Pandey v Minister for Immigration and Citizenship [2025] FedCFamC2G 1188

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 seeks judicial review pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act) of a decision of the second respondent (the Tribunal) made 19 June 2019 affirming a decision of a delegate of the first respondent (Minister) made on 4 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (visa).
2. References in these reasons to "CB" pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated "R1".

1. The applicant is a citizen of India. He first arrived in Australia on 9 November 2008 as the holder of a Student visa (CB 78). The applicant was enrolled in a Master of Information Technology degree at the Swinburne University of Technology (CB 11).
2. In December 2011, the applicant completed his degree and then enrolled in a further degree known as a Master of Network Systems at Swinburne University of Technology which he completed in March 2013 (CB 11-12).
3. In April 2013, the applicant enrolled in an Advanced Diploma of Business Management at Imperial College and completed that course in April 2014 (CB 10).
4. In June 2014, the applicant enrolled in a Certificate IV in Marketing at Harward International College (CB 10). He subsequently completed that course in December 2014 and a Diploma in Marketing from the same institution in August 2015 (CB 11).
5. In August 2015, the applicant enrolled in an Advanced Diploma in Marketing at Harward International College and completed that course in April 2017 (CB 11).
6. On 7 June 2017, the applicant applied for the visa (CB 1-19). The applicant's intention was to complete a Diploma of Project Management at the Universal Institute of Technology (CB 27-30). The applicant claimed that this further diploma course would be beneficial to his prospects of employment on his return to India (CB 27-28).
7. On 4 August 2017, a delegate of the Minister refused to grant the visa. The delegate held that the applicant did not satisfy the criteria in clause 500.212 of the Migration Regulations 1994 (Cth) (Regulations) because the applicant did not intend genuinely to stay in Australia temporarily.
8. On 22 August 2017, the applicant applied to the Tribunal for merits review of the delegate's decision (CB 69-70).
9. On 17 January 2019, the Tribunal invited the applicant and his migration agent to provide information in support of his application for review. In particular, the applicant was asked to supply confirmation of enrolment in a registered course of study and an explanation as to why he was a genuine applicant for entry and stay as a student in Australia. The information requested was required to be provided by 31 January 2019 (CB 92-4).
10. On about 31 January 2019 the applicant's migration agent purported to send to the Tribunal a completed request for student visa information and confirmation of enrolment (CB 100-116). The email to which the response was attached stated that it was sent by the agent to the Tribunal at 11.23pm (GMT) on 31 January 2019 (CB 100). The confirmation of enrolment attached to the completed request was for two degrees, a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management from the Fusion Business School, trading as the International Institute of Management and Technology (CB 115-6). This was a different course of study to the course identified in the application for the visa (CB 9).
11. In the completed form the applicant did not consent to the Tribunal deciding the review without a hearing (CB 104). The applicant asked that any hearing date be on or after 25 February 2019 (CB 104). The applicant explained that he had "deep community and family ties in India" and that further evidence can be provided. He also claimed that the proposed courses of further study were required to assist him to start a business in India (CB 112-3).
12. On 20 June 2019, the Tribunal notified the applicant and his migration agent that the Tribunal had made a decision to affirm the decision of the delegate without a further hearing (CB 119-136) (Decision).

1. In the Decision, the Tribunal held that the information requested pursuant to the letter from the Tribunal dated 17 January 2019 had not been provided within the prescribed period or any extended time. The Tribunal found that it was entitled to make a decision on the review without taking further steps to obtain the information and that the applicant had lost any entitlement that he might have under the Act to appear before the Tribunal to give evidence and present arguments (CB 125 [4]-[5]).
2. The Tribunal then considered the requirements of cl 500.212 of the Regulations and Ministerial Direction No. 69 made pursuant to s 499 of the Act (CB 126 [9]-[10]). The Tribunal addressed the applicant's circumstances in his home country, potential circumstances in Australia and the value of the proposed course of study to the applicant's future (CB 126-7 [12]-[33]). The Tribunal also considered the applicant's immigration history, prior visa history and previous travel to Australia and other countries (CB 129 [34]-[36]).
3. The Tribunal concluded that it was not satisfied that the applicant intends genuinely to stay in Australia temporarily and the applicant did not meet the criteria in cl 500.212(a) of the Regulations (CB 129 [38]-[40]). The Tribunal affirmed the decision under review.

