Gill v Minister for Immigration and Citizenship [2025] FedCFamC2G 1470

1. By way of Application filed on 9 August 2019, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 10 July 2019 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. In the Tribunal's Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) Student (Subclass 500) visa (Visa) on the basis that the Applicant did not satisfy the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
3. The hearing of the Application took place at the Melbourne Registry of the Court on 4 September 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of a Punjabi interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant was a genuine applicant for entry and stay as a student.

1. The Applicant is a citizen of India.
2. On 9 October 2014, the Applicant arrived in Australia as the holder of a student 573 visa.[2]
3. On 29 August 2017, the Applicant applied for the Visa,[3] based on his enrolment in:[4]

(a) Certificate III in EAL; and

(b) Diploma in Building and Construction (Management).

1. On 26 October 2017, a Delegate of the Minister refused to grant the Visa application (Delegate's Decision) on the basis that they were not satisfied that the Applicant had the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212(a) of the Regulations.[5]
2. On 15 November 2017, the Applicant applied to the Tribunal for review (Review Application).[6]
3. On 17 November 2017, the Tribunal confirmed receipt of the Review Application.[7]
4. On 27 February 2019, the Tribunal invited the Applicant to provide information pursuant to s 359(2) of the Migration Act by completing a Request for Student Visa Information form by 13 March 2019 (s 359(2) form).[8] The letter indicated that if no response was received by the due date, a decision may be made without further action to obtain information and he would lose any entitlement to appear before the Tribunal.
5. On 18 March 2019, the Applicant provided a completed s 359(2) form to the Tribunal.[9] The response was provided out of time.
6. On 10 July 2019, the Tribunal affirmed the Delegate's Decision.[10] The Tribunal determined that as the Applicant had failed to respond within the prescribed period, s 359C(1) of the Migration Act applied and pursuant to s 360(3), he was not entitled to appear before the Tribunal.
7. On 12 July 2019, written reasons of the Tribunal's Decision were provided to the Applicant.[11]

1. The Tribunal's Decision is at 95 to 101 of the Court Book.
2. The Tribunal first outlined the background to the matter, including its reasons for refusing to adjourn the hearing to allow the Applicant to provide further information pursuant to s 360(3) of the Migration Act: Tribunal's Decision [1] to [15].
3. The Tribunal considered the Applicant's s 359(2) form response and found that he failed to provide reasons as to why he had completed only one course since his arrival in Australia.[12] The Tribunal considered the Applicant's "well-ordered" communal life and found that his ties presented a strong incentive to remain in Australia.[13] The Tribunal found that the Applicant was not a genuine student for stay in Australia temporarily and was instead using the student visa programme to maintain ongoing residence.[14]
4. The Tribunal expressed concerns about the Applicant's adverse immigration history and noted that the Applicant had switched from higher education to vocational education without prior approval or authority. The Tribunal found that the Applicant was in breach of condition 8516 on his Visa.[15]
5. The Tribunal expressed concerns about the Applicant's minimal academic progress in comparison to progress in other areas of his life, namely paid employment.[16] The Tribunal was not satisfied that the Applicant was committed to his educational direction or his future career prospects in India.
6. On the evidence before it, the Tribunal concluded that the Applicant was not a genuine applicant for entry and stay in Australia temporarily.[17]

1. On 9 August 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 30 January 2025, Orders were made by Registrar Lindsay of this Court for the First Respondent's name be amended to "Minister for Immigration and Citizenship". For the First Respondent to file and serve by no later than two weeks from the date of the orders: the Court Book. For the Applicant to file and serve at least 28 days before the hearing: written submissions, any amended application and any additional evidence. For the First Respondent to file and serve at least 14 days before the hearing: written submissions and any additional evidence. For the First Respondent to file and serve at least 7 days before the hearing, where the Applicant is self-represented: an Affidavit of Service of the Court Book, written submissions and any additional evidence.
3. This matter was heard on 4 September 2025 for a Final Hearing before me.
4. The Applicant relied upon the following documents:

(a) The Application filed 9 August 2019; and

(b) The Affidavit of the Applicant sworn on 8 August 2019 (Applicant's Affidavit).

