Kokkiligadda v Minister for Immigration and Citizenship [2025] FedCFamC2G 798

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. The applicant has filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). He seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 4 March 2022 which affirmed a decision of a delegate of the first respondent to cancel the applicant's Student (Temporary) (Class TU) (subclass 500) visa (student visa) under s 65 of the Act.

1. On 5 May 2015, the applicant, a citizen of India, first arrived in Australia and has resided in Australia since. He was granted multiple student visas in 2015, 2018 and 2019.
2. On 2 June 2021, the applicant applied for the student visa subject of this application.
3. On 23 September 2021, a delegate of the First Respondent (delegate) refused to grant the student visa on the basis that they were not satisfied that the applicant was a genuine temporary entrant as set out in the criteria in cl 500.212 to Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
4. On 8 October 2021, the applicant lodged an application for review of the delegate's decision with the Tribunal.
5. On 2 December 2021, the Tribunal sent the applicant a written request for information under s 359 of the Act.
6. On 16 December 2021, the applicant provided the Tribunal with a written response to the s 359 request for information.
7. On 16 February 2022, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments.
8. On 4 March 2022, the applicant appeared unrepresented before the Tribunal. On the same day, the Tribunal affirmed the decision under review.
9. On 8 March 2022, the Tribunal sent a letter to the applicant notifying him of the Tribunal's decision.

1. The Tribunal identified that the primary issue before it was whether the applicant was a genuine applicant for entry and stay in Australia as a student in accordance with cl 500.212(a) of the Regulations. The Tribunal further noted that in their consideration of cl 500.212, they regarded Direction No 69 - 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act (Direction 69).
2. In the making of its decision, the Tribunal took into consideration the applicant's previous study history, value of future study, safety concerns as well as familial and relationship ties to Australia.
3. The Tribunal noted that prior to the applicant's arrival in Australia, he had completed a Bachelor of Science in Mathematics and electronics and worked in his family automobile business for three (3) years as a team leader. The applicant explained to the Tribunal that he initially intended to study a Masters degree in Australia upon his arrival in 2015, but due to the difference in course structure, the applicant struggled and did not complete it. He then went on to commence a Diploma of Leadership and management (completed in October 2019) and an Advanced Diploma of Leadership and Management (completed in April 2021).
4. The Tribunal noted that it was after the completion of these Diplomas that the applicant went on to complete a Certificate IV in Commercial Cookery followed by a Diploma of Hospitality Management (due for completion in October 2023). The applicant explained to the Tribunal that the purpose of this further study was to allow him to open a restaurant upon his eventual return to India.
5. The Tribunal was not satisfied that the applicant needed further study beyond his current qualifications to find suitable employment in India, especially given that his aspiration was to manage a restaurant as opposed to cooking in one.
6. The Tribunal also found that the applicant's intention to return to a "family run venture" as opposed to finding a job in a crowded market are inconsistent with his claim that he needs further international qualifications. The Tribunal did not find any real value in further study, especially considering the two courses the applicant aspired to do were lower qualifications than those he already possessed. It was asserted that on this basis, further study would not improve the applicant's employment prospects or his remuneration in India.
7. Moreover, while the Tribunal accepted that a cooking qualification in Australia may be more highly regarded in India than that of a qualification attained in India; in circumstances where the applicant stated in his evidence that he does not intend to use the cookery qualification to seek work, rather improve his skills, it is reasonable for the applicant to complete any equivalent study in his home country. In considering this, the Tribunal also acknowledges that if studying commercial cooking and hospitality studies were "particularly valuable to the applicant's future", he had "every opportunity to complete [these courses] if he wished to do so", rather than waiting for his sixth year in Australia.
8. In assessing the applicant's economic circumstances, it was noted that while the availability of stable and consistent employment in Australia may act as some incentive to remain in Australia, it did not weigh against his application. The Tribunal went on to note that the applicant's family has property in India, extending to land, houses and a business, and thus, the applicants' economic circumstances were found to be neutral in his application.
9. In his written submissions to the Tribunal, the applicant made a remark that he was depressed during part of his stay in Australia. Upon further enquiry at the hearing, the applicant disclosed that he did not receive medical treatment, but wanted to return home to India, however, was counselled by his agent at the relevant time, who elected that he stay in Australia. The Tribunal found that this evidence falls "well short" of establishing that the applicant was unable to study for an extended period.
10. The Tribunal additionally noted in its decision that the applicant had expressed no concerns about political or civil unrest in India, no concerns about military service commitments or had no familial or personal ties to Australia.
11. At [33] of its decision the Tribunal concluded as follows:

