Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1154

1. On 1 February 2018, a delegate of the (then) Minister for Immigration and Border Protection refused the first applicant a Student (Temporary) (Class TU) (Subclass 500) visa, and the delegate refused the second and third applicants visas because they were not members of the same family unit of a person who held a valid visa.
2. The former Administrative Appeals Tribunal (Tribunal) affirmed the delegate's decision on 1 July 2019 because it was not satisfied that the first applicant was enrolled in a course of study as required for the grant of a student visa. Before this Court is an application that has been made under s 476 of the Migration Act 1958 (Cth)[1] (Act) for judicial review of the Tribunal's decision.
3. The first applicant is a citizen of India who arrived in Australia on 31 July 2017 on a Tourist (Class FA) (Subclass 600) visa. On 29 October 2017, the first applicant applied for a student visa to study a general English course, which was to commence on 20 November 2017, and subsequently, a Master of Business Administration with Holmes Commercial Colleges, which was said to be finalised on 31 July 2019. The second and third applicants were included in the visa application as members of the same family unit, and the grant of visas to them was dependent on the first applicant's success in her visa application.
4. In completing the application for a visa, the first applicant appointed a migration agent as, amongst other things, an authorised recipient to receive correspondence on her behalf. In support of her visa application, the first applicant submitted to the department a letter addressing the genuine temporary entrant criterion, and listed her prior academic qualifications, work experience history, and explained the reasons for choosing the proposed courses of study.
5. The first applicant set out that she had a confirmation of enrolment (COE) for a general English course and for a Master of Business Administration, and she reasoned that these qualifications would give her a competitive edge in the job market, bolstering further employment and academic prospects.
6. On 1 February 2018, a Minister's delegate refused each of the applicants a visa and dispatched a copy of the notification of the decision together with the delegate's record of decision to the applicants' migration agent by email transmission. The decision record discloses that the delegate considered Ministerial Direction No. 69 (Direction No 69) and the criterion prescribed in cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth)[2] (Regulations), these being the genuine temporary entrant criterion (GTE criterion).
7. In deciding that the first applicant was not a genuine temporary entrant, the delegate reasoned that the first applicant had not provided any verifiable evidence showing any significant ties to her home country to act as an incentive to depart Australia after completing her study. The delegate also reasoned that the first applicant had not provided any convincing evidence about how the proposed courses of study would help her achieve her goals, in circumstances where her education history in India was in the education and information technology fields.
8. The delegate also reasoned that the first applicant had not provided any reasonable explanation for changing her intentions to study the proposed courses in Australia, nor did she show that the proposed courses would increase her income in India to justify the expense that she would incur in studying in Australia.
9. Ultimately, the delegate considered that the first applicant was using the student visa program to maintain ongoing residence in Australia and was not satisfied that the first applicant was a genuine applicant for entry and stay as a student in Australia. The delegate therefore concluded that the first applicant did not meet the genuine temporary entrant requirements in cl 500.212 of the Regulations, and refused to grant her a student visa. As I have already noted, the second and third applicants' visas were refused because the first applicant had failed in her application and so they could not be members of the same family unit of a person who held a valid visa.
10. The applicants applied to the Tribunal on 20 February 2018 for a review of the delegate's decision, and they appointed a registered migration agent as an authorised recipient of correspondence in relation thereto. The Tribunal acknowledged receipt of the applicants' application on 22 February 2018, noting in that acknowledgement that the validity of the application had not yet been assessed. In that correspondence, the Tribunal also advised the applicants that if they wished to provide any material or written submissions for the Tribunal's consideration, they should do so as soon as possible, and the Tribunal enclosed an 'information for review applicants' fact sheet with that correspondence.
11. On 16 April 2019 by email transmission to the applicants' migration agent, the Tribunal invited the applicants to provide information in writing regarding the course of study that the first applicant was undertaking, and her entry and stay in Australia as a student. The Tribunal advised the applicants to provide their information through completing an online 'Request for Student Visa Information' form (visa information form) issued under s 359(2) of the Act, and the Tribunal also enclosed a copy of Direction No 69 for the applicant's reference.
