Singh v Minister for Immigration and Citizenship

1. In or around December 2018, the former Administrative Appeals Tribunal (Tribunal) affirmed a decision of the (then) Minister for Immigration, Citizenship and Multicultural Affairs refusing to grant the applicant's spouse a student visa and refusing to grant the applicant a visa as a member of his spouse's family unit. The applicant and his spouse made an application to the (then) Federal Circuit Court of Australia for a review of the Tribunal's decision, which was subsequently quashed and remitted to the Tribunal by consent on 8 February 2021. The Tribunal invited the applicant and his spouse to attend a hearing. In response, the applicant advised the Tribunal that his spouse had left the country. Accordingly, before the Tribunal, the applicant advanced his case as a primary applicant for a student visa. The Tribunal affirmed the delegate's decision on 13 September 2021, and the applicant applied to the Court for judicial review of the Tribunal's decision under s 476 of the Migration Act 1958 (Cth)[1] (Act).
2. The judicial review application will be dismissed with costs. My reasons follow.

1. The applicant is a citizen of India who arrived in Australia with his wife, Jagjot Kaur in 2014. Ms Kaur applied for a Student (Temporary) (Class TU) (Subclass 500) visa on 17 March 2017 and the applicant was included as a dependent applicant in the application. The applicant and Ms Kaur appointed a registered migration agent as an authorised recipient. Ms Kaur enclosed documents and evidence in support of her visa application, including: certificates of completion and statements of results for various courses; and an overseas student Confirmation of Enrolment (COE) for Ms Kaur to study an Advanced Diploma of Leadership and Management with Australasian International Academy Pty Ltd.
2. On 16 June 2017, a delegate of the Minister refused the applicant and Ms Kaur's visa applications and enclosed a copy of the delegate's decision record which was dispatched to the migration agent by email. The delegate's decision records that the delegate considered the documents and information available before it and had regard to Ministerial Direction No. 69 (Direction No 69) in assessing the genuine temporary entrant criterion for student visa applications. The delegate noted that Ms Kaur was granted a prior student (subclass 573) visa to study various vocational courses and a Bachelor of Health. Ms Kaur did not commence the Bachelor of Health course and breached her visa condition. The delegate further noted that Ms Kaur remained in Australia for more than three years and never departed, indicating that she may fail to abide by the conditions of any other visa. The delegate considered that the grant of the visa subject to the application would bring Ms Kaur's temporary time in Australia to over four years. On the basis that Ms Kaur had not explained whether there were similar qualifications available in her home country, and considering the totality of the aforementioned observations, the delegate was not satisfied that Ms Kaur was genuinely seeking to undertake the proposed courses, and appeared rather to be using the student visa program as a means of extending her stay in Australia. The delegate concluded that Ms Kaur did not genuinely intend to stay in Australia temporarily and did not satisfy cl 500.212 of the Migration Regulations 1994 (Cth) [2] (Regulations), and accordingly refused her visa application. On the basis that Ms Kaur's application was refused, the applicant could not satisfy cl 500.311 of the Regulations, and the delegate refused his visa application.

1. On 4 July 2017, the applicant and Ms Kaur applied for review of the delegate's decision, and in or around December 2018, the Tribunal affirmed the delegate's decision. The applicant and Ms Kaur commenced a proceeding in the (then) Federal Circuit Court for review of the Tribunal's decision. That decision was quashed, and the matter was remitted to the Tribunal by consent on 8 February 2021 as the first respondent (at the time) conceded that the Tribunal erred by failing to invite the applicant and Ms Kaur to comment on adverse information contained in the Provider Registration and International Student Management System (PRISMS) record.
2. On 25 February 2021, the Tribunal advised the applicant and Ms Kaur that the decision to refuse to grant them visas had been remitted to it for reconsideration according to law. The letter advised that the Tribunal may either seek further information, comments, or responses to particular information; invite Ms Kaur and the applicant to attend a hearing; or make a decision. The Tribunal enclosed, inter alia, an 'Information for migration review applicants - MR Division' factsheet.
3. On 20 August 2021, the Tribunal invited Ms Kaur and the applicant to comment on or respond to information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The letter advised that the Tribunal obtained information from PRISMS concerning Ms Kaur's study history as follows:

Your most recent enrolment in an Advanced Diploma of Leadership and Management was cancelled by the course provider on 2 May 2018 due to non-payment of fees. According to the PRISMS record, you have not been enrolled in any other registered course of study since that time. You are not enrolled in any course now.