The tribunal has considered all the evidence before it. It does not consider the applicant is a genuine applicant. The applicant already has sufficient skills and qualifications to return home and find suitable employment, or embark upon a restaurant venture with his family. It is not satisfied that the applicant is likely to sufficiently reap the benefits of further study in order to justify remaining in a foreign country for a further extended period to complete it. By this application, the applicant is seeking to extend his stay here to over 8 years. It is difficult to reconcile a stay of over 8 years with the meaning of temporary, especially in the absence of evidence demonstrating that the applicant is undertaking qualifications that form part of a clear and cohesive career trajectory. In these circumstances, the application is refused.

1. The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily, and thus did not meet the criteria in cl 500.212(a) of the Regulations.
2. The Tribunal affirmed the decision not to grant the applicant a temporary student visa.

Judicial review application and procedural orders

1. On 8 April 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 4 March. The application contains five (5) grounds of review. They are (as written):
   1. Natural Justice or any request for further information was not asked by the department of home affairs while finalising my application.
   2. I arrived at Australia during 05 May 2015 to commence Master of Information Systems at University of Southern Queensland, where I studied for one semester. Later after my summer break, I enrolled in a dual course at Holmes Institute to pursue Master of Business Administration and Master of Professional Accounting from Jul 2016.
   3. Later, I enrolled in Diploma of Leadership Management and Advanced Diploma of Leadership Management at Australian Techno Management College. As of now, I have completed my Advanced Diploma of Leadership and Management and yet to receive the completion letter for the same.
   4. Meanwhile, due to my passion in cookery I also wanted to acquire a degree in the same field in Australia and in regard to that I have also acquired an admission in Certificate IV in Commercial Cookery and Diploma of Hospitality Management at Apex Institute of Education Pty Ltd from July 2021.
   5. I was on track in completing the course within the timeframe mentioned in the CoE but my education career is left in jeopardy due to visa refusal for which I am able to acquire a foreign degree when I am not at fault.
2. On 12 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
3. On 9 April 2025, the proceedings were docketed to me and set down before me for final hearing on 22 May 2025.

1. At the hearing of this matter on 22 May 2025, the applicant was unrepresented. Ms Rachel Francois of counsel appeared for the first respondent.
2. Prior to the hearing commencing, I ensured that the applicant was in possession of a copy of the Court Book and the first respondent's outline of submissions, and that he had read the first respondent's submissions.
3. At the commencement of the hearing, I explained to the parties that my role in deciding the case was limited to considering whether the Tribunal had committed a jurisdictional error. I described jurisdictional error as a serious legal error or mistake made by the Tribunal. I also explained the procedure by which the hearing would be undertaken I then allowed the Court Book, which contained the Tribunal's decision and other documents that were before the Tribunal, and the applicant's affidavit in support of his application to be admitted as evidence.
4. I then invited the parties to make final oral submissions. I took the applicant through each of the five (5) grounds of review in his application and asked him if he wanted to make any submission about them, and to tell the Court why he considered the Tribunal's decision was wrong.

1. The applicant made some short submissions on ground 1.
2. As to ground 1, the applicant submitted that at the time of the decision by the "Department", he was not asked to provide further information. He said that he did not receive an email or anything to provide further information. I asked the applicant when he finished this brief statement if he wanted to say anything further on ground 1. He had nothing further to say.
3. I took the applicant through grounds 2, 3, 4 and 5 and asked him if he wanted to make any submissions about each of these. The applicant did not want to say anything further about these grounds. I then asked if the applicant wanted to make any submissions generally about why he says he should win his case in this Court, or why the Tribunal decision was wrong. The applicant did not want to say anything further.