1. On 11 July 2019, the applicant filed an application for judicial review with this Court within the 35-day time limit required by s 477(2) of the Act (CB 137-141). The application for review was accompanied by an affidavit affirmed by the applicant on 11 July 2019 (CB 143-159). The affidavit simply annexed a copy of the Decision and asserted jurisdictional error by the Tribunal for the reasons set out in the application for judicial review.
2. The grounds of review identified in the application for judicial review were as follows:

The decision of the AAT is affected by jurisdictional error.

Particulars

a. The tribunal has erred in its findings that the applicant does not meet the criteria for a subclass 590 (Student Guardian) visa

b. The tribunal has erred in its conclusion that the applicant intends to stay in Australia permanently and not temporarily, i.e.(cl 500.212(a)

Particulars

i. It has not given sufficient weight to his immigration history and compliance with all visas whilst been resident in Australia for the last 11 years.

ii. Not given sufficient weight to him being able to start a family whilst he visits his wife in India and combine that with his study and it has not taken into account cultural factors such as that it is common for the husband to study/ be employed in a foreign country and support his family whilst being overseas.

iii. Not given sufficient weight to the applicant's circumstances in his home country and the value that is placed on these courses which in turn will effect his future prospects.

1. On 26 September 2024 a Registrar made orders directing the applicant to file and serve written submissions any amended application for review and any additional evidence at least 28 days prior to the date fixed for final hearing.
2. The application for judicial review was listed for hearing before this Court on 13 June 2025 in person at Melbourne. The applicant appeared in person, self-represented, and did not require the assistance of an interpreter. The applicant did not file any written submission, an amended application or further evidence in support of his application for judicial review.
3. Mr Lessing of counsel appeared for the Minister.
4. Noting that the applicant was unrepresented, the Court gave the applicant an opportunity to elaborate on, and further particularise, his grounds of review and to inform the Court of the basis on which the Tribunal made any jurisdictional error.
5. The Court also explained that this Court can only turn its attention to the issue of jurisdictional error in the Decision. It was also explained that this Court cannot review the merits of the Decision or grant the visa that is sought: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

1. The applicant submitted that he was committed to a life and family in India and that the Tribunal erred by refusing to allow him to appear before it to explain his personal circumstances. He referred to the recent change to the Regulations and in particular cl 500.212(a) where the words 'intends genuinely to stay temporarily as a student' have been removed and the words 'genuine applicant for entry and stay as a student' substituted.[1] The applicant submitted that he was at all times a genuine student that completed the courses in which he was enrolled and complied with all conditions of his previous Student visas.
2. The applicant submitted that he needed to work from time to time during his previous courses to support his young family in India and the fact that he did so demonstrate his commitment to eventually return to India to start a business. He said that it was not uncommon for Indian men to study and work abroad while providing for their family at home. The applicant explained that due to rapid technological, social and economic changes in India, he needed to pursue new educational opportunities because previous courses were no longer relevant or appropriate to his prospects of employment and modern business in India. That is why he needed to undertake a Diploma in Management or a Diploma of Leadership so that he could keep his qualifications up-to-date. The Diploma course in Project Management that he originally applied for (and which was the subject of the application for the visa) was cancelled by the educational institution when it rejected a request by the applicant for a deferral and he explained that to the Department of Immigration. The applicant then enrolled in the Diploma of Leadership and Management at the Fusion Business School.
3. The applicant submitted that he was denied the opportunity of a hearing before the Tribunal to explain his position and personal circumstances. He claimed that he provided all information to the Department and the Tribunal on time and in the form required. He submitted that if he had been given a hearing by the Tribunal, the Decision would have been different.
4. The applicant did not seek to supplement his application for judicial review with any further affidavit evidence to support his claims.