1. The information from the PRISMS record indicated that Ms Kaur may not meet the primary criteria for the grant of the visa under cl 500.211 of Sch 2 to the Regulations. The letter advised of further adverse information concerning Ms Kaur's visa history as follows:

The information is also relevant to the review because it suggests that you are not the kind of person who intends to comply with conditions subject to which the visa is granted. Specifically, the information discloses a three-year-and-three-month history of remaining in Australia without making demonstrated efforts to study on a full-time basis while you remain in the country. It indicates that you are not the kind of person to remain enrolled and make satisfactory course progress, which are essential conditions attached to a student visa. This, in turn, indicates that you do not meet the primary criteria for the grant of a student visa under clause 500.212(b) of Schedule 2 of the Regulations.

1. The Tribunal also advised that it obtained further information from the Maritime database maintained by the Department of Home Affairs, and the particulars of information were as follows:

That you departed Australia on 28 May 2018 and you are not onshore. You do not hold a valid visa to return to Australia.

1. The Tribunal informed the applicant and Ms Kaur that the above information was relevant to the review, as cl 500.212(a) of the Regulations required that an applicant be a genuine applicant for entry and stay as a student, a requirement known as the genuine temporary entrant criterion (GTE criterion). The Tribunal requested a comment or response by 3 September 2021 and enclosed a copy of Ms Kaur's PRISMS record and 'Movement record'. Neither the applicant nor Ms Kaur responded to the invitation within the time specified.
2. By email dated 26 August 2021, transmitted to the applicant's migration agent, the Tribunal invited the applicant and Ms Kaur to attend a telephone hearing scheduled on 13 September 2021 to give evidence and present arguments relating to the issues in their case. That letter requested the applicant and Ms Kaur produce the following documents:

(i) your current Confirmation of Enrolment ('CoE') or other documentary evidence showing you are currently enrolled in a course of study as defined in cl 500.111, and as required by cl 500.211(a) of Schedule 2 of the Migration Regulations 1994 (Cth) ('the Regulations') for the grant of the student visa;

(ii) documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia;

(iii) other documents that may establish that you are a genuine student, that you have a genuine intention to remain in Australia temporarily as a student, and that you intend to comply with the conditions of any student visa that is issued to you.

1. The letter drew the applicant and Ms Kaur's attention to the issues of the case which required addressing at the hearing, namely:

(a) whether you are currently enrolled in a course of study, as required by cl 500.211 of Schedule 2 of the Regulations ('the enrolment criterion');

(b) whether you are a genuine applicant, as required by cl 500.212 of Schedule 2 of the Regulations ('the genuine applicant criterion').

1. The correspondence enclosed a copy of Direction No 69 for the applicant and Ms Kaur's reference, a PRISMS search result, an 'Information about hearings' factsheet and a 'Response to hearing invitation' form for the applicant and Ms Kaur to confirm attendances at the hearing and to provide the Tribunal with any additional or new information which they might wish the Tribunal to consider.
2. On 30 August 2021, the applicant sent the Tribunal a submission enclosing a completed 'Response to hearing invitation' indicating the applicant's intention to appear at the hearing in the absence of Ms Kaur. The submission included inter alia, a letter signed by the applicant and dated 7 September 2021; two COEs for the applicant to study General English and English for Academic Purposes with Student Development and Learning Academy Pty Ltd (trading as: Southern Cross School of Business); and three PRISMS record searches. The applicant explained in his letter dated 7 September 2021 that he intended to complete further study in Australia to improve his English in the hope of obtaining a better job, or starting his own business in the construction industry. The applicant evidenced his research on Australian colleges justifying his reasons for studying his selected course/s, explicating his financial capacity to support himself during his stay and plans upon completion of studying.
3. The applicant attended the hearing before the Tribunal via telephone with the assistance of a Punjabi interpreter.
4. On 13 September 2021, the Tribunal made an oral decision affirming the decision under review and notified the applicant on even date, by email transmission to the applicant's migration agent. The Tribunal enclosed a copy of the written record of the outcome for review, and an 'Information about decisions - MR Division' factsheet. On 14 September 2021, the migration agent requested a copy of the written statement of decision and audio recording of the hearing conducted on 13 September 2021. On 17 September 2021, the Tribunal distributed a written transcript of the hearing, and on 5 October 2021, a copy of the Tribunal's Statement of Decision and Reasons (Decision) was sent by email to the applicant's migration agent.

