Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1922

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. In 2019, a delegate of the Minister for Home Affairs, not being satisfied that prescribed criteria were met, refused to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa) "for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily." In 2021, the Administrative Appeals Tribunal (Tribunal) affirmed that decision. Within the prescribed time limit, the applicant then filed an originating application in this Court. However, for the reasons which follow, I conclude the applicant has not established any jurisdictional error, and that his application must be dismissed with costs.

1. Schedule 2 cl 500.212(a) of the Migration Regulations 1994 (Cth) (Regulations) sets out the visa requirements which the applicant needed to meet as follows:

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

...

1. Both the Minister's delegate and the Tribunal were required to comply with Direction No. 69 made by the then Minister in 2016 under s 499 of the Migration Act 1958 (Cth) (Act). The Tribunal accurately described its relevant provisions as follows:
   1. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No.69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
      • the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
      • the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
      • if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
      • any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
2. The grant of the student visa was required to be refused if the Minister's delegate was not satisfied that the prescribed criteria, including those in the Regulations, were met: s 65(1)(b) of the Act.
3. Understandably, the Tribunal's findings focused on the course of the applicant's studies, the extent of his career progression and the value of the course to the applicant's future.
4. Prior to his arrival in Australia, the applicant had completed a Bachelor of Mechanical Engineering degree course in India. The Tribunal found that he had commenced but not completed a variety of courses in Australia, namely, and in the following sequence:

(a) Master of Project Management;

(b) Master of Business Administration;

(c) Diploma of Business;

(d) Diploma of Hospitality Management;

(e) Certificate IV in Commercial Cookery.

1. None of these courses were completed and the explanations given by the applicant for these unfinished courses, and the gap of one year (2019-2020) between the two last listed courses, were the subject of evidence and findings by the Tribunal.
2. The applicant contended that his medical conditions prevented study; however, the key evidence was of a consultant psychologist who, on 13 May 2021, both examined him and provided a report. That report concluded that the applicant had been suffering from:

... Adjustment Disorder with depression, anxiety, and stress [and that] [h]e presented as someone whose resilience has been compromised and he has developed psychological responses which have been detrimental to his ability to study and perform optimally as an international student.

1. The recommended treatment plan was that the applicant continue psychological counselling, comply with instructions given by his treating general practitioner and allied health professionals, and maintain a well-balanced lifestyle of proper sleep, nourishing diet and sufficient exercise as a coping mechanism for his personal challenges. The Tribunal found that the report did not show the applicant could not study.
2. The essential steps in the Tribunal's reasoning, and its key findings, included the following:

(a) The applicant's claimed mental and medical conditions did not prevent him working as a cleaner between August 2019 and January 2021 or, subsequently, as an Uber Eats delivery driver from January 2021.

(b) His claim that his work as an Uber Eats delivery driver sparked an interest in cookery, hence the enrolment in the Certificate IV in Commercial Cookery, was rejected as being "inconsistent with the timeframe" because he enrolled in that course in November 2020 but did not become an Uber Eats delivery driver until January the following year.

(c) The completion of the Certificate IV would have extended the applicant's stay in Australia to a total period of five years and five months, which was inconsistent with the notion of the applicant's stay being temporary.

(d) The applicant had many career changes, from obtaining a mechanical engineering qualification in India, and then, as noted above, to courses in project management, business administration and, ultimately, hospitality and commercial cookery.

(e) The Tribunal was not convinced that completing the hospitality and commercial cookery courses would improve either his employment prospects or remuneration in India.

(f) Accepting that reasonable changes to career and study are permissible, the applicant's study was not found to show academic or career progression, including because he had not completed any substantive courses in Australia up until the time of the hearing, other than two short English for Academic Purposes courses.

(g) The applicant accepted that there were similar courses he could study in India but submitted they would take longer and would not be at the same level of qualification he would obtain in Australia.

(h) The Tribunal found that the minimum wage potential earnings in Australia acted as a strong financial incentive for the applicant to remain in Australia, rather than return to India. He had only returned to India once for approximately 21 days since first arriving in Australia, although the Tribunal noted that there had been travel restrictions related to COVID in place at the time.

(i) While the Tribunal acknowledged the applicant's personal ties to India, it did not consider they provided a significant incentive to him returning home and also noted his substantial ties to Australia, including friends and prospects of earning higher income.

1. In the result, the Tribunal concluded that:
   1. [T]he Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily, and it considers that the primary objective of the application is to maintain an ongoing residence here and to remain in Australia permanently.
2. Accordingly, the Tribunal was not satisfied the applicant intended genuinely to stay in Australia only temporarily, which necessarily led to the denial of the student visa.

