Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 492

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

(i) the applicant's circumstances; and

(ii) the applicant's immigration history; and

(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant...

1. On 5 August 2019, the applicant applied to the Tribunal for review of the delegate's decision (CB 60-61).
2. On 29 January 2021, the Tribunal wrote to the applicant inviting him to provide further information in a "Request for Student Visa Information" form by 12 February 2021 (CB 66-67). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' (Direction 69) (CB 68-72).
3. On 8 February 2021, the applicant provided a completed "Request for Student Visa Information" form (CB 75-86). In that form, he advised that he intended to "become a leading provider of construction and renovation services" in Punjab, India at the completion of his course of study (CB 85).
4. On 26 February 2021, the applicant was invited to attend a hearing scheduled for 15 March 2021 (CB 88-90).
5. On 15 March 2021, the applicant attended the hearing (CB 119). At the conclusion of the hearing, the Tribunal affirmed the decision under review (CB 121, 125).
6. On 1 April 2021, the Tribunal provided written reasons of its oral decision to affirm the delegate's decision not to grant the applicant the visa (CB 130-136).
7. On 8 April 2021, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).

1. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal began by identifying the visa under review, noting that the applicant applied for the visa on 10 April 2019. The Tribunal observed that, at the time of application, the visa contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). However, it noted that the applicant had applied for the visa to study in Australia and did not make any claims to meet the criteria for the Subclass 590 (Student Guardian) visa (at [3]).
3. The Tribunal explained that a delegate of the Minister had refused to grant the applicant the visa as the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212(a) in Schedule 2 of the Regulations) (at [4]).
4. The Tribunal noted that the issue in this matter was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student (at [8]). The Tribunal set out the relevant legislative provisions in that regard (at [9]).
5. The Tribunal stated that in considering whether the applicant satisfied cl 500.212(a), it was required to have regard to Direction 69 (at [10]). The Tribunal noted, however, that the factors set out in Direction 69 were not to be used as a checklist and were intended only to guide decision makers when considering the applicant's circumstances as a whole (at [11]).
6. Against this background, the Tribunal made the following findings.
7. The Tribunal set out the applicant's evidence that he has remained in Australia since 2008 on four further student visas, and since being in Australia, he has essentially undertaken studies on a continuous basis and now seeks to undertake an Advanced Diploma of Business (at [12]).
8. The Tribunal confirmed the applicant filed a response with the Tribunal on 5 March 2020, pursuant to an invitation to supply information regarding his course, and about his entry and stay in Australia, in accordance with s 359(2) of the Act (at [14]). It confirmed that in support of this response, the applicant provided a substantial amount of documentation about courses completed while in Australia, results from studies in India, and a confirmation of enrolment to undertake an Advanced Diploma of Business from 12 April 2021 to 10 April 2022, with the certificate of enrolment being created on 2 March 2021 (at [15]).
9. The Tribunal set out the applicant's enrolment history over the last 12 and a half years in Australia, as indicated in his response, supporting documentation and evidence (at [16]). The Tribunal confirmed that the applicant had completed six courses at diploma or advanced diploma level, and three courses at certificate level (at [17]). The Tribunal did not accept that the courses he had undertaken had been done for the purposes of changing career paths, but instead for purposes of extending his stay in Australia. The Tribunal found that those courses did not represent any academic progression and the current course he intends to study does not advance his qualifications or career going forward (at [25]).
10. The Tribunal noted that, despite having already obtained an Advanced Diploma of Business, the applicant now wished to complete another Advanced Diploma of Business (at [17]). The Tribunal set out the applicant's claims that such a course, with different subjects from his previous qualification, would enable him to learn different skills that would assist him in setting up a construction business back in India. However, the Tribunal noted that none of the courses that the applicant has completed relate to building and construction, and the Tribunal did not accept that the Advanced Diploma of Business he was now studying would improve his remuneration or job prospects back in India (at [18]). It was also not satisfied that, based on the courses he had undertaken, he would necessarily be able to start his own construction business (at [24]).
11. The Tribunal found that, as the applicant had already stayed in Australia for 12 and a half years, this appeared inconsistent with a temporary stay, and rather, consistent with an intention to stay in Australia on a permanent basis (at [20]). It also considered that the applicant's study in a wide variety of different subjects, and having changed career pathways on several occasions, suggested that the applicant was undertaking such courses merely to maintain residency in Australia to both live and work (at [21]).
12. The Tribunal noted in the applicant's response that he stated he had previously worked as a labourer from 2009 to 2014, a taxi driver between 2015 to 2017, and in evidence at the hearing, was presently working with a contractor (at [22]). The Tribunal found the applicant to be earning a substantial level of income from these jobs, which was likely higher than what he could earn in India (at [22]-[23]).
13. The Tribunal asked the applicant why he could not undertake a further business course back in India, to which he replied that it was more beneficial for him and easier to study in Australia. Whilst the Tribunal found that the applicant had knowledge of the relevant course and the education provider, it did not accept that he had any reasonable motivation to undertake this course in Australia, particularly where he has already completed this qualification (at [26]-[27]).
14. The Tribunal set out that, in the applicant's response, he confirmed he had returned home to India on five occasions in the 12 and a half years he has been in Australia, for a total period of seven and a half months. However, the Tribunal noted that he had not returned home in the last four and a half years and, notwithstanding the COVID-19 pandemic, it did not accept that his failure to return home is explainable, save that by failing to return home, he wished to remain in Australia and not return home (at [28]).
15. In respect of his financial situation, the Tribunal set out the applicant's evidence that he has property holdings back in India worth approximately $1.2 million, comprising a house and agricultural land of 15 acres. The Tribunal found that, whilst this would ordinarily provide a substantial financial incentive for the applicant to return home, he had not returned home in the last 12 and a half years and so did not consider that to provide an "overwhelming incentive" to return home (at [29]). However, the Tribunal accepted that, based on his evidence and considering his level of education, financial circumstances and support from family in India, he is in a good position and that would provide him with a significant incentive to return home (at [31]).
16. The Tribunal noted that the applicant did not identify having any relatives in Australia, but found that he has ties to both Australia and India (at [32]). It set out the applicant's evidence that his mother, sister and uncle reside back in India, and noted that whilst this would ordinarily provide a significant incentive to return home, he had not seen them in person for more than four years and had no intention to return home over the course of the next year. It found that this must also be considered in light of his ties to Australia (at [33]).
17. In circumstances where the Tribunal found that the applicant was employed in paid jobs with a substantial level of income, appeared to have good friends in Australia, was in stable accommodation and intended to remain for at least a further year to undertake his course, the Tribunal considered the applicant's ties to Australia were stronger than those to India (at [34]).
18. Whilst the Tribunal noted that there did not appear to be any prior visa refusals or cancellations, or any adverse decision made in relation to his prior visa history, it ultimately noted concerns that the applicant wished to stay in this country to undertake study in a course he had already completed (at [35]-[36]). The Tribunal observed that the applicant had not undertaken any studies, and was not enrolled in a course of study, from February 2019 to April 2021, which was a very long period of time and inconsistent with someone intending to undertake their studies in a timely fashion (at [36]). It noted that if the applicant had been granted a student visa, failure to enrol for such a period of time would have been a breach of his visa conditions and may have provided the basis for a cancellation (at [37]).
19. The Tribunal viewed such gaps in studies as being inconsistent with the purpose of the visa to allow students to undertake their studies in a timely manner, on a temporary basis and return home, which it found the applicant had not complied with (at [38]). In light of these circumstances, the Tribunal was not satisfied the applicant had applied for this visa to study temporarily, and it considered his primary objective was to maintain ongoing residence in Australia and to remain here permanently (at [39]-[40]).
20. The Tribunal was not satisfied the applicant intended genuinely to stay in Australia temporarily, and accordingly, he did not meet cl 500.212(a) of Schedule 2 to the Regulations (at [41]).
21. The Tribunal affirmed the delegate's decision not to grant the visa (at [43]-[44]).