1. The Tribunal set out the nature of the application and the procedural history at [1]-[5] of the Decision. The Tribunal records at [6] that the applicant informed it at the hearing that Ms Kaur returned to India; that his relationship with her had effectively broken down; and that he had not been in communication with her since. The Tribunal acknowledged this was significant, as a "second applicant's case for a student visa could no longer be advanced on the basis of a sole secondary student visa application" in the absence of a primary applicant: Decision at [7]-[8]. Nonetheless, the applicant decided to advance his case as a primary student visa applicant, and the Tribunal was entitled to hear and determine the matter, as it was conducting a de novo hearing, and proceeded to consider the applicant's application applying cls 500.211 and 500.212 of the Regulations: at [10]-[11]. The Tribunal accepted that the applicant was enrolled in two courses - General English, and English for Academic Purposes - and so satisfied cl 500.211. As to whether the applicant met the GTE criterion in cl 500.212, the Tribunal recorded that it considered the applicant's letter dated 7 September 2021 and had regard to Direction No 69 in arriving at its decision: at [11].
2. The Tribunal accepted that the applicant's family were in India, indicating that he had a significant incentive to return to his home country: Decision at [14]. However, the Tribunal expressed the following concerns about the application at [15]:

(a) that the applicant took no steps to commence study after Ms Kaur returned to India in 2018;

(b) that the applicant appeared to have only enrolled in courses after being prompted by the Tribunal; and

(c) that the applicant expressed that he was uncertain about his situation with respect to his review application and that he did not have any study rights beyond temporary study for a duration of 3 months.

1. The Tribunal noted that it was unable to comprehend the value of the proposed course/s to the applicant's future employment in circumstances that he had already been living in an English-speaking nation for the last seven years. Moreover, the applicant had not proposed to study any course beyond English language, despite his stated intention to start a business in the construction industry: Decision at [17]. The Tribunal accepted that the applicant had an unblemished immigration history; however, it was unable to disregard the fact that the applicant's enrolment in the English courses appeared to be responsive to the imminence of his visa review application being determined by the Tribunal: at [18].
2. The Tribunal thereby concluded that the applicant's enrolments in the English courses were an attempt to prolong his ongoing residence in Australia, and affirmed the decision under review with respect to the applicant: Decision at [19]-[21].

1. By the earlier mentioned judicial review application, the applicant sets out seven grounds of application. The first six merely recite some of the background matters to the judicial review application. Paragraph [7] contains the applicant's five substantial grounds which are as follows:

(a) The Department of Home Affairs made a procedural error by not correctly assessing information relevant to my circumstances. The department 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.

(b) I believe that I was not provided a fair opportunity to provide the verbal evidence to the member. My legitimate expectation to seek review was denied by the Tribunal. AAT and Department of Home Affairs have stated that I have only sought to satisfy the criteria for a Subclass 500 visa in the Temporary Residence Transition stream.

(c) Member erred in affirming my application without providing extra time and without any basis in law and fact.

(d) My application clearly raises an arguable case, and the decision of the tribunal is short and void and must be overlooked again.

(e) Substantial justice was not provided and that is the reason I want to apply in Federal Circuit Court of Australia.

1. On 24 February 2025, the Court invited the applicant to attend a Callover via telephone before Registrar Cummings, scheduled on 7 March 2025. The applicant did not attend the Callover and the Registrar dismissed the proceeding for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The applicant filed an application for reinstatement of his judicial review application, and on 24 April 2025, the Registrar set aside the dismissal order pursuant to r 17.05(2)(a) of the Rules, and listed the matter before me for final hearing.

1. By ground 1 the applicant appears to join issue with the delegate's decision in alleging that the "department" made a procedural error by not correctly assessing information relevant to his circumstances and failing to consider or failing to correctly consider other relevant matters in support of his case such as his previous immigration history and compliance with visa conditions. The Court does not have jurisdiction to judicially review the delegate's decision and so ground 1 must fail. If this ground is intended to be directed to the Tribunal's decision then it is misconceived since, as noted above, the Tribunal considered his evidence, including the applicant's immigration history and his past compliance with visa conditions at [7], [13], [16] and [18] - accepting "the applicant has an unblemished immigration history" while residing in Australia - in assessing whether the applicant satisfied the GTE criterion. Otherwise, the applicant has neither particularised nor identified, any other relevant matter that the Tribunal failed to consider in assessing whether he satisfied the GTE criterion. Consequently, ground 1 does not disclose jurisdictional error and fails.

