Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1775

1. The application for judicial review filed 18 May 2025 is amended to seek an writ of mandamus;
2. The amended application for judicial review be dismissed; and
3. The applicant pay the first respondent's cost and disbursements of and incidental to the application for judicial review and the amended application for judicial review, fixed in the sum of $5,600.00$5,400.00.

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

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

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 28 April 2021 to affirm a decision of a delegate of the first respondent (Minister) to refuse to grant to the applicant a Student (Class TU) (Subclass 500) visa (visa).
2. References in these reasons to 'CB' pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designed exhibit 'R1'.

1. The Applicant is a citizen of India. The applicant first arrived in Australia on 25 May 2013 to undertake a Bachelor of Business (Professional Accounting) degree at Holmes Institute in New South Wales (CB 17). He abandoned that course after one semester.
2. The applicant then undertook a series of vocational level courses including a Diploma of Business, a Diploma of Management an Advanced Diploma of Business Management and a Diploma of Leadership and Management (CB 17-9).
3. On 28 March 2019, the applicant applied for the visa (CB 9-54). The applicant provided with his application Certificates of Enrolment for a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Technology and a Diploma of Automotive Technology from the Durban International College in South Australia. Accompanying the application was a statement produced by the applicant in which he expressed an interest in all things mechanical and a desire to advance his career (CB 40-4).
4. On 16 July 2019, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy the criteria in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 100-9).
5. On 1 August 2019, the applicant applied to the Tribunal for review of the delegate's decision and appointed a registered migration agent to act as his representative (CB 110-1).
6. On 4 February 2021, the applicant was invited to provide information to the Tribunal about his proposed course of study and his entry and stay in Australia as a student (CB 118-121). The Tribunal also provided the applicant with a 'Request for Student Visa Information' form (Request Form) to be completed by the applicant, and a copy of Ministerial Direction No. 69 'assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications' (CB 122-6).
7. The applicant's representative returned the Request Form which incorporated a detailed statement about why the applicant chose Automotive Technology as a course of study (CB 127-139) and provided a number of attachments related to the applicant's education history (CB 140-163).
8. On 30 March 2021, the Tribunal emailed the applicant's representative enclosing an invitation for the applicant to attend a hearing on 28 April 2021 (Hearing Invitation) (CB166-8). The Tribunal requested the applicant provide the following documents within seven days of receipt of the invitation: a response to the Hearing Invitation; a copy of his current Certificate of Enrolment; documents evidencing his past studies in Australia; and any other information that the applicant intended to rely on at the hearing. The applicant's representative provided a response to the Hearing Invitation on 31 March 2021.
9. Further copies of the Certificates of Enrolment were submitted on 19 April 2021 (CB 174-6). A record from the Provider Registration and International Student Management System (PRISMS) for the applicant was also obtained on the day of the hearing (CB 177-8).
10. On 28 April 2021, the applicant appeared at the hearing before the Tribunal and was represented by his agent. An interpreter in the English and Punjabi languages was also present (CB 179). At the conclusion of the hearing, the Tribunal made an oral decision to affirm the decision under review.
11. On 28 April 2021, the Tribunal provided written reasons for the decision to affirm the delegate's decision (CB 185-198) (Decision).

1. The Tribunal identified that it was required to determine whether the applicant satisfied cl 500.212 of Sch 2 to the Regulations and was a genuine applicant for entry and stay as a student (CB 188).
2. The Tribunal noted in the Decision that, in considering whether the applicant was a genuine temporary entrant, it was necessary to have regard to the matters set out in Ministerial Direction No. 69 (CB 189 [11]-[12]). It set out the issues it would take into consideration in accordance with Ministerial Direction No. 69, including the applicant's circumstances, the value of courses to his future, his immigration history, as well as any other relevant matter (CB 189 [11]).
3. The Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student (CB 189-198 [14]-[67]). Those reasons included that:
   • the Tribunal did not accept the applicant had conducted a reasonable level of research to inform himself about his desired courses, including about whether it was available to him in his own country and the advantages of studying the course (CB 190, 195 [16]-[18], [48]-[50]). The Tribunal also found the applicant's reasons for studying in Australia, as opposed to studying the same courses in India, were inadequate (CB190-1 [19]-[20]).
   • the applicant's one return trip to India in the eight years since he arrived, as well as his ability to maintain communication with his family, did not demonstrate that he has personal ties to his home country that would be a significant incentive for him to return (CB 191 [24]). The Tribunal also found that the applicant had no assets in India, and that his employment in Australia indicated his economic circumstances were not an incentive to return to India (when compared to Australia) (CB 191-2 [25]-[28]).
   • having regard to the fact that the applicant lives with his brother (who is an Australian citizen), and his involvement with a Sikh temple and community kitchen, the Tribunal found that the applicant has ties to Australia which were a strong incentive to remain in Australia (CB 192, 197 [31]-[34], [60]).
   • the Tribunal had regard to the various courses the applicant had been enrolled in, but not completed, and also to the reasons the applicant had given that led to the cancellation of those courses (CB 192-4 [35]-[42]). The Tribunal found the applicant's study history was not one of a genuine student and that it appeared that he was using Student visas to circumvent the intention of the migration program, as well as maintain ongoing residence in Australia (CB 194, 197, 198 [43]-[45], [64], [68]).
   • the proposed mechanics-related courses were deemed not consistent with the level of studies previously undertaken (CB 195-6 [53]-[54]).
   • the Tribunal had some reservations in relation to the applicant's evidence about a job offer in India and was not satisfied that the proposed course of study would assist the applicant in obtaining employment or improving his job prospects in India (CB 196 [56]).
   • the applicant's expected remuneration in India would be less than the remuneration he would receive in Australia and the Tribunal gave this factor weight against the applicant (CB 196 [58]).
4. The Tribunal noted the submissions of the applicant's migration agent as follows (CB 197-8 [67]-[68]):

