Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1364

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (as it then was) (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Student (subclass 500) visa (the visa). As will be explained, for the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has not found jurisdictional error in the Tribunal's decision. On that basis, the application cannot succeed.

1. The applicant is a citizen of India (Court Book (CB) 17). He first arrived in Australia on 20 September 2019 as the holder of a visitor visa (CB 148-149).
2. On 14 December 2019, the applicant applied for the visa (CB 15-32). In that application, he indicated that he intended to study a Certificate III in Light Vehicle Technology (CB 157, 191). The applicant provided written submissions and other documentation in support of his application (CB 33-37, 41-120).
3. On 4 March 2020, a delegate of the Minister refused to grant the applicant the visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) (CB 126-130). That criterion relevantly provides:

The applicant is a genuine applicant for entry and stay as a student:

(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...

1. On 18 March 2020, the applicant applied to the Tribunal for review of the delegate's decision (CB 131-132). In that review application, the applicant nominated a migration agent as his authorised representative (CB 132).
2. On 11 October 2021, the Tribunal invited the applicant, through his migration agent, to provide further information in a 'Request for Student Visa Information' form by 25 October 2021 (CB 139-140). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, 'Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications' (Direction 69) (CB 141-145). The applicant provided a response to the 'Request for Student Visa Information' form along with supporting documentation (CB 146-167).
3. On 2 December 2021, the applicant was invited to attend a hearing scheduled for 17 December 2021 (CB 170-173).
4. On 17 December 2021, the applicant attended the Tribunal hearing with his migration agent, and with the assistance of a Punjabi interpreter (CB 181).
5. On 4 February 2022, the Tribunal affirmed the delegate's decision not to grant the applicant the visas (CB 188-199).
6. On 4 March 2022, the applicant lodged an application for judicial review in this Court (CB 1-8). That application seeks review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).

1. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal began by identifying the visa under review, noting that the applicant applied for the visa on 14 December 2019. The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, the Tribunal noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [2]).
3. The Tribunal explained that a delegate of the Minister had refused to grant the visa as the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212(a) of Schedule 2 to the Regulations) (at [3]).
4. The Tribunal noted that the issue before it was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student and set out the relevant legislative provisions in that regard (at [8]).
5. The Tribunal stated that in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Direction 69 (at [9]). The Tribunal noted, however, that the factors set out in Direction 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant's circumstances as a whole (at [10]-[11]).
6. The Tribunal set out the two constituent elements of a genuine student in the Regulations, namely, that the applicant demonstrates an intention to stay in Australia for a limited time only, and that the person intends to comply with any conditions to which the visa may be subject (at [12]).
7. The Tribunal confirmed that it had regard to the following documents (at [14]):
   • The applicant's original written visa application;
   • The delegate's decision record;
   • The applicant's oral evidence and arguments presented at the hearing;
   • All written material filed by or on behalf of the applicant in relation to this case;
   • Other relevant documents on the Tribunal and Department files;
   • The applicant's Statement of Purpose;
   • The applicant's written response to the Tribunal's invitation to provide further information pursuant to s 359(2) of the Act;
   • The applicant's confirmation of enrolment;
   • Submissions dated 22 October 2021;
   • Pearson English test results; and
   • The applicant's father's death certificate.
8. The Tribunal outlined that the applicant is enrolled in a Certificate III in Light Vehicle Mechanical Technology which he commenced in August 2021 and is due to complete in October 2022 (at [15]). The Tribunal confirmed that, since arriving in Australia, the applicant has completed an English for Academic Studies Program in 2020 and an Advanced Diploma of Leadership and Management in 2021 (at [16]).
9. The Tribunal acknowledged the applicant's stated intention to return to India at the completion of his course to work as a mechanic and to open his own workshop. The applicant confirmed he has no experience in the automotive industry, but he says his interest in cars developed in Australia while studying other matters and he thought it would be a good future career option (at [18]).
10. The Tribunal noted that the applicant had resided in Australia for over two years for the purpose of study, but that the courses he studied did not appear to represent any clear or related career trajectory, and went beyond a reasonable change in career and study path. Noting his study bore no relationship with his previous work history in the UAE or in his administrative role at a hair salon, the Tribunal found this weighed against the applicant (at [19]). The Tribunal did not accept it was reasonable for the applicant to undertake further unrelated study in Australia due to an interest in cars (at [20]).
11. Noting that the applicant is well qualified to work as a fitter, and that he could return to work in the UAE or return home to find suitable employment utilising his Advanced Diploma of Leadership and Management, the Tribunal did not consider that successfully completing his course would improve the applicant's employment prospects or remuneration (at [21]).
12. The Tribunal did not accept there are no study options for the applicant in India that would enable him to study to be a mechanic if he wished to do so, and did not consider the applicant had advanced reasonable reasons for not studying in his home country (at [22], [25]).
13. The Tribunal considered there is some advantage to the applicant studying English in Australia and learning the language in an English-speaking environment, but as he had successfully completed an English language course and resided in Australia for over two years, there was no significant further advantage for him to gain in improving his English skills (at [23]).
14. The Tribunal noted there was no specific evidence relating to the applicant's circumstances in his home country relative to others there, and that there were no concerns regarding potential military service commitments, or civil or political unrest (at [24]).
15. In having regard to the applicant's ties to India, the Tribunal noted that the applicant's father is deceased, and that his mother and brother reside in India. It also noted he has returned to India twice since departing for the UAE in 2011, and that the applicant keeps in contact with his family via telephone and social media. The Tribunal did not accept that his family or personal ties to India operated as a significant incentive for him to return in circumstances where he has not resided in India since 2011 (at [26]).
16. The Tribunal noted the applicant declared no family or personal ties to Australia, but set out that he has some family ties to Australia where he appears to work in his cousin's hair salon and be financially assisted by him. However, the Tribunal did not consider there to be sufficient evidence such that this would operate as a strong incentive to remain in Australia (at [27]).
17. In considering the applicant's economic circumstances, the Tribunal noted the applicant declared a family home in India, as well as financial support from his cousin, whose hair salon he works part time at in Australia. The Tribunal regarded the applicant's economic circumstances as neutral to his application (at [28]).
18. The Tribunal made no adverse findings in relation to his travel or immigration history (at [29]).
19. In considering that the applicant arrived in Australia on a tourist visa and subsequently applied for a student visa, the Tribunal found that this did not weigh against the applicant where applying for such a visa whilst onshore is not prohibited by the Act or Regulations (at [30]).
20. In considering all the evidence before it, the Tribunal did not consider the applicant is a genuine applicant for entry and stay as a student on a temporary basis. In seeking to study low level courses unrelated to each other or to his previous work history, the Tribunal considered it likely the applicant is seeking to utilise the student visa as a means of maintaining ongoing residence (at [32]).
21. Accordingly, the applicant did not meet cl 500.212(a) of Schedule 2 to the Regulations (at [33]).
22. The Tribunal affirmed the delegate's decision not to grant the applicant a visa (at [6], [36]).