1. By ground 2, the applicant claims that he was not provided a fair opportunity to give oral evidence at the hearing and that the Tribunal erred by only considering whether he satisfied the criteria for a subclass 500 visa in the Temporary Residence Transition stream. The applicant has not particularised how it is he says he was not provided a fair opportunity to give oral evidence. Like the Registrar, I have had the benefit of listening to the recording of the Tribunal's hearing. The summary and observations made by the Registrar at [20] of his decision in Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 593, are accurate and apposite, and I gratefully adopt them without repetition. It is not evident from the recording how it is the applicant can say he was not given a fair opportunity to give evidence. He plainly was. The second part of this ground is also misconceived. The Tribunal did not say that the applicant had only sought to satisfy the criteria for the subclass 500 visa in the Temporary Residence Transition stream, and it would be surprising if it did so. Subclass 500 of the Regulations is concerned with Student visa criteria, and is not concerned with the "Temporary Residence Transition stream". The criteria for the Temporary Residence Transition stream are found in subclass 186 - employer nomination scheme, and subclass 187 - regional sponsored migration scheme. Ground 2 does not disclose jurisdictional error and fails.

1. By ground 3 the applicant contends that the Tribunal erred in affirming the delegate's decision without providing further time. This ground is unparticularised. However, during the hearing before me the applicant said that he had asked the Tribunal "for more time" during the Tribunal's review hearing to enable him to enrol in a further course of study. The applicant said he had asked "for a year or two". The audio recording of the Tribunal's hearing does not disclose any such request. The applicant did not ask the Tribunal for additional time during the hearing. By this ground the applicant also contends the Tribunal affirmed the delegate's decision without any basis in law and fact. This allegation is also unparticularised, and at the hearing before me the applicant was unable to elaborate. The Decision sets out the Tribunal's reasons and shows an intelligible basis for its findings, which appear open on the material before the Tribunal, and were arrived at through an intelligible process. The Tribunal clearly explained why it had concluded the applicant did not satisfy the GTE criterion. Ground 3 does not disclose jurisdictional error and fails.

1. By ground 4, the applicant opines that his application raises an arguable case and that because the Tribunal's decision is short and void, it must be reviewed. That a decision is "short" without more does not raise any arguable case of jurisdictional error: FBD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2028 at [39]. The applicant does not explain how he says the Tribunal's decision is "void", nor does he identify any element of the GTE criterion which the Tribunal might be said to have misapplied or overlooked. The applicant's opinion about the strength of his case also does not raise any arguable case of jurisdictional error. Accordingly, ground 4 does not disclose jurisdictional error and fails.

