Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1984

1. The name of the first respondent be amended to "Minister for Immigration and Citizenship".
2. The application for judicial review filed on 27 August 2019 be dismissed.
3. The first and second applicant pay the first respondent's costs fixed in the amount of $5,000.

Note: The form of the order is subject to the entry in the Court's records.

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. By an application filed on 27 August 2019, Ms Kaur (the primary applicant) seeks judicial review of a decision of the second respondent (Tribunal) made on 24 July 2019. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant Ms Kaur and two of her family members, a student (subclass 500) visa (visa). The Minister opposes the application. The Tribunal filed a submitting appearance save as to costs and did not participate in the hearing.

1. The primary applicant is a citizen of India who first arrived in Australia on 28 January 2009 as the holder of a student visa. Following this, she held three further student visas and was unsuccessful in her application for two working visas.
2. On 8 June 2017, the primary applicant lodged an application for the visa. The primary applicant's husband, Mr Kaur Brar (the second applicant), and their child (the third applicant) were included in the visa application as members of the same family unit (Court Book (CB) 1-30).
3. On 8 August 2017, the application for the visa was refused by a delegate of the Minister on the basis that the primary applicant did not satisfy cl 500.214 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). The delegate was not satisfied that the primary applicant had genuine access to funds of the prescribed amount (CB 32-42).
4. The applicants lodged an application with the Tribunal to review this decision and participated in a hearing before the Tribunal on 10 December 2018.
5. On the same day, the Tribunal remitted the application for the visas to the Minister with the direction that the primary applicant did satisfy cl 500.214.[1]
6. On 6 February 2019, the delegate again made a decision to refuse to grant the applicants the visa. The reason for the refusal was that the primary applicant did not satisfy cl 500.212 of Schedule 2 of the Regulations.[2] The delegate was not satisfied that the primary applicant intended genuinely to stay in Australia temporarily.
7. On 15 February 2019, the applicants made an application to the Tribunal for review of this most recent delegate's decision and appointed JK Legal as their representative (CB 43-45).
8. On 24 May 2019, the Tribunal invited the applicants to attend a hearing on 24 July 2019 (CB 50-54). The hearing invitation attached a copy of Ministerial Direction No. 69 - Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications.
9. On 23 July 2019, the applicants' representative sent the primary applicant's Genuine Temporary Statement (GTE Statement) to the Tribunal, along with a series of attachments (CB 61-108).
10. On 24 July 2019, the primary applicant attended the hearing, along with her representative (CB 110-112).
11. On the same day but after the hearing had concluded, the Tribunal affirmed the delegate's decision not to grant the applicants the visa and published a written statement of decision and reasons (R) (CB 116-122). The applicants were notified of the adverse decision by email sent to their representative the next day (CB 113-115).

