Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1565

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 21 October 2021, the applicant applied to the Tribunal for review of the delegate's decision (CB 80-87).
2. On 2 December 2021, the Tribunal invited the applicant, through his migration agent, to provide further information in a "Request for Student Visa Information" form by 16 December 2021 (CB 93-95). 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 96-100). The applicant provided various documents and information in response to the Tribunal's invitation (the applicant's response) (CB 101-130).
3. On 17 February 2022, the applicants were invited to attend a hearing scheduled for 7 March 2022 (CB 117-120).
4. On 7 March 2022, the applicant attended the Tribunal hearing with his migration agent, and with the assistance of a Punjabi interpreter (CB 131).
5. On 17 March 2022, the Tribunal affirmed the delegate's decision not to grant the applicant the visa (CB 139-147).
6. On 6 April 2022, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
7. On 10 July 2023, the applicant filed an amended application.

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 January 2020. 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 visas as the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212(a) in Schedule 2 of the Regulations) (at [3]). Accordingly, the delegate was not satisfied that the second applicant met the requirements of cl 500.311 as a member of the applicant's family unit (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 (at [8]). The Tribunal set out the relevant legislative provisions in that regard (at [9]).
5. The Tribunal stated that it was required to have regard to Direction 69 in considering whether the applicant satisfied cl 500.212(a) of the Regulations (at [10]). 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 [11]).
6. The Tribunal confirmed that on 15 December 2021, prior to the hearing, the applicant filed a response pursuant to an invitation to supply visa information about the courses he was studying, and information about his entry and stay in Australia, in accordance with s 359(2) of the Act. In addition to that response, the Tribunal noted that the applicant provided the following supporting documentation (at [16]-[17]):
   • His visas to the United Kingdom;
   • Student academic progress report from the Australian Adelaide International College (AAIC) regarding the studies the applicant had undertaken from 28 June 2021 to 26 December 2021;
   • Statement of Completion from AAIC dated 6 July 2021 confirming the applicant had completed a Certificate III in Light Vehicle Mechanical Technology which commenced on 8 June 2020 and concluded on 6 June 2021;
   • Confirmation of enrolment (COE) for the applicant to study a Diploma of Automotive Technology at AAIC, commencing on 7 February 2022 and concluding on 11 September 2022 which was created on 20 December 2019;
   • COE for the applicant to study a Certificate IV in Automotive Mechanical Diagnosis at AAIC, commencing on 28 June 2021 and concluding on 26 December 2021 which was created on 20 December 2019;
   • Statement of Completion from AAIC confirming the applicant had completed his Certificate III in Light Vehicle Mechanical Technology;
   • Certificate III in Light Vehicle Mechanical Technology issued to the applicant from AAIC dated 6 July 2021 together with transcript of results and Statement of Completion;
   • Certificate IV in Automotive Mechanical Diagnosis awarded to the applicant issued on 18 January 2022 together with transcript of results and Statement of Completion confirming completion of the course on 26 December 2021.
7. The Tribunal then set out the evidence provided to the Tribunal by the applicant including that (at [19]-[28]):
   • He had completed his Year 10 and Year 11 studies in India in 2014-2015;
   • He had travelled to the United Kingdom on two occasions in August and October 2016 for his cousin's wedding and to visit family;
   • In 2016, he completed a Diploma of Computers in India and then worked on his family's farm in 2017;
   • He returned to the United Kingdom for a period of 5 months in July 2018 to bring his grandmother back to India;
   • He completed Year 12 in India in 2018 to 2019;
   • He arrived in Australia on 30 October 2019 on a visitor visa, but without a return air ticket, and travelled to Adelaide, Victoria and the Gold Coast and has continued to stay with the family of a close friend in Adelaide.
   • He undertook a Pearson Test in English (PTE) on 8 November 2019. He paid $300 to undertake the test.
   • In December 2019, he decided to study the suite of automotive courses at AAIC.
8. Against this background the Tribunal made the following findings.
9. The Tribunal had regard to the fact that the applicant had arrived in Australia without a return ticket, and his claim that he intended to book a return ticket once he was in Australia. The Tribunal found that this was more consistent with a person who intended to remain in Australia for a significant period of time as opposed to a short period [28].
10. The Tribunal rejected the applicant's claim to have only made a decision to undertake study in Australia in December 2019. The Tribunal found that this was not consistent with undertaking the PTE shortly after arriving in Australia. The Tribunal rejected the applicant's claim that he only undertook the PTE to "just check out" his level of English education. The Tribunal found that a person who comes to Australia and pays $300 to undertake a PTE is ordinarily seeking to complete the test for the purposes of obtaining a report to enable the person to either study or obtain employment [28].
