearing. A further order to the same effect was made on 13 May 2025.
2. The final hearing of the application for judicial review was fixed for hearing on 30 September 2025 in person at Melbourne. The applicants did not file or serve any additional documents as ordered.
3. At the hearing before this Court on 30 September 2025, the first and second applicants appeared in person, self-represented.
4. Ms Weir, solicitor appeared for the Minister.
5. The first and second applicants confirmed receipt of the Court Book prepared by the solicitor for the Minister and the outline of written submissions of the Minister dated 26 September 2025.
6. Noting that the applicants were unrepresented, the Court gave the first and second applicants an opportunity to elaborate on, and further articulate, his grounds of review and to inform the Court of the basis on which the Tribunal made any jurisdictional error.
7. To assist the applicant, the Court explained that this Court can only turn its attention to the issue of 'jurisdictional error' in the Tribunal's decision.
8. It was also explained that this Court cannot review the merits of the Tribunal's decision to grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material jurisdictional error in arriving at the Decision (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)).

1. The first and second applicants were unable to advance any submissions to support their claim for judicial review. They did not seek to identify any error by the Tribunal in the Decision. The first applicant claimed that the application for judicial review was completed and filed by an agent and that the agent took the first applicant's email address and 'applied through my email'. When asked to explain the ground of review in the application for judicial review, the first applicant requested that the Court simply 'give me one last chance'.
2. On behalf of the Minister, Ms Weir relied on the outline of written submissions filed with the Court on 26 September 2025. It was submitted that despite the ground of review in the application for judicial review, there was no denial of procedural fairness by the Tribunal.
3. It was submitted that in accordance with the statutory obligations of the Tribunal, the applicants were invited to provide further information and did so. The applicants also responded to the s 359 request by providing a completed Request for Student Visa Information form in which they agreed to waive a hearing. There was no challenge to the validity of that consent. Therefore, s 360 of the Act applied and the applicants were not entitled to a hearing.
4. On behalf of the Minister, it was submitted that in the Decision, the Tribunal considered the available evidence and undertook the necessary task of weighing the evidence and assessing whether the applicants satisfied the criteria in cl 500.212 of the Regulations. There was no jurisdictional error or failure to provide procedural fairness or to provide justice.

1. The role of the Court is to determine if the Tribunal has fallen into jurisdictional error. The Court is not permitted to undertake a review of the merits of the Decision.
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 418 ALR 152; [2024] HCA 12 (LPDT), the plurality J 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.

1. The applicants were unable to identify any error of the kind referred to by the Court in LPDT. In the application for judicial review, the applicants relied on a failure by the Tribunal to provide procedural fairness but they could not expand on or explain that ground and there was no failure by the Tribunal to do more than invite further evidence and submissions, and consider the evidence provided. The right to a hearing was expressly waived by the applicants in the Request for Student Visa Information form (CB 133).
2. The issue to be determined by the Tribunal when considering afresh the application for the visa was whether the first applicant satisfied the criteria in cl 500.212(a) of Sch 2 of the Regulations. In doing so, the Tribunal was required to have regard to Direction No. 69 and any other relevant information provided by the applicant or otherwise available to the decision maker. This is what was done by the Tribunal, and it did so in a logical and legally reasonable way.
3. The Decision shows that the Tribunal considered each relevant part of cl 500.212(a) and Direction No. 69. The Tribunal considered all the known circumstances presented to it by the applicants and drew available inferences from that information.
4. The Court has also scrutinised the application for judicial review, the materials before the Tribunal contained in the Court Book and the Decision to identify jurisdictional error, noting the Court's obligations as outlined in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [58], [77], [100], [112] and [113]. No material jurisdictional error is apparent.

1. The ground of review in the application for judicial review has not been established by the applicants and there is no jurisdictional error in the Decision. The application for judicial review filed 12 May 2020 is dismissed.

1. The name of the first respondent must be amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title which changed on 13 May 2025. An order will be made to that effect.
2. Following the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to 'Administrative Review Tribunal'. An order will be made amending the name of the second respondent and the title to the proceeding.

1. The Minister submitted that in the event that the application for judicial review is dismissed, that the first and second applicants be ordered to pay the Minister's costs fixed in the sum of $5,600.00, which is less than the sum prescribed by item 3 of Sch 2, Part 3, Div 1, to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). That sum is fair and reasonable in the circumstances, and it is appropriate that costs follow the outcome of the proceeding.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship'.
2. The name of the second respondent is amended to 'Administrative Appeals Tribunal'.
3. The application for judicial review filed 12 May 2020 be dismissed.
4. The first and second applicants pay the first respondent's costs and disbursements of and incidental to the proceeding, fixed in the amount of $5,600.00.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.