1. The Tribunal first identified the nature of the review before it and set out the primary applicant's visa history (R [1]-[4]).
2. The Tribunal identified the criteria for the grant of the visa and noted that in this case, the issue was whether the primary applicant genuinely intends to stay in Australia temporarily (R [7]).
3. The Tribunal noted that in assessing whether the primary applicant met this criterion it was required to have regard to Direction No. 69, made under s 499 of the Migration Act 1958 (Cth) (Act), and the four factors that it specified. The Tribunal observed that the status of these considerations was that they should serve to guide decision makers in their assessment of whether an applicant for a visa satisfied cl 500.212(a). The Tribunal noted that it had discussed these considerations with the primary applicant at the hearing (R [9]-[11]).
4. The Tribunal went on to evaluate the primary applicant's circumstances against each of these factors.
5. Starting with the first of the factors, being the applicant's circumstances in their home country, potential circumstances in Australia and the value of the course to the applicant's future, the Tribunal observed that the primary applicant claimed to have first come to Australia to become a hairdresser. The Tribunal noted the applicant's evidence about the location of her parents and siblings and stated that it made no findings against the primary applicant based on any potential military service in the home country, political circumstances in the home country, civil unrest in the home country and the primary applicant's circumstances in the home country relative to others in that country (R [14]-[16]).
6. The Tribunal noted the primary applicant's evidence that she rents a property in Melbourne with her husband and her 4 ½ year old daughter and that her brother (who has applied for permanent residency) lives in the same suburb.
7. The Tribunal expressed its concern with this evidence, which concern was exaggerated because the primary applicant had been in Australia for over 10 years on various visas. The Tribunal found that the extent of the primary applicant's personal ties in Australia, compared to her home country would serve as a significant incentive for her not to return to her home country (R [17]-[20]).
8. The Tribunal noted the primary applicant's evidence that she is a director with her husband in a painting and decorating business from which they have been earning AU$120,000 per annum. The Tribunal was concerned with this evidence, which suggested the applicants have a successful business in Australia. The Tribunal found that the economic circumstances of the primary applicant would present as a significant incentive for her not to return to her home country (R [20]).
9. The Tribunal took account of the primary applicant's evidence that she travels back to her home country for up to 3 or 4 weeks once per year. The Tribunal considered that in circumstances where the primary applicant had been living in Australia on temporary visas for more than 10 years, this lent weight to the contention that her personal ties to her home country, did not serve as a significant incentive for the primary applicant to return there (R [21]).
10. The Tribunal noted that it had adopted the procedure set out in s 359AA of the Act and asked the primary applicant to comment on information derived from the PRISMS record. The record disclosed the following study history in Australia (R [22]-[24]):
    • Certificate III in Hairdressing completed in 2010
    • Diploma of Business finished in 2014
    • Diploma of Beauty Therapy cancelled in 2011
    • Diploma of Marketing finished in 2016
    • Advanced Diploma of Marketing cancelled several times in 2015 and 2016
    • Diploma of Leadership and Management finished in 2017
    • Master of Professional Accounting cancelled in 2017
    • Graduate Certificate in Management (Learning) which began on 17 December 2018 and was completed in June 2019
    • Graduate Diploma of Management (Learning) approved for study due to begin on 15 July 2019 and to be completed on 7 June 2020.
11. The Tribunal noted that in the discussion that ensued concerning the primary applicant's study history, the primary applicant had told the Tribunal that she did not necessarily want to study a Graduate Certificate in Management but had enrolled in this course because her preferred course, being the Master of Professional Accounting, was not available to her without a student visa. The primary applicant explained that she would pursue this course of study if she obtained the visa. The primary applicant acknowledged that she could have returned to her home country at some point over the last few years and studied for a higher accounting qualification or a management course. She told the Tribunal that she believed the quality of education was better in Australia (R [26]).
12. The Tribunal found, based in part on the primary applicant's evidence and concessions about her ability to study leadership and management courses and accounting in her home country, that the primary applicant was only maintaining enrolments in Australia to maintain residence here. The Tribunal found that the primary applicant was seeking to undertake courses that were consistent with her current level of education and that these courses would not assist the primary applicant to obtain employment or improve employment prospects in her home country. The Tribunal found that the primary applicant's current enrolment was not relevant to her past or proposed future employment either in her home country or a third country and that the remuneration that the primary applicant could expect to receive in her home country or a third country would not be improved using the qualifications to be gained from her current course of study.
13. The Tribunal acknowledged the primary applicant's evidence that she could not study for a period of time because she was pregnant but found the impact of the pregnancy did not adequately explain the primary applicant's failure to go on and study a Master of Professional Accounting while she still possessed a valid visa. The Tribunal, even allowing for the primary applicant's pregnancy, found that the primary applicant was using the student visa program to circumvent the migration program and retain residence in Australia (R [28]-[29]).
14. The Tribunal considered the primary applicant's evidence that she had initially come to Australia to study hairdressing and had then decided to do accounting and other qualifications. The Tribunal approached this evidence with an acknowledgement that students make changes to their career trajectory. However, the Tribunal found that the primary applicant's pattern of study in Australia over the last 10 years, taken as a whole, gave weight to the contention that she was not a genuine temporary entrant (R [30]). The prospect that the primary applicant may have never started some of her courses because they were part of a "package", did not alter the Tribunal's view as to the motive of the primary applicant in seeking to maintain her residence in Australia (R [30]-[31]).
15. The Tribunal was not satisfied that the primary applicant intends genuinely to stay in Australia temporarily and accordingly found that she did not meet cl 500.212(a). Given that the primary applicant did not meet this requirement she was unable satisfy the criteria for the grant of the visa (R [36]-[37]).
16. The consequence of this finding was that the second and third applicants were not members of the family unit of a person who satisfies the primary criteria and were also ineligible for the grant of the visa (R [38]).