1. There are four grounds of review in the application. The relevant grounds contained within the application, which were not further particularised at the hearing, were, in terms, as follows:
   1. The Tribunal has made a jurisdictional error by ignoring circumstances which led to student visa refusal. Student visa was primarily refused because the Migration agent representing my case had failed to attach and to submit (when requested by case officer) Genuine temporary entrant criteria statement ('GTE'). This event significantly scarred my mental well-being leading to gap in my studies.
   2. Tribunal has failed to make correct interpretation of the specialist Psychologist clinical examination details, tribunal's written decision simply stated the following comment

"The medical report did not indicate that the applicant's condition was so severe he could not study or maintain enrolment in a course of study".

Contrary to Tribunal's claims Specialist psychologist report indeed very clearly mentioned the following in their diagnosis that

"It is clear from the clinical observational evidence provided that Mr. Patel has been suffering from adjustment disorder with depression, anxiety and stress - _as detailed above. He presented as someone whose resilience has been compromised and he has developed psychological responses which have been detrimental to his ability to study and perform optimally as an international student."

1. Third, Tribunal's written decision disclose that the Tribunal had failed to consider and deal with my claim that I am currently coping well with my studies and achieving required academic progress.
2. The tribunal also failed to consider General Practitioners clinical findings related to my physical and mental states, due to which I was not able to enrol into the course of study. The tribunal's decision record fails to provide any evidence based or scientific rationale to undermine medical examinations report written by a specialist doctor. This constitutes to a substantial procedural violation of my fundamental right as it deprived me the right to have my case fully heard in fair manner.

1. It is important to notice the limited role of the Court in this matter. As Owens J recently explained in JFPT v Minister for Immigration and Multicultural Affairs [2025] FCA 1245:

[2] The jurisdiction of this Court to review the Tribunal's decision is conferred by s 476A of the Migration Act. It is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. That jurisdiction is of a particular and limited kind. It is concerned only with the lawfulness of the exercise of the power pursuant to which the decision was made. The "duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone": Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).

[3] Fidelity to the limitations of that jurisdiction ensures that a clear boundary is maintained between the proper domains of the respective branches of government. That, in turn, permits the accurate location of responsibility for a particular exercise of public power, thus facilitating accountability in respect of it.

1. Those remarks are, with respect, equally applicable to the exercise of this Court's jurisdiction under s 476 of the Act. On analysis, each ground advanced by the applicant amounts to an attempt to review the merits of the Tribunal's decision, in impermissible ways.

(a) "The Tribunal has made a jurisdictional error by ignoring circumstances which led to student visa refusal."

(b) "Student visa was primarily refused because the Migration agent representing my case had failed to attach and to submit (when requested by case officer) Genuine temporary entrant criteria statement ('GTE')."

(c) "This event significantly scarred my mental well-being leading to gap in my studies."

1. While it appears to be accurate that no GTE statement was provided to the Minister's delegate (nor indeed to the Tribunal) and this did not assist the applicant, the Tribunal had express regard to the psychologist's report which mentioned this omission, as did the applicant's own written submissions to the Tribunal. It thus did not ignore it. Of itself, the omission by a migration agent before the Minister's delegate establishes no jurisdictional error in the Tribunal.
2. What is clear is that the Tribunal carefully considered the psychological report and found it did not establish the applicant was unable to study for mental health reasons. Indeed, the report concluded only that the factors present at his sole presentation to the psychologist "affected his capacity to perform optimally", and the Tribunal concluded that those findings did not establish that "his health conditions were of such a nature that it would have prevented him from undertaking his studies or maintaining enrolment in a course of study." That finding was well open to the Tribunal, given it also found the applicant was able to and did work as a cleaner during this period, and noting the absence of any further evidence save for the psychologist's observations on the single occasion of 13 May 2021.
3. I agree with the Minister submissions that the Tribunal's findings could not amount to jurisdictional error in the sense of "extreme illogicality". The Minister relies on the statement of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148], where his Honour said:

In my opinion, the ground of "engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds" is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.

1. Applying that statement of authority, I agree with the Minister. While minds might possibly differ on this topic, the Tribunal's findings were self-evidently based on findings or inferences supported by logical grounds and were open to it. For these reasons, I reject ground 1.

1. Ground 2 in substance is that the "Tribunal has failed to make correct interpretation of the specialist Psychologist clinical examination". This is no more than a disagreement with the Tribunal's factual findings, in circumstances where there is no real support in the psychological report itself. For the reasons set out above in relation to ground 1, disagreement, even emphatic disagreement, with the Tribunal's findings does not establish jurisdictional error. I must also be restrained in my critical reading of the Tribunal's decision. As the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) (citations omitted):

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

1. In ground 3, the applicant contends the Tribunal failed to consider and deal with his claim that he was currently "coping well" with his studies and achieving required academic progress. That contention cannot stand with the findings actually made and the ground fails at the outset. For example, at paragraph 15 of its decision, the Tribunal clearly did have regard to the applicant's study and progression, including his Certificate IV in Commercial Cookery:

15. In addition to the Response, the applicant filed:

1. confirmation of enrolment (COE) No. BF383956 for the applicant to study a Diploma of Hospitality Management at the Southern Academy of Business and Technology (SABT) from 30 May 2022 to 27 November 2022 and such enrolment was created on 24 November 2020;
2. COE No. BF382A79 for the applicant to study a Certificate IV in Commercial Cookery at SABT commencing on 30 November 2020 and concluding on 29 May 2022 which was created on 24 November 2020;
3. submissions prepared by migration agent (Submissions) together with:
   • the applicant's secondary school results;
   • the applicant's Bachelor of Mechanical Engineering at Gujarat Technical University dated 16 February 2014;
   • psychologist examination letter dated 13 May 2021 together with invoice and customer receipt;
   • transcript from SABT for subjects completed by the applicant in Certificate IV in Commercial Cookery;
   • Australian Red Cross profile page for the applicant.

1. It also took into account his prior Bachelor level qualification, his failure to complete any courses other than short English courses in Australia, the gap in study and his prior qualifications in India, as follows:
   1. The applicant, based on the completion dates in the COEs for the Diploma of Hospitality Management and the Certificate IV in Commercial Cookery, is not expected to complete his courses until 27 November 2022 which would extend his stay in Australia to a total period of 5 years and 5 months which is a very long period of time to be undertaking study in Australia, especially to complete a Certificate and a Diploma. Such a period of time is inconsistent with the stay being temporary.
   2. In light of the applicant's prior qualifications in India including a Bachelor's degree in Mechanical Engineering together with his employment as an engineer in India, the Tribunal does not accept that the undertaking of the commercial cookery course and hospitality management courses will necessarily improve his employment prospects or remuneration back in India. Consequently, it is a factor that weighs towards the refusal of a student visa.
   3. The applicant has changed his career path initially from mechanical engineering to project management to business administration and now to commercial cookery with an intention to undertake hospitality management. The courses that he has studied and is studying and also intends to study are not connected to each other and are not complementary. They together do not lead to a career path or position of employment. The applicant has given evidence that if he completes the commercial cookery and hospitality management courses, it will enable him to undertake work as a chef or a bar manager or an event manager or a restaurant manager, for that matter. However, those positions are inconsistent with the engineering qualifications that had been previously obtained and the other courses in business administration and project management he has sought to study here in Australia.
   4. The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However, this is not the case where an applicant has merely decided to change courses through undertaking short vocational education training (VET) courses. The courses in which the applicant is currently enrolled in Australia are short VET courses and do not reveal any progression in his course of study. Importantly, the courses that the applicant had previously enrolled in, including the Master of Project Management and the Master of Business Administration, did represent career progression, but as the applicant has not completed them and has not completed any substantive courses in Australia other than two short English for Academic Purposes courses then it reveals a lack of academic progression by the applicant. Further, the gap in studies of approximately a year between November 2019 and November 2020 also reveals a lack of application by the applicant inconsistent with the purpose of the visa.
   5. The applicant has already obtained higher education qualifications including a Bachelor degree in India, and the Tribunal finds that the applicant's present studies of a Certificate IV in Commercial Cookery and the proposed studies of a Diploma of Hospitality Management are inconsistent with his level of education and do not reveal career progression.
2. The Tribunal's conclusion at [30] to [34] of its decision that the applicant's study did not reveal career progression which, in accordance with Ministerial Direction No. 69, was a required consideration as part of the assessment of the value of the course to the applicant's future, does not establish jurisdictional error of any sort. To the contrary, it shows a careful consideration of all relevant matters. The ground fails.

1. In ground 4, the applicant complains that the Tribunal failed to consider his general practitioner's clinical findings regarding his physical and mental states, and that the Tribunal failed "to provide any evidence based or scientific rationale to undermine medical examinations report written by a specialist doctor."
2. This ground also cannot succeed in view of the findings of the Tribunal. For example, at paragraph 16 of the Tribunal's decision, it noted the 'GP mental health care plan'. It was also open to the Tribunal to prefer the findings of a specialist doctor over the findings of a general practitioner in concluding that the applicant's mental state was not such that he could not maintain enrolment or study between November 2019 and November 2020. This ground is a variation on the earlier grounds and also fails. It is a merits review attack.

1. In the result, no jurisdictional error has been established, and the application must be dismissed with costs. Mr Wong for the Minister submitted that the below scale amount of $5,900 was reasonable. I agree and have ordered accordingly.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.