(a) The Response, filed 26 August 2019;

(b) The Minister's Outline of Submissions filed on 12 August 2024;

(c) Affidavit of Amron Rath affirmed on 14 August 2015; and

(d) List of Authorities filed 3 September 2025.

1. Both parties relied on the Court Book.
2. The Application contains the following grounds of review (Grounds of Review):
   • My subclass 500 visa is refused by immigration department and by AAT department. (Ground 1).
   • The reason provided by both departments is that I do not meet genuine temporary applicant (500.212) criteria. (Ground 2).
   • I have serious concerns about the interpretation of clause 500.212 made by both departments. (Ground 3).
   • My concern is that how a student visa can be refused for an existing student who is already in Australia studying for many years and who completed all the courses he was enrolled in. (Ground 4).
   • I have a strong history of academic performance in Australia. I completed all my courses without any student gap. (Ground 5).
   • I had enough funds to support my studies. (Ground 6).
   • I never breached any condition associated to any of my student visas throughout the time I was in Australia. (Ground 7).
   • I want to dispute the decision in Federal Circuit Court as I believe that a breach of procedural fairness has occurred. (Ground 8).
   • The main reason for this dispute is that the interpretation of this clause 500.212, there are hundreds of cases published on AAT website decisions which are published on AAT website where the review applicants did get successful outcomes even though they had poor education-al profiles than my profile. I believe that I have been disadvantage and deprived of a fair trial on my review application. (Ground 9).

1. The Applicant did not file written submissions.
2. At the start of the Hearing, the Applicant sought to tender in evidence a Chiropractic X-Ray Report of Findings dated 21 August 2024 prepared by Wellbeing Chiropractic. The purpose of the tender was to establish that the Applicant has lower back pain, which he said, commenced six to seven years ago. He stated that this was the reason why he lost interest in his studies. I rejected the tender on the basis that the report was irrelevant to the issues on judicial review, noting that the report post-dates the Tribunal's Decision by around five years.
3. The Applicant stated in oral submissions that he came to Australia in or around October 2014, and that he:

(a) Completed all of his studies;

(b) Undertook three semesters of a Bachelor of Commerce degree;

(c) Enrolled in a painting and decorating course in 2016 which he completed in 2017; and

(d) Then undertook a Bachelor of Construction, but lost interest after the Tribunal refused his application.

1. In relation to Ground 6, the Applicant stated that he had provided evidence that he had sufficient support from his father and mother - amounting to some 42 to 45 documents.
2. The Applicant submitted that he did not get a fair chance to pursue his studies and deserved the chance to do so. One of the Applicant's main complaints was that his migration agent did not submit his papers on time, and this was the fault of his migration agent. This matter is discussed further below.

1. The Minister submits that the Applicant's unparticularised Grounds of Review fail to identify jurisdictional error in the Tribunal's Decision and that the Application should be dismissed.

1. The Minister submits that these grounds simply restate the procedural history of the matter and are not proper grounds of review.

1. The Applicant asserts that he has "serious concerns" about the interpretation of cl 500.212 of the Regulations. The Applicant has failed to provide any particulars in relation to this ground. The Minister submits that this ground should be dismissed.[18]

1. The Minister submits that these grounds are in the form of submissions and rise no higher than a request for the Court to engage in impermissible merits review.[19]
2. The Minister notes that the Tribunal considered the Applicant's study history,[20] and his poor academic progress.[21] The Minister submits that the Tribunal made findings open to it, being that the Applicant was not a genuine student for the purpose of cl 500.212 of the Regulations. The question of sufficient funds held by the Applicant was not an issue considered by the Tribunal and was not a relevant consideration under Ministerial Direction 69.

1. The Minister submits that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Migration Act, including the decision to determine the matter on the papers.
2. The Minister notes that if a person is invited in writing to provide information[22] and fails to do so within the prescribed period, the Tribunal may make its decision without taking further action.[23]
3. In circumstances where s 359C(1) applies, s 360(2)(c) relieves the Tribunal of the obligation to invite the Applicant to attend a hearing. The Applicant effectively lost his entitlement to appear before the Tribunal.[24] Once this entitlement is lost, the Tribunal does not have the power to invite the Applicant to appear before it.[25]
4. The Minister submits that the Tribunal's s 359(2) invitation complied with the relevant legislative requirements. Specifically, the invitation:

(a) Identified that the information was to be given in writing;[26]

(b) Was given to the Applicant by one of the methods specified in s 379A, being the Applicant's Representatives' email address provided to the Tribunal;[27] and

(c) Stipulated the prescribed period of 14 days in which the Applicant was required to provide the requested information.[28]

1. The Minister notes the Applicant did not respond or seek an extension of time to provide information prior to the expiry of the prescribed period.
2. The Minister submits that there was no information the Tribunal was required to put to the Applicant under s 359A of the Migration Act. In reaching its decision, the Tribunal relied on the Applicant's oral evidence and written evidence to the Delegate. This fell within the exceptions to information under s 359A(4)(b) and s 359A(4)(ba) of the Migration Act.
3. The Minister's solicitor made further oral submissions at the Hearing.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court 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. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) 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. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[29]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[30] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[31]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[32] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error 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".[33] Different kinds of error may overlap.[34] The categories are not closed.[35]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[36] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[37] It has been described as an "undemanding" standard.[38]

1. The Student visa (Subclass 500) allows international students to live and study in Australia at an accredited institution.
2. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
3. The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are Part 500 in Schedule 2 of the Regulations.[39]
4. Clause 500.211 of Schedule 2 of the Regulations provides:
   1. the applicant is enrolled in a course of study;
   2. if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;
   3. if the applicant is a Foreign Affairs student-the applicant has the support of the Foreign Minister for the grant of the visa;
   4. if the applicant is a Defence student-the applicant has the support of the Defence Minister for the grant of the visa.
5. Clause 500.212 of Schedule 2 of the Regulations provides:

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

1. the applicant intends genuinely to stay in Australia temporarily, having regard to:

   1. the applicant's circumstances; and
   2. the applicant's immigration history; and
   3. if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
   4. any other relevant matter; and

2. the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

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

4. the applicant's stated intention to comply with any conditions to which the visa may be subject; and

5. because of any other relevant matter.

(Emphasis added)

My subclass 500 visa is refused by immigration department and by AAT department.

The reason provided by both departments is that I do not meet genuine temporary applicant (500.212) criteria.

1. Grounds 1 and 2 are factual statements that do not identify any jurisdictional error or arguable jurisdictional error.
2. I am not satisfied that jurisdictional error is made out by reference to Grounds 1 and 2.

I have serious concerns about the interpretation of clause 500.212 made by both departments.

My concern is that how a student visa can be refused for an existing student who is already in Australia studying for many years and who completed all the courses he was enrolled in.

I have a strong history of academic performance in Australia. I completed all my courses without any student gap.

I never breached any condition associated to any of my student visas throughout the time I was in Australia.

The main reason for this dispute is that the interpretation of this clause 500.212, there are hundreds of cases published on AAT website decisions which are published on AAT website where the review applicants did get successful outcomes even though they had poor education-al profiles than my profile. I believe that I have been disadvantage and deprived of a fair trial on my review application.

1. Ground 3 to 7 and 9 appear to be little more than a request for merits review. "A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision‑making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision."[40]
2. The critical question for me is whether there has been jurisdictional error. As no jurisdictional error or arguable jurisdictional error is identified by Grounds 3 to 7 and 9, those grounds must fail. I note that the Tribunal considered the Applicant's course completion at [21] (Ground 4);[41] the Tribunal considered the Applicant's academic performance at [21] (Ground 5);[42] the Tribunal considered the Applicant's financial circumstances at [35] (Ground 6);[43] the Tribunal found that the Applicant breached a visa condition at [41] (Ground 7).[44] No error is identified in relation to the Tribunal's findings in relation to these matters, although those grounds contain factual assertions that in some cases are different to the Tribunal's conclusions. As to Ground 9, comparative analysis to other Tribunal determinations is irrelevant to the question of whether there was jurisdictional error in the present case.
3. I am not satisfied that jurisdictional error is made out by reference to Grounds 3 to 7 and 9.

