Kumar v Minister for Immigration and Citizenship [2025] FedCFamC2G 786

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...

1. On 5 November 2018, the applicant applied to the Tribunal for review of the delegate's decision (CB 83-84).
2. On 8 January 2021, the Tribunal invited the applicant, through his registered migration agent, to provide further information in a "Request for Student Visa Information" form by 22 January 2021 (CB 92-94). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' (Direction 69) (CB 95-99).
3. On 21 January 2021 and 9 February 2021, the applicant's migration agent requested an extension of time to provide further information, both of which requests were granted by the Tribunal (CB 100-115). On 12 February and 26 February 2021, the applicant provided various documents in response to the Tribunal's invitation (CB 116-126).
4. On 23 March 2021, the applicant was invited to attend a hearing scheduled for 8 April 2021 (CB 129-131).
5. On 7 April 2021, the Tribunal provided the applicant and his agent with copies of the applicant's movement records and Provider Registration and International Student Management Systems (PRISMS) report which were before the Tribunal (CB 132-138). That same day, the applicant's agent withdrew their representation in this matter (CB 139).
6. On 8 April 2021, the applicant attended the Tribunal hearing (CB 143). At the conclusion of the hearing, the Tribunal delivered an oral decision to affirm the delegate's decision not to grant the applicant the visa (CB 149-150).
7. On 4 May 2021, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
8. On 25 May 2021, the Tribunal provided the applicant and his former agent with a written statement of decision and reasons pursuant to the applicant's request on 10 May 2021 (CB 151-165).

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 began by identifying the visa under review, noting that the applicant applied for the visa on 15 October 2018 (at [2]). The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, the Tribunal noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [3]).
3. The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa as the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212(a) in Schedule 2 of the Regulations) (at [4]).
4. The Tribunal noted that the issue in this matter was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student (at [8]). The Tribunal set out the relevant legislative provisions in that regard (at [9]).
5. The Tribunal stated that in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Direction 69 (at [10]). The Tribunal noted, however, that the factors set out in Direction 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant's circumstances as a whole (at [11]).
6. The Tribunal noted it had had regard to all of the evidence before it, which included the material supplied to the Department in the applicant's visa application, documentary evidence provided to the Tribunal by the applicant and/or his agent, oral evidence and submissions provided by the applicant during the hearing, as well as the applicant's movement records and PRISMS reports (at [12]-[13]). The Tribunal put to the applicant its concerns arising from those records and reports, namely, the length of time the applicant had been in Australia without return to India, and his lack of academic progress since 2017. The Tribunal noted that the applicant took the time to give a detailed explanation in respect of those concerns but, notably, did not challenge the accuracy of those records and reports (at [14]-[15]).
7. With respect to why he is studying in Australia rather than India, the applicant expressed a perception that the Australian education system is superior and highly regarded in India, and that his business would be more successful if he could demonstrate qualifications from Australia rather than India (at [18]-[20]).
8. With respect to the Tribunal's concern about the length of time in Australia and lack of academic progress since 2017, the applicant expressed an intention to complete his studies and return home to start a business. When put to him that he was attempting to maintain ongoing residence in Australia, the applicant said he and his family had spent a lot of money and it would all be for nought if he were return to India without the qualifications he sought to start a business (at [21]-[22]). As to whether he would earn more if he opened a business in Australia rather than India, the applicant said his family would not financially support him opening an Australian business, and his access to family property and financing in India is such that his prospects of remuneration are greater in India than in Australia (at [23]).
9. The Tribunal noted its concern about the applicant's lack of detailed explanation with respect to his studies (at [24]).
10. Against this background, the Tribunal made the following findings (at [28]):
    • The Tribunal was prepared to take a neutral view of the applicant's reasons for studying in Australia rather than India, noting that this was based on the applicant's own perception that the Australian education system was superior and that his business would be more successful if he could demonstrate Australian qualifications (at [28(a)]).
    • The Tribunal found that the applicant did not have a significant incentive to return to India, despite family and land ties to his home country, citing only one visit to India since 2008, his ability to contact his family virtually, his lack of study progress, and his current earnings from employment exceeding his expenses (at [28(b)]).
    • The Tribunal found that the economic circumstances in India were not a disincentive for the applicant to return, noting that he owned property and had the support of his family. The Tribunal accepted that the applicant came from an upper middle class agricultural landowning family but otherwise did not make any findings in this regard. There were also no military service commitments or circumstances of political and civil unrest that would present a significant incentive for him not to return to India (at [28(c)-(f)]).
    • The Tribunal found that the applicant is using the visa to circumvent the intention of the migration program and maintain ongoing residence in Australia, taking into account the applicant's lack of academic progress, his wide social circle in Australia, ability to remain in contact with family abroad, ability to financially sustain himself in Australia with family support, and only one instance of returning home to India since arriving in Australia (at [28(g)-(h)]).
    • The Tribunal found that the applicant demonstrated sufficient knowledge of living in Australia and of his education provider, having regard to the relevance of his studies to his desire to become a vehicle mechanic. Although, it expressed concerns about the applicant's genuineness as a student and his lack of knowledge about the course of study (at [28(j)-(m)]).
    • The Tribunal took a neutral view of the issue of remuneration, noting the applicant's access to family funding and property in India (at [28(n)]).
    • There was no evidence to suggest that the applicant had any other cancelled, refused or pending visa applications, that he had failed to comply with any visa requirements, or that he had travelled elsewhere apart from India or Australia (at [28(p)-(r)]).
    • The Tribunal found that the applicant's conduct and extended stay in Australia for over 12 years indicates he has "made a life for himself here" and has limited desire to return to his home country. The Tribunal noted that the applicant's studies had stalled since 2017, and although the applicant had expressed stress and health-related reasons for his lack of academic progress, this was not supported by medical evidence (at [28(s)-(t)]).
11. The Tribunal balanced all of its findings and considered that the weight of evidence pointed more against the applicant's case than for it. Ultimately, the Tribunal found that the applicant is using his student visa as a means to maintain ongoing residence in Australia, given his lack of academic progress, the amount of time he has spent in Australia, and his ability to remain in Australia without needing to return home (at [29]-[30]).
12. Having regard to all matters, including the Direction 69 requirements, the Tribunal found that the applicant did not genuinely intend to stay in Australia temporarily and was therefore not a genuine applicant for entry and stay in Australia as a student as required by cl 500.212 of Schedule 2 of the Regulations (at [31]-[32]).
13. The Tribunal found that the applicant did not meet the criteria for the grant of the visa and, accordingly, affirmed the delegate's decision (at [33]-[34]).

