Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1447

1. By application filed on 8 October 2024 the applicants seek judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 4 September 2024. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (the Act).

1. The first applicant (the applicant) is a citizen of India. The applicant arrived in Australia in 2021. The applicant applied for the visa to undertake study in an Advanced Diploma of Civil Construction and Design with course dates from 2 May 2022 to 25 February 2024. The second named applicant is her spouse. The applicant applied for the visa, the subject of these proceedings, on 6 June 2022.
2. On 24 November 2022, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.
3. On 30 November 2022, the applicant applied to the Tribunal for review of the delegate's decision.
4. The applicant appeared before the Tribunal on 29 August 2024 to give evidence and present arguments, with the assistance of an interpreter in the Gujarati and English languages.
5. On 4 September 2024, the Tribunal affirmed the delegate's decision not to grant the applicant the student visas.

1. The dispositive issue before the Tribunal was whether the applicant intends genuinely to stay in Australia temporarily as required by cl 500.212(a).
2. The Tribunal summarised the applicant's travel history and her circumstances generally, including her study progression, employment, living costs, and economic and familial connections to India. In doing so, the Tribunal considered the applicant's documents provided in support of the application, including those listed at [11] and [12] of its decision.
3. At [12] the Tribunal set out the relevant details contained in the applicant's supporting statement. The Tribunal noted that the applicants appeared at the scheduled hearing and that, where relevant, it had recorded their evidence in its consideration.
4. The Tribunal said at [17] that it must have regard to Ministerial Direction No. 69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act. It set out the relevant factors in the Ministerial Direction and said that it should not be used as a checklist, but only as a guide when considering the applicant's circumstances as a whole.
5. At [19], the Tribunal considered the circumstances of the applicant in her home country. It noted that her father and grandmother continue to reside there. It accepted that she travelled to India on one occasion and maintained contact with family via telephone and social media. The Tribunal was not satisfied that these circumstances provided a significant incentive for the applicant to return to her home country.
6. The Tribunal considered the applicant's claim that she had an obligation to provide for her parents in-law but noted that it was required to balance this claim with the length of time the applicant was seeking to stay in Australia and the fact she had repeatedly changed her intended course and extended her length of stay onshore.
7. At [20], it noted that the applicant did not have any outstanding military commitments, had no fears of returning to India, and there was no evidence of any civil or political unrest.
8. At [21], the Tribunal considered the applicant's claim that her reason for not studying similar courses available to her in India was because she did not study out of high school and would encounter prejudice as an older student due to the cultural expectation that she should be married with children, especially in her village. The Tribunal considered that there was no institutional or legal impediment to the applicant returning to study in India at age 29 and that there were a variety of locations where the applicant could seek study, not just in her home village. The Tribunal noted that the applicant could study in her home country at a significantly lower cost and fulfill her obligation to care for her family. The Tribunal was not satisfied that the reasons for the applicant not undertaking the proposed study in her home country were reasonable.
9. At [22], the Tribunal considered the applicant's circumstances onshore. It noted that the applicant was living with her husband, who had been living in Australia since 2016. It noted that they shared rental accommodation with friends, worked at same workplace and regularly attended the temple. It noted that the applicant was initially a dependent on her husband's visa and they swapped the position of primary and secondary applicants. The Tribunal was concerned that, in combination, the applicants were using the student visa program as a means of maintaining residence in Australia.
10. At [23], in considering her enrolment and study history, the Tribunal was concerned that the applicant had not undertaken reasonable research of her study options or course provider. The Tribunal was not satisfied with the applicant's explanations as to why she wanted to commence studies in Australia and found that this did not allay its concern that the applicant was using the student visa program to circumvent the intentions of the migration program.
11. At [24], the Tribunal considered the reasons given by the applicant for her enrolment in the proposed courses. It was not satisfied with the applicant's explanation that she needed to establish a base level of study in lower-level courses (Certificate IV and Diploma) given her evidence that she had previously gained admission to bachelor level studies in Commerce in her home country and assisted her father with accounting matters in the past.
12. At [25], the Tribunal had regard to the applicant's evidence that she would complete any further qualifications and certifications in India after finishing the course in which she had enrolled, however, it considered the confidence that the applicant had about her ability to expand her professional skills in her home country contrasted with her earlier claims of discrimination due to her gender and age, and the reasons why she could not undertake the relevant study in India. The Tribunal held concerns that the applicant would return to her home country at the conclusion of the course.
13. At [26], the Tribunal accepted that higher level study would improve the applicant's employability and potentially remuneration, however, it considered the applicant's lack of employment history prior to arriving in Australia and past conduct raised questions as to whether she would pursue a high-level career, and the extent to which she intends to use her education in her home country.
14. At [27], the Tribunal acknowledged that the applicant did not have any adverse immigration record.
15. At [28], the Tribunal was concerned about the length of time for which the second applicant had been onshore, as it suggested that he viewed Australia as a place to live rather than for temporary study. The Tribunal was not satisfied as to the reasons for why he remained in Australia for an extended period and the value of his previous studies. It was not persuaded that the second applicant's father wished to invest in the applicants as a couple to allow them to gain knowledge.
16. At [29], the Tribunal said it considered the totality of the applicant's circumstances. It acknowledged that there were some favourable circumstances, including the applicant's ties to her home country. It accepted that the applicant had completed her course whilst awaiting for the review, however, it placed greater weight on the applicant's circumstances onshore, including concerns about her study history to date and whether she had reasonable reasons for not undertaking similar courses in her home country. It noted that, having considered the Ministerial Direction No. 108, it was not satisfied that the applicant intends to stay in Australia temporarily.

