Kaur v Minister for Immigration and Citizenship [2025] FCA 931

1. The appellant (Ms Baljinder Kaur) is a citizen of India. She has resided in Australia since 2008 as the holder of successive visas issued in January 2011, November 2011, August 2013, August 2014 and December 2016.
2. For the appellant to succeed on her application for the visa to which this appeal relates, it was necessary that the Minister (and hence the Tribunal) be satisfied that the criteria for the visa were fulfilled: Act, s 65. They included the criterion in cl 500.212(a) of the Migration Regulations 1994 (Cth), known as the temporary entrant criterion. It relevantly provided:

(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 decisive question before the Tribunal was whether the appellant fulfilled the requirement in cl 500.212(a). In considering that question, the Tribunal applied a direction issued by the Minister under s 499 of the Act, which identified the matters to be taken into account. Addressing those matters, the Tribunal made the following findings:

(1) since arriving in Australia in 2008, the appellant had returned to India on only three occasions;

(2) on the appellant's own account, she had been enrolled in approximately 15 courses over 13 years, ranging over a number of different subject areas;

(3) there was a lack of evidence that the course selected for the current visa application was of value to the appellant's future, considered in the context of her extensive study history;

(4) the selected course was a "repeat of earlier studies" and would not enhance the appellant's employment prospects;

(5) that factor, combined with the "sheer length of time" the appellant had spent in Australia and the unstructured nature of her course of study, support a conclusion that her conduct was consistent with an intention to remain in Australia indefinitely;

(6) the appellant held "reasonably strong personal ties to India". However, they did not present a strong incentive for her to return;

(7) as the appellant had no employment secured in India, there were no "strong economic or financial ties" that constituted an incentive to return; and

(8) the appellant had an economic incentive to remain in Australia as she had part time employment in the food and hospitality industries in Australia and possesses no other work experience.

1. To succeed on her application for judicial review at first instance, it was necessary for the appellant 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. On that application, the appellant relied on a single ground of review, expressed as follows:

My primary ground of this application is that Tribunal did not provide me procedural fairness. Member made his decision based on some errors. Member believed that my intended courses were same as previously completed. Whereas previously completed similar courses were studied in 2008-2010. I wished to update my courses to modern and current courses. Academics courses keep on changing as per the requirements of time. I wanted to gain most up to the date qualifications before returning to my home country. I have always been a geuine temporary entrant. I have completed most of the enrolled studies. Please refer to my detailed affidavit and supporting documents. Member also concluded I did not have enough reasons to go back. Whereas my mother is there in India and my father is not alive. In future, I am the only one to take care of my mother because my brothers won't. I have strong ties to India. I was enrolled in current courses just to update myself and start my career journey in a professional manner.

1. The reasons of the primary judge record that it had been explained to the appellant that it was not his role to undertake a review on the merits of the Tribunal's decision: Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259.
2. In light of the appellant's self-represented status, the primary judge observed that it was usually appropriate for an unrepresented applicant to be given an opportunity to make oral representations as to matters revealing error in the decision subject to review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (at [8]); BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384; Khaling v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 573 (at [61]).
3. Having regard to an affidavit filed by the appellant and her oral submissions, the primary judge proceeded on the basis that the appellant had asserted the following:

(a) The Tribunal did not provide her with procedural fairness;

(b) The Tribunal decision was based on errors, namely, that the Tribunal mistakenly believed the applicant was studying the same courses she had previously, whereas the applicant asserts those courses were completed in 2008-2010 and she wished to update those courses and gain the most up-to-date qualifications prior to returning to India;

(c) The Tribunal erred in finding that the applicant did not have enough reasons to return to India, whereas the applicant asserts that her mother is there and in the future she will be the only one who can take care of her mother because her brothers will not.

1. The primary judge went on to explain why each of those contentions should fail. His Honour's reasons will be summarised to the extent necessary to dispose of the grounds of appeal.