1. Counsel for the Minister relied on and spoke to the outline of written submissions filed with the Court and dated 30 May 2025. In that submission, the Minister contended that there was no material jurisdictional error revealed by the grounds of review and the Tribunal expressly considered each of the matters raised by the applicant as to his eligibility for the visa in the Decision. The applicant was seeking impermissible merits review and there was no basis upon which to find that the Decision was unreasonable, irrational or illogical.
2. The Court raised with counsel the possibility that there had been an error of jurisdictional fact by the Tribunal in the findings at CB 125 [4] and [5] of the Decision, that the applicant did not provide a response to the request pursuant to s 359(2) of the Act within fourteen days and therefore he was not entitled to a further hearing. The documents reproduced by the Minister in the Court Book showed that the request for information was dated 17 January 2019 (CB 93-4) and the response was sent to the Tribunal by the applicant's agent at 11.23pm (GMT) on 31 January 2019 (CB 100-1). If that was correct, the response may have been received by the Tribunal (or deemed to have been received) within the prescribed period. The refusal to provide a hearing would be a jurisdictional error as to a jurisdictional fact (see Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233 per Jagot J and Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (Hasran) per Jacobson, Gilmour and Foster JJ).[2]
3. Counsel for the Minister accepted that if the applicant's response was received by the Tribunal before the end of the prescribed period, then there would be a jurisdictional error by the Tribunal in finding that the applicant was not entitled appear before the Tribunal to be heard.
4. To resolve this impasse, the Court ordered the Minister to file and serve a further outline of written submissions and any further affidavit in relation to the Letter of Invitation dated 17 January 2019 and to whether there was a response to the Tribunal before 31 January 2019 by 4.00pm on 27 June 2025. The applicant was ordered to file and serve any outline of submissions in reply by Friday 11 July 2025.
5. On 27 June 2025, the Minister filed an affidavit of Anthony Robert Gardner, solicitor, affirmed 27 June 2025. Annexed to that affidavit was correspondence between the Tribunal and the applicant's former registered migration agent. Also annexed was a screenshot showing that the email from the applicant's former migration agent was not received by the National Registry Mailbox of the Tribunal until 10.41am (AEDT) on 1 February 2019. This is consistent with another document annexed to the affidavit (Annexure ARG-4) which is a Time Zone Converter calculation that shows that 11.24pm (GMT) is equivalent to 10.24am (AEDT) on 1 February 2019.
6. A further outline of written submissions was also filed by the Minister on 27 June 2025 as ordered. In that submission, the Minister referred to reg 4.17(6) of the Regulations, as in force at the date of the Decision, which regulates the prescribed periods for responses to requests under s 359 of the Act. Regulation 4.17(6) provided:

(6) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.

1. The Minister also relies on s 14A of the Electronic Transactions Act 1999 (Cth) (ETA) which provides that for the purposes of a law of the Commonwealth, the time of receipt of an electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee of that communication.
2. Therefore, the Minister submits that the response to the request was not received by the Tribunal until after the prescribed period of fourteen days and there was no error of jurisdictional fact by the Tribunal in finding that the applicant was not entitled to appear at a hearing.

1. On 11 July 2025, the applicant filed and served a written submissions in response to the Minister's further submissions and the affidavit of Mr Gardner. The applicant made ten submissions in reply. The applicant once again contended that he was a genuine applicant for the visa. He maintained that he had consistently completed all previous courses of study and had not been involved in any misconduct.
2. He submitted that in the outline of submissions filed on behalf of the Minister dated 25 May 2025 the Minister conceded that the s 359 response was received on 31 January 2019 within 14 days (paragraph 9) and this was binding on the Minister and conclusive. The applicant also alleged that the Minister did not comply with the orders of this Court on 13 June 2025 because the Minister's further submissions and the affidavit of Mr Gardner were filed with the Court at 4.01:04 pm on 27 June 2025 and this was a relevant consideration for the Court to consider when assessing whether there had been an error by the Tribunal. The applicant repeated his claims that he was required to undertake further course work in Australia to obtain relevant qualifications to assist him to start a business in India and that he was wrongly denied an opportunity to be heard by the Tribunal. He claimed that if he had been given an opportunity to be heard the outcome of the review by the Tribunal would have been different. Finally, the applicant submitted that he should not be responsible for paying "remuneration" to the Minister (which appears to be a submission in opposition to the order for costs in this proceeding sought by the Minister).
3. There was no affidavit filed by the applicant to contradict the affidavit of Mr Gardner that the s 359 response was not received by the Tribunal until 1 February 2019 at 10.41am or to otherwise supplement or bolster the evidence given to the Tribunal.