1. Ms Francois made some short oral submissions in reply. She made three points.
2. Firstly, as to the first ground, given the applicant is unrepresented, the Court should read the ground as a complaint about a denial of procedural fairness by the Tribunal, and not the Department. As to that complaint, the first respondent submitted such an argument must be rejected. Ms Francois took the Court through a number of documents in the Court Book, such as the s 359 invitation to the applicant to provide information, the applicant's response to that invitation, and the Tribunal record of its hearing, and submitted the applicant was given procedural fairness in accordance with the Act.
3. Second, the first respondent took the Court to paragraph [17] of the Tribunal decision and highlighted that the applicant completed the course of study he wished to complete while he was in Australia at the end of 2023. Ms Francois submitted that if the Court were to identify a jurisdictional error in the Tribunal's decision, it would not be a material jurisdictional error as the applicant had already been given the opportunity to complete the course he wished to study while he was in Australia.
4. Third, in relation to the incomplete sentence in paragraph [19] of the Tribunal's decision, the reasons of the Tribunal read comprehensively and logically without the inclusion of the completed sentence. Ms Francois submitted that regardless of the incomplete sentence, the Tribunal Member had a firm grasp of the applicant's study history, and there was no jurisdictional error committed by the Tribunal because of the incomplete sentence.

1. At the conclusion of Ms Francois' oral submissions, I asked the applicant if he wanted to make any further submissions in reply, or generally, about his case. The applicant did not make any further submissions.

1. The issue before this Court is whether the Tribunal's decision contained a jurisdictional error; that is, a serious legal error that results in an administrative decision lacking any legal force: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (LPDT). To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32].
2. The Court does not consider the merits of the decision; nor does it remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
3. Below I set out my decision on each of the grounds of judicial review relied upon by the applicant.

1. Ground 1 is a vague and unparticularised ground of judicial review. It appears to contend that he was denied natural justice by the Department of Home Affairs when finalising his application. It does not allege any error in the Tribunal's decision.
2. At the hearing the first respondent submitted that given the applicant was unrepresented, it would be appropriate for the Court to treat ground 1 as a complaint about denial of procedural fairness by the Tribunal. I will deal with ground 1, firstly, on that basis.
3. On 2 December 2021, the Tribunal made a s 359(2) request for information to the applicant, and on 16 December 2021, the applicant provided a written response as well as completing an online Student Visa Information Form. It is evident from its decision the Tribunal had regard to that information in its decision.
4. Further, on 16 February 2022, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments, and on 4 March 2022 the applicant appeared before the Tribunal by telephone. The record of that hearing shows it went for approximately 20 minutes from 10.28am to 10.48am on 4 March 2022.
5. This demonstrates the applicant was afforded procedural fairness by the Tribunal in accordance with the Act. There is nothing to suggest from the evidence before the Court that the applicant was not afforded a real and meaningful hearing. Further, the Tribunal's decision itself reveals the Tribunal considered and engaged with the evidence before it, including, among other things, the applicant's written response provided to the Tribunal on 16 December 2021.
6. For completeness, to the extent ground 1 is a complaint about the delegate's decision, this Court has no jurisdiction to review the Delegate's decision under s 476 of the Act. An application made under s 476 in this Court is a review of the Tribunal's decision. The delegate electing not to interview the applicant is not capable of exposing jurisdictional error in the Tribunal's decision as the Tribunal's review function is de novo in nature: Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495, 515-6; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344, 354; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314.
7. In so far as the applicant is alleging the Department of Home Affairs did not request further information from the Applicant before finalising his application, within the statutory framework of the Act (for example, see s 56 of the Act), a delegate of the Minister is not required to request further information from the applicant prior to making a decision in relation to a visa application under the Act. I therefore reject any argument that the Department of Home Affairs or the delegate had an obligation to request further information.
8. Ground 2 does not establish the Tribunal committed jurisdictional error.