12. The Tribunal's correspondence also noted the information that it had requested must be received by 30 April 2019, and advised the applicants that if the Tribunal did not receive the requested information by that time, or within any period of extension that it might grant, that it would likely make a review decision without taking any further action and, importantly, the Tribunal alerted the applicants to the fact that they would lose any entitlement that they might otherwise have had to appear before the Tribunal to give evidence and make arguments.
13. The applicants did not provide any information to the Tribunal in response to the request by the due date. The following day, being 1 May 2019, the applicants' migration agent provided the Tribunal with some documents, including affidavits, a statutory declaration, some evidence about financial capacity, an Indian tax return, academic results and some evidence about the first applicant's prior employment.
14. The first applicant also appears to have completed the online visa information form and provided in that form details about her courses of study and work experience prior to arriving in Australia. The form also posed several questions for the first applicant. Relevantly, one question the form asked was whether the first applicant had a current COE in a registered course of study.
15. In response to that question, the first applicant checked the box marked "No" and wrote a note next to it to the following effect:

But I am committed to obtain enrolment by the hearing allocation.

1. By its decision on 1 July 2019, the Tribunal affirmed the delegate's decision, and notified the applicants by email transmission to their migration agent on 2 July 2019, which notification enclosed a copy of the Tribunal's Statement of Decision and Reasons (Decision).
2. The Decision sets out some brief background to the application in the opening paragraphs, and then records that the Tribunal had invited the applicants to provide certain information about the first applicant's enrolment by using the online visa information form. The Decision discloses that the Tribunal acknowledged that it received a response to the request for information on 1 May 2019, and in that response, the first applicant had advised the Tribunal that she did not have a current COE, and otherwise did not provide any proof of her enrolment in a registered course of study.
3. The Tribunal indicated it was satisfied that it had properly sent an invitation to the applicants to provide information under s 359(2) of the Act. The Tribunal also noted that the applicants did not provide a response within the time prescribed, and consequently, the applicants had no entitlement to appear before the Tribunal nor did the Tribunal have any power to permit them to appear at a hearing.
4. The Tribunal's Decision also discloses that it gave consideration to whether it should adjourn or delay its decision, to allow the applicants more time to provide additional information.
5. But the Tribunal considered, given the history of the matter, particularly that the applicants had been given an opportunity to provide information and had not done so, that the applicants had been given a fair opportunity to provide the relevant information, and so decided not to adjourn or delay its decision, and instead proceeded to determine the matter.
6. The Tribunal noted that it did not have a COE for the first applicant in respect of a registered course of study, and noted that it had no recent evidence before it that the first applicant was then presently enrolled in a course of study as required by cl 500.211(a) of the Regulations. Consequently, it concluded that the first applicant did not meet the criteria in cl 500.211, and so affirmed the delegate's decision.
7. The first applicant subsequently applied to the then named Federal Circuit Court of Australia for judicial review of the Tribunal's decision on 29 July 2019. An amended application was lodged by the first applicant on 5 August 2019, which appears to do no more than to add the second and third applicants as applicants for judicial review, but the grounds of review stipulated in each are the same.
8. The amended application sets out four paragraphs under the heading "Grounds of Application" which are reproduced verbatim below:
   1. I seek judicial review under clause .500.212 as I am eligible provide tie ups with home country on social and economic grounds as well on the basis of my past employment history.
   2. Also as stated under Ministerial Direction 69, I can present my claims of tie ups with my home country so that my refusal given by review member can be demolished as the only intention I have is as genuine temporary entrant to study in Australia
   3. In accordance with the sec 499 of the Migration Act my past immigration history is always been in good terms as I have never intended to breach any of the visa conditions.