1. On 13 March 2025, a Registrar made orders including for the appointment of the primary applicant and the second applicant as litigation guardian for the third applicant and that 28 days before the final hearing (which had not yet been allocated) the applicants file and serve any amended application, written submissions and any additional evidence on which they seek to rely. The application was set down for final hearing on 14 October 2025 and the parties notified of this listing on the same date.
2. The matter came before the Court for final hearing on 27 November 2025. On this occasion, the primary applicant and the second applicant appeared in person and represented themselves, with the primary applicant making submissions on behalf of all applicants. The Minister was represented by solicitor advocate Ms Liddy.
3. At the beginning of the hearing, the Court confirmed that the primary applicant had with her a copy of the court book (including the decision of the Tribunal), her application seeking judicial review, and the Minister's written submissions.
4. The Court explained to the primary applicant that its role on judicial review was limited to a consideration of the decision and process undertaken by the Tribunal and that this involved an inquiry into whether the decision or process was affected by one or more category of jurisdictional error. The Court explained that jurisdictional error can include the denial to an applicant of an opportunity to present their case or material, a failure to consider relevant material, taking into account irrelevant material or a misunderstanding or misapplication of relevant law. The Court was at pains to explain to the applicants that the hearing was not concerned with revisiting of the facts of the case and that attention should instead be directed to the decision of the Tribunal.

1. The applicants' grounds of review as they appear in the application filed on 27 August 2019 are as follows:

1. The Tribunal took account of irrelevant considerations.

Particulars

• The Tribunal took account of irrelevant considerations when it concluded that the applicant was not a genuine applicant for entry and stay as a student in Australia. The evidence before the Tribunal was that the applicant intended to return to her home country at the end of her studies to pursue a career in Accounting and Management. It was not open for the Tribunal to doubt the applicant's genuine intentions when there was no significant evidence to suggest otherwise and it was unreasonable for the Tribunal to dismiss the applicant's evidence regarding her study history in Australia when deciding that she was not a genuine temporary entrant.

• The Tribunal took account of irrelevant considerations when it concluded that the applicant is using the student visa program to circumvent the intentions of the migration program and to maintain ongoing residence in Australia. It was unreasonable for the Tribunal to conclude that the applicant was seeking to undertake courses that were not relevant to her proposed future employment. The evidence before the Tribunal was that the applicant had a genuine desire to pursue a career in Accounting and Management and her current enrolment together with her completed qualifications added great value to this desire. The tribunal failed to accept that the standard of these courses were far greater in Australia than in her home county and would greatly assist her to obtain employment or improve her employment prospects in her home country.

2. The Tribunal failed to take account of relevant considerations

Particulars

• The Tribunal failed to give sufficient weight to the applicant's circumstances in her home country as it was required to do under cl. 9 and 10 of Ministerial Direction Number 69.
• The Tribunal failed to give sufficient weight to the applicant's potential circumstances in Australia as it was required to do under cl. 11 of Ministerial Direction Number 69.
• The Tribunal failed to give sufficient weight to the value of the course to the applicant's future as it was required to do under cl. 12 of Ministerial Direction Number 69.
• The Tribunal failed to give sufficient weight to the applicant's immigration history as it was required to do under cl. 13 and 14 of Ministerial Direction Number 69.

1. At hearing, when given the opportunity to address the Court, the primary applicant's principal complaint was that the Tribunal had failed to consider the impact of her pregnancy on her studies and enrolment dates. She also repeated the submission made before the Tribunal that it was her intention to study at a higher level, and the Tribunal had failed to appreciate this.

