Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1377

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. On 31 October 2024, the applicant lodged an application, under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 4 October 2024. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided as a time of decision criterion for a student visa:

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 Direction 108, "Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications" (Direction 108), made under s 499 of the Act, which required the Tribunal to have regard to specified factors in relation to:

(a) the applicant's circumstances in their home country;

(b) the applicant's potential circumstances in Australia;

(c) the value of the course to the applicant's future; and

(d) the applicant's immigration history.

1. In April 2019, the applicant, a citizen of India, arrived in Australia as the holder of a subclass 500 student visa.
2. On 14 September 2022, the applicant, applied for a further student visa on the basis of her enrolment in a Graduate Diploma of Management (Learning) at an educational institution in Australia.
3. On 2 December 2022, a delegate of the first respondent refused to grant the applicant the visa on the basis that she did not satisfy cl 500.212 of Schedule 2.
4. On 18 December 2022, the applicant applied to the Tribunal for review of the delegate's decision.
5. On 15 July 2024, the Tribunal invited the applicant to attend a hearing by telephone to give evidence and present arguments on 1 August 2024.
6. On 1 August 2024, the applicant appeared at the hearing before the Tribunal by telephone, with the assistance of her representative and an interpreter in the Gujarati language.
7. On 4 October 2024, the Tribunal made a decision affirming the delegate's decision not to grant the applicant a student visa.

1. The Tribunal at [1]-[13] set out the background to the application for review and summarised the applicant's evidence provided to the Department of Home Affairs and the Tribunal.
2. The Tribunal at [15]-[17] noted that the issue before it was whether the applicant satisfied cl 500.212 of Schedule 2, and the Tribunal must have regard to Direction 108 and the specified factors in Direction 108.
3. In considering the factors in Direction 108, the Tribunal made the following findings:

(a) The applicant's conduct in paying $18,000 to commence a new course rather than pay $3,000 to undertake a work placement to complete her previous course "indicated to the Tribunal that the applicant was using the student visa to circumvent the intentions of the migration program and also to remain resident in Australia": at [19].

(b) The applicant's decision to enrol in the same course with a different provider with less support for the element of the course she claimed to find most difficult to satisfy "was not considered to be the conduct of a student who genuinely desires the qualification in which they have enrolled": at [21].

(c) The applicant's evidence that she "would seek the visa originally on the basis of enrolment in a course that she claims she was not interested in demonstrates that she is using the student visa program to maintain residence": at [22].

(d) The applicant had some ties to her home country but these were not significant: at [24].

(e) The applicant's enrolment in an 80-week course, when an equivalent 52-week version was available, was "further evidence that the applicant is using the student visa program as a means to maintain residence": at [26].

(f) The applicant did not have "reasonable reasons to undertake study again in the Diploma of Community Service in Australia as opposed to her home country": at [28].

(g) The applicant has been in Australia since 2019 "without appearing to have achieved the award of any qualification and also intends to remain for several more years". This "suggests ... that the applicant is using the student visa program as a means to maintain residence in Australia": at [29].

Several of the circumstances particular to the applicant in this case demonstrate to the Tribunal that she is using the student visa program as a means to maintain residence, including her lack of demonstrated academic progress to date, the fact that she enrolled in the same course of a longer duration at considerable expense, the lack of demonstrated value of her studies, her family ties onshore, her lack of engagement with community services and her stated intention to remain and go on to enrol in further studies.

1. It followed that the applicant did not meet cl 500.212(a), and "the criteria for the grant of a subclass 500 (student) visa are not met": at [32].

Judicial review application and steps up to hearing on 21 August 2024

1. On 31 October 2024, the applicant lodged an application in this Court seeking judicial review of the Tribunal's decision which contained the following ground (as written) (Application):
   1. Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with.
2. On 18 June 2025, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application and any additional evidence on which the applicant sought to rely.
3. On 8 July 2025, the parties were notified by the registry of the Court that the matter was listed for hearing on 21 August 2025.
4. On 6 August 2025, the first respondent filed a written submission.
5. The applicant did not file or serve any further materials prior to the hearing on 21 August 2025.