1. The grounds are contained in a notice of appeal filed on 23 September 2024 over 11 paragraphs. For the most part, the grounds are in the nature of submissions going to factual matters relating to the appellant's course of study and her future aspirations.
2. The Court has received an email containing written submissions in support of the grounds. Like the grounds of appeal, the submissions mostly contain assertions of fact. They amount to a plea to the Court to find that the temporary entrant criterion is fulfilled. The grounds and submissions invite the Court to embark on a form of merits review of the Tribunal's decision, which it simply cannot do: BEF15 v Minister for Immigration and Border Protection [2016] FCCA 2607 (at [41] - [47]).
3. The grounds and submissions otherwise contain a contention that the primary judge erred in failing to find that the Tribunal did not consider "all the elements and documents" before it. That allegation may be characterised as a contention that the primary judge committed appealable error in rejecting the ground of review that asserted a breach of procedural fairness by the Tribunal or a failure to take into account material evidence or submissions (or perhaps both). The contentions also contain an unparticularised allegation that the primary judge failed to afford her natural justice.

1. The allegation that there was a breach of the rules of procedural fairness in the proceeding at first instance was not elaborated upon in oral submissions, nor was the Court taken to any evidence capable of supporting such an allegation. The reasons of the primary judge summarise the guidance that had been given to the appellant about the limits of his Honour's role on the application for judicial review and there is no suggestion that summary is inaccurate.
2. The primary judge was plainly aware of the need to interpret the appellant's sole ground for judicial review as broadly as possible, and it is apparent that his Honour did so: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158.
3. On appeal, the appellant did not suggest that the primary judge had misunderstood the essence of her complaints.
4. The primary judge explained why each of the appellant's contentions should be rejected. In doing so, his Honour undertook an assessment as to whether the Tribunal had properly understood the case the appellant had presented on her review application. His Honour concluded that the appellant's contentions had been properly understood and that it was open to the Tribunal to reject the contentions on the material before it for the reasons that it gave. The appellant has not identified any error affecting that aspect of the judgment.
5. In addition, the primary judge invited Counsel for the Minister to draw to his attention any matter that might give rise to concerns or doubts about the Tribunal's decision and his Honour went on to consider submissions put forward in response to that invitation.
6. The primary judge rejected the submissions of the Minister to the effect that the appellant's complaints about the Tribunal's decision were an attempt to invite the Court to engage in impermissible merits review. His Honour did so without the benefit of submissions from the appellant on that topic.
7. The primary judge concluded that the Tribunal had indeed taken into account all of the documents upon which the appellant had relied. His Honour identified that the Tribunal had correctly identified the courses the appellant had completed and that it had found her behaviour to be more consistent with a person who was attempting to maintain ongoing residence in Australia. His Honour continued:

Again, the Court accepts the Minister's submissions in this regard. To the extent that the applicant is asserting that the Tribunal either did not have regard to, or did not understand, her claims in respect of her reasons for enrolling in the course that is not made out. It is clear from the Tribunal's decision that it appreciated the applicant's claims in this respect but did not agree that there was any value to these courses. Similarly, the Tribunal did consider the applicant's evidence that she had completed most of the courses. However, the Tribunal found that her enrolment history and the types of courses she engaged in were not consistent with the pathway of a genuine student and more consistent with a person who was making repeat applications to extend her stay in this country. That was a finding which was open on the evidence and one which the Tribunal was entitled to make.

1. To the extent that it was submitted that the primary judge erred in that analyses, the submission was not elaborated upon and must be rejected. The appellant has pointed to no "document or element" that was ignored by the Tribunal. The primary judge was correct to conclude that the Tribunal committed no jurisdictional error in drawing inferences from the appellant's undisputed study history.
2. In oral submissions, the appellant said that the Court should grant her a visa because the refusal of her latest visa application would have the consequence that she would have difficulties obtaining a visa or hospitality work in another country. As explained to the appellant in the course of the hearing, the Court's task is limited to the identification of appealable error in the judgment appealed from having regard to the notice of appeal. The Court does not have the power to grant the appellant a visa.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.