Singh v Minister for Immigration and Citizenship

1. By an application in a proceeding filed on 1 September 2025, the Applicant seeks reinstatement of an application for judicial review which was dismissed pursuant to r 13.06(1)(c) of the former Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth), following the Applicant's failure to attend the hearing of his application for judicial review.

1. On 28 October 2021, the Applicant filed an application pursuant to s 476 of the Migration Act 1958 (Cth) ('the Act') seeking judicial review of a decision of the Administrative Appeals Tribunal ('the Tribunal'), as it then was, made on 13 October 2021.
2. The matter was listed for a final hearing on 11 August 2025.
3. The Applicant failed to appear at the final hearing and the application for judicial review ('the judicial review application') was dismissed.
4. On 1 September 2025, the Applicant filed an application in a proceeding seeking reinstatement of the judicial review application ('the reinstatement application').
5. The matter was listed for a directions hearing on 22 September 2025, at which orders were made for the filing of written submissions and the reinstatement application was listed for an interlocutory hearing on 6 November 2025.

1. The Applicant is a 36-year-old citizen of India.
2. The Applicant first arrived in Australia on 3 March 2018 as the holder of a Tourist (Class FA) (subclass 600) visa. The Applicant departed and returned to Australia on three further occasions in 2018.
3. On 11 September 2019, the Applicant returned to Australia as the holder of a Tourist (Class FA) (subclass 600) visa.
4. On 16 October 2019, the Applicant applied for a Student (Class TU) (subclass 500) visa ('the visa').
5. On 16 January 2020, the Department of Home Affairs ('the Department') wrote to the Applicant to request more information (as set out in a checklist it enclosed) about whether the Applicant satisfied the genuine temporary entrant criterion for the visa in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) ('the Regulations').
6. The Applicant's authorised representative provided a response within the requisite timeframe.
7. On 2 March 2020, a Delegate of the Minister ('the Delegate**'**) refused to grant the visa as the Delegate was not satisfied that the Applicant met the genuine temporary entrant criterion for the visa in cl 500.212 of the Regulations.
8. On 18 March 2020, the Applicant lodged an application for review of the Delegate's decision in the Tribunal.
9. On 14 July 2021, the Tribunal wrote to the Applicant's authorised representative to invite the Applicant to attend a hearing to be held on 29 July 2021. The Tribunal also requested that the Applicant provide supporting information by 22 July 2021.
10. On 19 July 2021, the Applicant's representative wrote to the Tribunal to request an extension of time of two to four weeks to provide the requested information, and for the hearing to be adjourned.
11. On 19 July 2021, the Tribunal wrote to the Applicant's representative to notify the Applicant that the request for the hearing to be adjourned was refused, and that the Tribunal would accept submissions up to the date of the hearing and would consider any reasonable request for additional time after the hearing to provide further documents.
12. On 23 July 2021, a new representative for the Applicant wrote to the Tribunal to advise that he had been appointed to act for the Applicant.
13. On 28 July 2021, the Applicant's new representative sent written submissions and supporting evidence to the Tribunal on behalf of the Applicant.
14. On 29 July 2021, the Applicant attended the hearing before the Tribunal.
15. On 13 October 2021, the Tribunal affirmed the decision of the Delegate.
16. On 28 October 2021, the Applicant filed the judicial review application.
17. On 11 August 2025, the judicial review application was dismissed due to the Applicant's non-appearance.

1. At the interlocutory hearing, the material listed below was before the Court.
2. The Applicant relied upon the following:

(a) The Court Book which was tendered and marked as Exhibit 'C-1';

(b) The application in a proceeding filed on 1 September 2025;

(c) The Affidavit of Gurinder Singh filed on 1 September 2025;

(d) The application for judicial review filed on 28 October 2021; and

(e) The Affidavit of Gurinder Singh filed on 28 October 2021.

1. The First Respondent relied upon the following:

(a) The Court Book which was tendered and marked as Exhibit 'C-1';

(b) The Outline of Submissions filed on 28 October 2025; and

(c) The Outline of Submissions filed on 28 July 2025.

1. The Applicant was also given the opportunity to make oral submissions in support of his application and in reply to the submissions made by the First Respondent.
2. I have had regard to the material relied upon by both parties in determining this matter and the further oral submissions made at the hearing.

