Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1381

1. By way of Application filed on 3 July 2019, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 7 June 2019 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. In the Tribunal's Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) Student (Subclass 500) visa (Visa) on the basis that the Applicant did not satisfy the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
3. The hearing of the Application took place at the Melbourne Registry of the Court on 25 August 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of a Punjabi interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant was a genuine applicant for entry and stay as a student.

1. The Applicant is a citizen of India.
2. On 20 October 2008, the Applicant arrived in Australia as the holder of a 572 student visa.[2]
3. On 19 May 2017, the Applicant applied for the Visa, the subject of these proceedings, based on his enrolment in an Advanced Diploma of Leadership and Management (Diploma).[3]
4. On 3 August 2017, a Delegate of the Minister refused to grant the Visa application (Delegate's Decision) on the basis that they were not satisfied that the Applicant had the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212(a) of the Regulations.[4]
5. On 21 August 2017, the Applicant applied to the Tribunal for review (Review Application).[5]
6. On 23 August 2017, the Tribunal acknowledged receipt of the Review Application.[6]
7. On 17 January 2019, the Tribunal wrote to the Applicant with an invitation to provide information by 31 January 2019.[7]
8. On 31 January 2019, the Applicant provided a completed Visa information form to the Tribunal.[8]
9. On 5 February 2019, the Tribunal invited the Applicant to attend a hearing on 20 February 2019.[9]
10. On 13 February 2019, the Applicant wrote to the Tribunal and enclosed documents in support of his Review Application.[10]
11. On 20 February 2019, the Applicant attended the hearing on his own behalf with the assistance of an interpreter.[11]
12. On 7 June 2019, the Tribunal affirmed the Delegate's Decision (Tribunal's Decision).[12]
13. On 12 June 2019, the Tribunal provided written reasons for the Tribunal's Decision to the Applicant.[13]

1. The Tribunal's Decision is at 95 to 101 of the Court Book.
2. The Tribunal outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [6] to [9].
3. The Tribunal considered the Applicant's circumstances in Australia as well as his study history. The Applicant provided a Confirmation of Enrolment code (CoE) which stated that he had re-enrolled in the Diploma prior to the hearing. The Tribunal noted with concern that the Applicant was now enrolled in the same Diploma he had been enrolled in at the time of the Delegate's Decision.[14] The Tribunal found that the Applicant was using his enrolment for the purposes of maintaining ongoing residence in Australia, as opposed to advancing academically.[15]
4. The Tribunal was not satisfied that the Applicant had adequate reasons for failing to undertake studies in India. The Tribunal noted that there was no evidence before it that the Applicant's Diploma was substantially different from courses he had already completed since arrival in Australia.[16]
5. The Tribunal further noted that since arrival in Australia, the Applicant had only returned to India once in 2011.[17] The Tribunal did not accept the Applicant's explanation that he had "lost his passport, and did not know exactly how to get another one".[18] The Tribunal noted that the Applicant had provided a photocopy of his passport to the Department of Immigration and Border Protection (Department) and during the hearing.[19]
6. The Tribunal noted that the Applicant had maintained steady employment in Australia since arrival, and that he was currently employed. The Tribunal was satisfied that the Applicant had significant economic incentives to remain in Australia. The Tribunal was not satisfied that the Applicant intended to genuinely stay in Australia temporarily as required by cl 500.212 of the Regulations.[20]

1. On 3 July 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 20 June 2025, Orders were made by Registrar Munro of this Court for the name of the First Respondent be amended to "Minister for Immigration and Citizenship". For the name of the Second Respondent be amended to "Administrative Review Tribunal". For the matter be listed for final hearing. That the Applicant file and serve at least 28 days before the hearing: any amended application, written submissions and any additional evidence. That the First Respondent file and serve at least 14 days before the hearing: written submissions and any additional evidence. That the First Respondent file and serve at least 7 days before the hearing: an Affidavit of Service of the Court Book, written submissions and additional evidence where the Applicant is self-represented. The Court noted that the Applicant had retained a copy of the Court Book and that their contact details as set out in the Application remained current.
3. This matter was heard on 25 August 2025 for a Final Hearing before me.
4. The Applicant relied upon the following documents:

(a) The Application filed 3 July 2019; and

(b) The Affidavit of the Applicant sworn on 3 July 2019 (Applicant's Affidavit).

