Gill v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 622

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. A delegate of the (then) Minister for Immigration and Border Protection (Minister) refused the first applicant a Student (Temporary) (Class TU) (Subclass 500) visa in April 2018. The delegate also refused to issue visas to the second applicant and the applicants' daughter, as members of the same family unit as a person who holds a visa. The former Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision. The applicants now apply under s 476 of the Migration Act 1958 (Cth) (Act)[1] for judicial review of the Tribunal's decision.

1. The first applicant is a citizen of India, who arrived in Australia on 19 May 2008 as the holder of a Student (Class TU) (Subclass 573) visa. The first applicant has been granted multiple further visas since his arrival. The second applicant is the first applicant's spouse. Both the second applicant and the applicants' daughter were listed on the first applicant's visa application as members of the same family unit to the first applicant, whose applications were (and in the case of the second applicant remain) dependent upon a visa being issued to the first applicant.
2. On 7 December 2017, the first applicant applied for a student visa to pursue a diploma of building and construction (management) and an advanced diploma of business. The application was made with the assistance of a registered migration agent and included various supporting documents, including a statement of purpose provided by the first applicant, and certificates confirming the first applicant's enrolment in the higher education courses relevant to their visa application.
3. On 3 April 2018, a delegate of the Minister refused the first applicant's application for a visa, and consequently refused the dependent visa applications. The applicants were notified of the refusal decision by letter dated 3 April 2018 transmitted by email to their migration agent, which enclosed a copy of the delegate's decision record.
4. The delegate considered that the first applicant failed to satisfy the 'genuine temporary entrant' criterion in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations)[2]. The delegate was not satisfied that the applicant held a genuine intention to stay in Australia temporarily.

1. On 10 April 2018, the applicants applied to the Tribunal for review of the delegate's decision, again with the assistance of a migration agent. That application was received and acknowledged by the Tribunal on 11 April 2018 by letter to the applicants, transmitted by email to their migration agent. The letter enclosed an 'M15 - Information for review applicants' form and noted that the validity of the application had not yet been assessed. The applicants were informed that if they wished to provide any material or written arguments for the Tribunal to consider in their review, they should provide that to the Tribunal as soon as possible.
2. By letter dated 17 July 2019, the Tribunal invited the applicants to provide further information in support of their application for review. The Tribunal noted that for a Student (Class TU) visa to be granted, the first applicant was required to show that he was both: enrolled in a registered course of study; and that he was a 'genuine applicant for entry and stay as a student'. The Tribunal requested that the applicants complete a 'Request for Student Visa Information' form by no later than 31 July 2019 in which they should provide sufficient information about these matters to satisfy the Tribunal that the first applicant met both. The Tribunal noted that it must have regard to Ministerial Direction No. 69 (Direction No. 69) made in accordance with s 499 of the Act, in assessing whether the first applicant satisfied the genuine temporary entrant criteria relevant to grant of a student visa and enclosed a copy of Direction No. 69 for the applicants' reference.
3. The applicants completed and returned a 'Request for Student Visa Information' form, setting out the information requested in varying levels of detail. In that form, the applicants indicated that they did not consent to the Tribunal deciding the review without conducting a hearing and on 8 August 2019 the Tribunal wrote to the applicants inviting them to attend a hearing scheduled for 23 August 2019. The Tribunal also requested the applicants provide it with any further information on which they intended to rely in relation to the review, prior to the hearing. The Tribunal specifically requested: a copy of a confirmation of enrolment demonstrating the first applicant was enrolled in a course of study at the time of the hearing; documentary evidence of the first applicant's prior study in Australia, including class attendance, academic results, and certificates of completion, along with evidence of any work related to past or intended studies in Australia, and; a written statement addressing whether the first applicant was a genuine applicant for entry and stay as a student with reference to the criteria in Direction No. 69.
4. On 16 August 2019, by email, the applicants returned a completed 'Response to hearing invitation' form indicating they would attend the scheduled hearing, and attached to that response copies of a work performance assessment in relation to the first applicant's employment as a painter.
5. On 23 August 2019, the applicants attended a hearing at the Tribunal to give evidence in relation to their application for review. At the hearing, the applicants gave oral evidence about various matters and provided the Tribunal with language fluency testing results detailing the first applicant's English language skills.
6. On 23 August 2019, the Tribunal affirmed the delegate's decision. The applicants were notified of that decision by letter on 28 August 2019, transmitted by email to the applicants' migration agent. The letter enclosed a copy of the Tribunal's Statement of Decision and Reasons (Decision) and a 'MR25 Information about decisions - MR Division' factsheet:

1. The Decision commences with a brief recitation of the procedural history at [1] to [5], before considering at [6] to [20] the applicants' claims and evidence. At [6], the Tribunal set out the statutory criteria relevant to the grant of a student visa, noting in particular that cl 500.212 of the Regulations requires an applicant to be a genuine temporary entrant, also noting in relation to the second applicant that cl 500.311 only authorises the grant of a dependent visa where the primary applicant holds a visa.
2. In considering whether the first applicant intended to genuinely reside in Australia temporarily, the Tribunal referred to various factors which it is required to consider under Direction No. 69, including inter alia: Decision at [9]:

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

(b) the applicant's immigration history; and

(c) any other relevant information, provided by the applicant or otherwise.

1. The Tribunal noted that the delegate's decision records that the first applicant had enrolled in twelve vocational courses since his arrival in Australia, and that he was then enrolled in a further higher education course. The Tribunal noted that at the hearing, it asked the first applicant why he had studied so many courses over an extended period, to which he responded that "'we' are here for a better future, not so much the studies": Decision at [13]. The Tribunal also noted the first applicant told it that he knew some people who had obtained permanent residency and that he considered that it was possible for him to obtain permanent residency if he attained a sufficient score ("7") on an English fluency test: at [13].
2. The Tribunal raised with the first applicant that his evidence may be inconsistent with holding a genuine intention to reside in Australia temporarily, and that such intention was a key criterion for assessing whether a person is a genuine temporary entrant: Decision at [14]. The Tribunal records that the first applicant gave further evidence that he was in Australia to "work and look after his family" and that "there is nothing for him in India and although he has a house there, there is nothing for he (sic) and his family in India": at [15]. The Tribunal also records that the first applicant gave evidence about his employment and earnings in Australia, again repeating that there was "nothing for him in India": at [15]. The first applicant appears to have acknowledged before the Tribunal that the evidence he gave during that hearing did not assist the Tribunal to determine the review in his favour: at [15].
3. On the basis of the above evidence as recorded in the Tribunal's Decision, the Tribunal found that the first applicant was maintaining enrolment in a series of short courses with the intention of circumventing the migration program, and that he was not a genuine temporary entrant to Australia for the purpose of undertaking full time study: Decision at [17]. The Tribunal was therefore neither persuaded that the first applicant satisfied the criteria at cl 500.212(a) of the Regulations, nor that the second applicant satisfied cl 500.311: at [19]. Consequently, the decision under review was affirmed: at [21].

1. On 25 September 2019, the applicants applied to the Court seeking judicial review of the Tribunal's decision. The applicants advance three grounds of review each followed by 'particulars', which are set out as follows (reproduced verbatim):

1. The Tribunal and department of Immigration is erred in making an unfavourable decision on my review application

1. The tribunal has made an error saying that I have intentions to settle in Australia. But, the matter of fact is that I have explained - if I want to settle in Australia, I could have done well in my English language testing and would have applied for permanent residency. But, I was explaining that I would like to complete my current course and return back to my home country. 2. Department has made an error saying that I have stayed longer period of time in Australia. But, the matter of fact is that during all my period of stay - I genuinely studied and progressed well into my further studies, which is showing I am a genuine temporary entrant in Australia.

1. The Tribunal has not considered all the provided information comprehensively

1. The tribunal has concluded that have no ties to my home country. But the fact is that India is my home country and I am planning to return to my home country, after completion of my studies in Australia. 2. Tribunal has concluded that my full time employment is showing that I am not a genuine temporary entrant but the fact is that my bridging visa is with nil conditions allowing me to work full time job.

1. I am a genuine student continuing study of Advance diploma of Business and seeking student visa in Australia.

1. With my current studies in Australia, I want to pursue my career as a Building Associate to acquire new skills and knowledge for a business environment, contributing to organisational objectives and assisting Managers, interpreting plans, regulations and codes of practice, working drawings and specifications, coordinating works programs, inspecting work and materials for compliance with specifications, regulations and standards, calculating costs and estimating time scales, collecting data using surveying instruments and photogrammetric equipment, performing routine computations and plotting preliminary data etc. 2. I have completed Certificate III in Painting and Decoration and have one-year employment experience in this field. With this background, I want to further pursue my career in this field by studying an advanced diploma of business to set-up a small business and work as a Building Associate. 3. I have strong family ties in my home country which acts as an incentive for my return to my home country, after these studies in Australia.
2. The first applicant's affidavit affirmed on 25 September 2019 annexes: the applicants' passports; evidence of the first applicant's enrolment in a higher education course; evidence of the first applicant's prior study in Australia; the Tribunal's correspondence and Decision; and the decision record produced by the Minister's delegate when making the original decision. In the main, the affidavit deposes to matters relevant to whether the first applicant is a genuine temporary entrant. The affidavit does not engage with whether the Tribunal's decision is attended by jurisdictional error. Rather it seeks to persuade the Court about the merits of the first applicant's underlying student visa application.
3. Despite orders of a Registrar of the Court enabling the applicants to file written submissions and further material in support of their application, they have not done so. Only the first applicant attended the judicial review hearing. The first applicant explained that the second applicant did not attend because she was caring for their child. At the commencement of the hearing, I explained to the first applicant that the Court cannot review the merits of the Tribunal's decision or the first applicant's visa application. I explained that the Court's task in undertaking a judicial review of the Tribunal's decision is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58, 184 CLR 163 at 175. Therefore, absent identification of jurisdictional error, the Court has no jurisdiction or power to grant relief in respect of the Tribunal decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, 211 CLR 476 at [76].
4. I explained that jurisdictional error involved a "breach of an express or implied condition of a statutory conferral of decision-making authority" such that "it is 'in law ... no decision at all' and is in that sense 'void'": LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610 at [2]. And that jurisdictional error can take many different forms and that the categories are not closed. I gave the first applicant some examples of jurisdictional error as including material errors by a decision-maker:

(a) misunderstanding the applicable law;

(b) asking the wrong question;

(c) exceeding the bounds of reasonableness;

(d) identifying a wrong issue;

(e) ignoring relevant material;

(f) relying on irrelevant material;

(g) failing to consider a "claim" or a relevant "integer" of a claim;

(h) in some cases, making an erroneous finding or reaching a mistaken conclusion;

(i) failing to observe some applicable requirement of procedural fairness; and

(j) showing actual or there is apprehended bias.

1. Turning to the grounds of review set out in the application.

1. By ground 1 the applicants take issue with both the delegate's decision and that of the Tribunal. Only the latter is reviewable by this Court and the Court has no jurisdiction to review the delegate's decision. In so far as ground 1 concerns the Tribunal's decision, the applicants complain that the Tribunal erred in concluding that the first applicant intended settling in Australia. The applicants contend the Tribunal was told that if the first applicant wanted to settle in Australia, he "could have done well in [his] English language testing and would have applied for permanent residency". The applicants contend that the first applicant told the Tribunal that he "would like to complete [his] current course and return back to [his] home country".
2. As earlier noted, the Tribunal records at [13] of the Decision that the first applicant "stated that he can apply for permanent residency is (sic) he obtains 7 points, by reference to a Pearson PTE Academic Test Taker Score Report that he had undertaken" and that the applicant handed the Tribunal copies of his score results. At [14] the Tribunal records that it "indicated to the applicant that his candid and honest acknowledgment as to wishing to obtain permanent residency placed the Tribunal in a position of some difficulty given that the test the applicant has to satisfy is that he is genuinely a temporary resident for the purpose of undertaking studies in Australia".
3. The applicants' contention is, in substance, that the Tribunal misunderstood the first applicant's evidence. However, the applicants have not provided the Court with a copy of the audio recording of the hearing before the Tribunal or any transcript of the hearing. Without such material the bare allegation cannot be corroborated and is not accepted. In any event, even if the applicants are correct, the error, if it be an error, was not material.
4. The Tribunal's conclusion that the first applicant was not a genuine temporary entrant was open on the material. It was not irrational, illogical or legally unreasonable. Aside from the disputed evidence, the Tribunal found that the applicant had been in Australia since 2008; that he had enrolled in 12 different vocational courses at the relevant time; that he had failed to submit a statement addressing the genuine temporary entrant criteria; that he told the Tribunal that he and his family were in Australia "for a better future, not so much the studies"; that he told the Tribunal he wanted to work and look after his family and that there was nothing for him in India; and that he told the Tribunal if he were unsuccessful, he would just go to Court. And that he earns between $1,500.00 and $1,600.00 per week after tax working 30 to 35 hours per week as a security guard.
5. Based on these findings, it was open to the Tribunal to conclude that the first applicant was maintaining enrolment in a series of short courses for the purpose of circumventing the intention of the migration program, and that he wants to stay in Australia permanently. The Tribunal's conclusion that the first applicant was not a genuine temporary entrant to Australia for the purpose of undertaking full time study was therefore also open.
6. Although particular (ii) of ground 1 makes an allegation of error against the "department", to the extent that the error is also contended against the Tribunal, the contention is misconceived. The Tribunal was not only permitted but required to consider the first applicant's immigration history by operation of cl 500.212(a)(ii) of Sch 2 of the Regulations. The first applicant's length of stay in Australia and the visas granted during the stay were thus relevant to the Tribunal's assessment whether the first applicant was a genuine applicant for entry and stay as a student because he intends genuinely to stay in Australia temporarily.
7. Ground 1 otherwise seeks impermissible merits review. For these reasons, ground 1 of the application does not disclose jurisdictional error and fails.

1. By ground 2 the applicants appear to complain that the Tribunal failed to take into account relevant or material considerations or matters, but they have not identified which matter or consideration the Tribunal failed to consider. The applicants' particulars quarrel with the Tribunal's findings but do not identify the nature of the jurisdictional error which the Tribunal is said to have made. The ground is in substance seeking to engage with the merits of the Tribunal's decision and the first applicant's student visa application. The applicants complain about the Tribunal's findings that the first applicant did not have ties to his home country and the relevance of the Tribunal's consideration of his full-time employment. The Tribunal considered the first applicant's ties to his home country at [15]-[16] of the Decision and his circumstances in Australia briefly at [15] as required by Direction No 69. It noted the first applicant's evidence that although he has a house there, there is nothing in India for him and his family. His employment in Australia was relevant as one of the matters falling for consideration under the rubric of his circumstances in Australia, as required by Direction No 69. The weight the Tribunal ascribed these matters was a matter for the Tribunal. Paragraph [11c] of Direction No. 69 also sets out that the Tribunal should consider whether the student visa was being used to maintain ongoing residence. This is what the Tribunal did at [13]-[17] of the Decision.
2. During the judicial review hearing the first applicant complained that the Tribunal wrongly concluded at [13] of the Decision that he had "not submitted a GTE statement in support of his review application". The first applicant says that a GTE statement was provided. This was a document provided to the delegate, and it was before the Tribunal. But read fairly, the Tribunal's observation is about the provision of a fresh or updated statement to the Tribunal. So much is clear from the concluding words of the first sentence of [13] - "in support of his review application". Moreover, the Tribunal's observation is consistent with the Tribunal's earlier written invitation to the applicants to provide the Tribunal with a written statement addressing whether the first applicant was a genuine applicant for entry and stay as a student with reference to the criteria in Direction No. 69.
3. But even if that is not correct, the error if it be one, was not material. It seems clear enough from the Tribunal's reasoning at [11]-[16] that it considered the first applicant's oral evidence as indicating the first applicant is motivated to remain in Australia permanently. In these paragraphs, the Tribunal addresses, albeit economically, the first applicant's circumstances both in India and Australia, his immigration history, his desire to remain in Australia and his evidence about the purpose of his study and its priority in his overall plan. The first applicant told the Tribunal "we are here for a better future, not so much the studies". These are all matters relevant to assessing whether the first applicant intends genuinely to stay in Australia temporarily. Accordingly, no material error is thereby disclosed.
4. Ground 2 therefore does not disclose jurisdictional error and so fails.

1. By ground 3 the applicants contend that the first applicant is a genuine temporary entrant and so invite the Court to engage in impermissible merits review. Particulars (i) and (ii) set out the first applicant's career goals but fail to identify or allege any jurisdictional error. Particular (iii) asserts that the first applicant has strong family ties in his home country which act as an incentive for him to return after his studies in Australia. This was a matter for the Tribunal. And such matters ought to have been set out in a statement given to the Tribunal addressing the genuine temporary entrant criteria, which as the Tribunal noted, the first applicant did not provide. As noted earlier, the Tribunal considered the first applicant's circumstances in his home country at [15] and [16] of the Decision. Ground 3 of the application does not disclose jurisdictional error and so fails.
2. As the applicants were unrepresented before the Court, I have reviewed the Tribunal's decision and the material in the Court Book filed by the first respondent with an eye to identifying jurisdictional error beyond merely dealing with the applicants' grounds of review, but I have not identified any such error.
3. Consequently, the judicial review application will be dismissed.

1. The first respondent sought an award of costs in the amount of $5,400.00 in the event the application failed. The amount is less than that currently fixed by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration matter determined at final hearing. There was no cogent reason advanced why such an order ought not be made and I consider the amount sought to be reasonable and reflective of the costs incurred by the first respondent. The applicants are to pay the first respondent's costs fixed in the sum of $5,400.00.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.

[2] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.