1. The issue to be determined is whether the Court should set aside the orders made on 11 August 2025 pursuant to r 24.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) ('the Rules').

1. Rule 24.04 of the Rules is as follows:

24.04 Varying or setting aside a judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a) it was made in the absence of a party; or

(b) it was obtained by fraud; or

(c) it is interlocutory; or

(d) it is an injunction; or

(e) it does not reflect the intention of the Court; or

(f) the party in whose favour it was made consents; or

(g) there is a clerical mistake in a judgment or order; or

(h) there is an error arising in a judgment or order from an accidental slip or omission.

1. Whether or not to accede to a reinstatement application is a discretionary power which requires the Court to consider whether or not it is in the interests of justice to reinstate the application: see FBS18 v Minister for Home Affairs [2019] FCAFC 196 ('FBS18') at [50].
2. In MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 (which was cited with approval by the Full Court in FBS18), Ryan J considered the principles relating to an application for reinstatement of a matter dismissed in the absence of a party. His Honour found at [7] that where reinstatement is sought, a discretion falls to be exercised by the Court that requires consideration of certain factors which His Honour listed as:

(a) Whether there is a reasonable excuse for the party's absence;

(b) The existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and

(c) Whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level.

1. The matters referred to above are not a definitive list but are consistently considered in the exercise of the Court's broad discretion to reinstate.

SHOULD THE ORDER BE SET ASIDE AND THE APPLICATION REINSTATED?

1. The Applicant's explanation for his non-appearance at the hearing is at [1] of the application in a proceeding, in which the Applicant seeks reinstatement "owing to inadvertent non-appearance of the Applicant".
2. At the hearing, the Applicant confirmed he had received by email the Notice of Listing of the final hearing on 11 August 2025. He said he was confused about the date because he was moving house between 8 and 9 August 2025 and forgot about the hearing.
3. It was pointed out to the Applicant that the address for service on his originating application filed on 28 October 2021 and the address on the reinstatement application was the same. The Applicant proffered that it was his sister's address. When asked why he used his sister's address, the Applicant said he had been staying there.
4. No further explanation for the Applicant's failure to attend the hearing on 11 August 2025 was provided.
5. It was submitted on behalf of the First Respondent that the Applicant's excuse for non-attendance was not persuasive, and that Applicants have a responsibility to pay careful attention to listing dates.
6. I agree with the submission of the First Respondent, particularly where the Applicant acknowledged he had received the Notice of Listing.
7. Further, I do not accept the excuse given by the Applicant that he was moving house in circumstances where he has maintained the same address on his Court documents for the last four years including on his reinstatement application.
8. Even if I am incorrect about whether the Applicant was moving, the dates on which he said he was moving were in the week prior to the scheduled final hearing and therefore have no bearing on why he did not attend the hearing on 11 August 2025.
9. I find the Applicant's explanation for non-attendance at the final hearing wholly inadequate, and it weighs against the exercise of the discretion to reinstate.

1. It was acknowledged on behalf of the First Respondent that it would suffer no particular prejudice other than costs, if the judicial review application is reinstated.
2. However, it was further submitted that the absence of prejudice is not of itself sufficient to support a conclusion that an order for reinstatement should be made: see AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598, at [34] per McKerracher J.
3. As the reinstatement of an application involves the further expenditure of public funds, I will ascribe neutral weight to the question of prejudice when considering whether to permit reinstatement.

Merits of substantive application for judicial review

1. I must also consider the merits of the underlying judicial review application in deciding whether to reinstate it.
2. In considering the merits of the application for judicial review, it is not necessary that the Applicant positively establishes that the application will succeed at a final hearing: see SZTES v Minister for Immigration and Border Protection [2015] FCA 719, at [48] and [102] per Wigney J. Rather, the grounds of the application should be examined in a reasonably impressionistic manner.
3. In assessing the prospective merits of the grounds, the Court is not determining whether or not a jurisdictional error is present, but rather whether the grounds are 'arguable', 'reasonably arguable', 'sufficiently arguable' or have a 'reasonable prospect of success'.
4. All that is required is a consideration of what might be advanced in a final hearing. The Court is not required to undertake a full consideration of all the arguments and the hurdle to overcome is relatively low: see DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 at [76].
5. In order to consider the merits of the substantive application, it is first necessary to refer to the relevant aspects of the Tribunal's decision.

