Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1322

1. The applicant has made an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 26 November 2021 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Student (Subclass 500) visa (student visa) under s 65 of the Act.

1. On 27 July 2013, the applicant, a citizen of India, arrived in Australia as the holder of a student visa.
2. On 26 September 2019, the applicant lodged an application for a further Student (Subclass 500) visa.
3. On 19 November 2019, the Department invited the applicant to comment on adverse information obtained from PRISMS records. The applicant provided a copy of two academic transcripts dated 24 September 2019 and 10 September 2019 and a report from a psychologist dated 12 December 2019.
4. On 30 December 2019, a delegate of the first respondent refused to grant the applicant a student visa on the basis the applicant did not satisfy the criteria for a genuine temporary entrant as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
5. On 2 January 2020, the applicant lodged an application for review of the delegate's decision with the Tribunal.
6. On 30 July 2021, the applicant was invited pursuant to s 359(2) of the Act to provide information to the Tribunal which showed that he was enrolled in a course of study and that he was a genuine applicant for entry and stay in Australia as a student.
7. On 20 August 2021, the applicant provided a completed Student Visa Questionnaire, along with various financial and educational documents. The documents revealed that the applicant had completed his earlier proposed course, an Advanced Diploma of Leadership and Management and an Advanced Diploma of Business and was now studying an Advanced Diploma of Civil Construction Design.
8. On 29 October 2021, the applicant attended a hearing before the Tribunal.
9. On 26 November 2021, the Tribunal affirmed the delegate's decision not to grant the applicant a student visa.

1. The Tribunal identified that the primary issue before it was whether the applicant was a genuine applicant for entry and stay in Australia as a student in accordance with cl 500.212(a) of the Regulations. The Tribunal further noted that in their consideration of cl 500.212, they regarded Direction 69 - 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act (Direction 69).
2. The Tribunal considered whether the applicant's current study offered any real value to his future. The Tribunal found that the applicant completed several courses in Australia and was "well able" to return home to India and find suitable employment on the strength of his several qualifications obtained in Australia together with consistent work experience in Australia.
3. The Tribunal had regard to Direction 69 and did not accept that it was reasonable for the applicant to adjust his career and study pathway after seven years in Australia in circumstances where he successfully completed studies in automotive and business which would provide him with good prospects of employment.
4. The Tribunal weighed against the applicant that after seven years in Australia he was continuing to study at a vocational level. The Tribunal was not satisfied that studying a further vocational level course represented academic progress or a trajectory that warranted further time in Australia.
5. The Tribunal found the applicant's oral evidence that he intended to join his uncle who recently embarked on his career was vague and difficult to follow. The Tribunal did not accept that the applicant's proposal placed him in a better position than if he sought work on the basis of his existing qualifications. The Tribunal was not satisfied that the applicant's proposed study would increase his employment prospects in his home country.
6. The Tribunal found it was not reasonable for the applicant to study in courses that did not represent academic progress. The Tribunal concluded that the applicant's proposed study offered the applicant no real value for his future and found that this weighed against the applicant.
7. The Tribunal found that the applicant had no concerns in relation to military service or political or civil unrest in his home country. The Tribunal accepted that the applicant had a reasonable understanding of living in Australia, the education system, his course provider and course.
8. The Tribunal had regard to the applicant's evidence regarding his daily contact with his family and good relationship with his uncle, however, it found that in circumstances where the applicant had resided in Australia since 2014 and was seeking to further extend his stay, his family ties did not operate as a significant incentive to return home.
9. Although the applicant's brother was in Australia, he was studying in Adelaide, and the applicant had not seen him since February and therefore the Tribunal did consider this a significant incentive for him to remain here.
10. The Tribunal had regard to the applicant's employment history in Australia and found that he had been consistently employed since arriving in Australia. The Tribunal considered this to be an economic incentive for the applicant to remain in Australia.
11. The Tribunal found that the applicant had the benefit of stable ongoing employment with a large company, and this was as a significant incentive not to return home. The Tribunal accepted that the applicant had complied with the requirement of his visas since arrival and found this was in his favour.
12. The Tribunal considered all the evidence before it but was not satisfied that the applicant was a genuine student visa applicant.
13. The Tribunal concluded that it could not be satisfied the applicant intended genuinely to stay in Australia temporarily and did not meet cl 500.212(a) of Schedule 2 to the Regulations.
14. The Tribunal affirmed the decision not to grant the applicant a student visa.