1. Ground 2 does not particularise an arguable ground of judicial review. It merely states when the applicant arrived in Australia and what he studied after he arrived. It does not allege any error in the Tribunal's decision. It appears to go to the merits of the Tribunal decision which is not reviewable under s 476 of the Act. At the hearing before this Court the applicant said he had nothing further to say about this ground.
2. Ground 2 does not identify or establish the Tribunal committed jurisdictional error.

1. Ground 3 does not particularise an arguable ground of judicial review. It merely states what the applicant studied at the Australian Techno Management College. It does not allege any error in the Tribunal's decision. It appears to go to the merits of the Tribunal's decision which is not reviewable under s 476 of the Act. At the hearing before this Court the applicant said he had nothing further to say about this ground.
2. Ground 3 does not identify or establish the Tribunal committed jurisdictional error.

1. Ground 4 does not particularise an arguable ground of judicial review. It merely states what the applicant studied at the Apex Institute of Education Pty Ltd from July 2021. It does not allege any error in the Tribunal decision. It appears to go to the merits of the Tribunal decision which is not reviewable under s 476 of the Act. At the hearing before this Court, the applicant said he had nothing further to say about this ground.
2. Ground 4 does not identify or establish the Tribunal committed jurisdictional error.

1. Ground 2 does not particularise an arguable ground of judicial review. It merely states he was on track to completing his course within the timeframe mentioned in the Confirmation of Enrolment (CoE) but his education career is left in jeopardy due to visa refusal. It does not allege any error in the Tribunal's decision.
2. This ground also appears to go to the merits of the Tribunal's decision, which is not permitted in applications under s 476 of the Act. At the hearing before this Court, the applicant said he had nothing further to say about this ground.
3. Ground 5 does not establish the Tribunal committed jurisdictional error.

1. Quite properly the first respondent has identified that in paragraph [19] of the Tribunal's decision there is an incomplete sentence (it reads: "He also has a ..."). In paragraph [19], the Tribunal was considering whether it was satisfied that the applicant required further study in Australia in the context of his intention to open and manage a restaurant in India.
2. The omission of words in the last sentence of paragraph [19] was merely a clerical or a typographical error. A clerical or typographical error is not a jurisdictional error: see SZLPH v Minister for Immigration and Citizenship [2008] FCA 744 at [29]- [32]. I adopt what Marshall J said about typographical errors in decisions of tribunals such as the present Tribunal in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 at [48]:

Occasionally the RRT, like other decision-makers, deliver reasons for decision without 100% proofreading. Occasionally mistakes are not discovered even when the best of proofreaders have examined draft reasons. The existence of a typographical error is best acknowledged rather than attempted to be exploited: see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682.

1. I agree with the first respondent's written submission that the omission of words in the last sentence of paragraph [19] does not mean the Tribunal failed to have regard to the applicant's study history as the Tribunal had already previously referred to those matters: see paragraphs [15] - [17] of the decision.
2. I also agree with Ms Francios' submission that fairly read the reasons of the Tribunal are comprehensive and logical without the inclusion of the completed sentence in paragraph [19] in the decision. I find that the error in the last sentence of paragraph [19] was not capable of affecting the exercise of the Tribunal's jurisdiction.
3. For the reasons outlined above, the applicant has not established that the Tribunal's decision is vitiated by jurisdictional error. Nor have I discerned any jurisdictional error from my own review of the decision.
4. The application is dismissed.

1. The first respondent has sought an order that the applicant pay the first respondent's costs in the amount of $8,371.30. The amount sought is the scale amount listed under Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. The first respondent's solicitor told the Court the amount claimed is less than the solicitor/client costs incurred by the first respondent in this matter. The amount claimed is fair and reasonable given the nature of these types of matters. I will make a costs order for that amount.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.