1. The Tribunal's decision is at pages 249 to 261 of the Court Book ('CB').
2. The Tribunal correctly identified at [16] of its decision that the issue on review was whether the Applicant met the requirements of cl 500.212 of Sch 2 of the Regulations, which required that the Applicant is a genuine temporary applicant for entry and stay in Australia as a student.
3. The Tribunal correctly stated in [18] that in considering whether the Applicant satisfies the genuine temporary entrant criterion in cl 500.212, it is to have regard to Direction Number 69 under s 499 of the Act ('Direction No. 69').
4. Direction No. 69 applies to delegates of the Minister and members of the Tribunal who review decisions in relation to a Student visa or Student Guardian visa application. Thus, the Tribunal was required to consider a number of factors including the Applicant's circumstances in their home country, circumstances in Australia, the value of the course to the Applicant's future, the Applicant's immigration history, and any other relevant matter.
5. These factors are not a checklist but rather a guide to decision-makers in considering the Applicant's circumstances as a whole and reaching a finding as to whether the Applicant satisfies the genuine temporary entrant criterion.
6. The Tribunal listed at [7] and [8] of its decision (CB250-251), the documents it took into account in reaching its decision.
7. The Tribunal also considered information submitted to the Department at the time of the application including the application for a Student Visa form, Indian identity cards for the Applicant, his wife and son, birth certificate of the Applicant's son, affidavits of support from the Applicant's sister, his wife and his mother, bank statements and term deposit documents, Indian business documents and registration information, financial matrix for study in Australia, evidence of the Applicant's education in India and Australia, genuine temporary entrant statement, passport information for the Applicant and family members, marriage certificate, visa grant letters for the Applicant's wife and son, valuation certificate and a submission in response to a request for further information.
8. The Tribunal noted at [9] of its decision that it also reviewed the Provider Registration and International Student Management System ('PRISMS') record for the Applicant which it found accurately recorded the Applicant's enrolment history in Australia.
9. The Applicant appeared in person at the Tribunal hearing on 29 July 2021 to give evidence and make submissions in support of the application. The Applicant was assisted at the hearing by his registered migration agent who attended the Tribunal hearing.
10. The Tribunal recorded at [10] to [14] of its decision record the evidence the Applicant gave at the hearing.
11. The Tribunal considered at [20] of its decision the Applicant's circumstances in his home country including that he has a wife and 5-year-old son, that he has a transport business which his wife is managing with the assistance of an employee and that his wife also has a boutique. It also considered the Applicant's written and oral evidence that he receives financial support from his family in India and his sister who lives in Australia and with whom he lives.
12. The Tribunal placed weight on this information in the Applicant's favour, but based on other factors, was not satisfied it provided a significant incentive for him to return to India.
13. The Tribunal was also concerned that if the Applicant was granted a Student visa, his wife and son would be able to join him in Australia as subsequent entrants. The Tribunal noted in this regard at [20] that the Applicant's wife and child had applied for and were granted visitor visas previously, indicating a willingness to travel to Australia in the past. The Applicant claimed they did not wish to travel to Australia due to commitments in India and the child's enrolment in school.
14. The Tribunal accepted the Applicant, and his family have business and personal property interests in India but did not place weight on this as being a strong incentive to return because it considered assets can be disposed of or managed by others in a person's home country.
15. At [21] the Tribunal considered the Applicant's circumstances in Australia, including that the Applicant is a full-time student studying an Advanced Diploma of Business, that his sister, brother-in-law and their child live in Australia permanently and that the Applicant lives with his sister and is supported by her financially.
16. At [21] the Tribunal noted that the Applicant had travelled to Australia for the stated purpose of tourism but while onshore, he enrolled in courses of study and applied for a Student visa despite having family and business commitments in India.
17. The Tribunal took into account that the Applicant had travelled to Australia as a visitor on previous occasions and as stated in his representative's submission was familiar with the environment. It also took into account that the Applicant entered Australia as a short stay visitor but soon after arriving, enrolled in a course of study up until 24 April 2022, which would take his temporary residence in Australia to two years and seven months. The Tribunal considered the Applicant could have researched educational options and applied for a Student visa while still in India rather than coming to Australia as a tourist and then making the application.
18. The Tribunal considered the presence of the Applicant's family members in Australia and the financial support of his sister provided a strong incentive to remain in Australia after completing his current course of study.
19. At [22] the Tribunal considered the value of the Applicant's course of study to his future including whether the course is consistent with his current level of education and whether the course will assist the Applicant to obtain employment or improve his employment prospects in India. The Applicant gave evidence that he decided to undertake further study to expand his existing business in India.
20. The Tribunal accepted that the Applicant did not have post-secondary school qualifications and that Diploma and Advanced Diploma courses are consistent with his existing level of education and may be of relevance to his proposed business plans in India.
21. However, the Tribunal considered it difficult to reconcile the cost of living and studying in Australia with any likely benefit, over and above the experience the Applicant had in the local business environment in India. For those reasons, the Tribunal placed little weight on the value of the courses to the Applicant's future.
22. The Tribunal considered the Applicant's immigration history at [23] and [24] of its decision. It noted that the Applicant was first granted a Subclass 600 Visitor visa on 16 February 2018. The Tribunal listed the Applicant's history of travel to Australia as follows:

(a) 3 March 2018 to 27 May 2018 (2 months, 24 days);

(b) 4 July 2018 to 1 October 2018 (2 months, 27 days);

(c) 24 October 2018 to 31 December 2018 (2 months, 7 days); and

(d) 11 September 2019 to the present (2 years, 1 month).

1. The Tribunal noted at [24] that the Applicant spent more than seven months in Australia in 2018 before returning to India for nine months. The Applicant travelled back to Australia on 11 September 2019 and had remained in Australia since then. The Applicant stated in evidence before the Tribunal that he and his mother travelled to Australia to help his sister with her child because she and her husband both work.
2. The Tribunal took into account that the Applicant's Father and now, his wife with an employee, have operated his business in his absence but concluded that the time the Applicant had spent away from India since March 2018 to be inconsistent with a person who claims to have strong personal and economic ties.
3. The Tribunal accepted that the Applicant had not been able to travel to India due to border closures but found that the decision to remain in Australia and study for an extended period had been made well before the COVID-19 pandemic.
4. At [24] the Tribunal found that the Applicant's immigration history weighed against him in assessing whether he was a genuine temporary entrant for study.
5. The Tribunal weighed the evidence individually and cumulatively and although it considered there were some aspects of the Applicant's case that weighed in his favour such as his enrolment, it was not satisfied the Applicant intends genuinely to stay in Australia temporarily. It therefore found the Applicant did not meet the criteria in cl 500.212(a) and was not satisfied that the Applicant is a genuine applicant for entry and stay as a student, as required by cl 500.212: see CB255 at [25] and [26].

1. The Applicant's proposed grounds of review are set out in the judicial review application filed on 28 October 2021 as follows:

*** My application for Subclass 500 was refused due to unreasonableness and should be reconsidered.**

1. AAT filed to consider that me staying in Australia is only temporary and just wants to learn and get better.

1. I am a genuine student and satisfy cl.500.212(a) of Schedule 2 of the Migration Regulations.

1. Ground One broadly asserts 'unreasonableness' in respect of the Tribunal's decision to affirm the decision of the Delegate but does not provide any particulars of how the decision was unreasonable.
2. The Tribunal's decision details the evidence it took into account at [7] to [8] and [10] to [15] of its decision.
3. For a decision to be legally unreasonable, it must be "lacking in a rational foundation"; "plainly unjust"; "arbitrary"; "capricious"; or "lacking common sense having regard to the terms, scope and purpose of the statutory source of power": see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 ('Stretton'), at [11] per Allsop CJ.
4. The Applicant submitted at the hearing that the decision was unreasonable because the Tribunal did not find anything positive about his case.
5. It was submitted on behalf of the First Respondent that the Tribunal took into account the Applicant's immigration history and that this weighed against the positive aspects of the application.
6. The Tribunal did consider there were some matters that weighed in favour of the Applicant including that he was enrolled in a course consistent with his existing level of education and that may be of relevance to his proposed business plans in India (CB254 at [22]).
7. However, as submitted on behalf of the First Respondent, the Tribunal considered the Applicant's immigration history and found that the length of time the Applicant had spent away from his home country was inconsistent with a person who claims to have strong personal and economic ties and weighed against the Applicant in considering whether he was a genuine temporary entrant (CB254-255 at [24]).
8. The Tribunal's reasons provide a logical and evident foundation for its findings which fall within the area of "decisional freedom" or "genuinely free discretion" within which reasonable minds might differ: see Stretton at [7], [56] and [92].
9. For those reasons, I am not satisfied that proposed Ground One has sufficient merit even at an impressionistic level such that reinstatement would be warranted so it could be argued and determined at a final hearing.

