Kaur v Minister for Immigration and Citizenship [2025] FCA 919

1. The first appellant, Ms Jasbir Kaur, is a citizen of India. She has resided in Australia since 24 October 2008 as the holder of successive student visas issued under the Migration Act 1958 (Cth). The remaining appellants are her family members.
2. On 16 April 2018, Ms Kaur applied for a Student (Temporary) (class TU) Student (subclass 500) visa. A delegate of the then-named Minister for Home Affairs refused to grant the visa on the basis that the appellant did not satisfy the "temporary entrant criterion" in cl 500.212(a) of Sch 2 to the Migration Regulations 1994 (Cth). It relevantly provides:

(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; ...

1. The Administrative Appeals Tribunal affirmed the delegate's decision. An application for judicial review of the Tribunal's decision was dismissed by the Federal Circuit and Family Court of Australia (Division 2): Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 869. This is an appeal from that judgment.

1. The Tribunal's reasons are conveniently and correctly summarised by the primary judge in terms that are not subject to challenge. I gratefully adopt his Honour's summary, reproduced below:
   1. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
   2. The Tribunal's reasons begin by identifying the visa decision under review, noting that the applicant had applied for the Student (Temporary) (Class TU) visa on 16 April 2018. The Tribunal explained that, on 27 June 2018, a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212 in Schedule 2 of the Regulations) (at [1]).
   3. The Tribunal explained its role in assessing the delegate's decision, and the evidence and arguments it had considered. The Tribunal also acknowledged that the Tribunal hearing had been conducted by telephone, noting that the applicant had raised no difficulty with appearing by telephone and that the Tribunal considered there had been no disadvantage to the applicant in presenting her case (at [2]-[3]).
   4. The Tribunal noted it was satisfied that the applicant was currently enrolled in a registered course of study, namely, an Advanced Diploma of Business, and the only determinative issue therefore was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student (at [4]-[5]). In doing so, the Tribunal explained that it had considered and applied cl 500.212 of the Regulations, as well as Direction 69.
   5. Against this background, the Tribunal made the following findings.
   6. The Tribunal found that the applicant had first arrived in Australia from India on 24 October 2008 on a student visa and had remained in Australia since that time save for returning to India on approximately four occasions, the most recent being in late 2016 or early 2017 (at [8]). The Tribunal accepted that the applicant is married and has two daughters in Australia, but that she is in contact with extended family members in India (at [10]). The Tribunal accepted that, although there are economic incentives to remain in Australia, they are not significant and that the applicant's personal ties to India are a strong incentive to eventually return home (at [23] and [24]).
   7. The Tribunal heard that the applicant's reason for studying in Australia rather than India was that 'the majority of study [in India] is theoretical and does not give real time experience' but the Tribunal placed little weight on this due to the applicant having last studied in India in 2006 (at [9]). The applicant claimed they eventually want to start a business in their home country, but provided scant details about the proposed business, how they would start that business, or the expected income from such business (at [9] and [11]). The Tribunal placed little weight on these statements.
   8. The Tribunal found that the applicant has remained in Australia on four student visas and two subclass 457 visas which enabled the applicant to work for a period in the regional towns of Kadina and Streaky Bay (at [15]). The Tribunal found that the applicant applied for permanent residency in 2017 but that was refused, and that the applicant has a 'wish to live ongoing in Australia' (at [16]).
   9. The Tribunal did not accept the applicant's evidence that she chose to study horticulture so that she could assist with her brothers' farming interests in India, particularly noting that she had since shifted into management-related studies (at [17]). When questioned by the Tribunal member about this course of study, the applicant gave vague general responses about starting her own business, but the Tribunal was not satisfied the applicant had any specific intentions in this regard (at [18]). The Tribunal put to the applicant that she has been in Australia for over 12 years and that she is attempting to live here permanently by making repeat visa applications, which the applicant denied (at [21]).
   10. With regard to Direction 69 and the applicant's intention to genuinely stay in Australia temporarily as a student, the Tribunal did not accept there are reasonable reasons for the applicant not undertaking their current proposed course of study in India (at [22]). The Tribunal did not accept that there is any real value in the applicant's current course of study, or that it would assist the applicant's employment prospects over and above the study they had already completed. The Tribunal did not accept that the course of study was relevant to the applicant's proposed future employment, whether that be in a café, restaurant or petrol station (at [25]). The Tribunal concluded that the applicant is using the student visa program to maintain ongoing residence in Australia (at [26]).
   11. The Tribunal was ultimately not satisfied that the applicant intended to genuinely stay in Australia temporarily (as required by cl 500.212 in Schedule 2 of the Regulations) (at [28]).
   12. Accordingly, the Tribunal affirmed the delegate's decision not to grant the applicant a subclass 500 Student visa (at [29]).
2. On her application for judicial review, the burden was on Ms Kaur to show that the Tribunal's decision was affected by jurisdictional error: Act, s 474, Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
3. The reasons of the primary judge for dismissing the application for judicial review will be summarised to the extent that it is necessary to resolve the grounds of appeal.