67. In relation to paragraph 16 of the Direction, during the hearing I asked Mr Bhatia if there was anything further he wished to say in support of the application. Mr Bhatia said that his client had been issued with many CoEs. The applicant provided various CoEs to the Tribunal. Mr Bhatia said the applicant did not intend to enrol in all these courses of study. He said that in relation to some courses, despite his best efforts, he could not pass some subjects. Mr Bhatia said his client ought to be given one final chance to complete studies and go back to his home country. In reaching my determination, I have had regard to these submissions.

68. The evidence does not explain why and how the applicant came to be enrolled in the wrong courses and courses that he did not intend to study. Accordingly, I am unable to make any informed finding about that submission. The evidence establishes that since first arriving in Australia on 14 May 2013, the applicant has only completed three courses of study with a total study duration of approximately 24 months. Overall, I do not consider that this is representative of a genuine student. I give little weight to Mr Bhatia's submissions.

1. Based on the information before it, the Tribunal was not satisfied that the applicant was a genuine student who intends to stay in Australia temporarily and found that he did not meet cl 500.212 of Sch 2 to the Regulations (CB 198 [70]). The Tribunal accordingly affirmed the decision under review not to grant the applicant the visa (CB 198 [71]).

1. On 18 May 2021, the applicant filed an application for judicial review in this Court. The applicant identified the following grounds of review:

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3. Natural Justice.

1. The application for judicial review was supported by an affidavit affirmed on 17 May 2021 in which the applicant said:
   1. Member of Migration Review Tribunal misinterpreted the applicable law or misapplied the law to the fact and they made jurisdictional error in deciding my case
2. A copy of the letter confirming an oral decision made 28 April 2021 and a copy of the applicant's passport were annexed to the affidavit.
3. On 1 December 2021 and 27 June 2025, Registrars of the Court made orders directing the applicant to filed and serve any amended application, supplementary Court Book, additional affidavits and written submissions before the final hearing. The applicant did not do so.
4. On 10 May 2022, the solicitors for the Minister served a copy of the Court Book on the applicant and the email address given as his address for service. On 29 September 2025, the solicitor for the Minister served a copy of an outline of written submissions and a list of authorities on the applicant.
5. The final hearing of the application for judicial review took place in person at Melbourne on 3 October 2025. The applicant appeared in person, self-represented, and was assisted by an interpreter in the English and Punjabi languages.
6. Ms Ward, solicitor, appeared for the Minister.
7. The Court confirmed that the applicant received a copy of the Court Book prepared on behalf of the Minister and the Minister's outline of written submissions.
8. The Court noted that the application for judicial review filed by the applicant only sought an order to quash the Tribunal's Decision and did not seek a writ of mandamus requesting the matter be remitted to the Tribunal. An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of not properly invoking the Court's jurisdiction pursuant to s 476(1) of the Migration Act 1958 (Cth) (see FRA18 v Minister for Home Affairs [2019] FCCA 2287 [15] and [21] per Judge Driver and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889 at [44]-[45] per Judge Kendall). Noting that the applicant was unrepresented, it is understandable that the applicant may not have appreciated the importance of this technicality, and noting that solicitors for the Minister have not raised this technicality in the written submissions made on behalf of the Minister, the Court invited the applicant to amend the application for judicial review to seek a writ of mandamus.
9. The applicant sought leave to amend which was not opposed by the Minister. The Court finds that it is in the interests of justice and the overarching purpose of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), to dispense with the requirement to file an amended application for the purpose of this proceeding. The application for judicial review filed 18 May 2021 is amended so as to seek a writ of mandamus.
10. Noting that the applicant was unrepresented, the Court gave the applicant an opportunity to elaborate on and further articulate his grounds of review. It was explained that the Court cannot review the merits of the Tribunal's Decision to refuse the visa, rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the Decision. It was explained to the applicant that the Court cannot grant the applicant the visa but is confined to determining whether the Tribunal has made a "jurisdictional error". The Court invited the applicant to explain why the Tribunal's Decision was wrong and to identify any jurisdictional error.

