Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 532

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal which affirmed an administrative decision to refuse the grant of a student visa.
2. For the reasons that follow, the application must be dismissed with costs.

1. Mr Singh, the applicant in these proceedings, is a citizen of India who arrived in Australia in 2009. According to the Department's records, after his arrival Mr Singh held a series of temporary student related visas and studied a range of courses.
2. Then, on 14 February 2018, Mr Singh applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the student visa application). It is that student visa application that is subject of these proceedings.
3. At the time of hearing, the student visa application had been refused by a delegate of the First Respondent on 3 separate occasions, as follows:

(a) On 24 April 2018, on the basis that they were not satisfied that Mr Singh was enrolled in a course of study as required by cl.500.211(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) because, notwithstanding a written request to provide evidence of enrolment (confirmation of enrolment), no such evidence had been provided to the delegate. On review, the Tribunal made a further written request for a current confirmation of enrolment to which Mr Singh responded (on 23 May 2018) with confirmation of his enrolment in a Diploma of Leadership and Management at Everest Institute of Education for the period 30 July 2018 to 28 July 2019. On 7 June 2018, the Tribunal remitted the student visa application to the delegate for the first time along with the direction that Mr Singh met the criteria at cl.500.211 of Schedule 2 of the Regulations.

(b) On 19 July 2018, on the basis that they were not satisfied that Mr Singh had adequate arrangements for health insurance during the period of his intended stay in Australia as required by cl.500.215 of Schedule 2 of the Regulations because, notwithstanding a written request to provide this, no such evidence (nor any response) had been provided by Mr Singh. On review, the Tribunal made further written requests for evidence of adequate health insurance arrangements from an approved provider for the duration of his intended stay in Australia. Mr Singh responded to the Tribunal's request (on 22 August and 19 September 2018) including to attach health insurance policy certificates for the periods 30 July 2018 to 28 July 2019 and 30 July 2018 to 28 September 2019. On 4 October 2018, the Tribunal remitted the student visa application to the delegate for the second time along with the direction that Mr Singh met the criteria at cl.500.215 of the Schedule 2 of the Regulations.

(c) On 13 November 2018, on the basis that the delegate was not satisfied that Mr Singh genuinely intended to stay temporarily in Australia as required by cl.500.212 of Schedule 2 of the Regulations. On review, the Tribunal invited Mr Singh to attend a hearing which took place on 11 April 2019. At the Tribunal hearing, Mr Singh completed a genuine temporary entrant questionnaire stating he had no current confirmation of enrolment and orally confirmed that he was not studying at that time as he had been waiting for the Tribunal's decision before returning to study. At conclusion of the Tribunal hearing on 11 April 2019, the Tribunal orally conveyed its decision to affirm the delegate's 13 November 2018 decision. On request of Mr Singh, the Tribunal's written reasons were provided on 23 April 2019.

1. It is the Tribunal's decision of 11 April 2019 which is subject of this application for judicial review (Tribunal's Decision).

1. On 10 May 2019, Mr Singh applied to this Court for judicial review of the Tribunal's Decision. That application articulated 4 unparticularised grounds of review, as follows:
   1. The First Respondent and the Second Respondent denied the Applicant a sufficient natural justice opportunity to present the Applicant's case, and the decisions of the First Respondent and the Second Respondent were therefore devoid of plausible justification and were unreasonable.
   2. The First Respondent and the Second Respondent failed to take into account relevant considerations relating to the Applicant's circumstances and instead took into account irrelevant considerations relating to the Applicant's circumstances.
   3. The First Respondent and Second Respondent failed to give genuine, proper and realistic consideration to the merits of the Applicant's case including but not limited to failing to make adequate inquiry as to the facts relating to the Applicant's case.
   4. The First Respondent and Second Respondent's decisions had an unnecessarily harsh effect on the Applicant's circumstances and future as the Applicant is now unable to continue in his chosen field of study and is unable to achieve his desired career objectives.
2. In Mr Singh's affidavit affirmed 10 May 2019, he gave an overview of some of the procedural history, annexed the written reasons for the Tribunal's Decision and otherwise restated the 4 grounds from the application.
3. No amended application or additional materials were filed in support of the application in accordance with invitations to do so (by orders of the Court) or otherwise.
4. For their part, the First Respondent filed:

(a) A response dated 12 June 2019;

(b) A court book dated 5 August 2021;

(c) An outline of submissions dated 3 April 2025;

(d) An affidavit of a legal practitioner on behalf of the First Respondent dated 9 April 2025; and

(e) A list of authorities dated 9 April 2025.