1. Ms Kaur appeared self-represented on this appeal, as at first instance. Her grounds of appeal have been generously interpreted having regard to her status as a non-lawyer. They are to the effect that the primary judge erred by failing to find that the Tribunal made jurisdictional errors by:

(1) not considering her previous study record including her completion of a Certificate III in Horticulture (Wholesale Nursery), Certificate IV in Horticulture, Diploma of Horticulture and a Diploma of Management; and

(2) not considering her social and financial ties to her home country.

1. In her claim for relief, Ms Kaur stated that she wanted the Court to "look into my case and my previous study record and grant me student visa".
2. No written submissions were filed in support of the grounds of appeal in advance of the hearing.
3. At the hearing of the appeal, Ms Kaur made submissions to the effect that she was disadvantaged by not having legal representation before the Tribunal (and in the proceeding before the primary judge) and that she had found the procedures in one or both forums to be confusing, stressful and intimidating. She alleged that there were "irregularities" in the procedures.
4. Ms Kaur submitted that the Tribunal had reached the wrong opinion about the temporary entrant criterion without identifying objective evidence to support it.
5. Ms Kaur submitted that the Tribunal had failed to have regard to the interests of her youngest child (now the fourth appellant), an Australian citizen who had lived her entire life in Australia.
6. Ms Kaur further submitted that the Tribunal had made "standard assumptions" without having regard to her unique circumstances. She said that the Tribunal had ignored life events that had disrupted her life and caused her to make changes to her affairs in order to survive.
7. Ms Kaur did not elaborate on the matters she had raised when given the opportunity to do so.

1. I turn first to Ms Kaur's allegation that the Tribunal failed to have regard to her study record, including her studies in horticulture. The primary judge rejected that allegation. In doing so, his Honour extracted seven paragraphs of the Tribunal's reasons in which Ms Kaur's course of study was considered, and drew the following conclusions:
   1. The Tribunal clearly had regard to the applicant's current enrolment and her prior study record. The passages set out above demonstrate that the Tribunal was aware of her current enrolment and history of study, fully engaged with that history and took the time to carefully explain its evaluation of that history to the applicant in the course of its oral decision.
   2. Contrary to the applicant's assertion otherwise, not only did the Tribunal consider the applicant's current enrolment and prior history of study, but also fulsomely engaged with that information in reaching its decision. The passages from the Tribunal's decision set out above demonstrate that the Tribunal conscientiously had regard to all of the evidence, including the applicant's evidence at the hearing, in respect of the applicant's enrolment and study history and took the time to explain to the applicant what it did and did not accept.
   3. Furthermore, having regard to the Tribunal's decision as a whole, the Court observes that the decision is a careful, thorough and considered review of the entirety of the claims and evidence raised by the applicant.
2. Ms Kaur's submissions on the appeal did not identify any error in the analysis of the primary judge. Contrary to the grounds of appeal, the extracts from the Tribunal's reasons referred to by the primary judge included a consideration of Ms Kaur's studies in courses related to horticulture.
3. To the extent that Ms Kaur alleged that there had been a breach of the rules of procedural fairness in the proceeding before the primary judge (including an allegation of "irregularities") the allegation was devoid of detail and may be rejected for that reason alone. I have nonetheless considered the reasons of the primary judge and the materials before his Honour in order to identify any matters that might support Ms Kaur's contention, or that may justify the making of a procedural order on this appeal to assist her to better articulate the claim.
4. It may be accepted that litigants in the appellants' position will find the procedures of courts and tribunals bewildering and stressful. However, the reasons of the primary judge in the present case indicate that his Honour had regard to authorities discussing the rules of procedural fairness as they apply to cases where a party has no legal training or assistance. Among other things on that topic, his Honour said (at [29]):

The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [61]. Accordingly, at the hearing of this matter on 28 August 2024, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal's decision and/or procedure.

1. The primary judge went on to explain the additional guidance that had been provided to Ms Kaur, which included an explanation of the limits of his powers on the application for judicial review. In accordance with the authorities to which he referred, the primary judge interpreted the submissions of Ms Kaur in an appropriately generous fashion. There is nothing in the reasons for judgment or in the other materials before me capable of supporting an allegation that the primary judge failed to afford the appellants procedural fairness at first instance. In addition, to the matters I have mentioned, this Court enquired as to whether the appellants had an opportunity to obtain materials necessary to present their case to the primary judge. The Court was minded to ensure that the appellants had not been denied the opportunity to obtain and rely upon a transcript of the hearing before the Tribunal. I have previously expressed concern that in the context of applications for judicial review from decisions of the Tribunal (and now before the Administrative Review Tribunal) the Minister appears to have access to an audio recording of Tribunal proceedings whereas that recording is not made available to judicial review applicants as of right, nor is the recording included in a court book typically prepared by the Minister. Such court books are required to contain material before the Tribunal, which necessarily must include the oral evidence and submissions a review applicant may have given or made. Asymmetry in the possession of information may give rise to procedural unfairness if it deprives a review applicant of an opportunity to prepare or present his or her case. In considering the allegation that there was a breach of the rules of procedural fairness at first instance, I have had regard to the circumstance that a transcript of the Tribunal proceeding was not before the primary judge, such that his Honour's rejection of the grounds of judicial review could not be assumed to have included an assessment of the matters raised by the appellants or any one of them at the Tribunal hearing. However, Counsel for the Minister has provided to this Court a copy of an order made by the primary judge indicating that the appellants were given an opportunity to file evidence in the judicial review proceeding, (which would have included a transcript of the Tribunal hearing), but they did not do so. I therefore do not pursue that question further.

1. The remaining matters raised on the notice of appeal and in Ms Kaur's oral submissions on the appeal may be understood as alleging jurisdictional errors on the part of the Tribunal of a kind that appear not to have been raised at first instance. They include an alleged failure by the Tribunal to properly consider Ms Kaur's ties to her home country, and an alleged failure by the Tribunal to consider the interests of Ms Kaur's youngest child as a person who would be impacted by the refusal to grant the visa.
2. Ms Kaur requires leave to raise on this appeal an allegation of jurisdictional error on the part of the Tribunal that was not raised on her application for judicial review. In deciding whether to grant leave the Court may have regard to any explanation for the failure to raise the argument at an earlier time. The Court may also consider whether the proposed argument has reasonable prospects of success: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588.
3. In the present case it is reasonable to infer that the failure to raise arguments at first instance is a consequence of the appellants' status as self-represented litigants. I have nonetheless concluded that the proposed arguments do not enjoy sufficient prospects of success to justify the grant of leave to introduce the new arguments.
4. The allegation that the Tribunal did not properly consider Ms Kaur's financial and social ties to her home country has no reasonable prospects of success. Those matters were considered by the Tribunal in the following passages:
   1. I accept that you have significant personal ties to India. You have family, you have your mother, so I do accept that there are significant incentives for you to return to your home country at some point in time. You and your husband are both working in Australia. I think there are incentives, economically-wise, for you to remain here in Australia, but I do not weigh them as being significant. There are no military service commitments that would present as a significant incentive for you not to return. I have not been made aware of any political or civil unrest in your home country that may induce you to apply for a Student visa as a means of staying here indefinitely.
   2. You obviously do have ties to Australia, your husband is here and your children are also here, but there is no evidence of you having other family members or friends from your time in India that would be a strong incentive for you to remain here in Australia. ...
5. The allegation that the Tribunal failed to have regard to the interests of Ms Kaur's youngest child also has no reasonable prospects of success. That is because the interests of the child (however compelling) were irrelevant to the task that the Tribunal was tasked to perform. Section 65 of the Act mandated that the visa application be refused if the essential criteria for the visa were not fulfilled. The Tribunal did not have the discretion to grant a visa in circumstances where the temporary entrant criterion was not satisfied. Moreover, to the extent that any separate reliance was placed on the youngest child's status as an Australian citizen, the evidence before this Court indicates that the child was not an Australian citizen at the time of the Tribunal's decision.
6. If follows that the appeal must be dismissed.

1. The Minister seeks an order that the fourth appellant be removed a party as she is no longer a secondary applicant for a visa. It was submitted that if the matter were to be remitted to the Tribunal, then there could be no basis for the fourth appellant to remain a party on the application for review.
2. I accept that the fourth appellant can no longer be a visa applicant in her own name and right and hence could not be a party on any future review of a past decision not to grant her a visa.
3. However, the fourth appellant was a party to the application for judicial review and hence is properly joined as a party to this appeal. In addition, I consider that her interests are affected by the outcome of the appeal because the refusal to grant each of her parents a visa has an obvious impact on her own interests in remaining in Australia under her parents' care.
4. In the present case there will be no order setting aside the judgment or orders of the primary judge and hence no order remitting the review application to the Tribunal. In the circumstances I have described, she should not be deprived of any further rights of appeal in her own name (albeit through a litigation representative), given her obvious interest in the outcome.

1. The parties will be heard in relation to an order that the names of the third and fourth appellants be changed to reflect their status as minors suing through Ms Kaur and the second appellant as their litigation representatives for the purposes of r 9.63 of the Federal Court Rules 2011 (Cth).

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.