1. The application for judicial review filed by the applicant on 4 March 2022 contains one ground of review as follows:
   1. Honourable Member at Administrative Appeals Tribunal concluded that I am not a genuine applicant for entry and stay as a student in Australia. There are many factors in my case which make me a suitable candidate for a student visa. I have not been awarded a fair review at the Tribunal for many reasons. My father is deceased, and I need to go back to India after my studies so that I can take care of my mother. Tribunal member did not consider it as strong incentive to return to India. I have successfully completed advance diploma of leadership and management in Australia. I have also previously completed English language program in Australia. Now, I wish to complete a Certificate III in automotive. My change of course is also a reason mentioned by member in his decision. I feel that it is not fair to make this one of the reasons. Every person has a right to choose the career and study accordingly. I have successfully completed my management course. If I left it in between, I can understand but when I have completed it successfully then it should not be a reason of concern. Member also mentioned that I could have studied this course in my home country. I gave oral evidence during hearing that such courses are not available in India. Indian vocation sector in not well organised to deliver such quality trade courses. Member did not understand that my career prospect is through the trade of motor mechanic. Member mentions in decision that I have completed English course and Management advanced diploma so I should return to my home country. I provided evidences that I am currently studying Certificate III in automotive and intends to complete it. Then I will return to my home country. Member did not give enough focus on my current study and future plans. Tribunal says in its decision that I could have studied mechanic earlier. Yes, I could have however I wanted to finish what I was studying that time. This in fact demonstrates my genuine intentions as a student. I believe there are more than enough reasons in my case that a favourable decision was justified. I have successfully completed my courses earlier. My current course is just few months away for completion. I have never breached any visa condition. My immigration history is clean. I have a clear future pathway set out. Just because I have changed my career path must not mean I am not a genuine student. I request this court to give me a fair outcome so that I can continue on my career path.
2. The applicant also filed an affidavit with that judicial review application on 4 March 2022, annexing copies of the Tribunal's decision and the delegate's decision.
3. The applicant appeared before the Court on 30 June 2025 without legal representation. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister's written submissions.
4. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 4 March 2022 (the affidavit being taken as read and in evidence at the hearing on 30 June 2025), a Court Book numbering 202 pages (taken as read and in evidence), and written submissions filed on behalf of the Minister on 3 June 2025.
5. The applicant was not represented at the hearing and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282 at [41]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal's decision and/or procedure.
6. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355);