1. On 23 December 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 26 November 2021. The application contains three (3) grounds of review. They are (as written):
   1. The Tribunal made legal mistakes in assessing available information in considering whether the applicant satisfies cl 500.212(a), and Direction No 69, 'Assessing the genuine temporary entrant criterion for Student visa and Student', made under s 499 of the Act
   2. The Tribunal made irrelevant consideration and made legal error at paragraph - 18 states that "I do not consider a further vocational course is consistent with the applicant's level of education. The current course does not appear to be relevant to the applicant's previous study or his employment in Australia."
   3. The Tribunal failed to consideration at paragraph - 14: "That he has a reasonably good academic record in Australia. After arriving here, he enrolled in automotive courses and has completed a Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis, a Diploma of Automotive Diagnosis and Diploma of Management by 2016. He enrolled in a Bachelor of Business in 2016 but did not complete it. In 2019 he enrolled in an Advanced Diploma of Leadership and Management which he completed in September 2020 and he subsequently enrolled in and completed an Advanced Diploma of Business in March 2021. 15. The applicant enrolled in an Advanced Diploma of Civil Construction Design at Campbell Institute in June 2021 (current study). He is due to complete this course in 2022" that student completed major part of his study in Engineering and come to different conclusion and made legal error.
2. On 8 January 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
3. On 7 July 2025, the proceedings were docketed to me and set down before me for final hearing on 1 August 2025

1. At the hearing of this matter before me on 15 August 2025, the applicant appeared unrepresented, assisted by a Punjabi interpreter. Ms J Shultz of Mills Oakley appeared for the first respondent.
2. Very recently, in BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943 Hill J

re-affirmed the duty of Courts to unrepresented litigants as follows: 1. Duties to unrepresented litigants: ...the Court has duties to take appropriate steps to ensure that the Appellant, as an 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: see generally 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); Von Risefer v Blue Cube Developments Pty Ltd [2024] FCAFC 12 at [48]- [50] (the Court). However, although the Court may be lenient in the standard of compliance which it expects from a litigant in person, that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court); Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ). 3. It has been suggested by some authorities that the best approach is to give the unrepresented litigant enough information to make an effective choice in the conduct of the proceedings: see Hamod v State of New South Wales [2011] NSWCA 375; and in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; [2013] 216 FCR 445 at [60]. Another decision which employed that approach is a decision of the NSW Court of Criminal Appeal in R v Gidley [1984] 3 NSWLR 168. 4. I therefore consider, in cases such as the present where the applicant is appearing on his own behalf, the appropriate procedure is to give the applicant an opportunity to explain orally at the hearing before me what he meant by each of his grounds of review as they appear in his application to this Court and why he considers the Tribunal was wrong. 5. I took the applicant through each of his three grounds of review and asked him what he meant by each ground. He made brief submissions on grounds 1 and 2 by stating he had completed the courses referred to in those paragraphs, and that he had completed a course in Engineering since the time of the Tribunal's decision. The applicant declined to make submissions on ground 3. 6. Ms Shultz made brief submissions summarising the first respondent's written submissions. 7. The applicant made a brief submission in reply telling the Court he wanted to remain in Australia to study civil engineering.

1. Courts have a relatively confined function in judicial review proceedings. The issue before this Court in this case is whether the Tribunal's decision contained a "jurisdictional error"; that is, a serious legal error that results in an administrative decision lacking any legal force (or being "invalid"): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] (Kiefel CJ, Gageler and Keane JJ).
2. Further, as Hill J re-affirmed in BSQ17 at [14], the issue before this Court is not whether the Tribunal's decision is correct on its merits.
3. Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal has committed jurisdictional error.