(a) The Amended Response, filed 20 June 2025;

(b) The Minister's Outline of Submissions filed 11 August 2025; and

(c) List of Authorities filed 25 August 2025.

1. Both parties relied on the Court Book.
2. The Application contains the following grounds of review (Grounds of Review):

By application filed on 3/08/2017, I applied for the merit review application with Administrative Appeals Tribunal. The grounds of the application are as follows:

1. The Department made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances. (Ground 1).

Particulars:

The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition was not considered.

1. The applicants were not afforded natural justice. (Ground 2).

I believe that I wasn't provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs did not provide the decision record for their decision which clearly depicts an error.

1. Tribunal misconstrued condition cl.500.212 of Schedule 2 to the Regulations. The clauses were wrongly assessed and the tribunal failed to assess cl 500.212 and rather than assessing this clause the cl 200.111 was assessed. My genuine intentions to studies was denied by the tribunal and mis constituted as non-genuine applicant of visa (Ground 3).

The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion. They refused the case on different basis.

The tribunal agree that I provided the reasons to return back to home country and that is the main concerns the immigration department had. On the basis of these findings my case would be approved.

Tribunal failed to consider that I would face significant loss in finances as I have given a large amount of money and time for my studies in Australia and returning with refusal will be a drawback in my application.

1. Despite of the repeated request the member did not provide any time to provide the documents. (Ground 4).
2. Member erred in dismissing the applicant's application without providing extra time without any basis in law and fact. (Ground 5).
3. The appellant's application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again. (Ground 6).
4. Substantial justice was not provided and that's the reason I want to apply in Federal Circuit Court of Australia. (Ground 7).

1. The Applicant did not file written submissions.
2. The Applicant made oral submissions at the Hearing with the assistance of a Punjabi interpreter. However, the Applicant's English was sufficient for him to participate for most of the Hearing without requiring the assistance of the interpreter.
3. At the start of the Hearing, I rejected the Applicant's tender into evidence of his passport issued on 1 April 2019 on the basis that it was irrelevant to my decision on judicial review.[21] The passport that the Applicant was seeking to tender was a passport issued by the Republic of India between the date of the hearing and the date of the Tribunal's Decision.
4. The Applicant raised two substantial matters in his submissions that I address further below.
5. The first matter was that the Tribunal erred by failing to have regard to his passport that was issued between the date of the Tribunal hearing and the date of the Tribunal Decision. The second matter was that the Tribunal had not given the Applicant the opportunity to address the Tribunal's concerns regarding the $12,000 in savings accumulated by him.

1. The Minister submits that the Tribunal did not err on any of the Grounds of Review and that the Application fails to establish jurisdictional error.

1. The Applicant alleges that the Department failed to consider his immigration history and compliance with visa conditions. The Minister submits that this ground fails as the Delegate's Decision is not the subject of this Application. The Court has no jurisdiction to review a primary decision of the Delegate.[22]
2. The Minister submits that the Tribunal did consider the Applicant's immigration history and found that there was no evidence of non-compliance with Visa conditions by the Applicant.[23] The Minister submits that this ground fails.

1. The Applicant alleges that he was not afforded natural justice on the basis that he was denied a fair opportunity to provide oral evidence to the Tribunal.
2. The Minister notes it is not apparent from the Tribunal's Decision that the Member denied the Applicant a fair opportunity to provide oral evidence.[24] Where no further evidence to substantiate this allegation has been advanced, the Minister submits that this ground fails.
3. For completeness, the Minister notes that the Delegate's Decision was a 'Part 5-reviewable decision'.[25] The Tribunal appropriately discharged the requirements of natural justice as outlined in s 357A of the Migration Act. The Minister notes that the Applicant:

(a) was validly invited under s 359A to comment on or respond to information;

(b) was validly invited to provide information that he met the genuine temporary entrant criteria under s 359(2);

(c) was invited to attend a hearing under s 360(1), which he attended;

(d) provided evidence to the Tribunal, which it expressly considered in its reasons; and