1. The application for judicial review filed by the applicant on 8 April 2021 contains nine grounds of review as follows (without alteration):
   1. I wish to submit my application to review my case in court as it was dismissed by DHA and AAT. My Student visa got cancelled as both the authorities refused my study intentions as genuine.
   2. With the aim to fulfill my professional and academic needs to have future in the sector of my liking I wished to fetch the knowledge and academic qualification in Advance Diploma of Business.
   3. I wish to do proposed courses to obtain a breadth of knowledge and skills in the field of modern business to get benefit from a broader range of skills that could be widely applied in the creative aspects of a business. This program will equip me with a broad range of knowledge and skills required for a diverse business prospects, entrepreneurship, innovation and new ventures in the industry, allowing me to work on the development of my business, its performance, growth, operations and services.
   4. As I see myself a business owner in near future so I want to learn how business works, to think, strategies and manage and rely on business for prosperity. By completing this course I would gain superior communication skills and have in-depth knowledge of area of interest to run a restaurant successfully.
   5. As studies of Business and leadership management (previously completed studies) is extremely powerful combination course which develops entrepreneurial and innovative approaches to managing people, managing finances, managing projects and continuous improvement and compliance, so the course will give me the skills and knowledge to get ahead in the business world give me an edge in the workplace. It would help me in gaining expertise in various management tasks such as developing budgets, managing the performance of employees and overseeing projects at work. It would be the perfect fit as I want to kick my skills up a notch, plus a gateway into further studies.
   6. My plans after completing my studies are to open Indo-Australian fusion cuisine restaurant in India. I am pretty confident that my qualification from Australia would take me to high level of achievement but 1 have struggled mentally to reach to this stage and now I do not wish to look back but give my best shot and everything to achieve my goal.
   7. In the light of above, I make a humble request to you to consider my case most compassionately so that I can achieve my career goals.
   8. DHA and AAT has failed to recognize facts that I am away from my family and my home country to try to complete my study ladder to give my future a solid foundation and therefore my study period should not be considered against my genuine motive of completing studies with purpose.
   9. I request you to consider my case under Natural justice for me who is starting academic career late in life but determined to succeed.
2. The applicant also filed an affidavit with that judicial review application on 8 April 2021, annexing a copy of the Tribunal's decision.
3. The applicant appeared before the Court on 17 March 2025 without legal representation. The Court confirmed with the applicant he had received copies of the Court Book and the Minister's submissions.
4. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 8 April 2021 (the affidavit being taken as read and in evidence at the hearing on 17 March 2025), a Court Book numbering 137 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 4 March 2025.
5. The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282 at [41]. Accordingly, at the hearing of this matter on 17 March 2025, the applicant was invited to tell the Court what he believed to be wrong with the Tribunal's decision and/or procedure.
6. The Court also took some time to explain that it could not undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at 354-355, [2005] HCA 24 at [207]- [208]);

(e) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(f) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 (SZMDS); Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court what he said the Tribunal did wrong.
2. Against this background, the applicant told the Court that he had applied to study an Advanced Diploma of Business, but that he was rejected on the basis that he was not applying for "hard study". Whilst the applicant conceded that he ultimately applied to this Court because he did not understand the Tribunal's decision in this regard, in reply to the Minister's submissions, he articulated reasons for not having travelled back to India in several years, for the changes in his career plans from construction to hospitality, and that he wanted a "last chance to get it right" in this Court.

1. As outlined above, the application formally sets out nine grounds. However, in reality, the application does not set out grounds per se, but rather outlines the applicant's reasons for wishing to continue to study in Australia. This is not uncommon in applications by unrepresented applicants unfamiliar with drafting legal documents. Noting the applicant was unrepresented in this matter, the Court endeavoured to interpret his grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 (MZAIB)).
2. In this respect, the Court considers that grounds one to six and eight should be read as arguing that the Tribunal failed to consider relevant evidence relating to the matters raised within those grounds, or failed to properly engage on an intellectual level with those matters; ground seven should be construed as arguing that the Tribunal was required to consider whether there were compelling and compassionate circumstances for granting the visa; and ground nine could be viewed as a claim that the applicant was denied procedural fairness. Given the applicant's submissions at the hearing did not, with respect, clarify his grounds or advance any proper basis for establishing jurisdictional error, the Court has proceeded to consider the grounds on this basis. The Minister accepted, as a matter of fairness, that it would be appropriate to view the grounds in this way.

Grounds one to six and eight: did the Tribunal fail to consider relevant matters?