   4. I would like to make a modest request to please grant me an opportunity to seek judicial review to support review application of my student visa refusal given by Review Member
9. At the commencement of the hearing, I explained to the first applicant the limitations in connection with applications for judicial review. I explained that it was not the function of the Court to review any decision of the delegate in connection with the refusal of her visa application. And I explained to the first applicant that the Court is not in a position to grant any of the applicants a visa, and that its function is to consider whether the Tribunal made its decision according to law and, most relevantly, whether the Tribunal's decision or its processes are attended by jurisdictional error in the sense explained recently by the High Court in LPDT v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2024] HCA 12, 280 CLR 321 at [2]-[3]. There, the High Court gave several examples of how a statutory decision-maker might breach express or implied conditions on the powers conferred on the decision-maker. And at the outset, I gave the first applicant some examples by reference to that decision, including:

(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. During her oral submissions, the first applicant told me that she did not prepare the grounds of review in her application. They were prepared by her migration agent, and she did not really understand those grounds. And so beyond what is written there in the application, the first applicant was unable to elaborate on those grounds. I will return to those grounds shortly, but I will first address the matters raised by the first applicant during her oral submissions.
2. The first applicant said that she had engaged and instructed her migration agent to act in connection with her visa application both before the Tribunal and the delegate, and also in connection with proceedings here. The first applicant alleged that the migration agent failed to provide or pass on correspondence from the Tribunal in connection with it seeking documents, that the agent told her that she would need to do nothing, and that the agent would handle the application. She also told me that the migration agent had said to her that she could apply to the Court for review and that she would be successful.
3. In short compass, that which the first applicant is alleging is that the migration agent was negligent or incompetent, or a combination of both. The first applicant does not, on the face of that which she told me, allege any fraud. Ultimately, as I explained to the first applicant during the hearing, that the migration agent may have been negligent or incompetent will not in and of itself show that the Tribunal made a jurisdictional error.
4. A further difficulty for the first applicant is that she has not provided any evidence about her interactions with the migration agent, despite earlier orders of a Registrar of the Court enabling her to file written material, including further affidavit material in support of her application. But for present purposes, even if I accept that which the first applicant has told me and that would otherwise result in some sort of finding that the migration agent that she engaged was negligent or incompetent, without more - that does not take her application any further. It does not disclose jurisdictional error on the part of the Tribunal.
5. I should also note that because the first applicant specified the migration agent as recipient of correspondence in her application to the Tribunal, and as the Tribunal corresponded in the manner set out in the application, the first applicant was taken to have received all of the documents that were sent to the migration agent. Moreover, whilst there may well have been some negligence on the part of the migration agent, I do not accept that the first applicant did not receive documents, or all of the documents, that the Tribunal had sent, because the first applicant had completed and signed the visa information form, the very form the Tribunal asked the first applicant to complete, and on which it relied to conclude that the first applicant did not have a current COE.
6. Returning to the grounds as set out in the amended application, by ground 1, the applicants claim that the first applicant had sufficient ties to her home country based on social and economic grounds, and her past employment. As I endeavoured to explain to the first applicant during the course of the hearing, this ground appears to misunderstand the basis upon which the Tribunal had decided her review application, or to use the term used by the first respondent in his written submissions, this ground is misconceived. The Tribunal did not address the first applicant's ties to her home country.
7. This is because that consideration is relevant to whether the first applicant satisfies the GTE criterion. But the Tribunal decided the matter on a different basis, that is, that the first applicant was not enrolled, or there was no evidence of her being enrolled in a course of study as required by cl 500.211 of Sch 2 of the Regulations. As I also explained to the first applicant during the course of the hearing, to the extent that ground 1 purports to join issue with the delegate's decision, this court does not have jurisdiction to review the decision of the delegate.
8. As the first respondent has correctly pointed out, the first applicant told the Tribunal, in her response to the question whether she had a current COE in a registered course of study, that she did not have one. There being no other evidence that the first applicant was enrolled in a course of study at the time the Tribunal made its decision, the only available finding was that the Tribunal was not satisfied that the first applicant met the criteria in cl 500.211(a) of Sch 2 of the Regulations. And having so concluded, the Tribunal was then bound to conclude that the applicants did not satisfy the criteria for the grant of the visas for which they applied.