1. The application for judicial review filed by the applicant on 4 May 2021 does not contain any specific grounds of review. Instead, the applicant refers to a document annexed to that application, which is reproduced as follows (without alteration):

I am writing in relation to the letter provide information in respect of a decision to refuse a Student (Temporary)(Class TU) visa. Following is the response and explanation i wish to submit.

Sufficient Information Regarding as a Genuine Applicant which are given as below: -

• Current CoE: - I am currently studying Certificate IV in Automotive Mechanical Diagnosis in Sheffield College of Technology. I have done Certificate III in Automotive Mechanical Technology which is truly matched to my current study but respected visa officer could not find any relevancy between these courses (Evidence Attached).
• EMPLOYMENT HISTORY:- According to case officer i could not provide employment history from my home country in relate to grant a student visa which is not possible for me because i came to australia during the age of Eighteen after completed my 12th standard study.
• RELEVANT COURSE:- According to Visa officer my current study is not related to previous courses because she made a big mistake while checking my study history. she clearly written that i got enrolled in Business course when i came to australia back in 2008 which is completely wrong, she is no where mention that I have ever done Cert-III in Automotive which is 100% connected to my current course Cert-IV in Automotive.Immigration Officer made that biggest mistake while finalising my student visa.
• G.T.E. SUBMISSION:- I always have a dream of becoming an automotive engineer thats why I chose to study in Australia, as it is one of the best and expensive country in the world when it comes to study. I paid huge amount of fees to study just a Certificate III in Automotive because of the high standard of education, I wanted to be a successful automotive engineer and run my own business or join a multinational company in the field automotive industry.Otherwise that course is available in my home country with less fees.

