Dey v Minister for Immigration and Citizenship [2026] FedCFamC2G 373

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. By an application filed in this Court on 18 May 2020 and amended on 24 July 2025 (Application), the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. On the 24 April 2020 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Student (Temporary) (class TU) (Student (subclass 500) visa (Student Visa) (Tribunal's Decision).

1. The Applicant is a citizen of India.
2. The Applicant arrived in Australia on 23 February 2014 as a holder of a student visa which was granted for the purposes of studying a master's degree in business. On the 12 September 2018 the Applicant applied for a Student (Temporary) (Class TU) visa to undertake a Diploma of Hospitality Management (the Visa).
3. To be granted the Visa, the Applicant was required to satisfy primary criteria at the time of the decision. Clause 500.2 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) set out the primary criteria that must be satisfied by the Applicant. Clauses 500.211 and 500.212 provide:

500.211

One of the following applies:

(a) the applicant is enrolled in a course of study

...

500.212

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

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant's circumstances; and

(ii) the applicant's immigration history; and

(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

1. When considering whether the Applicant satisfied the criteria in clause 500.212, the Tribunal was required to take into account Ministerial Direction No. 69 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act (the GTE Criterion).

1. On 29 October 2018, the Delegate refused the Visa. The Delegate was not satisfied that the Applicant met the GTE Criterion and cl 500.212 of the Regulations. The Delegate noted that the Applicant had already completed a Master of Business, which was a higher qualification than the Diploma of Hospitality Management which the Applicant was seeing to obtain. The Delegate did not accept that there was a strong incentive for him to return to India at the end of his studies.

1. The Applicant lodged an application for review of the Delegate's decision with the Tribunal on 9 November 2018. The Tribunal sent an acknowledgment of application on 14 November 2018.
2. On 19 March 2020 the Tribunal sent the Applicant's representative an invitation to provide information. In that correspondence the Tribunal advised the Applicant of the requirements of the Visa, namely, to be enrolled in a registered course of study and be a genuine applicant for entry and stay as student. The Tribunal also annexed a copy of Ministerial Direction No 69 and the GTE Criterion. The Tribunal requested that the Applicant completed a student visa information form by 2 April 2020.
3. On 2 April 2020, the Applicant's migration agent provided to the Tribunal a completed agent representation form and a request for student visa information. The Applicant, in the request for student visa information, consented to the Tribunal deciding the review without an oral hearing and advised the Tribunal that he did not have a current confirmation of enrolment (COE) in a registered course of study.

1. On 24 April 2020 the Tribunal affirmed the Delegate's Decision not to grant the Visa (Tribunal's Decision). The Applicant was notified of the Tribunal's Decision on 24 April 2020.
2. The Tribunal set out the Applicant's visa history. The Tribunal was satisfied that the necessary consent had been provided under s 360(2)(b) of the Act, and that pursuant to s 360(3) of the Act, the Applicant was not entitled to appear before the Tribunal and that the review application would be determined on the papers.
3. The Tribunal correctly identified that clause 500.211(a) required the Applicant to be enrolled in registered course of study. There was no evidence before the Tribunal that the Applicant was enrolled in a course of study. The Applicant in the completed request for student information form expressly acknowledged that he did not hold a current certificate of enrolment.
4. The Tribunal found that based on the evidence before the Tribunal it was not satisfied that the Applicant was enrolled in a course of study and thus did not meet the primary criteria in cl 500.211(a).

1. The Application was filed in this Court on 18 May 2020, within 35 days of the date of the Tribunal's Decision as prescribed by s 477 of the Migration Act.
2. Pursuant to the orders of this Court of 26 June 2025 the Applicant was required to file any amended application for judicial review of the Tribunal's decision by 10 July 2025. On 24 July 2025 the Applicant emailed to the Court and the Solicitors for the Minister an Amended Application, a supporting affidavit and an outline of submissions. These documents were accepted for filing by the Court at the hearing.
3. On 29 September 2025 the matter was listed for hearing before me on 30 October 2025.
4. On 29 October 2025 the Applicant requested in writing an adjournment of the 30 October hearing on the basis that he was having difficulty securing legal representation. The Minister opposed any adjournment.
5. On 30 October 2025, the Applicant revived his application for an adjournment. The Applicant submitted that he had engaged a lawyer being a Mr Gurdial Singh of Quantum Legal Advisory & Migration Consultants. The Applicant informed the Court that Mr Singh was not responding to his email, text messages and WhatsApp correspondence and had not shown up for the scheduled hearing. I stood the matter was stood down for a short period to allow the Applicant to provide evidence to both the Court and the Minister's representative that the Applicant had engaged Mr Singh. There was no notice of address for service on the Court file that would indicate that Mr Singh appeared for the Applicant.
6. The Applicant provided to the Court and the Minister's legal representative with:

(a) A copy of an email exchange on 24 July 2025 between the Applicant and Mr Singh which included a bill for professional services in the amount of $2000.00 for "Amended application, researching and redrafting" and "amending and reviewing a supporting affidavit".