(e) gave oral evidence about his claims to meet the genuine temporary entrant criteria, which was expressly considered by the Tribunal.[26]

1. Ground 2 further alleges that the Tribunal did not provide a decision record to the Applicant. The Minister notes the Tribunal produced its reasons, which was sent to the Applicant by email in accordance with s 379A(5) on 12 June 2019.[27]

1. The Applicant alleges that the Tribunal misconstrued cl 500.212 of the Regulations as it assessed "cl 200.111" instead.
2. The Minister submits that the Tribunal correctly identified the relevant criterion for the grant of the Visa[28] and the requirements of cl 500.212, in addition to considering Ministerial Direction 69 (Direction 69).[29] The Minister submits that this ground is misconceived and cannot be made out.
3. The Minister contends that the Tribunal's adverse credibility findings were open on the materials before it.[30] The Minister further contends that it was open for the Tribunal to refuse the Applicant's application on the same basis as the Delegate. The Minister submits that no breach of s 360(1) is apparent, nor established.[31]
4. Ground 3 further alleges that the Tribunal failed to consider loss of finances incurred by the Applicant if his Visa application were refused. The Applicant has failed to provide any evidence to establish that he made this claim before the Delegate or the Tribunal, or that it arose on the material.[32] To the extent that such a claim was raised, the Tribunal dealt with it by finding that the Applicant had effectively managed to save $12,000 during his time in Australia.[33]

1. The Applicant alleges that the Tribunal failed to provide any time or "extra time" to provide documents. The Minister notes that the Applicant did not request an extension of time to provide documents in support of his Review Application. The Applicant was provided with 14 days to respond to the s 359(2) invitation sent to him on 17 January 2019.[34] The Applicant responded to the invitation and otherwise had ample time to provide additional material to the Tribunal. The Minister submits that this ground fails at a factual level.

1. The Applicant alleges that the Tribunal's Decision is short and void. Bearing in mind that brevity is not an error, the Minister notes that the decision comprised of 40 paragraphs and seven pages. The Minister submits that this ground does not establish any jurisdictional error.

1. The Applicant alleges that the Tribunal did not provide "substantial justice".
2. The Minister notes it is well established that a breach of substantial justice will not necessarily warrant grounds for review.[35] The Minister notes that the Tribunal correctly appreciated the factors in Direction 69 are to be considered as guidelines for decision makers, rather than a checklist.[36] The Tribunal had regard to all factors identified in Direction 69 that were raised "by the evidence".[37] The Minister submits that this ground does not establish any jurisdictional error.
3. The Minister expanded upon his written submissions by way of oral submissions at the Hearing.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[38]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[39] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[40]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[41] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[42] Different kinds of error may overlap.[43] The categories are not closed.[44]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[45] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[46] It has been described as an "undemanding" standard.[47]

1. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations has been satisfied, and to refuse to grant the visa, if not satisfied.
2. The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cl 500.211 to 500.218 in Schedule 2 of the Regulations.[48]
3. Clause 500.211 of Schedule 2 of the Regulations provides:
   1. the applicant is enrolled in a course of study;
   2. if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;
   3. if the applicant is a Foreign Affairs student-the applicant has the support of the Foreign Minister for the grant of the visa;
   4. if the applicant is a Defence student-the applicant has the support of the Defence Minister for the grant of the visa.
4. Clause 500.212 of Schedule 2 of the Regulations provides:

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

1. the applicant intends genuinely to stay in Australia temporarily, having regard to:

   1. the applicant's circumstances; and
   2. the applicant's immigration history; and
   3. if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
   4. any other relevant matter; and

2. the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

3. the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

4. the applicant's stated intention to comply with any conditions to which the visa may be subject; and

5. because of any other relevant matter.

1. The Applicant's seven Grounds of Review are identical to the grounds used in at least five other cases:

(a) Singh v Minister for Immigration and Multicultural Affairs;[49]

(b) Singh v Minister for Immigration and Multicultural Affairs;[50]

(c) Kaur v Minister for Immigration and Multicultural Affairs;[51]

(d) Singh v Minister for Immigration and Multicultural Affairs;[52] and

(e) Masood v Minister for Immigration and Citizenship[53] (Masood).

The Department made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances.

Particulars:

The department of immigration and border protection failed to consider the other relevant matter in support of my case and previous immigration history and compliance with the visa condition was not considered.

1. At [71] of Masood, I said in relation to an identically worded Ground 1:

Section 476(2)(a) of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to a "primary decision", which is defined to include privative clause decisions or purported privative clause decisions, reviewable under Part V, which includes the Delegate's Decision.

1. These comments have equal application to the present case.
2. I do not have jurisdiction to determine Ground 1.
3. Even if Ground 1 was intended to address the Tribunal's Decision, I see no error constituted by a failure to consider "previous immigration history" or "compliance with visa conditions". The requirements of Direction 69 were correctly identified by the Tribunal.[54]. The Tribunal considered the Applicant's previous immigration history at [10], [11], [13] and [18] to [20][55] and the Applicant's compliance with visa conditions at [32], [33] and [35].[56]

The applicants were not afforded natural justice.

Particulars:

I believe that I wasn't provided a fair opportunity to provide the verbal evidences to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs did not provide the decision record for their decision which clearly depicts an error.

1. The Delegate's Decision was a 'Part 5-reviewable decision'.[57] The requirements of natural justice in relation to the Applicants' hearing before the Tribunal were codified by Division 4 of Part 5 of the Migration Act in relation to the matters dealt with in that Division.
2. It is not apparent from the Tribunal's Decision that there was any denial of procedural fairness. As the Minister noted in his submissions:

(a) The Applicant was validly invited under s 359A to comment on or respond to information;

(b) The Applicant was validly invited to provide information that he met the genuine temporary entrant criteria under s 359(2);

(c) On 5 February 2019, the Tribunal sent a letter to the Applicant inviting him to appear before the Tribunal to give evidence and present arguments on 20 February 2019 at 1:30 pm;[58]

(d) The Applicant was invited to attend a hearing on 20 February 2019 under s 360(1), which he attended;

(e) The Applicant provided evidence to the Tribunal, which it expressly considered in its reasons; and

(f) The Applicant gave oral evidence about his claims to meet the genuine temporary entrant criteria, which was expressly considered by the Tribunal.[59]

1. As to the allegation that the Applicant "wasn't provided a fair opportunity to provide the verbal evidences to the member", the Applicant raised two matters in his oral submissions concerning the conduct of the Tribunal. First, he said that he was not given the opportunity to put before the Tribunal his most recent passport, issued between the date of the Tribunal hearing and the date of the Tribunal Decision. Second, the Applicant complained that he did not have the opportunity to address the Tribunal's concerns regarding the $12,000 savings accumulated by him.
2. I address the issue of the passport below under the heading "Grounds 4 and 5". Given that the passport was not issued until after the hearing, there was no failure to afford natural justice by a refusal to permit the tender of it at the hearing. I deal below with the question of whether the Tribunal ought to have adjourned the hearing to allow the passport to be procured.
3. As to the issue associated with the $12,000 savings, [26] of the Tribunal's Decision provides:[60]

The Tribunal has had regard to the applicant's economic circumstances. The disparity in living standards between Australia and India is a matter of common knowledge. The applicant has had the benefit of steady employment in Australia and he is currently employed. The applicant's employment has enabled him to support himself, and to accumulate savings in Australia in the order of AU$12,000. The applicant's father is a farmer who owns land in India. The applicant's brother is working the land with his father. According to the applicant's evidence he is not interested in farming. In light of the applicant's circumstances in Australia relative to India, the Tribunal is satisfied the applicant's economic circumstances in Australia would present as a significant incentive for the applicant not to return to India.

(Emphasis added)

1. The Applicant's response to [26][61] given at the Hearing before me was that he earns some of his income by working online. He says that he did not need to live in Australia in order to generate the online income. The Applicant complained that he did not have the opportunity to address the Tribunal's concerns regarding the $12,000 in savings accumulated by him: "They should have given me a fair time and chance". There is no evidence that these matters formed the basis of an articulated submission before the Tribunal.
2. On 5 February 2019, the Tribunal wrote to the Applicant inviting him to give evidence and present argument at a hearing on 20 February 2019.[62] The letter of invitation provided:

Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.

1. The Tribunal also sent a copy of Direction 69 to the Applicant. The letter further provided:

We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate's decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.

1. The Applicant provided documents to the Tribunal by email sent on 13 February 2019.
2. The Applicant gave oral evidence at the hearing on 20 February 2019.
3. Section 359A of the Migration Act provided, amongst other things, that the Tribunal must give clear particulars of information that "would be the reason, or a part of the reason, for affirming the decision that is under review" together with other information.
4. Given that it was the Applicant himself who gave evidence about the $12,000, the requirement in s 359A(1) of the Migration Act does not apply to that information. Section 359A(1) is subject to an exception in the case of information that the Applicant gave for the purposes of the Review Application.[63]
5. To the extent that it might be contended that "information" goes beyond what the Applicant provided to the Tribunal, in VAF v Minister for Immigration and Multicultural and Indigenous Affairs,[64] Finn and Stone JJ stated that the word "information":[65]

does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

1. Accordingly, the Tribunal was not required by s 359A(1) of the Migration Act to put to the Applicant its "subjective appraisals, thought processes or determinations" concerning the $12,000, in particular, the Tribunal's reasoning that the Applicant's economic circumstances in Australia might provide an incentive not to return to India.
2. Section 360 of the Migration Act provided, amongst other things, that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments "relating to the issues arising in relation to the decision under review".
3. Where the Tribunal takes no step to identify issues, other than those considered by the delegate to be dispositive, the applicant is entitled to assume that those are the issues on review. Hence, unless the Tribunal tells an applicant something different, he or she would be entitled to assume that the reasons of the delegate will identify the issues that arise in relation to that decision.[66]
4. The Delegate in the present case identified the dispositive issue to be whether the Applicant had satisfied the genuine temporary entrant criterion,[67] which was informed by, amongst other things Direction 69 and factors including "the applicant's circumstances in their home country" and "the applicant's potential circumstances in Australia". The Delegate indicated that he had "taken into account your economic circumstances in your home country relative to your potential circumstances in Australia". The Delegate expressed a concern that the Applicant's intention to live in Australia "may be motivated by factors other than study". I do not consider that there has been any breach of the requirement to identify the issues on review, either in the context of the Applicant's evidence concerning the $12,000 or generally.
5. As to the allegation that the Tribunal and Department "did not provide the decision record for their decision which clearly depicts an error", the Tribunal's Decision was sent to the Applicant in accordance with s 379A(5) on 12 June 2019.[68]
6. I am not satisfied that jurisdictional error is made out by reference to Ground 2.

Tribunal misconstrued condition cl.500.212 of Schedule 2 to the Regulations. The clauses were wrongly assessed and the tribunal failed to assess cl 500.212 and rather than assessing this clause the cl 200.111 was assessed. My genuine intentions to studies was denied by the tribunal and mis constituted as non-genuine applicant of visa

Particular:

The evidence by the tribunal that compelled them to make this decision is void and without base and facts. No evidence was provided why tribunal came to this conclusion. They refused the case on different basis.

The tribunal agree that I provided the reasons to return back to home country and that is the main concerns the immigration department had. On the basis of these findings my case would be approved.

Tribunal failed to consider that I would face significant loss in finances as I have given a large amount of money and time for my studies in Australia and returning with refusal will be a drawback in my application.

1. At [89] to [94] of Masood, I said in relation to Ground 3:

Where a decision maker is required to make a decision by reference to a single specified criterion and, in error, addresses the wrong criterion "the decision maker's error will be a jurisdictional error - a failure to exercise the jurisdiction of deciding the question according to the applicable criterion - regardless of whether one can say that, if properly directed and having determined the application by reference to the correct criterion, the decision maker would have been bound to make the same decision."[69]

1. The Tribunal's Decision contains the following explanation of the task required by cl 500.212 of Schedule 2 of the Regulations:[70]

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.