(e) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(f) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court why he said the Tribunal had fallen into error.
2. Against this background, the applicant told the Court that the Tribunal made the wrong decision in considering the circumstances regarding his mother, as well as its findings about him changing his course of study. The applicant disputed the Tribunal's finding that he just wanted to stay longer and reiterated that he "deserved" the student visa which the Court takes to be a submission that the Tribunal should have found that he met the criteria for the student visa and was a genuine temporary entrant.

1. As outlined above, the application for judicial review contains a single lengthy and unparticularised ground. Through this ground, the applicant has identified a number of complaints he has in respect of the Tribunal decision. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant's grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392).
2. In addressing the applicant's ground in that broad context, the Minister submitted there appeared to be three distinct grounds arising from the application, being allegations of a failure to award procedural fairness, a failure to consider the applicant's evidence and arguments, and an error in the Tribunal's reasoning process. The Court agrees that those grounds arise from a fair reading of the application.

1. In the third sentence of the applicant's application, the applicant alleges that he had not been "awarded a fair review" before the Tribunal. This is a broad allegation of a denial of procedural fairness.
2. In submissions, the Minister contended that the Tribunal afforded the applicant procedural fairness in the following ways. The Tribunal invited the applicant to provide information in support of his application (which he did), invited the applicant to attend a hearing (in accordance with s 360 of the Act), and the applicant and his registered migration agent attended that hearing (where the applicant was assisted by a Punjabi interpreter). The Tribunal did not have any information before it so as to enliven its obligation under s 359A of the Act, nor was it required to bring the determinative issue to the applicant as it was the same determinative issue before the delegate.
3. In the Court's view, the approach taken by the Tribunal did afford the applicant procedural fairness. The applicant was given an opportunity to provide information (and took up such an opportunity), was invited to a hearing, and was given an opportunity to give evidence and present arguments at that hearing with the assistance of an interpreter. There is nothing before the Court which might indicate that the hearing was not a real and meaningful opportunity for the applicant to advance his case. In the absence of any such evidence, or greater clarification from the applicant, the Court accepts that there is nothing to indicate that the Tribunal did not afford the applicant procedural fairness.
4. No jurisdictional error arises in this respect.

Did the Tribunal fail to consider the applicant's evidence and arguments?

1. The applicant, in his application, contended that the Tribunal failed to consider:

(a) his need to return to India to care for his mother after his father's death;

(b) the availability of quality automotive courses in India;

(c) his current and future study plans;

(d) completion of earlier courses and upcoming completion of a Certificate III in Light Vehicle Mechanical Technology; and

(e) his immigration history.

1. As observed above, the applicant articulated in his oral submissions before the Court that the Tribunal did not consider his need to return to India to care for his mother after his father's passing.
2. The Minister submitted that the Tribunal did consider the applicant's claims with respect to his family in India. The Tribunal accepted his father had died and found that he still had his mother and brother who lived in India. However, it considered that these personal ties did not present a strong incentive to return to India given that the applicant had only returned to India twice since 2011 and that the applicant was proposing to extend his stay in Australia.
3. Insofar as the applicant alleges that the Tribunal did not consider the applicant's statements that he intended to take care of his mother following the death of his father, the Minister submitted it was not required to explicitly make reference to this for two reasons. Firstly, neither the applicant nor his migration agent provided detail as to what was meant by this statement, by reference to the circumstances of the applicant's mother or the nature of the care he intended to provide. Absent any elaboration, and noting the applicant was represented by a migration agent, the Tribunal was entitled to proceed on the basis that the applicant's desire to take care of his mother was simply reflective of his closeness to her and desire to return home to her. Secondly, even if it were necessary for the Tribunal to consider this claim, an inference cannot be drawn that it was not considered. Where the Tribunal referred to the presence of the applicant's mother in India, the death of his father, and material containing references to the applicant intending to take care of his mother (and having regard to the lack of detail), this was considered, but not considered material to the Tribunal's decision such as to warrant explicit mention in its reasons.
4. The extent of the applicant's evidence in respect of his father appears to be contained in the applicant's response to the Tribunal's invitation to provide information. In that document, the applicant advised (CB 153):

I am regularly in touch with my mother and brother in India. I lost my father in Aug'2020. I could not even go to India to do the last rites due to Covid-19 restrictions. I am very close to my mother. I have been away from her for a very long period now. I wish to return to my home country once completed my current course.

1. Later in that same document, in response to an invitation to provide information about his future plans, the applicant stated (CB 153) (emphasis added):

I wish to return to my home country as soon as I finish my current course. I have been away from my home country for a while now. I have spent considerable time in UAE. I came to visit Australia and during my visit and liked the education system here. I have my cousin here who I came to visit. I have successfully completed an advance diploma of leadership and management. I am currently enrolled in automotive course, I wish to do this to be a motor mechanic. Since coming to Australia, I have developed the passion for cars. Automotive industry is my future now and this is my last course. India has a booming car industry. All the major brands are present in India. There is acute shortage of skilled mechanics in India. The reason is India does not produce quality motor mechanics. Every child wants to become doctor or engineer. This the main reason, India lacks infrastructure for producing quality mechanics. There are no internship programs for young people. I have recently lost my father. I need to go back to India and take care of my mother. I will work as a mechanic for some time. Then I plan to set up my own workshop. There is no shortage of jobs for mechanics in India. All the big international brands are now present in India. They have set up showrooms to sell cars, modern workshops to provide maintenance and servicing. They need mechanics who are skilled in modern cars. Australian education is accepted worldwide. I will have no shortage of jobs. I will work for first few years and then start my own workshop.

1. This claim was repeated in his Statement of Purpose, a document which ran for over a page and included only this in respect of his father's passing (CB 164):

My father passed away in Aug'2020. I love my mother and intend to take care of her.

1. The Court accepts the Minister's position in this respect. It is clear from the above history that the applicant had put a vague, unparticularised claim to the Tribunal. Whilst the applicant had mentioned that he needed to return and look after his mother, it is far from clear that this was anything other than a brief statement of sentiment. In that context, the Tribunal was not required to explicitly make reference to it. It otherwise appears clear within its reasons that it did have regard to the applicant's claims and evidence in respect of his family ties in India. There is no error evident in such an approach.
2. The Minister submitted that the Tribunal also considered the applicant's evidence in respect of the availability of quality automotive courses in India, his current study and future plans, his completion of earlier courses and upcoming completion of his Certificate III, as well as his immigration history. These were all matters clearly identified and analysed in the Tribunal's reasons.
3. The Minister's submissions in this respect should be accepted. The Tribunal expressly considered the applicant's claims in respect of the availability of suitable automotive courses in India. That claim was specifically rejected by the Tribunal. It is also quite clear that the Tribunal had specific regard to his claimed plans and intentions, as well as his study and immigration history.
4. No jurisdictional error arises in respect of this limb.

1. The third limb of the applicant's ground broadly alleges an argument that the Tribunal's reasoning regarding the applicant's change of course was not open to it. As accepted by the Minister, this limb could be construed as a failure to properly engage with that evidence.
2. In determining whether the applicant satisfied the genuine temporary entrant criterion for the visa, the Tribunal was required to, and indeed, had regard to Direction 69. Direction 69 explicitly envisages that it is appropriate to consider the reasonableness or otherwise of a change of course. In particular:

(a) Paragraph 4(c) of Direction 69 identifies that one circumstance where further scrutiny may be appropriate is where the applicant intends to study in a field unrelated to their previous studies or employment; and

(b) Paragraph 12(a) requires consideration of whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways.

1. It can be seen from this that Direction 69 expressly envisages that a decision maker might find that an applicant's change of course may not be reasonable in all of the circumstances. No error is disclosed by the Tribunal deploying that kind of reasoning in the present matter. The Tribunal expressly acknowledged that it should accommodate reasonable changes in career and study pathways, but ultimately found that the applicant's change of study pathway was not reasonable having regard to his previous study and work, the time he had spent in Australia, and its lack of satisfaction as to the remuneration and employability benefits that might flow from a completed Certificate III.
2. Such a reasoning process is evidently logical, rational, and open to the Tribunal on the material before it.
3. No jurisdictional error arises in respect of this limb.
4. The Court also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention in terms of any concerns or doubts about the Tribunal's decision. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision. The Tribunal's decision represents a measured and comprehensive analysis of the applicant's claims and evidence which reached objectively rational conclusions.
5. The Court is satisfied that, even adopting the broad approach referred to in [42] of these reasons, no jurisdictional error is apparent.

1. The application for review and additional submissions made by the applicant has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.