(b) A copy of an email of 24 July 2024 from Mr Singh to the Applicant providing the text for an email to the Court attaching an amended application and supporting affidavit.

(c) A copy of an email from Mr Singh to the Applicant attaching a word version of the Applicant's affidavit and requesting the Applicant to sign the document and to email it back to him.

(d) Text message exchanges from "Gurdial Lawyer" from 24 September 2025 to 30 October 2025 where Mr Singh sought updates from the FCFCOA and the Applicant requested a telephone call from Mr Singh; and

(e) A WhatsApp message where the Applicant sought advice from Gurdial Lawyer regarding what should be in correspondence to the court requesting an adjournment.

1. The material provided by the Applicant necessitated the granting of an adjournment. I made the following orders that were sent to the parties and Mr Gurdial Singh's email address provided by the Applicant on 30 October 2025:

THE COURT ORDERS THAT:

1. The application filed 18 May 2020 be adjourned and listed for Final Hearing at 10:00am on 20 January 2026.
2. Mr Gurdial Singh Ranjit Singh, Principal Solicitor / Director of Quantum Legal Advisory & Migration Consultants Pty Ltd of Suite 1.06, Level 1/365 Little Collins St, Melbourne VIC 3000, file and serve a notice of address for service by 4:00pm on 5 November 2025.
3. The Minister file and serve submissions on the issue of costs being awarded against the lawyer personally by 4:00pm on 20 November 2025.

1. On 16 January 2026 by email the Applicant sought a further adjournment of the final hearing and relied on an affidavit also filed on 16 January 2026. The Minister opposed the application.
2. On 20 January 2026 the Applicant revived his adjournment application which was opposed by the Minister. After considering the medical evidence produced by the Applicant I granted the adjournment and made the following orders:

THE COURT ORDERS THAT:

1. The matter listed 20 January 2026 is adjourned to 2 March 2026 at 2:15pm.

1. By 4:00pm on 23 February 2026 the Applicant must file a medical report from a treating medical practitioner providing details of his medical condition and what arrangements or accommodations are required to be put in place for the Applicant's participation in the final hearing.
2. The First Respondent is to serve these orders on Mr Gurdial Singh, Principal Solicitor / Director of Quantum Legal Advisory & Migration Consultants Pty Ltd of Suite 1.06, Level 1/365 Little Collins St, Melbourne VIC 3000.
3. The Applicant pay the Respondent's costs thrown away due to the adjournment of the final hearing fixed in the sum of $1,000.

1. On Sunday evening 1 March 2026 Mr Singh filed affidavit and submissions with respect to the application for costs against him personally.
2. After reading the submissions of Mr Singh I formed a view that the document was AI generated. The submissions were fact checked by my associate revealing that some authorities relied upon in that submission did not exist or was not an authority for the proposition asserted.
3. The submission filed by the Applicant in the judicial review proceedings was also fact checked by my associate. The fact check again revealed that some of the authorities relied upon did not exist or was not an authority for the proposition asserted. I asked the Applicant during the hearing of 2 March 2026 who prepared the submission he was relying upon. He informed the Court that the submissions had been prepared for him by Mr Singh.
4. At 1:46pm on 2 March 2026 Mr Singh emailed the Court and the Minister advising that he did not intend appear at the hearing as the weather was affecting his asthma.
5. In the circumstances I considered it prudent to defer the issue of costs, including costs against Mr Singh personally, to a date to be fixed after I determined the substantive judicial review application.

1. The Applicant appeared as a litigant in person and the Respondent was represented by a solicitor. I explained the Court procedure to the Applicant and the nature of the proceedings, being judicial review. I told the Applicant that he needed to identify a jurisdictional error on the part of the Tribunal to be successful. I told him that I would take into account the written submissions filed and asked the Applicant to identify with reference to three grounds in his Amended Application the big mistake or big error that the Tribunal made when making its decision.
2. The Applicant relied upon the following documents:

(a) Amended Application provided to the Court 24 July 2025 and accepted for filing on 2 March 2026;

(b) Affidavit of the Applicant provided to the Court 24 July 2025 and accepted for filing on 2 March 2026; and

(c) Outline of Submissions provided to the Court 24 July 2025 and accepted for filing on 2 March 2026.