1. In a recent decision of Virk v Minister for Immigration and Citizenship [2025] FCA 630, Justice Hill observed at [23]-[24] that:

[23] Duties to unrepresented litigants: The fact that the Appellants are legally unrepresented is of more general relevance. The duties that courts owe to unrepresented litigants have been discussed in cases such as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court). The principles are conveniently summarised by Moshinsky J in Wahed v Minister for Home Affairs [2019] FCA 247 at [26] as follows (citations omitted):

Courts have an overriding duty to ensure that a trial is fair to all parties. In the context of an unrepresented litigant, that duty requires the Court to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case ... However, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law ... In civil proceedings, procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be...

[24] The obligation to ensure that a trial is fair requires the judge to give a self-represented litigant a reasonable opportunity to present evidence and make submissions in support of his or her case. However, a judge is not required to give legal or tactical advice to a self-represented litigant that would compromise the judge's impartiality and be unfair to the opposing party: Chetcuti v Minister for Immigration & Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ).

1. In MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [100] Justice Mortimer (as her Honour then was) said:

[100] In a judicial review application (or an extension of time application in relation to judicial review) the absence of legal representation for an applicant will almost always mean an applicant will be unable to advance a case commensurate with the kind of arguments that are likely successfully to impugn the decision under review. Of course some self-represented people have the capacity to put some arguments - whether through previous court experience, study, outside assistance or simply natural talent. The vast majority do not, especially when additionally disadvantaged by issues of language and unfamiliar culture. In this context, what the descriptor "fair hearing" encompasses is open to debate, even if the phrase is confined to procedural fairness. The disparity of resources and capacity is too great for a hearing to be "fair" in the way a hearing can be "fair" when the parties are legally represented. All the judge can do is to make the process as fair as possible and then, in my opinion, do her or his best to be astute and alert to the possibility of legal error in the tribunal's decision when considering the material before her or him, and be prepared to raise any such possibilities with the Minister's legal representatives.

1. In this application for judicial review, the applicant was asked to identify jurisdictional error in the Decision. Save for a failure to provide the applicant with an opportunity to appear and be heard, the grounds of review identified by the applicant were directed to the merits of the applicant's application for the visa and the reasons why he should have been granted the visa. Disagreement as to the outcome of a merits review decision does not establish jurisdictional error by the decision-maker. The role of this Court is not to consider the merits or wisdom of the Decision; nor does it remake the Decision. The task of the Court is to rule upon the lawfulness or legality of the Decision by reference to the complaints made about it (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] per Allsop CJ, Besanko and O'Callaghan JJ).
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [3], the High Court explained the concept of jurisdictional error as follows:

[3] Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. In this case, the complaint made about the Decision was that the Tribunal erred in the consideration of the statutory requirements of cl 500.212 of the Regulations in that the Tribunal should have found on the evidence that the applicant did intend genuinely to stay temporarily in Australia as a student.
2. In the Decision, the Tribunal did consider the applicant's circumstances, including his immigration history, ties to India, his proposed course of study, future prospects of employment, previous enrolment history, financial circumstances and his ties to his brother who resides in Australia. The Tribunal gave weight to the fact that the applicant had been in Australia for eleven years and completed five different courses since arriving in Australia. The Tribunal considered these matters in accordance with Ministerial Direction No. 69 made pursuant to s 499 of the Act. After considering these circumstances, the Tribunal was not satisfied after weighing the evidence that the applicant intends to genuinely to stay in Australia temporarily. Therefore, it affirmed the decision of the delegate. There is nothing in the reasoning in the Decision that discloses jurisdictional error or a failure to consider any relevant circumstance or available evidence.

