Singh v Minister for Immigration and Citizenship [2026] FedCFamC2G 31

1. By an application filed in this Court on 10 July 2019 (Application), the Applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), of a decision of the Administrative Appeals Tribunal. On 18 June 2019 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Student (Temporary) (class TU) (subclass 500) visa (Visa) (Tribunal's Decision).

1. The Applicant is a citizen of India.
2. The Applicant arrived in Australia on 5 May 2014 as a holder of a Student Visa (Subclass 573) Visa (Initial Visa). The Initial Visa was granted for the purpose of the Applicant engaging in studying a programme that included a General English course, Certificate IV in Business, Diploma of Management, and Bachelor of Commerce. In July 2015, the Applicant's enrolment in the Bachelor of Commerce was cancelled by the education provider because the Applicant did not commence their studies. The Applicant subsequently enrolled into a number of vocational sector courses in commercial cookery, frontline management, management and marketing and a Diploma of Hospitality.
3. The Applicant applied for the Visa on 23 August 2017 proposing to study a Bachelor of Business.
4. To be granted the Visa the Applicant was required to satisfy primary criteria at the time of decision. Clause 500.212 of the Migration Regulations 1994 (Cth) (Regulations) relevantly provided:

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

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(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; and

(iv) any other relevant matter; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

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

(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

1. When considering whether the Applicant satisfied the criteria in clause 500.212 the Delegate, and subsequently the Tribunal, was required to take into account Ministerial Direction No. 69 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Migration Act (GTE Criterion). Those factors in Direction No. 69 were conveniently summarised by the Tribunal at paragraph 8 of the Tribunal's Decision as follows:
   • 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.

1. On 11 August 2017, the Delegate decided to refuse to grant the Visa (Delegate's Decision). The Delegate was not satisfied that the Applicant met the GTE Criterion and cl 500.212. The Delegate noted that the Applicant failed to maintain enrolment in the initial intended studies and that his behaviour was not consistent with a genuine temporary entrant. The Delegate observed that the Applicant did not complete their initial study programme, made a significant change in the study programme proposed and only completed vocational education courses on a higher education visa.
2. The Delegate indicated that the Applicant had not stated when he intended to return to India and appeared to have enrolled in a Bachelor of Business for the purpose of securing a further student visa rather than due to a genuine interest in studying to benefit his career outside Australia.

1. The Applicant lodged an application for review with the Tribunal on 23 October 2017. The Tribunal sent an acknowledgment of application on 24 October 2017.
2. On 22 February 2019 the Tribunal sent the Applicant an invitation to provide information. The Tribunal requested that the Applicant complete a student visa information form by 8 March 2019. The request to provide a completed student visa information form was accompanied by advice to the Applicant that they were required to be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The Tribunal annexed a copy of Direction No 69 to its correspondence. The Applicant provided a completed response form to the Tribunal.
3. On 19 March 2019 the Tribunal invited the Applicant to a hearing on 3 April 2019. The Tribunal requested that the Applicant provide a response form, current confirmation of enrolment in a course, other supporting documents and a written GTE Criterion Statement by reference to Direction 69 in support of the Applicant being a genuine applicant for entry and stay as a student.
4. The hearing proceeded on 3 April 2019 (Tribunal Hearing). The Applicant attended with a Punjabi interpreter. The Applicant provided to the Tribunal several documents including a letter explaining why he satisfies the genuine temporary entrant criterion, an overseas student confirmation of enrolment, a building design diagram, and various academic records and education completion certificates.