• The management means getting things done through others. You must have the necessary communication skills to set a business or joining a multinational company as a team leader or as a manager in automotive industry.We must have a great personality to get sucessful in this modren complex world, thats why i joined all these mangement courses to improve my personality to achieve desire goals in this competitive industry.
• I firmly believe that I am a genuine temporary entrant because I was granted student visas previously and also have completed my studies in the said duration of the courses. So, it is understood that the department could have refused my previous applications had I not been a genuine temporary enterant.
• If Certificate III in Automotive, Diploma in Business and Diploma in Management Cert-IV in Automotive are not related to each other, then the case officer must advice me which course should be relevant in order to satisfy the criteria of a genuine temporary entrant.
• If the case officer could not find any evidence of me undertaking any studies between November 2017 to June 2018, she could have asked for the evidence of the studies as I was already enrolled during that period of time.I remember that they cancle my COE by their accountant mistake because he did not updated my paid cash reciept but they re-instate my COE after resolving that dispute.
• I can provide the receipt of the fees I paid of that course during that period of time. If I was not a genuine student how could the same college owner's wife have applied for further relevant studies? i mean i must have good relation with them for this action.
• There are other external factors, which I have faced in Australia and my family back home in India and they have made a serious impact on my mental and physical health. The factors are mentioned below:--

External factors in India - Back home my family were impacted by the demonetisation decision taken by the government and then the country was struck by COVID-19 and now farmers are facing the new controversial farming laws that are being introduced by the government of India. As, I come from a farming family; these events have devastated my parents and other family members including myself. And also, my sister-in law was diagnosed with cancer that further added up our agony. Even though they can afford to pay my expenses, I just want to make sure that every single dollar we are going to spend at least should not go in vain.

External factors in Australia - I got involved into a fight and was wrongly charged, after one year i found innocent by the court. But during the course of the case I suffered a lot mentally.I broke up with My Partner and that took me a few years to recover. With outbreak of COVID - 19 my mental health has worsened and it feels like rubbing salt on my wounds. I also got robbed by some fraud educational institutes.

At the end I only says that, I have been living in Australia for more than 12 years lawfully. I have spent pretty much everything i.e sweat, wealth, time, energy and most of my young potential life to achieve my goal as an automotive engineer for my bright future. But I still have a long way to go to achieve my goals.

I am getting old and weak with every passing day and now at do or die situation.I got mentally ill & find so hard to manage that stress.i have lost about 10kg of my bodyweight i get panic quickly and going through suicidal thoughts pretty much everyday.i stopped liking My-self i feel i wasted thousands of dollars of my parents.

I strongly believe that I am a genuine student and should be given permission to complete my current study which i have already paid 70% fees of that course.

This is The Humble Request to The Federal Court that Please consider my application very carefully & Do not hasitate to contact us anytime if you required further information regading that matter.

1. The application also sought an extension of time, however this was not necessary as the applicant had applied to this Court for judicial review within the time period prescribed by s 477(1) of the Act.
2. The applicant also filed an affidavit with that judicial review application on 4 May 2021, annexing a copy of the Tribunal's Outcome of Review. A copy of the Tribunal's written reasons was later included in the Court Book.
3. The applicant appeared before the Court on 5 May 2025 without legal representation. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister's submissions.
4. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 4 May 2021 (the affidavit being taken as read and in evidence at the hearing on 5 May 2025), a Court Book numbering 165 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 24 March 2025.
5. 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 [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] 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, Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282 at [41]. Accordingly, at the hearing of this, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal's decision and/or procedure.
6. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(f) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court what he said the Tribunal did wrong.