1. The applicant explained that he had returned to India only once since arriving in Australia because his mother and grandmother had come to visit and then live in Australia. The Tribunal erred in finding that he did not have ties to India because his family lives in Australia and there was no need for him to return. The applicant also submitted that he did research studying automotive technology in India but concluded that Australia offered better courses.
2. The applicant apologised that his study history was not better and accepted that he had made some mistakes in his choice of study and history of enrolment. However, he wanted to continue studying in Australia and was keen to do so.
3. The applicant could not assist in explaining why he claimed in the application for judicial review that he had been denied natural justice and could not expand on that ground of review. There was no further evidence or documents that the applicant sought to rely on for the purpose of his application and the thrust of his submissions were that he should be given a further opportunity to study in Australia.

1. The Minister relied on the outline of written submissions dated 19 September 2025. Put simply, the Minister submitted that the application for judicial review (as amended) did not identify any jurisdictional error by the Tribunal and the Decision reflects that the Tribunal duly considered all the available evidence and claims, but was not satisfied that the applicant intended genuinely to stay in Australia temporarily as a student.
2. There was no jurisdictional error disclosed in the Decision and there is nothing to indicate that the Tribunal lacked jurisdiction to conduct the review of the delegate's decision.
3. There had been a valid invitation to attend the hearing before the Tribunal sent more than fourteen days before the hearing and the applicant and his migration agent appeared and gave evidence and made submissions at the hearing.
4. The Decision reflects a thorough consideration of reg 500.212 and Ministerial Direction No. 69. There was no error or misinterpretation in the application of the statutory criteria and the grounds of review lack particulars of any such breach.
5. There was no denial of natural justice by the Tribunal and again there were no particulars given to support or explain this claim. The applicant could not expand on it orally. The applicant was given the opportunity to comment on the PRISMS record and his history of study and did so. No error was apparent on the face of the Decision or the documents in the Court Book.
6. The applicant did not make any further submission in reply to the submissions made on behalf of the Minister.

1. The function of this Court is to review the Decision and determine if the Tribunal has fallen into error by failing to conduct the statutory task of reviewing the delegate's decision to cancel the visa in accordance with law.
2. It is not for this Court to review the merits of the Decision or to reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings. The weight to be given to the evidence was in the domain of the Tribunal and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J).
3. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321, the plurality said at [3]:

[3]...Jurisdictional error on the part of a statutory decision-maker in making a decision can 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.

1. The Decision contains a very thorough analysis of the applicant's claims and evidence. There was no misunderstanding of the applicable law, the Tribunal did not ask the wrong question or identify a wrong issue. The Tribunal did not ignore relevant material or consider irrelevant material.
2. Further, there is no evidence before this Court or material in the Court Book to suggest any failure to extend procedural fairness to the applicant by the Tribunal.
3. The Tribunal's jurisdiction to review the delegate's decision was properly invoked by the applicant within the prescribed time limit and there is nothing in the Decision that reflects a lack of jurisdiction or error in affirming the decision of the delegate under review.
4. The Decision reflects the Tribunal's active engagement with the statutory criteria and the application of the guidelines in Ministerial Direction No. 69. The Tribunal assessed the criteria that it identified in [11] of the Decision and did not use those criteria as a checklist but rather as a guide in reaching satisfaction of whether the applicant is a genuine temporary entrant to Australia (CB 189).
5. The applicant could not identify any failure by the Tribunal to extend natural justice or denial of procedural fairness. The lack of particulars of a ground of review is of itself a reason to dismiss a ground of review (see NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ).
6. The applicant was not represented and therefore the Court has also scrutinised the application for judicial review, the materials before the Tribunal, and the Decision itself to identify any other material jurisdictional error, noting the Court's obligations as outlined in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [58], [77], [100] and [112]-[114]. No material jurisdictional error is apparent. The application for judicial review filed 18 May 2021 is dismissed.

1. Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $5,400.00 which is less than the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 3, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
2. The sum claimed is fair and reasonable and will be ordered to be paid by the applicant.

1. The application for judicial review filed 18 May 2025 is amended to seek an writ of mandamus;
2. The amended application for judicial review be dismissed; and
3. The applicant pay the first respondent's cost and disbursements of and incidental to the application for judicial review and the amended application for judicial review fixed in the sum of $5,400.00.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.