1. On 18 June 2019 the Tribunal affirmed the Delegate's Decision. The Applicant was notified of the Tribunal's Decision on 19 June 2019.
2. The Tribunal identified the dispositive question as being whether the Applicant met the GTE criterion as required by schedule 2 cl 500.212 of the Regulations. The Tribunal also identified that when considering whether the Applicant satisfies the GTE criterion the Tribunal must have regard to Direction No.69 and that the direction was a guide not a checklist.
3. The Tribunal turned to considering the GTE criterion.
4. The Applicant conceded during the Tribunal hearing that equivalent courses to those he intended to study in Australia were available in India, that studying in India was cheaper than studying in Australia, and that he had not applied to study in India. The Tribunal found that there was no evidence before it that would indicate the Applicant took any significant research into studying in India. Considering that the Applicant had been in Australia for 5 years at the time of making the decision the Tribunal was not satisfied that the Applicant had reasonable reasons for not undertaking study in India or that he had reasonable motives for undertaking study in Australia rather than India.
5. The Tribunal found that the Applicant's community ties through social welfare activities and sport in India could only be given little weight due to the length of time he had been in Australia. The Tribunal observed that the Applicant's parents lived in India and his sister in England and that since his arrival in Australia he had return to India for a period of 13 days. The Tribunal ultimately concluded that the Applicant's personal ties to India did not serve as a significant incentive to return.
6. The Applicant informed the Tribunal that he owned, with his cousins, an empty shop in which he intended to open a restaurant. The Tribunal found that this claim was not supported by evidence and attributed little weight to it.
7. There was no evidence before the Tribunal regarding employment opportunities available to the Applicant upon his return to India or that he owns or controls any income producing assets. The Tribunal also observed that there was a disparity between Australia and India, in favour of Australia regarding wages and living standards and that the Applicant had consistent work as a chef since his arrival in Australia. The Applicant conceded that he received much higher wages in Australia as a cook than he would be paid in India. The Tribunal found that his economic circumstances in Australia would be a significant incentive not to return to India.
8. The Applicant was granted a visa for the purpose of undertaking a higher education programme. After arrival in Australia the Applicant changed educational providers and enrolled in VET Courses. The Tribunal found that the Applicant failed to satisfy the primary condition of the Initial Visa on which he was granted entry into Australia namely to maintain enrolment in the higher education sector. In addition, the Tribunal found that there was no evidence before it that the Applicant was in communication with the Department concerning the change in educational stream and in these circumstances the Applicant failed to comply with visa condition 8516. The Tribunal considered the change in education stream and the failure to inform the Department weighed in favour of concluding that the student visa may be primarily used to maintain the Applicant's residence in Australia.
9. Prior to entry into Australia the Applicant had been employed in India as a chef. He commenced employment as a cook soon after his arrival in Australia and downgraded his studies from the higher education sector to the vocational education and training sector. The Tribunal found the Applicant's claim that his prospective profession as an accountant was inconsistent with the claim that he was planning on opening a restaurant on his return to India. The Tribunal considered that these matters impugned the Applicant's credibility and indicated that study in the higher education sector was not the Applicant's true purpose for which he was seeking the Visa but rather to use the student visa programme to circumvent the migration programme.
10. The Applicant further informed the Tribunal that he wished to open a café and bakery in India. The Applicant had not undertaken bakery courses in Australia. There was an absence of evidence before the Tribunal regarding the Applicant's experience in owning and operating a café and bakery, whether he would be permitted to establish such a business in the premises that he allegedly owned, or that he had undertaken any research regarding the financial and practical matters involved owning and running the proposed business. The Tribunal did not accept that the Applicant's business plan was realistic or viable nor related to the Bachelor of Business. The Applicant also contended that he could receive greater remuneration owning a restaurant in India than he could as a cook in Australia. There was no evidence available to the Tribunal regarding this contention.
11. The Tribunal concluded a Bachelor of Business would not significantly improve the Applicant's employment prospects in India to justify the amount of time the Applicant would spend in Australia to complete the courses or the expense of those courses. The Tribunal concluded that these matters weighed against the Applicant being a genuine temporary entrant particularly in light of his study pathways.
12. Ultimately the Tribunal was not satisfied that the Applicant intends to genuinely stay in Australia temporarily and did not meet cl 500.212 of the Regulations.

1. The Application was filed in this Court on 10 July 2019, within 35 days of the date of the Tribunal's Decision as prescribed by s 477 of the Migration Act.
2. On 10 September 2025 Orders were made for the Applicant to file material prior to a final hearing. The Applicant did not comply with those orders.
3. This matter was heard on 4 December 2025 and proceeded in person (Hearing). The Applicant appeared in person with the assistance of a Punjabi interpreter. A Solicitor appeared for the Minister. I confirmed that the interpreter and the Applicant understood each other, and that the Applicant was willing to proceed with the interpreter. I confirmed that the Applicant had all the documentary material relied upon by the parties available to him in Court. I explained the process that would be undertaken during the hearing. I am satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
4. The Applicant relied upon the following documents:

(a) The Originating Application filed on 10 July 2019;

(b) The Affidavit of the Applicant filed on 10 July 2019, annexing the Tribunal's Decision; and

(c) An outline of submissions filed by the Applicant on 26 November 2025. These submissions were provided 20 days outside the time provided for in the orders made by a registrar of this court. Leave to rely upon the submissions was granted to the Applicant unopposed.

(a) The Response filed on 2 August 2019; and

(b) The Outline of Submissions filed on 20 November 2025.

1. The Minister also filed a Court Book on 18 January 2022.
2. The Originating Application included the following grounds of review (Grounds of Review):
   1. 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.

I completed huge part of hospitality studies but member Did not paid any heed towards that evidence.

1. The applicants were not afforded natural justice.

Particulars:

I was not provided extra time to provide the evidences.

I was not provided with the written decision despite of the constant request from the tribunal.

The Member believed on the hearsay evidences of the Home Affairs department and refused the case without asking for additional documents.

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. According to tribunal, The Tribunal cannot be satisfied that the applicant is a genuine temporary entrant that is not true as I have studied course and never stopped the studies. 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. Tribunal misinterpreted cl.500.212(a).

1. Despite of the repeated request the member did not provide any time to provide the documents and never gave a detailed decision of the application.

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

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.

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

(Verbatim)

1. At the Hearing I asked to Applicant to tell me what the Tribunal's big mistake or serious error was when making its decision and if possible take me to the paragraph of the Tribunal's decision where the big mistake or serious error occurred.

1. The written submissions that the Applicant provided did not refer to ground 1 or ground 6. I asked the Applicant whether they still pressed these grounds of review. The Applicant informed the Court that he did not wish to press those grounds.
2. With respect to the remaining grounds of the Application, the Applicant informed me that he wished to rely primarily on his written submissions.