(a) Outline of Submissions filed on 16 October 2025; and

(b) The Affidavit of Helen Sassine filed on 4 June 2025.

1. The Minister filed a Court Book on 11 March 2020.
2. The Applicant's grounds of review (Grounds of Review) as set out in the Amended Application are:

1. The Administrative Review Tribunal (ART) committed jurisdictional error by denying the Applicant procedural fairness under section 360 of the Migration Act 1958 (Cth), deciding the review without a hearing based on an unauthorized consent form submitted by the Applicant's migration agent, which the Applicant did not knowingly authorize.

2. The ART erred in law by failing to consider relevant circumstances, including the impact of COVID-19 and migration agent misconduct, when assessing the Applicant's non-compliance with clause 500.221 of Schedule 2 to the Migration Regulations 1994 (Cth).

3. The ART's decision was legally unreasonable, lacking an evident and intelligible justification for not inquiring into the Applicant's circumstances or the agent's actions, contrary to the principles in Minister for Immigration and Citizenship v Li [2013] HCA 18.

1. The Minister correctly identified the dispositive issue before the Tribunal was whether the Applicant held a current COE in a registered course of study at the time the decision was made. The Applicant's written submissions engage only on a limited basis with the dispositive issue. The written submissions focus on the genuine temporary entrant requirement which was the basis upon which the Delegate refused the visa and is not a matter upon which the Court has jurisdiction to review.

1. Ground One alleges that the Tribunal denied the Applicant procedural fairness by not inviting him to the hearing and deciding the review without a hearing.
2. The Applicant agrees that on 1 April 2020 he signed a Student Visa information form (the Form) completed by his migration agent. The Form was forwarded by the agent to the Tribunal on 2 April 2020. In the Form the Applicant did two things among others, first he agreed that the Tribunal could determine the merits review application without a hearing by ticking the relevant box in section two of the Form, and second, he informed the Tribunal that he did not hold a current COE by ticking the relevant box in section six of the Form.
3. The Applicant submitted that when he went to his migration agent's office, the form was already filled out, and he was just required to sign the document without it being explained to him. This was consistent with the evidence contained in the Applicant's affidavit. It is the Applicant's evidence that he was unaware that his agent had ticked the box that would allow the Tribunal to decide the merits review without hearing. He further submitted that the Form is obviously completed in handwriting other than his own relying on a comparison with his signature.
4. The Minister submitted that where the Applicant consented to the Tribunal deciding the review without the Applicant being invited to give evidence and present arguments at a hearing, s 360(1) of the Migration Act did not arise. In these circumstances the Tribunal is not required to extend an invitation to the Applicant to appear at the hearing. The Minister relied upon Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 for that proposition. I agree that with the Respondent's submission that there was no breach of the Tribunal's statutory obligation in these circumstances.
5. The Applicant's written and oral submissions appear to infer that the Applicant's agent engaged in some kind of fraud when completing the form by not explaining to the Applicant the content of what was being signed or its effect. It is inferred that the conduct of the Agent compromised or otherwise corrupted the statutory process and consequently the Tribunal's decision: Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 at [52] (Singh).
6. The Minister submits that the Applicant is unable to discharge the onus to establish a fraud by his migration agent: SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 at [51]. I agree with the Minister's submission that the evidence of the Applicant is that he signed the completed Form without reading it or asking any questions of his agent regarding the Form or its content. I accept that the Applicant was recklessly indifferent to the actions of his migration agent: Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 at [134], [135]-[137]. I do not accept that the conduct of the migration agent stultified the statutory functions of the Tribunal: Singh at [52].
7. No jurisdictional error has been established by the Applicant this ground must be dismissed.