1. Ground Two contains an assertion that the Tribunal failed to consider that the Applicant only intended to stay in Australia temporarily to "learn and get better" which I take to mean to study and gain knowledge.
2. The Applicant submitted in support of this Ground that the Tribunal did not take into account that he wanted to undertake more study.
3. The Tribunal's reasons at [20] to [22] show that it considered the Applicant's circumstances in India and in Australia, his evidence as to his future plans and that the course of study he was enrolled in may be of relevance to his proposed plans in India to expand his business.
4. What the Tribunal found difficult to reconcile in assessing whether the Applicant genuinely intended to remain in Australia temporarily, was what the value to the Applicant of the proposed course of study was, over and above the experience he already had in the local business environment in India when factoring in the cost of living and studying in Australia. On balance it considered the cost of living and studying in Australia outweighed any benefit to the Applicant's future of the course of study.
5. The weight to be given to evidence is a matter entirely for the decision-maker, attributing whatever weight or persuasive quality is thought appropriate: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 528 at [24] per Keifel CJ, Keane, Gordon and Steward JJ.
6. Ultimately, the Tribunal concluded that it was only able to place limited weight on the value of the course to the Applicant's future which it was entitled to do.
7. For the reasons given, I am not satisfied that proposed Ground Two has sufficient merit even at an impressionistic level such that reinstatement would be warranted.

1. Ground Three is an assertion that the Applicant is a genuine student and satisfies the criterion in cl 500.212(a) of Sch 2 of the Regulations. In support of this, the Applicant submitted that all he wanted to do was study and work and it was his last request for a visa.
2. No reference was made by the Applicant to any evidence that was before the Tribunal that demonstrated he met the criterion and which the Tribunal failed to take into account. The Ground is simply an expression of his disagreement with the Tribunal's decision.
3. Mere disagreement with the Tribunal's findings does not establish jurisdictional error: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J and Vo v Minister for Home Affairs [2019] FCAFC 108 per Derrington, Banks-Smith and Colvin JJ.
4. To the extent the Applicant may be seeking a merits review by asking the Court to reconsider the facts, the Court does not have the power, and it is impermissible to undertake a merits review of the Tribunal's decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
5. The Tribunal's decision at [20] to [25] contains an intelligible assessment of the Applicant's circumstances as a whole, including reference to the factors in Direction No. 69.
6. As already referred to, the Tribunal found that the Applicant's proposed course of study was consistent with his level of education and may be of relevance to his proposed business plans in India. However, the Applicant's immigration history and ties to Australia, the costs of the proposed study versus the likely benefit the Applicant would receive over and above the business experience he already had, weighed against the positive aspects of his application.
7. The Tribunal assessed the evidence both individually and cumulatively and found that although there were some aspects of the Applicant's evidence that weighed in his favour, on balance, the weight of the evidence was against him being a genuine temporary entrant and thus, found that the criterion in cl 500.212(a) was not met.
8. For the reasons given, I am not satisfied that proposed Ground Three has sufficient merit even at an impressionistic level such that reinstatement would be warranted.

1. The Applicant's explanation for non-attendance at the hearing on 11 August 2025 is wholly inadequate and does not amount to a reasonable excuse for why he failed to appear. Accordingly, this weighs against the discretion to reinstate the proceedings.
2. In terms of whether the substantive judicial review application has merit, I am not satisfied it has any reasonably arguable prospects of success and this too, weighs against the exercise of the discretion to reinstate.
3. I find that the lack of prejudice to the First Respondent weighs as a neutral factor.
4. Overall, I am not satisfied that the interests of the administration of justice warrant setting aside the order made on 11 August 2025 dismissing the judicial review application.
5. For the reasons given above, the application in a proceeding filed on 1 September 2025 is accordingly dismissed.

1. The First Respondent sought costs fixed in the amount of $1,500, which is below the scale amount for a matter concluded at an interlocutory hearing.
2. As the application has been dismissed and the First Respondent has been put to the expense of preparation for and attendance at the interlocutory hearing, I order costs fixed in the amount of $1,500.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman.