Garikimukku v Minister for Immigration and Citizenship [2026] FedCFamC2G 9

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (as it was) (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
2. For the following reasons, I consider that the Tribunal's decision was affected by jurisdictional error. Writs will therefore issue, quashing the decision and requiring that the matter be redetermined according to law.

1. The applicant applied for the student visa on 11 September 2019.
2. On 26 November 2019, the Delegate refused the application.
3. On 4 December 2019, the applicant applied to the Tribunal for review of the Delegate's decision.
4. On 11 August 2021, the Tribunal affirmed the Delegate's decision.

1. The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided:

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. In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:

(a) the applicant's circumstances in his home country, potential circumstances in Australia and the value of the course to his future;

(b) the applicant's immigration history; and

(c) any other relevant information.

1. Direction No. 69 indicated that it was not to be used as a checklist, but stated that the "listed factors are intended only to guide 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".

1. The Tribunal set out what was said to be the background to the matter, applicable criteria and a summary of evidence before it at [1]-[21] of its decision. At [22]-[25], the Tribunal set out in some detail the Delegate's findings. At [26]-[30], the Tribunal gave the following reasons for its decision:
   1. The Tribunal has considered all the above material. The Tribunal now turns to consider Ministerial Direction number 69 (MD69).
   2. The applicant is a single male from India. He came to Australia on a tourist visa and then decided to pursue studies in Leadership and Management in Australia at Diploma level. He will complete his Advanced Diploma in September 2021. He has not advised the Tribunal of any intent to remain further in Australia and has not provided the Tribunal with proof of enrolment in any course of study post September 2021. His parents reside in India and he has worked in the past in his chosen profession of architecture. His parents have some assets in India. He has now almost completed his management diplomas and hence has acquired the necessary theoretical management skills that will complement his vocational degree. He ha not provided any detail as to title to assets in his home country. The Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he intends to stay in Australia temporarily.
   3. The Tribunal is satisfied the applicant has nearly completed his studies in Australia. He now has management qualifications from a country that are apparently held in high regard in India. The applicant has family in Australia. The Tribunal is satisfied completion of the course will enhance his ability to manage his business in India and that this course will help give his business an edge over competitors in India Having completed his studies it and in the words of the applicant it is "time to return to India to manage his business and look after his parents".
   4. The delegate has summarised the background to the GTE application that is currently before the Tribunal for review. He now has formal qualifications at Diploma level that will provide him with the management skills that might assist to run how own business or seek a more senior position in the architecture field. The applicant has already achieved the value he sought upon enrolment. He is now qualified in the management field. There is no material before the Tribunal that suggest the applicant might engage in future studies in Australia.
   5. Overall, given the applicant's circumstances in Australia, his immigration history and the near completion of the courses the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student and that they intend to stay in Australia temporarily.

1. The Tribunal concluded that the applicant was unable to meet cl 500.212 and affirmed the Delegate's decision (at [31]-[33]).

1. On 13 September 2021, the applicant applied for judicial review of the Tribunal's decision. The matter remained in the central migration docket for some time before being allocated to my docket more recently and listed for hearing.
2. The matter was originally listed for hearing on 9 July 2025. However, the applicant advised in the lead up to the hearing that he had learned that his lawyer's practicing certificate had been cancelled. The hearing date was adjourned, by consent, to 2 September 2025 to allow the applicant to source alternative representation.
3. Further adjournment was sought at the hearing on 2 September 2025. This was declined, for reasons explained at the hearing. The applicant's submissions did not inspire confidence that further adjournment would result in the applicant engaging legal representation. In circumstances where the applicant had already been given some months to engage alternative representation, I was not persuaded that it would be appropriate from a case management perspective to allow further time for this to occur. However, I did permit additional time for the filing and service of submissions after the hearing. In any event, for the reasons that follow, I consider that the application before the Court ought to succeed.
4. In his application, the applicant relied upon the following grounds of review:
   1. Natural justice been denied at AAT and by the delegate of Minister for Home Affairs as no consideration been given to the evidence supplied to them.
   2. The Tribunal did not provide an opportunity for the hearing as it decided the matter without conducting a hear despite declaring on the information form that I do not want the Tribunal to decide this matter without conducting a hearing.
   3. The Tribunal did not consider the request made about the late submission of documents due to COVID-19 lockdown in home country. It was a harsh reaction by Tribunal in this pandemic situation as I could not organise the Tax Documents from India regarding my Business.
   4. There is a jurisdictional error made by the Tribunal as the Tribunal wrongly applied cl.5000.212 for affirming the original decision of the Immigration to refuse the student visa while not considering all the circumstance to find out whether the criteria for the genuine entrant has been met.
   5. No Consideration given to the evidence supplied and the continuing progress in the study regardless of refusal of student visa.
5. Brief written submissions subsequently filed by the applicant's former representative stated:

...

1. It is submitted that Learned Tribunal fell in jurisdictional error as just affirming the decision on the basis of generic reasons and without taking into account the specific circumstances of the Applicant.
2. It is submitted that Learned Tribunal fell in jurisdictional error as just affirming the decision without personal hearing and not taking into account the specific circumstances of the Applicant.
3. The Tribunal ignored the fact that this is very first student visa applied by the applicant there is no evidence of other visa refusals or cancellations before the Tribunal and it substantiates the compliance history and genuine intentions of the applicant.
4. The Tribunal ignored the fact that the applicant successfully completed his academic pursuits and ambitious to continue the further studies in Australia. The applicant completed the course he enrolled since inception.
5. The Tribunal ignored the academic and immigration history of the applicant.
6. The Tribunal did not give adequate weight to the applicants' strong family and employment ties to India, which provided a significant incentive to them returning there upon the completion of the first applicant's education. The applicants also said that the Tribunal did not place significant weight on the first applicant's reasons for wishing to study in Australia.
7. The Learned Tribunal failed to provide the Applicant an opportunity to fully submit all the related information and documents to substantiate the case.
8. The Learned Tribunal member fell into jurisdictional error when the Learned Tribunal failed to consider several mandatory considerations as specified in the Ministerial Direction.
9. The Learned Tribunal completely ignored mandatory criteria concerning the Applicant's circumstances and which related to other relevant information provided by the Applicant, in this matter, the circumstances which explained the Applicant's study plan and future endeavours.
10. The Learned Tribunal has committed jurisdictional error by failing to consider mandatory criteria specified under the Ministerial Direction and deciding the matter by excluding the information that favoured the applicant.

1. The grounds raised by the applicant were largely unparticularised.
2. If the Tribunal's letter under s 359 of the Act was issued correctly, then the Tribunal was not obliged (nor empowered) to provide the applicant with a hearing in circumstances where a response to that letter was not received within time: see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at [25]- [32] (Jacobson, Gilmour and Foster JJ). This was regardless of difficulties faced by the applicant with responding in time. There may be, as was discussed at hearing, some question in this case as to whether the relevant form (at CB 94-95) appointed the applicant's representative as his "authorised recipient" for the purposes of s 379G of the Act. Although such an issue has been raised in other cases, there is authority suggesting that it did so: see for example Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 60 at [76]- [98] (Judge Kendall); see also Islam v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 1047 at [23]- [31] (Judge Laing). In any event, it is unnecessary to resolve this question. This is because, for the reasons that follow, I consider that the Tribunal's decision is otherwise affected by jurisdictional error.
3. As was discussed at hearing, there appears to be some substance to the applicant's complaints that the Tribunal misconstrued or misapplied cl 500.212 of Schedule 2 to the Regulations and/or failed to grapple (identifiably) with the evidence that was before it.
4. The Tribunal's reasoning, as set out above, was dominated by its setting out of the background to the matter, the criteria in issue, certain evidence that was before it and the reasoning of the Delegate (at [1]-[25]). The Tribunal's reasons for affirming the Delegate's decision were set out briefly at [27]-[30] of its decision. With respect, I find those reasons somewhat difficult to understand.
5. The evidence before the Tribunal indicated that, at the time of its decision, the applicant was studying an Advanced Diploma of Leadership and Management that was due to be completed on 26 September 2021 (CB 132 and 139). The Tribunal's decision was made on 11 August 2021. Oddly, the Tribunal's reasoning at [28]-[29] referred to an understanding that the applicant had "completed his studies", that (having completed his Diploma level course) he had "already achieved the value he sought upon enrolment" and that there was "no material before the Tribunal that suggest[ed] the applicant might engage in future studies in Australia".
6. However, other parts of the Tribunal's reasoning at [27]-[28] indicate that the Tribunal understood that the applicant was pursuing an Advanced Diploma at the time of its decision and that the course had yet to be completed. At [28], the Tribunal stated that it was "satisfied completion of the course will enhance his ability to manage his business in India and that this course will help give his business an edge over competitors in India". However, immediately after this, the Tribunal stated: "Having completed his studies it and in the words of the applicant it is 'time to return to India to manage his business and look after his parents'."
7. The Tribunal's conclusory paragraph at [30] does not explain why the Tribunal, having considered the evidence before it, was not satisfied that the applicant was "a genuine applicant for entry and stay as a student and that they intend to stay in Australia temporarily". Understanding the Tribunal's reasoning at [27]-[29] is therefore of some importance.
8. The Minister submitted that the Tribunal appears to have meant in [28] that "once he has completed, it will be time to return". That may be so. However, the language used in the paragraph is curious and adds to the confusion regarding the reasoning in question. Further, even if this was meant by the Tribunal, it is unclear how or why it informed the Tribunal's conclusion that it was not satisfied that the applicant genuinely intended to stay in Australia temporarily.
9. It is also unclear how the Tribunal's reasoning in [28] interacts with the Tribunal's consideration at [27] that, having "almost completed his management diplomas", the applicant had already "acquired the necessary theoretical management skills". This is in contrast to the reasoning at [28], in which the Tribunal accepted that "completion of the course" would "enhance his ability to manage his business in India and that this course will help give his business an edge over competitors in India".
10. On balance, I consider that the most likely interpretation of the Tribunal's reasoning at [27]-[28] is that the Tribunal considered, as was suggested at [28] of its reasons, that the applicant "having completed" (or rather, nearly completed) his studies, it was "time to return to India to manage his business and look after his parents". In other words, the Tribunal appears not to have seen the need for the applicant to continue on in Australia after his studies, which were almost completed. As the Tribunal did not see the need for the applicant to remain further in Australia, it affirmed the Delegate's decision refusing his visa application. This was, ostensibly, on the basis determined by the Delegate i.e. on the basis that the applicant was unable to meet cl 500.212 of Schedule 2 to the Regulations.
11. I accept that the Tribunal accurately set out information about the criteria under cl 500.212 in parts of its decision. However, I find that the above interpretation of the approach taken by the Tribunal demonstrates some misconstruction or misapplication of the provision.
12. The correct approach to interpreting cl 500.212(a) was considered by Allsop CJ in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061; (2020) 83 AAR 226 (Eros). His Honour considered:
    1. ... The dispositive reasoning so far as it concerns subcl 500.212(a) is to be found in [30] of the reasons:

The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. In our view, the applicant has an intention to remain in Australia, at least while her daughter is here, but she did not articulate a lawful means of doing so outside of the student visa program. It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia.

1. The express finding is that Ms Eros intends to remain in Australia while her daughter is here. The evidence was that this was for two years: see [20] of the reasons. On any view that is a temporary stay, by reference to the accepted meaning of the word "temporary" referred to by Wilcox J in the context of construing the phrase "temporarily absent from Australia" in Hafza v Director-General of Social Security [1985] FCA 201; 6 FCR 444 at 451, applied by Logan J in Saini 245 FCR at 243 [19] and [20]:

The Shorter Oxford Dictionary defines "temporary" as "Lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need". The Macquarie Dictionary definition is to similar effect, with the addition of "not permanent".

...

I think that the adjective "temporary" was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of "temporary" absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.

1. What the Tribunal appears to have done in its reasoning is to raise doubts about the primary purpose or motivating purpose of staying in Australia (to be with her family, now specifically her daughter) and treat it as relevant to the meaning of "temporary stay". Of course, those matters could be so relevant. If they informed a finding that Ms Eros intended to stay indefinitely in Australia (as the discussion in [19] hinted at, but without any conclusion) then plainly she would not genuinely intend to stay temporarily in Australia. But no such finding was made. The concern in the last sentence of [30] is not a finding. It is an expression of a concern. Subclause (a) is concerned and only concerned with the intention as to length of stay. The finding is not that she genuinely intends to stay indefinitely but for a defined, relatively short period related to an apparent desire to be near her daughter and to study. There is no finding (though there are hints) that Ms Eros is not a genuine applicant to stay as a student. To make that finding the Tribunal would have to deal with other considerations beyond the intended length of stay, and evaluate her evidence including the fact, if it is the case, as it appears to be, that Ms Eros has dutifully undertaken the various courses that she has enrolled in, and, if it be the case, that she genuinely wants to do the courses...
2. ... There is nothing in the decision of Saini which is contrary to the approach that I have already discussed. As Logan J said in Saini 245 FCR at 245 [28] about the relevant words of the predecessor to subcl (a), the words "are concerned with how long the visa applicant intends to stay in Australia and nothing else".
3. The Tribunal's finding at [30] was that, or was consistent only with a finding that, Ms Eros intended to stay temporarily. There was no finding that she would stay longer.
4. There may well be seen to be material before the Tribunal (relevant under subcl (a)(iv)) that may have permitted a finding of an intention to stay indefinitely, but that finding (and any supporting findings) was (and were) not made.
5. There may well be seen to be material before the Tribunal (relevant under subcl (c)) that may have permitted a finding that Ms Eros was not a genuine student and her stay was not "as a student", but no such finding (and any necessary evaluation of evidence and supporting findings) was (and were) not made, or undertaken.
6. For these reasons, the Tribunal misdirected its consideration by asking the wrong question, and by failing to reveal a rational and intelligible reasoning process to its conclusion. These features arose from a misconstruction of cl 500.212.

1. I accept, as the Minister submitted, that the present case is factually distinguishable from Eros. However, there are notable similarities.
2. In Eros, as in the present case, the Tribunal had found in a conclusory paragraph that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. The Tribunal in Eros therefore found that the applicant did not meet cl 500.212(a): Eros at [16].
3. In the present case, the Tribunal additionally stated this conclusion in a sentence at the end of [27]. However, as in Eros, the Tribunal in the present case did not provide clear and intelligible reasons for coming to this conclusion within the context of the reasons that it had otherwise given. In Eros, the disconnect between the Tribunal's reasons and the conclusion reached was a different one: the Tribunal had considered that the applicant in that case was remaining in Australia to accompany her daughter. It was not apparent why that purpose was other than temporary.
4. In the present case, the Tribunal appears to have considered that the applicant had no further purpose for remaining in Australia pursuant to the grant of a student visa, given the near completion of his course. However, this was not the question for determination under cl 500.212(a). The course in question had not been completed at the time of the Tribunal's decision. The Tribunal made no clear finding that the applicant intended to remain in Australia beyond the duration of his course. Nor did the Tribunal explain why any features of the applicant's circumstances or evidence led it to the conclusion that it was not satisfied that the applicant intended to stay in Australia temporarily.
5. I accept that the Tribunal made general references to the applicant's circumstances in India and Australia. As the Minister submitted, this included references to matters that could have informed the question of whether the applicant met cl 500.212. However, the Tribunal's reasons do not disclose how it interpreted or weighed the circumstances that it had identified: see Eros at [31]-[32]. Setting out findings made by the Delegate, without relevantly engaging with those findings or the evidence that informed them, was not capable of achieving this task.
6. Having regard to the above, I find that the Tribunal in the present case fell into the species of error found in Eros at [33]. Namely, the Tribunal misdirected its consideration by asking the wrong question, and by failing to reveal a rational and intelligible reasoning process for its conclusion. This arose from an apparent misconstruction of cl 500.212.
7. If the Tribunal had relevantly engaged with the evidence before it, according to a correct understanding of cl 500.212, then it is possible that its decision may have been different. It is possible that the Tribunal may have accepted that the applicant intended only to remain in Australia for the limited duration of his course. Had this been accepted, then cl 500.212(a) would have been met. This was regardless of how limited the time was for completion of the course in question. In such event, it is possible that the Tribunal may (or may not) have found that cl 500.212 was met.
8. It follows that the error in question was material. Jurisdictional error has therefore been established.

1. For the reasons given above, the application before the Court succeeds.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.