1. The Court has explored the possibility that there may have been an error of jurisdictional fact by the Tribunal in finding that the applicant lost the right to appear at a hearing, because he failed to respond to the Tribunal's request for information made pursuant to s 359 of the Act.
2. The Court has scrutinised the request for information, and it complies with the requirements of the Act and Regulations (as they then were). The request specified the prescribed time within which to respond as fourteen days and clearly identified the date by which a response was to be received as 31 January 2019. The request identified that the applicant could seek an extension of time before that date but that if the information requested was not received within the period allowed, the applicant would lose any entitlement to appear before the Tribunal to give evidence (ss 359C, 360(2) and 360(3) of the Act).
3. The Court is satisfied from the affidavit of Anthony Robert Gardner affirmed 27 June 2025 that the response to the Tribunal's request for information was not received by the Tribunal until 10.41am on 1 February 2019 (Annexure ARG 3 to the affidavit of Mr Gardner affirmed 27 June 2025). Therefore, pursuant to the operation of reg 4.17(6) of the Regulations and s 14A of the ETA, the response was not received by the Tribunal within the fourteen-day prescribed period. Therefore, pursuant to the operation of s 360(3) of the Act, the applicant was not entitled to appear before the Tribunal at a hearing.
4. The Tribunal did consider all of the evidence provided by the applicant in the response to the request and applied that evidence to the consideration of the criteria in cl 500.212 of the Regulations. There was no jurisdictional error by the Tribunal in finding that the applicant was not entitled to appear at a hearing because the applicant had not responded to the Tribunal's request for information or the finding that it was entitled to make a decision on the review having regard to all of the information before it (Hasran at [48]).
5. The details of filing produced by the Court shows that the Minister filed the further outline of submissions and the affidavit of Mr Gardner at 4:01:04 pm (AEST) on 27 June 2025. That was one minute and four seconds outside the time ordered in the orders of the Court on 13 June 2025. The failure to file within the time ordered by this Court is not relevant to the consideration of whether there was jurisdictional error by the Tribunal in the Decision. The delay in filing submissions and evidence by the Minister is different to the failure to respond to a request under s 359 of the Act within the prescribed period and the statutory consequences that follow under the Act. The delay was not significant and did not result in any prejudice to the applicant. It is not necessary to extend the time within which to file the documents because the delay if any was trivial and not relevant to the substantive issues raised by the application for judicial review.
6. The Minister's outline of submissions filed 25 May 2025 does not contain an admission against interest that the s 359 response was received by the Tribunal on 31 January 2019. To the contrary the Minister maintained in paragraph 9 of those submissions that the response was received outside the prescribed period.
7. There is no material jurisdictional error revealed in the Decision and no error of jurisdictional fact in the finding that the s 359 response provided by the applicant's agent was not received by the Tribunal within the prescribed period. The Tribunal was entitled to find that the applicant lost any entitlement to appear before the Tribunal because of the operation of s 360(3) of the Act. The Tribunal considered all of the evidence provided by the applicant and his agent and applied that evidence to the statutory criteria in the Regulations and applied the Ministerial Guidelines. The findings of the Tribunal were not illogical unreasonable or irrational. The Tribunal gave weight to inconsistencies in the applicant's stated intentions and the absence of evidence of a clear future plan for employment or his proposed business. The Tribunal was also not satisfied that the proposed courses of study would assist the applicant in achieving his career plans, "as vague as they are" (CB 129 [31]). The applicant's complaints regarding the Decision go the merits and weight given to the evidence by the Tribunal. It is not the role of this Court to engage in merits review.
8. In the absence of a material jurisdictional error in the Decision, the application for judicial review filed 11 July 2019 is dismissed.

1. The Minister sought an order that the name of the first respondent be amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title which changed on 13 May 2025.

1. Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $8,371.30, which is the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2. The sum claimed is fair and reasonable given the complexity of this case and will be ordered to be paid by the applicant. This is not remuneration payable to the Minister but for legal costs necessarily and reasonably incurred by the Minister in opposing the unsuccessful application for judicial review filed by the applicant.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship'.
2. The application for judicial review filed 11 July 2019 be dismissed.
3. The applicant pay the first respondent's costs and disbursements of and incidental to the application for judicial review fixed in the sum of $8,371.30.

I certify that the preceding fifty nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

[1] These amendments were made with effect from 23 March 2024 and not at the time of the Decision.

[2] See also as other examples Khergamwala v Minister for Immigration [2007] FMCA 690 per Riley FM and Kouweider v Minister for Immigration [2015] FCCA 3148 per Judge Manousaridis.