1. Ground Two alleges that the Tribunal failed to consider the impact of COVID-19 and the migration agent's conduct with the assessment of cl 500.211 of the Regulations.
2. Although the ground in the Applicant's Amended Application refers to cl 500.211 of schedule 2 to the Regulations (being the legislative provision to which the dispositive issue identified by the Minister relates), the Applicant's written submissions do not engage with this but rather in irrelevant discourse on cl 500.212, Ministerial Direction No.108 and GTE requirements. The Tribunal determined that the Applicant did not meet the requirement in cl 500.211(1)(a), namely that the Applicant did not have a current COE for a registered course of study at the time the decision was made. The Applicant did not fulfill the criteria for the grant of the Visa. The Tribunal was not required to consider cl 500.212 of schedule 2 of the Regulations or the GTE Criterion: see eg Abidi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 330 at [35] - [36] (DCJ Mercuri).
3. In his oral submissions the Applicant contended that his agent did not inform him that he was required to maintain a COE for the Tribunal case. He said that he withdrew from the course for financial reasons, in particular that he was not getting any government support during the COVID lockdowns. The Applicant submitted that the Tribunal gave him two weeks to get a COE. He submitted that two weeks was not enough time to allow him to arrange the funding and financial documents required before a COE could be obtained because of the COVID lockdowns. He submitted that he believed he requested via email more time to obtain a COE but by then the Tribunal had made its decision.
4. The Applicant received correspondence from the Tribunal via his then agent dated 19 March 2020 inviting the Applicant to provide information. In that correspondence the Tribunal alerted the Applicant to the fact that it was a requirement of the Visa to be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The Applicant was invited to give in writing all relevant information regarding his course of study and entry and stay as a student by completing the Form. The completed Form was required to be submitted to the Tribunal by 2 April 2020. The 19 March 2020 correspondence also advised the Applicant that if the information could not be provided by 2 April 2020 that he may ask for an extension of time in which to comply. There is no evidence that the Applicant by himself or his Agent sought an extension of time to provide the information sought by the Tribunal.
5. The Form at Section 2 provides the following advice to those considering consenting to the Tribunal deciding the merits review without a hearing:

Note: If you consent to us deciding your review without a hearing:

You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.

We may either affirm or set aside the decision under review...

1. At Section 6 of the information form there is the following notation:

Note: Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.

1. The Form was provided to the Tribunal by Mr Dey's representative on 2 April 2020. The Applicant had clearly responded in the negative to the question asking whether he had a current COE and gave consent to the Tribunal deciding the review without a hearing.
2. I agree with the submission of the Minister that the Applicant through his agent was on notice regarding the requirements of the Visa, that is the requirement to have a current COE, and the implications of proceeding without a hearing.
3. I accept the Minister's submission that clause 500.211 of schedule 2 of the Regulations is not discretionary, nor does it contain a genuineness requirement. It only requires the Tribunal to consider at the time of making the decision whether the Applicant was enrolled in a registered course of study: Hammouda v Minister for Immigration and Multicultural Affairs [2025] FCA 514 at [24].
4. It is clear that, at the time of the Tribunal's Decision, the Applicant was not enrolled in a registered course of study. The Tribunal had in these circumstances one course of action available to it - to affirm the decision of the Delegate.
5. A jurisdictional error has not been identified by the Applicant. Ground Two must be dismissed.

1. Ground Three alleges that the Tribunal failed to inquire into the Applicant's circumstances of the migration agent's conduct which was unreasonable and contrary to the principles in Minister for Immigration and Citizenship v Li [213] HCA 18.
2. In his oral submissions the Applicant said that his primary argument on this ground was that because of COVID lockdowns it was impossible for the Applicant to obtain a COE in two weeks. I make the observation again that the Tribunal advised the Applicant on 19 March 2020 that if an extension of time was required to provide the information sought an application could be made and that the Applicant did not make any such application.
3. The Applicant's written submissions on this ground do not engage with the dispositive issue. Clause 500.211 is not discretionary. It does not have a genuineness element.
4. The submission asserts that the Tribunal should have engaged in an inquiry "probing the consent form's validity or enrolment delays".
5. I accept the submissions of the Minister there is no general duty imposed upon the Tribunal to investigate the Applicant's claims or to make inquiries: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [1] and [20]. This matter did not raise rare or exceptional circumstances that would place an obligation on the Tribunal to investigate: Minister for Immigration and Citizenship v Le [2007] 164 CLR 1318 at [60]. Even if there had been an adjournment for the purpose of the Tribunal to make its own inquiries the outcome would have been the same: Sinap v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 687 at [35]. It is clear from the Provider Registration and International Student Management System report annexed to the affidavit of Ms Sassine, the Applicant was not enrolled in a registered course of study at the time the Tribunal made its decision.
6. There has been no jurisdictional error identified by the Applicant with respect to Ground Three, it must be dismissed.

1. The Applicant has not established jurisdictional error. The Application filed 18 May 2020 as Amended on 24 July 2025 is dismissed.
2. I will hear the parties on the appropriate case management orders regarding hearing any application for costs in this matter including the issue of costs against the practitioner occasioned by the adjournment on 30 October 2025.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.