1. By ground 5, the applicant claims that substantial justice was not provided. This ground is not particularised, and the applicant was unable to elaborate at the hearing before me. Without more, the ground does not raise any arguable case of jurisdictional error. Ground 5 also fails.
2. Although the applicant's stated grounds of review all fail, there is a further issue arising from the Tribunal holding a hearing that raises the question whether the Tribunal committed jurisdictional error, and so warrants consideration.
3. As noted earlier, on 20 August 2021, the Tribunal invited the applicant and Ms Kaur to give their comments or respond to information under s 359A of the Act. The Tribunal allowed the applicant and Ms Kaur until 3 September 2021 to provide comments or a response. Neither did so within the time given. On 26 August 2021, the applicant and Ms Kaur were invited to attend a hearing scheduled for 13 September 2021. Whilst the applicant submitted a hearing response form indicating he would attend, he did not, in that form or otherwise, comment on or respond to the information identified by the Tribunal in its 20 August 2021 letter. It was therefore not a valid response: see Singh v Minister for Immigration and Border Protection [2021] FedCFamC2G 93 at [64]-[65]. The applicant's failure to respond within the time given attracted the operation of ss 359C(1), 360(2)(c), 360(3) and 363A of the Act: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40, 183 FCR 413 at [27], with the consequence that the applicant had no entitlement to appear at the hearing and the Tribunal had no power to permit the applicant to attend a hearing.
4. The first respondent accepts that the Tribunal had no power to permit the applicant to attend the hearing it convened. I accept the first respondent's contention that the question of whether there is jurisdictional error by the Tribunal in allowing the hearing is not answered simply by identifying that the Tribunal was not empowered to do so, and so there was a breach of s 363A of the Act. The issue is whether the breach of s 363A, by permitting the applicant to attend the hearing and participate in it, gave rise to jurisdictional error: BCO24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 478 at [55]; SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 at [48]. Ultimately, it is necessary to consider whether in the circumstances described earlier the breach had that result. Here, there was no prejudice to the applicant by the Tribunal conducting a hearing.
5. After the time for providing any comments or response to the Tribunal's s 359A request had passed, and before attending the hearing, the applicant was in the position that the review application was bound to fail on the material before the Tribunal at the time. At that time the applicant was the secondary applicant relying on the success of Ms Kaur's review application. Without any response or comment, the Tribunal was left in the position that the Tribunal indicated to the applicant and Ms Kaur in its correspondence of 20 August 2021. The applicant was given time and a forum to present further arguments and give evidence. A right he did not have because of his failure to give comment or respond, in the time given, to information in the Tribunal's s 359A request. Ms Kaur was not enrolled in a registered course of study and so could not satisfy the requirements of cl 500.211 of Sch 2 to the Regulations. Her review application was bound to fail. As the secondary applicant relying on the grant of a visa to Ms Kaur to obtain a visa for himself, the applicant's review application was also bound to fail. Before the hearing, the Tribunal was not aware that the applicant sought to prosecute his review as the primary applicant. This emerged only at the hearing. And so the applicant was given an opportunity to prosecute that case, an opportunity he would not have had but for the hearing. The fact that the Tribunal relied upon some of the applicant's evidence given during the hearing adversely to his interest does not mean that the conduct of the hearing by the Tribunal, despite s 363A of the Act, constituted jurisdictional error. But for the hearing, no further opportunity would have been afforded the applicant to say anything. In the result, his review application as a secondary applicant, which relied upon the success of Ms Kaur's application would, as I already explained, have failed.
6. These same matters may be identified to conclude that although such error has occurred, it was not a material error. As was made clear in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 280 CLR 321, an error will only be jurisdictional if it was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: at [7]. The decision the Tribunal in fact made here was to affirm the delegate's decision. That is the only decision that would have been available to the Tribunal had it not conducted the impugned hearing.
7. During the hearing before me I raised with the first respondent whether the fact that the Tribunal's s 359A notification only contained information concerning Ms Kaur, gave rise to any obligation on the applicant to respond. And if not, whether by failing to respond within the time given, the applicant ceased to have the right to a hearing. On reflection I accept that the s 359A notification invited the applicant to comment or respond to the information contained in the letter as well as Ms Kaur. The letter was addressed to the applicant and Ms Kaur. And although the information primarily related to Ms Kaur, it plainly bore upon the applicant's visa application. This is because if Ms Kaur, as the primary visa applicant, could not satisfy the student visa criteria because of the information in the letter, the applicant could not satisfy the visa criteria as a secondary applicant.

1. The applicant's judicial review application will be dismissed.
2. The first respondent sought costs in the amount of $6,500.00 in the event the applicant was unsuccessful. That is less than the amount fixed by reference to Pt 2 of Sch 2 to the Rules for a migration proceeding that concludes at final hearing, but more than the amounts fixed for a proceeding that concludes at earlier stages. The applicant did not advance any cogent reason why an award of costs in the amount sought should not be made. Section 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) relevantly empowers the Court to award costs in all proceedings before it (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded. And except as provided by the Rules or any other enactment, the award of costs is in the Court's discretion.
3. In exercising the discretion conferred in s 214(3) of the FCFCOA Act, consideration must be given to whether there is a party in whose favour an award should be made and then the appropriate mechanism by which the quantum of that award should be calculated. Section 214(3) does not contain any express indication of the considerations upon which the Court is to decide which party should pay, and the extent of any costs that are to be paid. The power to award costs is to be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. The discretion is unconfined save that it is to be exercised having regard to the subject matter, scope and purpose of the empowering enactment: Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72 at [22] (per Gaudron and Gummow JJ).
4. In the instant case, considering the history of this matter, the result, the work involved as disclosed from the filings, and the length and complexity of the hearing, I consider the applicant should pay the first respondent's costs in the amount sought. That amount is reasonable and reflective of the cost incurred. The applicant will be ordered to pay the first respondent's costs fixed in the sum of $6,500.00.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

[1] Unless otherwise specified or the content otherwise requires, any reference to the Act is a reference to the Act as it was then in force.

[2] Unless otherwise specified or the content otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.