The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

1. The Tribunal's Decision does not evidence an error of the sort alleged, namely that cl 500.212 of Schedule 2 to the Regulations was "wrongly assessed and the tribunal failed to assess cl 500.212 and rather than assessing this clause the cl 200.111 was assessed".
2. I do not consider that the Tribunal's reasons were required to expressly refer to "significant loss in finances as I have given a large amount of money and time for my studies in Australia" or that "refusal will be a drawback in my application". Those matters do not appear to have been referred to by him during the Tribunal hearing. They appear to have their genesis in the precedent that was used for the Application.
3. Ground 3 would otherwise appear to be an invitation to the Court to review the merits of the administrative decision-maker's decision, which is not permissible.[71] The task of weighing evidence is a matter for the decision maker and the decision maker alone.[72]
4. I am not satisfied that jurisdictional error is made out by reference to Ground 3.

Despite of the repeated request the member did not provide any time to provide the documents.

Member erred in dismissing the applicant's application without providing extra time without any basis in law and fact.

1. Grounds 4 and 5 might be construed as being directed to the issue of the passport.
2. Paragraphs [18] and [19] of the Tribunal's provides:[73]

Since arriving in Australia the applicant has departed Australia once and that was in 2011. According to the evidence the applicant gave before the Tribunal, he returned to India in 2011 for the purpose of attending his sister's wedding ceremony. The applicant in evidence to the Tribunal explained he had not returned to India on any other occasion because he lost his passport, and did not know exactly how to get another one. The Tribunal notes the applicant provided a photocopy of his passport to the Department,1 and another one to the Tribunal2 on 31 January 2019 for the purposes of this review hearing.

The reliability of the applicant's evidence about the loss of his passport, measured against the presence of the photocopies of his passport appearing in the Department file and the Tribunal file, the age and maturity of the applicant, his level of education, and ordinary common sense demonstrates his evidence is unreliable. The presence of the copies of the applicant's passport in both the Departmental file and the Tribunal file demonstrates the applicant's reason for not returning to India is unlikely to be true and the Tribunal does not accept it.

1. At the start of the Hearing, I rejected the Applicant's tender of his passport issued on 1 April 2019 on the basis that it was irrelevant to my decision on a judicial review.
2. Section 363(1)(b) of the Migration Act (in force at the date of the Tribunal's Decision), for the purpose of a review, the Tribunal "may... adjourn the review from time to time". This confers both a power and a discretion on the Tribunal. There is a presumption, that "a discretionary power, statutorily conferred, will be exercised reasonably".[74]
3. I do not consider that any error is demonstrated by the Tribunal's failure to adjourn the hearing on 20 February 2019 to allow the Applicant time to apply for the issue of a passport. First, there is no evidence before me that the Applicant ever sought an adjournment of the hearing, a matter that he confirmed at the Hearing before me. Second, the issue of a passport did not bear upon the Applicant's reason for not returning to India. It did not make it more or less likely that his reason for not travelling to India earlier was because he had lost his previous passport.
4. There is no evidence that the Applicant sought to put the passport into evidence after it was issued. The Applicant advised me that he had assumed that it was not open to him to do so after the conclusion of the Tribunal hearing. The Tribunal is not in the position of a contradictor, and it is for the Applicant to advance evidence or arguments.[75] While the Tribunal has power to get information that it considers relevant, this power is permissive and not mandatory. Further, the passport issued on 1 April 2019 was not "critical or central to the decision", such as to require a more proactive approach by the Tribunal to that matter.[76]
5. I can see no error in the approach of the Tribunal in relation to the issue of the passport.
6. The Minister drew my attention to case notes, in particular an entry on 19 February 2019:[77]

PRA rang to confirm that he will be attending the scheduled hearing tomorrow, however he has lost his current passport and all he has is an expired passport. I informed PRA that he could use his licence or any form of ID that has his photo on it any form of ID that could make up 100 points. PRA thanked me for my assistance then call ended.

1. I agree with the Minister's submission that these case notes appear to be directed to a different matter, namely the Tribunal's proof of identity requirement.
2. I am not satisfied that jurisdictional error is made out by reference to Grounds 4 and 5.

The appellant's application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again.

1. At [112] to [118] of Masood, I said in relation to Ground 6:

The question before the Court is not whether the Applicant has raised an arguable case, rather it is whether the Tribunal made a jurisdictional error.

An obligation to give a written statement of reasons requires that the decision-maker "must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law".[78]

In Liang, Brennan CJ, Toohey, McHugh and Gummow JJ said (at [31]) 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.

Non-compliance with ss 368(1) or 430(1) of the Migration Act does not, of itself, establish jurisdictional error.[79] But, non-compliance, such as non-compliance with the obligation to refer to evidence or other material on which the decision is based, may evidence jurisdictional error, for example, a constructive failure to exercise a review function.[80]

In Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108, Kenny J stated (at [98]):

Where the tribunal fails to comply with the requirements of s 430(1) and it is not possible to be satisfied that its written statement had a proper basis, the Court can infer, safely, that the tribunal constructively failed to exercise its function of review.

In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court of the Federal Court (Kenny, Griffiths and Mortimer JJ) stated:[81]

The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made ... Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error ...

... The Tribunal's reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

(Emphasis added)

Without more, brevity does not give rise to jurisdictional error. I consider that the Tribunal's reasons adequately deal with the "issues arising in relation to the decision under review."

1. These comments have equal application to the present case. The Tribunal's Decision addressed the "issues arising in relation to the decision under review". I can discern no error by reference to the length of the Tribunal's Decision. Further, on a judicial review, the question is whether the Tribunal made a jurisdictional error, and not whether the Applicant has an arguable case.
2. I am not satisfied that jurisdictional error is made out by reference to Ground 6.

Substantial justice was not provided and that's the reason I want to apply in Federal Circuit Court of Australia.

1. Ground 7 would again appear to be an invitation to the Court to review the merits of the administrative decision-maker's decision, which is not permissible.[82]
2. I am not satisfied that jurisdictional error is made out by reference to Ground 7.

1. As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[83] the Application for review must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $6,000 being less than the scale amount.[84] I am satisfied that costs ought to follow the event,[85] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the Court file.[86]

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 25 August 2025, Order 1.

[21] Compare Minister for Immigration & Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 at [55] and MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 at [11]. See also s 56(2) of the Evidence Act 1995 (Cth).

[22] s 476(2)(a) of the Migration Act.

[24] VFAB of 2002 v Minister for Immigration [2003] FCA 872; (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].

[25] ss 338(2) and 347(2) of the Migration Act.

[30] Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 552; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146.

[31] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 153 at [47].

[32] NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 per Black CJ, French and Selway JJ at [55] and [68].

[34] S 359B(2) of the Migration Act; reg 4.17(4)(b)(i) of the Regulations.

[35] Vat v Minister for Immigration and Multicultural Affairs [1999] FCA 1762; Eshetu v Minister for Immigration and Ethnic Affairs [1997] FCA 603; (1997) 145 ALR 621.

[36] Item 1, Part 2 of Direction No. 69; Ghimire v Minister for Immigration & Border Protection [2014] FCA 899 at [3].

[37] Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [65].

[38] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (Plaintiff S157/2002).

[39] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O'Callaghan JJ at [17].

[40] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [2].

[41] Plaintiff S157/2002.

[43] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[46] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[47] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[49] [2024] FedCFamC2G 879.

[50] [2024] FedCFamC2G 1091.

[51] [2025] FedCFamC2G 425.

[52] [2025] FedCFamC2G 404.

[53] [2025] FedCFamC2G 1240.

[55] CB 97-98 [10], [11], [13] and [18]-[20].

[57] ss 338(2) and 347(2) of the Migration Act.

[63] Section 359A(4)(b) of the Migration Act.

[64] (2004) 236 FCR 539 at [24].

[65] At [24(iii)]. Cited with approval in SZBYR v Minister for Immigration and Citizenship [1981] HCA 26; (2007) 147 CLR 297 at [18].

[66] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [36].

[69] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 per Nettle J.

[71] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Liang) per Brennan CJ, Toohey, McHugh and Gummow JJ at p 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 (Abebe) at [53]-[54].

[72] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ held at [33].

[74] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [47] and [63].

[75] Abebe at [187]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 per Crennan J at [27].

[76] Ismail v Minister for Immigration [2024] HCA 2; (2024) 417 ALR 36.

[78] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [55].

[79] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 58 ALD 609 per McHugh J at ([70]).

[80] Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 per Kenny J (at [98]).

[82] Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at p 272; Abebe at [53]-[54].

[83] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [113].

[84] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129.

[85] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[86] Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172.