1. This ground is an unparticularised assertion that the Tribunal made legal mistakes in assessing available information in considering whether the applicant satisfies cl 500.212(a), and Direction No 69.
2. In DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) at [8] - [11], the Federal Court held that it will rarely be appropriate to dismiss a ground of review in a migration case for lack of particularisation, where the applicant is unrepresented, without giving the applicant an opportunity to explain what he or she meant by the ground.
3. At the hearing the applicant submitted on this ground that he had completed the courses referred to in ground 1. I note that this submission, on the merits of the decision, does not advance any arguable ground of jurisdictional error.
4. Ultimately, it is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [44]- [45] and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (SZGUR).
5. I cannot discern from my careful review of the Tribunal's decision any legal mistakes that were made by the Tribunal in assessing available information in considering whether the applicant satisfies cl 500.212(a), and Direction 69. I consider the Tribunal in its decision comprehensively, genuinely and thoroughly considered the criteria set out in cl 500.212, and in Direction 69.
6. To the extent that this ground is complaining about the Tribunal's treatment of Direction 69, I have read the decision carefully and consider that this argument has no merit. It is evident from the decision that the Tribunal did not treat the factors set out in Direction 69 as a "checklist" which the Federal Court has previously found to be impermissible in cases where Direction 69 is applicable: Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16. This is evidence from a reading of paragraphs [14]-[29] of the Tribunal's decision.
7. As the first Respondent has correctly submitted, the Tribunal concluded after considering the relevant factors under Direction 69, that the applicant applied for a student visa to maintain ongoing residency in Australia (see [31]). Consequently, the Tribunal found that the applicant was not a genuine temporary entrant (see [33]). This finding was open to the Tribunal on the evidence before it.
8. In the present case, the applicant has not been able to articulate or identify a jurisdictional error in the Tribunal's decision in ground 1. Ground 1 has no merit and is rejected.

1. In this ground the applicant asserts the Tribunal "made irrelevant consideration" and "legal error", and challenges the factual findings in paragraph [18] of the Tribunal's decision. It does not contain an arguable ground of jurisdictional error.
2. At the hearing, and in order to give the applicant procedural fairness, I asked the applicant what he meant by this ground. He submitted that since the Tribunal hearing, he had completed an engineering course in 2023.
3. As with ground 1, this submission did not advance any arguable basis on which the Tribunal may have committed legal error. Further, it refers to matters of evidence that were not before the Tribunal when it made its decision and therefore cannot possibly support any arguable ground of jurisdictional error by the Tribunal.
4. As outlined above, it is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal: SZGUR at [67]. The applicant has not identified what he meant by "made irrelevant consideration" or what he meant by "legal error".
5. In paragraph [18], after it considered one of the factors in Direction 69 at [17], the Tribunal made the following finding:

It weighs against the applicant that after 7 years in Australia he is continuing to study at a vocational level. He has been unsuccessful in his attempts to study at a higher level. Whilst it is to his credit that he attempted higher level study, I do not consider that studying a further vocational level course represents academic progress or a trajectory that warrants further time in Australia. I do not consider a further vocational course is consistent with the applicant's level of education. The current course does not appear to be relevant to the applicant's previous study or his employment in Australia. This weighs against the application.

1. This paragraph contains a factual finding as to whether the applicant's current course is relevant to the applicant's previous study or his employment in Australia. This was a finding reasonably open to the Tribunal on the evidence then before the Tribunal. The complaint made by the applicant's ground appears to do no more than invite merits review of the factual findings made by the Tribunal, by seeking to introduce new evidence, which this Court is not permitted to undertake: see _Minister for Immigration and Ethnic Affairs v Wu Shan Liang_I

and Ors (1996) 185 CLR 259 at 272 (Wu Shan Liang) per Brennan CJ, Toohey, McHugh and Gummow JJ, and BSQ17 at [14] per Hill J.

1. Ground 2 does not establish the Tribunal committed jurisdictional error.

1. Ground 3 as it is currently pleaded does not make sense. This is because the evidence before the Tribunal does not demonstrate any prior engineering study, and it is unclear why the factual findings in paragraphs [14] and [15] are said to be erroneous.
2. At the hearing, and in order to give the applicant procedural fairness, I asked the applicant what he meant by this ground. He declined to make any submissions on ground 3.
3. On its face this ground appears to be an attempt to seek merits review which, applying BSQ17 at [14], this Court is not permitted to undertake in judicial review proceedings.
4. Ground 3 does not establish the Tribunal committed jurisdictional error.

1. For the reasons outlined above, the applicant has not established that the Tribunal's decision is affected by jurisdictional error.
2. As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
3. The application is dismissed.

1. The first respondent seeks costs fixed in the sum of $3,467. The Court has power to award costs in a fixed sum: see Federal Circuit and Family Court of Australia Act 2021 (Cth), s 214; Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), r 22.02(2)(a) and r 29.13.
2. In the case of a proceedings to challenge migration decisions, the Rules set out an amount that may be claimed if where migration proceedings have concluded (currently the scale is $8,371.30): see Rules r 29.13(1), Schedule 2, Part 2, Division 1, item 3. The amount sought by the Minister is lower than this amount, and is reasonable. I will make an order for the amount sought by the first respondent against the applicant.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.