11. The Tribunal also found that the act of undertaking the PTE within two weeks of arriving in Australia was consistent with the applicant using his visitor visa for an improper purpose of undertaking study rather than for travelling. The Tribunal also found the applicant's conduct in only spending 5 days travelling to different locations and otherwise spending the remainder of his time in Australia staying in one location and living with a family was not consistent with entering Australia as a visitor [29].
12. The Tribunal noted that the applicant had now completed the Certificate III and Certificate IV courses and accepted that the completion of the Diploma of Automotive Technology would improve his qualifications which in turn would enhance his employment prospects and remuneration in India [30].
13. The Tribunal considered the applicant's explanation contained in the applicant's response as to why he had elected to study automotive courses in Australia as opposed to in India. However, whilst the Tribunal accepted that the courses in Australia may be more advanced, the Tribunal found that there is nothing preventing the applicant from undertaking similar studies in India. The Tribunal also observed that the applicant had already obtained two Australian qualifications which would equip him to undertake automotive work in India [32]-[33].
14. The Tribunal noted that the applicant had changed his career path from computers to automotive courses. The Tribunal observed these courses were not connected to each other. The Tribunal accepted, though, that the applicant has focused on undertaking automotive courses in Australia for the purposes of becoming a mechanic and establishing his own business [36].
15. The Tribunal recognised the need to allow for reasonable changes to career and study pathways. However, in the applicant's case he had simply enrolled in short vocational education training (VET) courses which did not reveal any progression in his course of study, noting his prior study was in computing [37].
16. The Tribunal also noted that completion of the Diploma of Automotive Technology would result in the applicant remaining in Australia for 3 years which the Tribunal found was a very long period of time for someone who had entered Australia on a visitor visa [38].
17. The Tribunal considered the wages the applicant might be expected to earn in India and in Australia and found that the applicant could receive comparatively higher wages in Australia which would provide an economic incentive to remain in Australia [40]-[41].
18. The Tribunal observed that the applicant had not returned to India during the course of his stay in Australia. However, the Tribunal drew no adverse conclusion from this given that there were travel restrictions imposed by the COVID-19 pandemic [42].
19. The Tribunal noted the applicant's claim to have assets worth $235,000 in India, but that the applicant had accepted that those assets were in fact in his father's name. As such, these assets did not provide a financial incentive to return to India [43]. Nevertheless, the Tribunal accepted that he continued to have family support and that he would be in a good position relative to others in his country. Accordingly, the applicant's economic circumstances in Australia would not provide a significant incentive for him not to return home [45].
20. The Tribunal accepted that the applicant had personal ties to both Australia and India. The Tribunal noted that the applicant had family ties in India, including his parents, which would ordinarily provide him with a substantial incentive to return home. However, the Tribunal found that he did not have any significant assets or economic ties to India, that he was likely to earn higher wages in Australia and that he had stable accommodation and a friendship group in Australia. On this basis, the Tribunal found that these circumstances lead to a finding that his family ties did not provide a significant incentive for him to return home [47].
21. The Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily in accordance with cl 500.212(a) of the Regulations (at [53]-[55]).
22. The Tribunal affirmed the delegate's decision not to grant the visa (at [57]).

1. The amended application for judicial review filed by the applicant on 10 July 2023 contains nine grounds of review as follows:
   1. That the Tribunal has committed a jurisdictional error by erroneously placing too much weight on the fact that the Tribunal was of the opinion that the applicant was pursuing a course that will not help him in the future. Respectfully, the tribunal gravely erred on this issue and completely lost sight of the fact that the applicant had successfully completed the Certificate II and IV qualifications in Automotive Technology and a Diploma Course in the same field which will be of immense help to him in his Automotive business after returning home. Therefore, it was wrong on the part of the Tribunal to conclude that the applicant was studying in a VET sector course and that was to prolong his stay in Australia.
   2. The Tribunal committed a jurisdictional error by failing to comply with s 359AA(1)(a) of the Migration Act 1958, (the Act).As required by law under s 359AA(1)(a), the Tribunal should have given to the applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review and:

(b)(i) ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision under review; and

(ii) invited the applicant to comment on or respond to it; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the application reasonably needs additional time to comment on or respond to the information.

The Tribunal committed a jurisdictional error by not providing particulars of many of the provisions, evidence, conclusions, and facts which were taken into consideration while affirming the decision of the delegate. A review of the decision will reveal that the applicant was also denied procedural fairness as the tribunal neither invited the applicant to comment nor to respond to many of the alleged adverse information which was being used against the applicant. The examples of when the Tribunal committed these jurisdictional errors are listed below.

1. The Tribunal made a jurisdictional error under s.359AA of the Act by failing to give the applicant sufficient particulars and an opportunity to respond to the Tribunal's conclusion that the applicant had appeared in the Pearson Test of English within two weeks of arriving in Australia which in turn was the main ground for the refusal of applicant's merit review application. The tribunal completely lost sight of the fact that there was no time frame provided to appear in the PTE test and this presumption is too far fetched that just because the applicant appeared in the English test within 15 days of arriving in Australia would lead to a conclusion that the applicant had come to Australia with a pre conceived motive to study here. If this was the case then the applicant would have done his English test before arriving in Australia. Rather to the contrary, this fact goes in the favour of the applicant that he thought of taking studies in Australia after arriving here and assessing the higher standards of study. This also get strengthened by the fact that the applicant is a genuine student as he has already completed certificate II, IV and a diploma course in Automotive.

2. The Tribunal made a jurisdictional error by not considering the Procedure Advice Manual (PAM's) which clearly lay down to the extent that even if an applicant has the intention to lodge a further visa application, the visitor visa should still not be denied on this ground. There was no condition whatsoever on applicant's visa that could bar him from applying for any other visa in Australia. The applicant had a right to study in Australia after liking the education system and standard and after comparing the same with India. Everyone has a right to good education and make progress in life. Therefore the conclusion arrived at by the tribunal was wrong.

3. That the Tribunal has committed a jurisdictional error by drawing an adverse inference that the applicant wanted to prolong his stay in Australia. Unfortunately, the Tribunal made these observations despite the fact that it was convinced that the applicant had strong family ties back home in India where his parents and family were residing This was one of the factors to be satisfied for the grant of Student Visa SC 500 under Ministerial Direction No. 69. The Tribunal has categorically mentioned that:

The applicant has both personal ties in Australia and in India. The applicant has his mother, father and brother in India and that would ordinarily provide him with a substantial incentive to return home. He does not have any assets or economic ties back home. However those ties must be considered in the context of his circumstances here. He has remained in Adelaide with a friend's family and is in stable accommodation. He has remained there for the duration of his whole stay in Australia. Further he has friends here who have obviously been supportive and have advised him along the way including about staying in Australia.

The Tribunal therefore erred and wrongly inferred that the applicant was undertaking the qualifications to unnecessarily prolong his time as a student in Australia and significantly overlooked the serious and genuine intention of the applicant to go back home and be with his family and look for better employment prospects. Shockingly, the tribunal has suggested that the ties with friends in Australia are stronger incentives than ties with parents and family in India. This suggestion is ridiculous and untenable.

1. That the tribunal asked itself a completely wrong question as to whether the applicant wanted to prolong his stay in Australia. In fact, the real question was the benefit which the applicant was going to get by studying the course that would enable him to have a lucrative employment or run his own business after returning home.

2. That the Second Respondent erred in failing to consider relevant material, being the submissions of the applicant including the applicant's claim of lack of enough courses in this field in his home country. Detailed written submissions were lodged by the applicant in this regard but they have not been taken into consideration by the AAT while deciding the matter. The tribunal has gravely erred in reaching a conclusion without any material basis.

3. That the tribunal has committed a jurisdictional error and has blown hot and cold at the same time. On one side it has made this observation that:

As discussed above the applicant has enrolled in the automotive courses. He has now completed the Certificate III and Certificate IV and is now studying the Diploma of Automotive Technology. The Tribunal accepts that the completion of that course will improve his qualifications which in turn will improve his employment prospects and remuneration back in India.