9. The Tribunal was not required to go on to consider whether the first applicant met the criteria in clause 500.212 of Sch 2 of the Regulations, which relate to the GTE criterion. This was because all the criteria need to be satisfied, and if the first applicant had not satisfied one of the criteria, it was unnecessary to consider the remainder. In only considering the course of study criteria, the Tribunal did not make any error.
10. Accordingly, ground 1 of the review application is rejected as disclosing no error.
11. Ground 2 of the application relates to ground 1 in that the applicants claim that, pursuant to Direction No 69, the first applicant had produced or provided evidence of her ties to her home country, and it appears implicit in the ground that the Tribunal's decision can be set aside because the first applicant can satisfy the GTE criterion.
12. Direction No 69 was relevant to the delegate's assessment whether the first applicant satisfied the GTE criterion in cl 500.212(a) of Sch 2 of the Regulations, but it was not a matter with which the Tribunal had to engage. The ground, again, misunderstands the basis upon which the Tribunal made its decision, and is misconceived.
13. Because the Tribunal determined that the first applicant was not enrolled in the course of study, it was not required to consider the GTE criterion, nor Direction No 69 which informs that consideration. Consequently, ground 2 does not disclose error and is rejected.
14. By ground 3, the applicants opine that pursuant to s 499 of the Act, the first applicant's immigration history is on good terms and that she never intended to breach a visa condition. Like grounds 1 and 2, this ground also misunderstands the basis upon which the Tribunal decided the review application.
15. The reference in the ground to s 499 appears to be intended as a reference to Direction No 69, which is made under s 499 of the Act, and requires the delegate and the Tribunal to comply with the direction. Immigration history is a matter arising for consideration under Direction No 69 as part of the general consideration of the GTE criterion, as it does under cl 500.212(a) of Sch 2 of the Regulations. But as I have already indicated, whether the first applicant met the GTE criterion was not the basis upon which the Tribunal decided the review application. No error is disclosed by ground 3, and that ground is also rejected.
16. As I explained to the first applicant at the outset, the Court does not conduct a merits review of the decision of the Tribunal or the delegate. Merits review of the delegate's decision is the function of the Tribunal. The first applicant's assertion that she can present claims about her ties to her home country and that she has a good immigration history simply invites the Court to engage in impermissible merits review. In any event, the matters that the applicants raise in the grounds relate, as I indicated, to the GTE criterion, and do not show that the Tribunal's decision or its processes were attended by any jurisdictional error.
17. Ground 4 of the application does not, on its face, contend any error. It is, in simple terms, a plea that the first applicant be granted an opportunity to seek judicial review. It does not disclose jurisdictional error and is rejected. I have also considered whether the Tribunal committed any jurisdictional error by reason of its failure not to give the applicant further time to provide a COE. The Tribunal provided cogent reasons why it was disinclined to do so. In short compass, the Tribunal considered that the first applicant had been given an opportunity to provide further information, and had not done so.
18. It matters not whether I agree or disagree with that conclusion. What matters is whether or not the conclusion is supported by an intelligible or rational reason. And plainly, the Tribunal articulated intelligible and rational reasons, and the conclusion it reached was open to it.
19. I have also given consideration, because the applicants are unrepresented, to whether there is any other jurisdictional error that might be identified, but having reviewed the material in the Court Book filed by the first respondent, and the Tribunal's decision, I am unable to identify any other arguable case of jurisdictional error. In the circumstances, the applicants have not established jurisdictional error and consequently their amended application fails. The amended application will be dismissed.
20. The first respondent sought an order for costs in the sum of $3,360.00 if the applicants were unsuccessful. The first applicant was unable to advance any cogent reason why a costs order should not be made if the judicial review application was not successful. The amount sought by the first respondent is well below the amount set out in 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. I consider the amount sought by the first respondent is reasonable and appropriate, but as the third applicant is a child, the obligation to make good on the order will be imposed only on the first and second applicants.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the ex tempore 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.