1. As outlined above, the application does not set out any specific grounds of review. Instead, the applicant refers to the document annexed to the application (set out at [27] of these reasons), which is a modified version of the submissions provided by the applicant to the Tribunal on 26 February 2021 (CB 123-126). Noting the applicant was unrepresented in this matter, the Court endeavoured to interpret his grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). In these circumstances particularly, the Court gave the applicant an opportunity to say what was wrong with the Tribunal's decision.
2. Against this background, the applicant told the Court that he did not think there was any error in the Tribunal's decision and, in fact, he thought that the Tribunal's decision was right. He said that he was just trying to get the visa to stay in Australia and that he did not want to return to India. The applicant was again invited to address the Court following the Minister's submissions but did not add anything further.
3. The Court appreciates the applicant's frankness in making such a concession. Nevertheless, it is the Court's role to ascertain whether or not the Tribunal's decision is affected by jurisdictional error. In that sense, the Court takes the view that the applicant's concession that the Tribunal decision contained no judicial error as no more than a self-represented applicant having difficulty in properly articulating his concerns with the decision.
4. In written submissions, the Minister addressed the document attached to the application for judicial review, noting that it did not identify any jurisdictional error in the Tribunal's decision. Rather, it seeks to contest factual findings made by the delegate and requests for the Court to engage in impermissible merits review (Wu Shan Liang at 272). It is well established that the Court cannot reconsider the merits of the delegate's decision; it can only review the legality of the Tribunal's decision (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [114]). In those circumstances, the Minister submitted, the relevance of the document annexed to the application in lieu of grounds is superseded by the Tribunal's decision. Accordingly, counsel for the Minister assisted the Court to review the Tribunal decision for jurisdictional error.
5. At the time of the Tribunal's decision, the applicant was required to satisfy the genuine temporary entrant criterion in cl 500.212 of the Regulations. That clause was to be read and applied consistently with Direction 69 as prescribed by s 499(2A) of the Act. The Tribunal was correct to note that the factors in Direction 69 are not a mandatory checklist, but are intended to guide decision-makers in weighing up the whole of the applicant's circumstances as to whether they satisfy the genuine temporary entrant criterion for the grant of the visa (see Ghimire v Minister for Immigration and Border Protection [2014] FCA 899; Kaur v Minister for Home Affairs [2019] FCA 2026 (Kaur)). The Tribunal is only required to take into account those Direction 69 factors which are the subject of substantial, clearly articulated claims by the applicant (Kaur at [31]), and the weight given to those factors is a matter for the Tribunal (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
6. The Minister submitted that the Tribunal was plainly aware of, and had regard to, the Direction 69 factors in assessing the applicant's submissions and the evidence before the Tribunal, including the applicant's oral evidence, movement records and PRISMS reports. The Tribunal put those movement records and PRISMS reports to the applicant for comment pursuant to s 359AA of the Act, particularly with respect to the length of time he had been in Australia, and any adverse inferences that might be drawn from that.
7. The Tribunal particularly considered the applicant's oral evidence about the subjects he studied, noting the generality of this evidence, in its consideration of factor 11(e) in Direction 69. Counsel for the Minister submitted that it was open to the Tribunal to find that the applicant did not display a realistic level of knowledge about the course of study that would be expected from a genuine student, given he had only completed one subject at approximately the halfway mark of the course and could not describe more than one subject he was undertaking.
8. The Tribunal considered the applicant's oral evidence as to his reasons for studying in Australia rather than India. The Minister submitted that it was open to the Tribunal to find that the applicant's reasons for studying in Australia, namely, that the Australian education system was superior and that his business would be more successful if he could display Australian qualifications, were based on the applicant's own perceptions more than anything else. The Tribunal took a neutral view of the applicant's reasons for studying in Australia but it nevertheless did not weigh strongly in favour of the applicant.
9. The Tribunal also considered the combined effect of the applicant's oral and documentary evidence, along with his PRISMS records, in assessing why the applicant's studies had stalled. The Tribunal noted the applicant's limited evidence about seeking treatment for stress and anxiety during this period but, weighed against the evidence about the applicant's lack of return visits to India and his ability to otherwise support himself in Australia, the Tribunal found that there was not a significant incentive for him to complete his studies and return to India.
10. The Minister submitted that it was a matter for the Tribunal, as part of its fact-finding function, to determine what weight it gives to the relevant factors in Direction 69 in assessing the evidence and information before it (citing NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10).
11. The Court agrees with the Minister's submission that the Tribunal had appropriate regard to all of the evidence and material before it, and made findings that were relevant and open to it on that material.
12. The Court asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention in terms of any concerns or doubts about the Tribunal's decision.
13. Counsel for the Minister brought to the Court's attention that the Tribunal made a finding (at [28(k)] of its decision) that "the applicant stated he had to complete 12 subjects, whereas the course program as published on the Commonwealth of Australia Training Australia website lists the course as only requiring 10 subjects". However, in exercising its obligations under ss 359A and 359AA of the Act, the Tribunal did not explicitly put to the applicant the number of subjects he was required to complete. Nevertheless, counsel for the Minister submitted that no jurisdictional error arises because information about the number of subjects in a course is publicly available information, and therefore not subject to s 359A, being information that is not specifically about the applicant or another person and is simply about a class of persons to which the applicant belongs.
14. The Court accepts that publicly available information about the number of required subjects in a given course falls within the exempt category of information which is not about the applicant but rather about a class of persons to which the applicant belongs, as per s 359A(4)(a). Consequently, no jurisdictional error arises in that respect. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal's decision.
15. The Court is satisfied that, even adopting the broad approach referred to in [35] of these reasons, no jurisdictional error is apparent.

1. The application for judicial review, supporting affidavit and any additional submissions advanced by the applicant at the hearing have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.