I want to dispute the decision in Federal Circuit Court as I believe that a breach of procedural fairness has occurred.

1. The circumstances in which Ground 8 is to be considered are set out in the Tribunal's Decision in the following passages: [45]

In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal, including information in relation to enrolment: cl.500.211(a).[46]

The Tribunal did not receive any response within the prescribed time-frames to the before mentioned written invitation. That is the review applicant has not provided the Tribunal within the prescribed time-frame with any further information than that which was provided to the Department.[47]

The applicant did provide to the Tribunal a written response on 19 March 2019. The Tribunal has considered this response. The applicant advised he arrived in Australia in October 2014. The applicant advised he completed one six month course in the VET sector in the period October 2014 until the present time.[48]

The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant's nominated address, being an address provided by the review applicant in connection with this application for review.[49]

As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].[50]

The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.[51]

The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li [2013] HCA18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014).[52]

In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.[53]

1. The Minister contends that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Act, including in relation to its decision to proceed to decide the matter on the papers.
2. The relevant provisions of the Migration Act so far as they apply here are:

(a) The Tribunal may get any information it considers relevant;[54]

(b) The Tribunal may invite a person to give information orally or in writing;[55]

(c) If a person is invited in writing under s 359 to give information and does not provide the information within time, the Tribunal may make a decision on the review without taking steps to obtain the information;[56]

(d) The Tribunal's obligation to invite the applicant to appear before the Tribunal and give evidence and present arguments relating to the issues arising in relation to the decision under review,[57] does not apply, in a case where a person has failed to give information pursuant to a request under s 359;[58] and

(e) In a case where a person is not entitled to appear, because of a failure to comply with a request for written information under s 359, the Tribunal does not have the power to permit them to appear.[59]

1. In Hasran v Minister for Immigration and Citizenship,[60] the Full Court held that s 363A of the Migration Act, and the related provisions of Part 5, meant that once an applicant lost the entitlement to appear as a result of s 363A of the Migration Act, the Tribunal did not have the power to afford the appellant an oral hearing. The Full Court confirmed that the Tribunal does not have the power to enlarge the time under s 359B(4) after the expiry of the date prescribed in the s 359A letter.
2. The Applicant sought to attribute blame for the failure to comply with the Tribunal's request for information as attributable to the fault of his migration agent. However, even if there were evidence to support such a contention, mere negligence on the part of the migration agent is not sufficient to give rise to jurisdictional error.[61]
3. In Minister for Home Affairs v DUA16, the High Court stated:[62]

... it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE, "there are sound reasons of policy" why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.

1. I am not satisfied that jurisdictional error is made out by reference to Ground 8.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[63] the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $5,000 being less than the scale amount.[64] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[65] I am further satisfied that it is appropriate to make an order for payment of the amount sought by the having regard to the scale and the extent of work undertaken as evidenced by the Court file.[66]

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 4 September 2025, Order 1.

[18] WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 per Judge Lucev at [60] upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

[19] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272.

[20] CB 98-100 [21]-[28], [34] and [37].

[22] s 359(2) of the Migration Act.

[23] s 359C(1) of the Migration Act.

[24] S 360(3) of the Migration Act.

[25] S 363A of the Migration Act; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413.

[26] s 359B(1) of the Migration Act.

[27] s 379A(5)(b) and s 379G of the Migration Act.

[28] s 359B(2) of the Migration Act, reg 4.17 of the Regulations.

[29] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[30] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O'Callaghan JJ at [17].

[31] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 32 (LPDT) at [2].

[34] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[37] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[38] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[60] [2010] FCAFC 40; (2010) 183 FCR 413.

[61] Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501at 31.

[62] [2020] HCA 46; (2020) 271 CLR 550 at [15].

[63] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[64] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[65] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[66] See 25.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and Division 1 of Part 3 of Schedule 2.