1. With respect to Grounds 2, 4, 5, and 7 the Applicant submitted in summary that the Tribunal reached its decision based on issues that he had no chance to address or explain.
2. It was submitted by the Applicant that the Tribunal did not ask him during the hearing what it wanted by way of evidence. He submitted that he could have provided documents in relation to his ownership of the shop premises in India if he knew what documents were important. The Applicant further submitted that he should have been given an opportunity to provide ownership documents and a full explanation as to his financial ties to India.
3. The Applicant also contends that he did not give evidence about counselling for stress and homesickness because he was not asked to do so by the Tribunal. The Applicant also complains that he was not offered an opportunity to address how his experience as a cook related to his proposed study pathway or why he wanted to be an accountant and open a café.
4. The Minister submits that there is nothing before the Court that indicates that the Applicant sought additional time to provide additional documentary evidence. The Tribunal afforded the Applicant with two opportunities to provide supporting evidence, on 22 February 2019 and also 19 March 2019. It was further submitted that there was the opportunity, if the Applicant wished to avail himself of it, to provide the Tribunal additional material in the period between the conclusion of the hearing and the Tribunal publishing its decision.
5. I note that on 2 April 2019 the Applicant provided the Tribunal with documents in support of his merit review application that included a floor plan as well as Australian education documents, a Certificate of Enrolment and a letter dealing with the GTE criterion.
6. The Applicant's position that the Tribunal did not request additional information from him is unsustainable. The Tribunal's task is inquisitorial, not adversarial. It is a matter for the Applicant to advance his case and determine what evidence he wishes to put before the Tribunal. It is for the Tribunal to then consider 'whether that claim is made out': Abebe v The Commonwealth (1999) 197 CLR 510 at [187].
7. The Minister submits that the Applicant was indeed offered an opportunity to provided oral evidence. The Tribunal complied with the mandatory procedures in Part 5, Division 5 of the Migration Act. The Applicant was invited to provide information and attend the hearing.
8. The Applicant provided documentation (including a lengthy statement in the form of a letter regarding why he met the GTE criterion) and he attended the hearing. I agree with the submission of the Minister that the Applicant was given by the Tribunal a meaningful opportunity to present arguments and give evidence in support of his case.
9. The Applicant also contended that he was denied an opportunity to seek a review before the Tribunal because he was not provided with a copy of the departmental decision record. This ground is unsustainable. The Applicant applied for a review of the Delegate's Decision and the Tribunal undertook the review and made a determination.
10. Grounds 2, 4, 5, and 7 must be dismissed. The Applicant has been unable to establish a jurisdictional error on the part of the Tribunal.

1. The Applicant in his written submission states that what he meant by this ground was that the Tribunal did not understand his evidence properly. He submits that the Tribunal's findings were not logical and did not match the information given to the Tribunal.
2. The Applicant's submission on this ground is a repetition of the complaint that he was not afforded an opportunity and therefor did not provide documents to the Tribunal regarding the ownership of the vacant shop. He further submits that he was not afforded an opportunity to clarify his inconsistent GTE answers regarding studying to become an accountant and opening a café. The Applicant contends that because the findings made by the Tribunal were done so in the absence of the evidence he could have submitted then those findings were illogical.
3. It was also submitted by the Applicant that it was unreasonable for the Tribunal to expect documentary evidence of counselling for homesickness and stress.
4. The Minister submitted that the decision does not disclose any reasoning or exercise of discretion that was illogical or unreasonable. The Tribunal considered the GTE criterion including cl 500.212 and Ministerial Directive 69 and the claims and evidence before it at paragraphs [9] - [28] of its reasons.
5. I agree with the Minister's submission that there was no misconstruction of clause 500.212. Further this ground constitutes a disagreement with the factual finding of the Tribunal that the Applicant did not meet the GTE criterion. The Applicant seeks an impermissible merits review of the Tribunal's Decision by the Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.
6. The Applicant's change in study pathway from higher education to vocational education and training, it was submitted, was treated negatively by the Tribunal and that the vocational education pathway was a normal pathway in Australia for cooking. The Applicant's position was that he studied continuously and passed his course therefor for the Tribunal to conclude that he did not meet the GTE criterion was unreasonable.
7. I do not accept the Applicant's submission. The Tribunal's reasons clearly, as submitted by the Minister, reveal that it considered the evidence before it, in particular that the Applicant had studied in the vocational education stream rather than the higher education stream for which he was granted the Visa. The findings made by the Tribunal in this regard were open to it.
8. The Tribunal's Decision does not disclose any reasoning or exercise of discretion that was illogical or unreasonable. The Applicant has been unable to show a jurisdictional error on the part of the Tribunal with respect to Ground 3. Ground 3 must be dismissed.

1. The Applicant has not established jurisdictional error. The Application filed on 10 July 2019 must be dismissed.
2. The Minister sought costs fixed in the amount of $6,181.81. This amount is less than the scale costs prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). The Applicant is to pay the Minister's costs in the sum of $6,181.81.
3. Orders will be made accordingly.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.