1. As observed above, the Court considers that through these grounds the applicant contends that the Tribunal ought to have had regard to the applicant's stated reasons for repeating the Advanced Diploma in Business, the value of that course to his professional and academic needs, his future business plans, and his inability to return home to India, as indicating that he satisfied the genuine temporary entrant criterion.
2. In oral submissions, the Minister submitted that there was an intelligible justification in the Tribunal's reasons for each of its findings in respect of the length of time the applicant had been in Australia, the length of time since his last visit to India, his relative potential for income, his ties to Australia and his study history. The Minister emphasised that the Tribunal identified, had regard to, understood and analysed claims put forward to it by the applicant.
3. The applicant, at the hearing of this matter, submitted that his business plans had changed from when he appeared before the Tribunal, in that he now wished to open an Indo-Australian restaurant, as there was a "good future" in the restaurant industry and he had seen "too many people fail" in the construction industry. The Court queried with the applicant whether he had raised this before the Tribunal. The applicant's response to this was, with respect, unclear. The Minister indicated that there did not appear to be anything in the materials before the Court which would indicate this had been raised before the Tribunal. The Court has independently reviewed all of those materials and finds that the applicant's wish to open a restaurant rather than a construction business was not raised before the Tribunal.
4. In oral submissions, the Minister submitted that the Tribunal had regard to the applicant's future business plans as indicating that he satisfied the genuine temporary entrant criterion, but that his career path had changed throughout his various courses of study which indicates against a genuine plan to return home and undertake that business.
5. In response to the applicant's assertion that his course of study would be a "perfect fit" for his proposed business plan, the Minister submitted the Tribunal identified, understood and analysed this but ultimately had two difficulties: (1) that the applicant had already studied this course, albeit that he wanted to "try different subjects"; and (2) that none of the courses the applicant had studied related to construction, despite articulating his desire to undertake this particular business prospect.
6. In considering an applicant against the genuine temporary entrant criterion, the Tribunal is required to have regard to the various factors in Direction 69. The Tribunal was required to consider any evidence the applicant put forward in respect of his past study, the value of his current study, the applicant's circumstances in India and his immigration history. This included his employment prospects in India and his previous return visits. A failure to consider these matters, or to properly engage with the evidence relevant to an assessment of those matters, might indicate that the Tribunal's decision does involve jurisdictional error. The Court is of the view that the Tribunal neither ignored the applicant's reasons for repeating the course, nor his stated future business plans, nor him not returning to India. In fact, the Tribunal identified, understood and analysed the applicant's course of study against his stated intentions to open a construction business back in India and his explanation for not returning home to India, and found against the genuine temporary entrant criterion in this respect.
7. It is clear that the Tribunal was well aware of the applicant's stated intentions to complete his studies in Australia and return to India, and importantly, clearly engaged in an active intellectual process with that evidence and its relation to the dispositive issue before it (Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at 364). However, in considering the genuine temporary entrant criterion, the Tribunal considered this alongside other factors, including the length of time he has spent in Australia, the time since his last visit to India, his ties to Australia, his income in Australia and his overall study history in Australia, and ultimately did not accept that claim. Where the Tribunal had concerns, those concerns were put to the applicant and his responses were considered. All matters considered by the Tribunal were clearly relevant and there is no evidence that it failed to consider relevant material.
8. The Tribunal's findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS).
9. The Court is of the view that the Tribunal's findings in respect of the applicant's study intentions demonstrate engagement with his claims and evidence, and were clearly open to it on the evidence.
10. Accordingly, no jurisdictional error arises in respect of any of these grounds.

Ground seven: was the Tribunal required to consider the compelling and compassionate circumstances of the applicant?

1. On its face, ground seven appears to be a request to engage the Court in impermissible merits review, which is beyond the scope of the Court's judicial review jurisdiction (Wu Shan Liang at 272; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36).
2. Taking a broader approach, in light of authorities such as MZAIB, the Court considered ground seven as a submission that the Tribunal was required to, but did not, consider the applicant's compassionate and compelling circumstances.
3. In light of this approach, counsel for the Minister submitted that the Tribunal was not required to address the applicant's application compassionately, but rather its task was to carefully assess the applicant's claims and have regard to the applicable legal tests.
4. The Court agrees. The task before the Tribunal was to determine whether the applicant had satisfied the genuine temporary entrant criterion set out in cl 500.212 of the Regulations, and in considering whether this was satisfied, have regard to the factors outlined in Direction 69. That is precisely what the Tribunal did.
5. The Minister submitted that the applicant being away from his family may be the "clearest articulation of an alleged error", but that the Tribunal did identify this fact, understood it and analysed it against the relevant legislative criterion. The Minister also submitted that, insofar as the applicant alleged the Tribunal failed to recognise his study ladder, it had regard to every "rung" on the ladder but concluded it was not coherent, by reference to disclosing different directions of study, as well as the courses not appearing to relate to areas of business or employment the applicant wished to undertake.
6. The Court agrees with the Minister's submissions in this regard. Whilst the applicant may have disagreed with the Tribunal's findings, these findings were ultimately open to it.
7. No jurisdictional error arises in respect of ground seven.

Ground nine: was the applicant denied procedural fairness?

1. Ground nine contends that the Tribunal did not award the applicant natural justice or procedural fairness.
2. This ground was not particularised, and accordingly, counsel for the Minister submitted that there is no indication on its face that the applicant had been denied procedural fairness.
3. The Tribunal invited the applicant to attend a hearing, gave the applicant an opportunity to provide additional documents or information before the hearing, and considered that evidence. The Tribunal asked questions of the applicant and assessed his responses when considering the Direction 69 matters. The Tribunal assessed the information before it, including the information provided by the applicant in his visa application, the additional information provided by the applicant prior to the hearing, and the applicant's oral evidence at the Tribunal hearing. In these circumstances, the Court is satisfied that no jurisdictional error arises in respect of ground nine.
4. The Court also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention in terms of any concerns or doubts about the Tribunal's decision. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision.
5. The Court is satisfied that, even adopting the broad approach referred to in [42] of these reasons, no jurisdictional error is apparent.

1. The application for judicial review, supporting affidavit and additional submissions advanced by the applicant at the hearing have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
2. Accordingly, the application is dismissed.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.