1. The Minister made the following submissions that engaged with the complaints identified in the originating application, referred to under their respective headings.
2. Dealing first with ground one, bullet point one, the Minister submitted that the Tribunal extensively considered the primary applicant's study history, employment history, ties to India and circumstances in Australia, including that she could have studied a Master of Professional Accounting in Australia or returned home to do so, but had not. The Minister submitted that the Tribunal's findings were open to it on the evidence before it and that this aspect of ground one was unfounded, rising no higher than a request for impermissible merits review.
3. Dealing next with ground one, bullet point two, the Minister submitted that the allegation of unreasonableness involved no more than emphatic disagreement with the Tribunal's ultimate conclusion and an invitation again to engage in merits review. The Minister submitted that the allegation was not borne out because the Tribunal considered the primary applicant's submissions regarding the quality of education in Australia and accepted her evidence about why she chose to study the management courses. Based on that evidence, the Tribunal found that the primary applicant had not provided reasonable reasons for not undertaking her study in India. The Minister submitted that the Tribunal's reasons disclosed an evident and intelligible basis for those findings that did not rise to the level of legal unreasonableness, as that concept is understood and strictly applied, including in decisions such as Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541.
4. Turning finally to ground two, the Minister noted that this ground contained various assertions that the Tribunal failed to give "sufficient weight" to certain factors under Direction 69. The Minister described this ground as "misconceived" given that it was a matter for the Tribunal alone as to what weight to give to the evidence before it in the context of its analysis under Direction 69 and to determine how and to what extent, if at all, each consideration fed into its deliberative process and ultimate decision. The Minister relied on the authority of Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]- [7] to support this contention.
5. As far as the primary applicant in oral submissions suggested that the Tribunal had failed to consider the impact on her study of her pregnancy, the Minister noted that the Tribunal had dealt explicitly with this consideration at R [28]-[29].

1. The criteria for a Subclass 500 (student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.218 must be satisfied by an applicant.
2. One of the mandatory criteria, cl 500.212 states as follows:

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

(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; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

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

(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

1. In considering whether an applicant satisfies cl 500.212(a), the Tribunal must have regard to the now revoked Ministerial Direction No. 69 which requires the Tribunal to have regard to a number of specified factors in relation to:
   • the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
   • the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
   • if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
   • any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

1. I am unable to discern error in the decision of the Tribunal. The Tribunal undertook a careful evaluation of the primary applicant's circumstances and the matters that she had emphasised in her submissions to the Tribunal and in her GTE Statement.
2. The Tribunal acknowledged the impact of the primary applicant's pregnancy and her professed desire to obtain higher qualifications in accounting. The Tribunal made express mention of the primary applicant's submission that the quality of education was better here in Australia than in India.
3. The Tribunal was ultimately not satisfied that the primary applicant had the genuine intention to stay temporarily in Australia because by her own evidence, she had acknowledged that she could have returned to India to study the higher qualification that had eluded her in Australia but had chosen not to. The Tribunal was entitled to review this information unfavourably and to find that the primary applicant's study history over a period of ten years was indicative of an intention to retain residence in Australia.
4. The applicants' complaints directed at the "weight" given by the Tribunal to various paragraphs of Ministerial Direction No. 69 do not disclose error in the approach adopted by the Tribunal. The Tribunal was entitled to identify such material as it found relevant to its reasoning and to give it appropriate weight.

1. The applicants have not identified error in the decision of the Tribunal which means that their application seeking judicial review filed on 27 August 2019 must be dismissed.
2. The Minister seeks an order that the first and second applicant pay his costs in the amount of $5,000. It is appropriate that an order for costs be made and, in this amount, which is significantly less than the amount prescribed in the scale of costs set out in Schedule 2 Part 3 Division 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) for a matter concluded at final hearing.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

[1] Annexure EH-1 to the affidavit of Elizabeth Hsu filed 12 November 2015 (Hsu affidavit).