1. At the hearing in this Court on 21 August 2025, the applicant appeared unrepresented, assisted by a Gujarati interpreter. Jonathan Djasmeini from MinterEllison appeared for the first respondent.
2. The applicant brought to the hearing a copy of the Court Book, filed and served by the first respondent in early August 2025, which contained the Tribunal's decision and documents before the Tribunal. At the commencement of the hearing, I directed the applicant's attention to the Tribunal's decision. I explained that the Court's role was limited to determining whether there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal's decision. I explained, with reference to the Tribunal's written reasons for decision, the main categories of jurisdictional error. I told the applicant that, to win the case, she must persuade the Court there is a jurisdictional error in the Tribunal's decision.
3. I offered the applicant a 10-minute break to consider oral submissions she wanted to make. The applicant did not take up this opportunity.
4. Mr Djasmeini tendered a copy of the Court Book.
5. I invited the applicant to make oral closing submissions. The applicant made some submissions which are addressed below.
6. Mr Djasmeini, in his oral submissions, principally relied on the first respondent's written submission filed in August 2025.

Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with.

1. Although the Application was accompanied by an affidavit of the applicant lodged on 31 October 2024, no paragraph of the affidavit provides particulars of the manner in which the Tribunal did not act in the best interest of the applicant or denied the applicant procedural fairness. A "failure to particularise a ground of review is itself a sufficient basis to dismiss it": NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176 at [37].
2. Further, first, the Tribunal is not required to "act in the best interest of the applicant". Second, s 357A(1) of the Act provided that Div 5 of Part 5 of the Act is "taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with". The applicant has not identified a provision of Division 5 which she contends the Tribunal breached or failed to comply with. Third, the applicant did not complain at the hearing in this Court on 21 August 2025 that the Tribunal failed to accord her procedural fairness.
3. For the above reasons, the ground in the Application does not identify a jurisdictional error in the Tribunal's decision.

Applicant's oral submissions at hearing on 21 August 2025

1. As recorded by the Tribunal at [6(i)], by December 2022 the applicant claimed that she "had completed a Diploma of Community Service at the Australian Institute of Business and Technology [AIBT] with the exception of her placement". Yet the applicant, at her hearing before the Tribunal in August 2024, sought a student visa to undertake a Diploma of Community Service at the Australian Health and Management Institute (AHMI). That the applicant sought a student visa at the hearing before the Tribunal in August 2024 to undertake a course which she claimed to have effectively completed two years earlier at another educational institution caused the Tribunal to be concerned that the applicant "was using the student visa to circumvent the intentions of the migration program and also to maintain residence in Australia": at [19].
2. During the hearing in this Court on 21 August 2025, the applicant claimed that the reason the Tribunal was not satisfied that she satisfied cl 500.212(a) was because she had not completed a work placement in connection with the Diploma of Community Service she undertook at AIBT. However, first, this was not the reason the Tribunal was not satisfied the applicant satisfied cl 500.212(a). Second, even if the applicant's summary of the Tribunal's reasons was correct, it does not identify an error in the Tribunal's decision, let alone a jurisdictional error.
3. By the date of the hearing before the Tribunal in August 2024, the applicant had not provided to the Tribunal evidence of units she had completed in the Diploma of Community Services at AIBT. As stated by the Tribunal at [6(i)], the applicant initially claimed to have completed the Diploma of Community Services at AIBT "with the exception of her placement". During the hearing in August 2024, the Tribunal asked the applicant to provide evidence of units she had completed, such as an academic transcript or statement of attainment of units completed. The applicant claimed that she could not obtain these documents from AIBT. The Tribunal at [20] and [22] discussed its concerns about the applicant's refusal to provide a transcript and her claim that she could not obtain a transcript from AIBT.
4. During the hearing in this Court on 21 August 2025, the applicant made some contentions relating to the academic transcript discussed by the Tribunal at [20] and [22]. The applicant's contentions were not clear. On one occasion, the applicant appeared to claim to the Court that the reason AIBT did not give her a transcript was because she had not completed a work placement. However, this was merely a repetition of a claim made by the applicant to the Tribunal, which the Tribunal rejected at [20].
5. Nothing stated by the applicant in oral submissions identified a jurisdictional error in the Tribunal's decision.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Djasmeini sought costs in the amount of $5,900, which was not greater than the first respondent's solicitor/client costs.
2. The applicant stated that she earns only $400 per week, working 15 hour per week, and cannot pay $5,900. However, that the applicant might have difficulty meeting a costs order "does not provide a principled basis for not making a costs order": Masone v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 64 at [8]. The applicant, by making and progressing the application to hearing, has forced the first respondent to incur legal costs. Her claimed limited financial position does not affect a determination of an appropriate amount in the present matter.
3. In circumstances where the scale amount is $8,371.30, which is "a benchmark for what the Judges of the Court, or a majority of them, consider to be fair and just in a given case" (Gehlert v Minister for Immigration & Multicultural Affairs [2024] FCAFC 12 at [69]), I consider the amount of $5,900 sought by the first respondent is reasonable. I will make this order.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.