1. The application for judicial review was filed on 8 October 2024 and advanced three general grounds of review.
2. The applicant also filed an affidavit annexing the Tribunal's decision and a statement. The statement contained submissions and the Tribunal's decision was already in the Court Book which was tendered at the hearing and marked Exhibit CB. The applicant's affidavit was not read it into evidence. However, the content of the accompanying statement has been taken into account as submissions in support of the grounds of review.
3. The matter was listed for hearing on 20 August 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 8 July 2025.
4. At the hearing on 20 August 2025, the applicants appeared by Webex video. They were unrepresented but were assisted by an interpreter in the Gujarati and English languages. The Minister was represented by Ms Celata of HWL Ebsworth.
5. The affidavit of Isabella Kristiana Celata (Celata Affidavit) affirmed on 13 August 2025 was read into evidence. It deposed that Item 14 of the Court Book referred to Ministerial Direction No. 108, which was provided by the second respondent (the Tribunal) to the applicants on 5 August 2025, but was not reproduced in the Court Book. A copy of Ministerial Direction No. 108 was annexed to the Celata Affidavit.
6. Being mindful that the applicants were unrepresented, I explained to them how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
7. The applicant, who spoke on behalf of herself and the second applicant, was guided through the application and was invited to make oral submissions in support of the grounds of review, which she did.

1. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
2. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

1. 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: SZMTA at [2]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 at [32].
2. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

1. The grounds of review advanced in the application (without alteration) are:
   1. Compassionate and Compelling Circumstances
   2. I am not satisfied with the delegates decisions
   3. Detailed statement attached

1. By ground one, the applicant contends that the Tribunal did not consider her compelling and compassionate circumstances. In her written statement, filed with the application, and in her oral evidence at the hearing before me, the applicant sought to explain her personal circumstances in India and Australia, and how they affected her ability to complete her studies. She detailed the circumstances of her mother's illness in India and how that affected her ability to complete her bachelor's degree qualifications. She explained the reasons for why she changed her course enrolment in Australia and said she should be provided with a chance to complete her course and that she had faced, and would face, societal pressure in India due to her age.
2. At the hearing before me, the applicant further submitted that the Tribunal had largely focused on her husband's long stay in Australia rather than limiting its consideration only to her circumstances. She also submitted that she had worked as an accounts clerk in India but did not have bank statements to show that she worked in that role.
3. At the hearing, I discussed with the applicant the Tribunal's decision and noted that all the matters she had raised appear to have been considered by the Tribunal in its reasons. I noted that while she may not agree with how the Tribunal evaluated her circumstances, she has not explained what serious legal or procedural error she believes the Tribunal made when it considered her and her husband's circumstances. The applicant said the Tribunal did not give attention to her study progress and that she had completed eight subjects for which she could provide a transcript.
4. The Tribunal's reasons do not disclose any failure on its part to consider the applicant's circumstances. It accepted at [26], that her caring responsibilities up until the death of her mother may have impacted her education. At [21], [23]-[24], the Tribunal considered the reasons for why the applicant changed her course of study in Australia, the study she had undertaken whilst waiting for the review and her claims regarding the societal pressure she may face in her home country. The applicant has not indicated, and it is not apparent from the reasons, that the Tribunal's assessment of the applicant's circumstances was unreasonable or irrational. The Tribunal's findings were open to it on the evidence before it.
5. As to the applicant's complaint that the Tribunal focused on her husband's circumstances, I accept the Minister's submission that the Tribunal was entitled to take his circumstances into account, as provided for in paragraphs [8] and [16] of Ministerial Direction No. 108, when considering whether the applicant intended to temporarily stay in Australia. No error is disclosed in the Tribunal's consideration of the second applicant's circumstances for the purposes of assessing whether cl 500.212(a) had been satisfied.
6. As to the applicant's submission that she worked in India, I accept the Minister's submission that there was no evidence before the Tribunal about the applicant's employment history in India and that it was open for the Tribunal to state at [19] that she had no employment history in her home country.
7. As submitted by the Minister, the applicant's complaints, taken at their highest, merely express dissatisfaction with the Tribunal's decision and seek to engage the Court in impermissible review of the merits.
8. For these reasons, ground one does not establish jurisdictional error.

1. In so far as ground two seeks a review of the delegate's decision, this Court does not have jurisdiction to consider the delegate's decision, as it is a primary decision: s 476(2) of the Act.

1. Ground three refers to the applicant's statement that was filed with her application. The contents of that statement, which was in the nature of submissions, has been considered as part of ground one.

1. The Minister identified an error in the Tribunal's decision; that being the Tribunal referring to Ministerial Direction No. 69 at [17] of its decision and the annexure of that Direction to its decision. The Minister noted that the Tribunal had referenced the correct Direction (Ministerial Direction No. 108) at [29] of its decision and that the correct Ministerial Direction had been provided by the Tribunal to the applicants: see item 14 of CB and annexure to Celata Affidavit. The Minister submitted that this error was not material.
2. The content of Ministerial Direction No. 108 and the preceding Ministerial Direction No. 69 (which was in effect at the time of the visa application) are, in substance, the same. They set out the same factors that must be considered by a decision maker when assessing the genuine temporary entrant criterion.
3. In that regard, any error that may have been made by the Tribunal in referring to Direction No. 69 instead of Direction No. 108, is not material.
4. Accordingly, the issue raised by the Minister does not disclose jurisdictional error on the part of the Tribunal

1. As none of the grounds raised establish jurisdictional error, the application for judicial review must be dismissed.

1. The Minister sought an order that the applicants pay the Minister's costs fixed in the sum of $5,600. The applicant did not wish to make any submission on the issue of costs. I am satisfied that costs should follow the event. Further, having regard to the work undertaken and the scale costs for a standard migration matter, I am also satisfied that the costs sought in this matter are reasonable and will so order.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.