However the Tribunal accepts the applicant has focused on undertaking automotive courses whilst in Australia for the purposes of becoming an automotive mechanic and setting up his own business.

Shockingly, after making this observation, the tribunal held that the applicant intended to prolong his stay in Australia. If this conclusion of the AAT is to be accepted, then it would mean that every student who is studying in Australia in any course is here with an intention to prolong their stay in Australia.

1. The tribunal has committed a jurisdictional error by basing its decision on assumptions and presumptions by observing:

The Tribunal further notes that the applicant has substantial ties to Australia. He has his friends here together with living in stable accommodation and having the ability to earn a high level of income. Furthermore the applicant has, if he obtains a student visa, the ability to obtain high paid employment and has the prospect of potentially extending his stay here. Considering those matters the Tribunal finds that his ties to Australia demonstrate an incentive to remain here rather than to return home.

Shockingly, the tribunal has based the decision on the likelihood factor without supporting its conclusion with any cogent evidence. How could the tribunal reach this strange conclusion that the applicant would stay with his friend leaving his parents and family in the lurch in India?

1. The applicant also filed an affidavit with the judicial review application on 6 April 2022, annexing a copy of the Tribunal's decision.
2. The applicant appeared before the Court on 29 July 2025 without legal representation but with the assistance of a Punjabi interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister's written submissions.
3. The materials before the Court include:
   • the amended application for judicial review filed by the applicant on 10 July 2022;
   • the supporting affidavit filed by the applicant on 6 April 2022 (the affidavit being taken as read and in evidence at the hearing on 29 July 2025);
   • a Court Book numbering 154 pages (tendered and referenced as Exhibit 1);
   • written submissions filed on behalf of the applicant on 25 June 2025; and
   • written submissions filed on behalf of the Minister on 14 July 2025.
4. 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, Kaur v Minister for Immigration and Citizenship [2025] FCA 931 at [10]. Accordingly, at the hearing of this matter, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal's decision and/or procedure.
5. 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] and 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 that background, the applicant initially told the Court that he did not want to return to India with a "stamp of refusal" as this might impact on a further application for a visa. The applicant also raised that he had a girlfriend who he was planning to marry, and that he was subject to a bar pursuant to s 48 of the Act preventing him from applying for another visa. The Court reminded the applicant that its task was to consider whether or not there was any error in the Tribunal decision, and that he needed to address the Court in relation to what he said was wrong or unfair about the Tribunal's decision. In response, the applicant disputed the Tribunal's finding that he had a plan to stay in Australia and asserted that he changed his course of study because it was his passion to undertake the automotive course. He reiterated that he did not want a refusal decision on his immigration history.

1. As outlined above, the application for judicial review contains nine grounds which were supported by written submissions. The applicant's written submissions largely addressed the first five grounds of the application grouping them into the following asserted errors:

(a) Failure to properly consider applicant's educational background and intentions;

(b) Breach of s 359AA of the Migration Act;

(c) Reliance on irrelevant or misconceived factors;

(d) Inconsistent and contradictory reasoning;

(e) Irrelevant and probative material.

1. 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). In this respect, the Court will address each of the grounds set out in the application even though a number of those grounds were not addressed in written submissions or at the hearing. The Court will also consider a potential tenth ground the Minister says appears to arise on the written submissions.

1. Ground one contends that the Tribunal placed excessive weight on its opinion that the Diploma of Automotive Technology course would not assist the applicant in the future. The applicant argued that the courses he studied were clearly progressive and directly relevant to his intention to establish an automotive business in India.
2. The Minister submitted that the Tribunal was entitled, as part of its fact-finding function, to attribute such weight to the matters before it as it considers appropriate (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282). The Court accepts the Minister's submission that the applicant's argument that the Tribunal placed too much weight on a matter is in reality an invitation to impermissible merits review. It was a matter for the Tribunal to determine what, if any, weight should be attributed to any particular matter or evidence (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).
3. As correctly observed by the Minister, the Tribunal did in fact accept that the completion of the Diploma of Automotive Technology would improve his existing qualifications of a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. The Tribunal also found that this would, in turn, improve his employment prospects and remuneration in India.
4. The applicant appears to in fact challenge a later finding that there wasn't a reasonable motive to undertake this course in Australia as there was nothing to suggest that the applicant could not complete a similar course in India and he had already acquired two qualifications from Australia which should have furnished him with a basis and understanding to undertake this kind of work in India. The Court accepts that there is clearly an inherently cogent and rational basis for this finding.
5. Ground one is not made out.

1. Ground two argues that the Tribunal failed to comply with its obligations under s 359AA of the Act. Section 359A of the Act relevantly provides as follows:

359A Information and invitation given in writing by Tribunal

(1) Subject to subsections (2) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 379A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non‑disclosable information.

(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

1. The applicant argued that the Tribunal breached s 359A of the Act in failing to invite comment on the following adverse information:

(a) The fact that the applicant had completed his PTE test within two weeks of arriving in Australia;

(b) The applicant's absence of any economic ties in India;

(c) That greater weight would be given to his friendships and accommodation in Australia than his family ties in India.

1. The applicant submitted that the failure to invite the applicant to comment on these matters substantially prejudiced his ability to present his case. The Minister, however, said that these were not matters that were required to be put to the applicant for the following reasons.
2. In respect of the PTE test, the Minister contended that as the applicant had provided a copy of his report for the PTE, which included the date he had taken the test, as part of his application it fell within the exception in s 359A(4)(ba) of the Act. That exception applies to information which was given by the applicant as part of the process which led to the decision under review. The Court accepts that it is clear that the date of the PTE test was information which fell within this exception and was not required to be put to the applicant.
3. More generally, the Minister submitted that the Tribunal was not required to disclose its reasoning process in respect of its assessment of the timing of the PTE test, any inferences which might be drawn from the absence of economic ties to India and the weighing of the applicant's respective ties to Australia and India. In support of this, the Minister relied upon the well-established principle set out in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 where the Full Court said in respect of "information" in this context at [24]:

... the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; approved [2002] FCAFC 120; 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: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 at [26] - [29].

1. It is clear that the matters the applicant says should have been put to him for comment were effectively the Tribunal's deliberative and evaluative processes in respect of certain matters. The Court accepts that these were not matters which were required to be put to the applicant pursuant to s 359A of the Act.
2. Ground two is not made out.

1. Through this ground the applicant complains that the Tribunal drew a speculative and irrational inference that sitting the PTE test within 15 days of arrival signalled a premeditated intent to remain in Australia permanently. The applicant argued that the Tribunal failed to have regard to the fact that a PTE examination is not accepted only in Australia but also in a number of other countries, including the United Kingdom.
2. The Court does not accept the applicant's argument. The Tribunal was entitled to have regard to the applicant's history of arriving in Australia on a visitor visa without a return ticket, taking a PTE test a little over two weeks after arriving in Australia, and then applying for a student visa shortly thereafter. The Tribunal was not required to accept the applicant's explanation to the Tribunal that he had undertaken the test just to ascertain his level of English. There is a clear rationality to the Tribunal's finding that the applicant had not gone to the expense and trouble of undertaking the test for a speculative purpose, but rather had done so for the purpose of obtaining a report which would assist in study or employment purposes in Australia.
3. Ground three is not made out.

1. Through ground four, the applicant contends that the Tribunal made a jurisdictional error by not considering the Procedure Advice Manual (PAM). The applicant has not, however, identified which part of PAM has not been followed or considered by the Tribunal.
2. The Minister's primary response to this ground was that the PAM is not a binding document and the Tribunal was not required to consider them (relying upon El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [45]).
3. This Court has previously considered whether a Tribunal is required to consider the PAM in Bacaj v Minister for Immigration and Citizenship [2025] FedCFamC2G 1198 at [34]- [40] as follows:

The Minister raised as a threshold issue that it has long been established that the Tribunal is not bound to apply policy. In Vishnumolakala v Minister for Immigration and Multicultural Affairs [2006] FMCA 1209 at [27] (Vishnumolakala), the Court observed that policy guidance such as PAM3 is "no more than an advisory administrative guide to delegates" and that as a matter of law, it should not be afforded any higher status. Similarly, in Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 at [36], the Full Court of the Federal Court expressly accepted that a failure to apply the Procedures Manual does not constitute an error of law. Further, where the policy guidance may be inconsistent or go beyond the legislation, a decision will not be foreclosed in the way suggested by the policy (see Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1459 at [10]).

The Minister is correct to say that PAM3 must be read in light of the Regulations and not the other way around. It is a guide to decision-making only and does not have the legislative force of the Regulations. As observed by Justice Gray in the frequently cited passage from El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [45] (El Ess):

In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641 at [28] - [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] - [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 - 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.

The same view was taken by White J in Aziz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1397 at [20]- [21]. It is clear from these authorities that the policy guidance does not bind the Tribunal. Neither can it be said to be a mandatory consideration of the kind identified in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (see Vishnumolakala at [27]).

The applicant relies upon the last sentence of the passage from El Ess cited above at [35] of these reasons as authority for the proposition that a failure to apply guidelines may have some relevance in establishing error on the part of the Tribunal. Ultimately, the applicant accepted that the delegate was not bound to follow policy. However, the applicant contended that the delegate did purport to apply the policy but, in doing so, misconstrued that policy and it is that which led the delegate into error. In this respect, the applicant relied heavily on the following statement of Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 at [89] (Jabbour):

It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else...

However, two things must be said about this passage in Jabbour. Firstly, it has been accepted that this passage is not authority for a general proposition that jurisdictional error will arise where a delegate does not comply with policy (see XA v Minister for Home Affairs [2019] FCAFC 166; (2019) 274 FCR 289 at [65]). Secondly, it has also been recognised that a "more radical" misconstruction or misunderstanding of policy is required to establish jurisdictional error in circumstances where a delegate is not bound to follow that policy than in circumstances where they are so bound (DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022 at [21] (DCM20)).

In light of the consistent guidance in the authorities canvassed above, the Court agrees that the Tribunal was not bound to follow policy (accepting, of course, the commonly cited principle in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)) that there is ordinarily good reason to follow policy). As such, there can be no jurisdictional error arising out of a failure to follow the policy absent some further impermissible act. Where it is alleged that error arises from a misconstruction or misapplication of policy, such a misconstruction must meet the level of a "more radical misconstruction" adverted to in DCM20.

1. The Minister is thus correct to say that the Tribunal was not bound to apply PAM and, absent anything further, there is no jurisdictional error which would arise from a failure to follow the guidance within PAM.
2. Ground four is not made out.

1. Ground five asserts that the Tribunal committed a jurisdictional error by drawing an adverse inference that the applicant wanted to prolong his stay in Australia despite having strong personal ties to India. The applicant, in written submissions, argued that the Tribunal's elevation of his ties with Australian friends over his family in India was untenable.
2. However, all the Tribunal did was to consider the applicant's circumstances in Australia and his circumstances upon return to India as it was required to. The Tribunal accepted that the applicant's personal ties to India, including his parental ties, would ordinarily be considered a substantial incentive to return home. Nevertheless, when taking into consideration the applicant's circumstances in Australia, which included his supportive friendship group, stable accommodation and possibility of higher income, the Tribunal found that his family ties in India would not provide a significant incentive to return. There was no error in this finding. It simply reflects the Tribunal weighing up all of the applicant's circumstances as it was required to. The applicant's disagreement with the Tribunal's finding is in reality, an invitation to engage in impermissible merits review.
3. Ground five does not disclose jurisdictional error.

1. Ground six contends that the Tribunal asked itself the wrong question. The applicant argues that the Tribunal asked itself whether the applicant wanted to prolong his stay in Australia when it should have directed itself to the benefit the applicant would obtain from studying the course.
2. As submitted by the Minister, the question before the Tribunal was whether the applicant met the criteria to be granted the visa. That required the Tribunal to consider whether the applicant was a genuine applicant for entry and stay as a student. It was required to have regard to the factors set out in Direction 69 in doing so.
3. The applicant is correct in the sense that the Tribunal was required to consider the benefits of his course. However, the Tribunal clearly did this and in fact accepted that the completion of the Diploma of Automotive Technology would improve his qualifications and his employment prospects. However, that was only one aspect that the Tribunal was required to consider. As the Minister has correctly observed, Direction 69 also required the Tribunal to consider whether the applicant was using the visa to maintain ongoing residence in Australia. That is, contrary to the applicant's assertion otherwise, the Tribunal was required to consider whether the applicant was seeking the visa to prolong his stay in Australia as opposed to being a genuine temporary entrant.
4. Ground six does not reveal jurisdictional error.

1. Through this ground, the applicant claims that the Tribunal failed to consider his submissions that there were insufficient courses in his chosen field in India. In written submissions (albeit attributed to ground 5), the applicant also claims that the Tribunal also ignored the applicant's submissions in respect of:

(a) The poor standard of vocational training in India;

(b) The economic rationale for choosing Australia's advanced automotive education;

(c) Personal interest and prior mechanical experience on his family farm; and

(d) His detailed explanation of his educational history.

1. There is no merit to this ground. The Minister is correct to point out that the applicant's submissions did not claim there were insufficient courses in India but instead took issue with their quality. In fact, the applicant had said "[a]lthough there are number of institutes that are providing English courses of various durations but here the quality of those courses does not has match with Australian study courses" [CB 106]. Later, in respect of automotive courses, the applicant stated "in my home country this sector's diplomas are provided in every second government or private institute but their study quality has no match with Australian study" [CB 106].
2. The Tribunal clearly and expressly had regard to the applicant's submissions in respect of the difference in quality between courses in India and Australia. The Tribunal set out the applicant's explanation of his preference at [32] and engaged with the applicant's claims at [33].
3. Ground seven does not disclose jurisdictional error.

1. Through this ground the applicant claims that the Tribunal's finding that his chosen course would improve his employment and remuneration prospects in India was inconsistent with its finding that the applicant was not a genuine temporary entrant for study.
2. As submitted by the Minister, the Tribunal's finding in respect of the potential benefits of his study did not finally determine the ultimate question of whether he genuinely intended to stay in Australia temporarily as a student. The Tribunal was required to, and did, have regard to all of the relevant circumstances in accordance with Direction 69. That some of those circumstances were found to be favourable to the applicant did not mean that the Tribunal could not reach an ultimate conclusion, having regard to all relevant matters, that the applicant was not a genuine temporary entrant.
3. Ground 8 is not made out.

1. The applicant argues through this ground that there was no cogent evidence which supported the Tribunal's finding that his ties to Australia presented an incentive for him to remain here. The applicant said that the Tribunal's finding was a "strange conclusion" and there was no evidence for finding that the applicant would stay with his friends rather than his family.
2. As submitted by the Minister, a challenge to a finding based on 'no evidence' will fail if there is any evidence, often referred to in the authorities as a 'skerrick of evidence', which might support the finding (see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]; EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130 at [71]- [73]).
3. In this matter, there clearly was sufficient evidence for the Tribunal to base its finding. The Tribunal's finding was based on the applicant's own evidence that he had been able to stay with a friend for the entirety of his stay and planned to continue living with that friend for the duration of any future studies. The Tribunal also had regard to the fact that the applicant had a friendship base in Australia and his ability to receive higher wages in this country. Once again, the applicant really complains about the merits of the Tribunal's conclusion.
4. Ground nine does not disclose jurisdictional error.

1. The Minister drew the Court's attention to a potential additional asserted error contained in the applicant's written submissions but not expressly pleaded in the application. In those submissions the applicant argued that the Tribunal's conclusion that the courses the applicant had studied were not sufficiently connected to his prior study of a Diploma of Computers was "irrational, factually flawed and ignores the lawful right to change career paths".
2. As the Minister observed, the Tribunal in fact accepted that the applicant had focused on undertaking automotive courses whilst in Australia and this was for the purposes of becoming a mechanic and establishing his own business. The Tribunal was also expressly aware that an allowance should be made for reasonable changes to career and study pathways. Nevertheless, it was a relevant matter for the Tribunal to consider whether there was a nexus between his prior studies in India and his current and intended studies in Australia. Given the disparity between the two areas, and the fact that the courses the applicant elected to enrol in were short VET courses, it was also clearly open for the Tribunal to find that there was no progression in the applicant's study path from his Indian studies.
3. No error is discernible from this argument.
4. The Court also asked counsel for the Minister whether there were any matters which her client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention. There were none.
5. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision. The Court is satisfied that, even adopting the broad approach referred to in [44] of these reasons, no jurisdictional error is apparent.

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

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.