1. On 10 April 2025, the matter proceeded to final hearing before the Court as presently constituted. The Applicant appeared in person and the First Respondent was represented by a solicitor advocate. Mr Singh confirmed that the application and his affidavit of 10 May 2019 comprised all documents he wished to rely on in support of his application and he had received the First Respondent's submissions and had the opportunity to read those. Upon invitation to elaborate on his grounds, Mr Singh gave brief oral submissions which are considered below.

1. An administrative decision maker is required to refuse to issue a visa absent the requisite satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Migration Act 1958 (Cth) (Act).
2. At the relevant time, the primary criteria for the grant of the student visa application was set out at cl.500.2 of Schedule 2 to the Regulations. Relevant to the grounds of review:

500.2 - Primary criteria

Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

500.211

One of the following applies:

(a) the applicant is enrolled in a course of study;

(b) if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;

(c) if the applicant is a Foreign Affairs student - the applicant has the support of the Foreign Minister for the grant of the visa;

(d) if the applicant is a Defence student - the applicant has the support of the Defence Minister for the grant of the visa.

500.212

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. Although it was not the basis on which the delegate had disposed of the application, on de novo review before the Tribunal Mr Singh was nonetheless required to demonstrate that he was enrolled in a course of study at the time of the Tribunal's Decision in order to satisfy the primary criteria at cl.500.211(a) of Schedule 2 of the Regulations.
2. There was no question in the present case that Mr Singh was not enrolled in a course of study at the time of the Tribunal's Decision. The Tribunal had proceeded on Mr Singh's own evidence that he was not currently enrolled and only intended to so enrol after the Tribunal had made its decision. At hearing before the Court, Mr Singh continued to accept that fact. Accordingly, the Tribunal was correct to find that Mr Singh was unable to meet cl.500.211 of Schedule 2 of the Regulations and affirm the delegate's refusal decision of 13 November 2018, albeit on a different basis
3. Mr Singh claims to have been denied natural justice but has not articulated the basis for this contention. In the written record of the Tribunal's Decision it was stated that, pursuant to the obligation at s.359AA of the Act (as then in force), the Tribunal member had put to Mr Singh that his PRISMS record showed that he was not enrolled in a course of study: at [5]. The transcript of the Tribunal hearing is not before the Court as to probatively establish whether the Tribunal complied with the requirements of s.359AA in terms of its mandatory obligations in circumstances of an applicant appearing before it by invitation under s.360 where the Tribunal gave information and an invitation to respond orally at hearing. However, on the face of the written record of the Tribunal's Decision, supported by documents in the court book before the Court, and not subject of challenge on the evidence in these proceedings, the following procedures were adopted in Mr Singh's case:

(a) Mr Singh was invited to and did attend a hearing before the Tribunal (see letter of invitation dated 25 March 2019 and migration hearing record);

(b) Mr Singh was placed on notice that the issue before the Tribunal was the currency of enrolment in a course of study as distinct from the dispositive issue before the delegate and acknowledged this (see Tribunal's Decision at [6], [7]); and

(c) Mr Singh was invited to comment on his PRISMS record and gave oral and written responses about the non-currency of enrolment criteria which were considered by the Tribunal member (see Tribunal's Decision at [5] and completed Student Visa - GTE Questionnaire stamped received at hearing dated 11 April 2019).

1. There is no apparent denial of natural justice or procedural fairness on what is before the Court. Nor is there any illumination of a basis by which the Court would find that any of the aforementioned were irrelevant considerations or otherwise that there were relevant considerations that the Tribunal should have but did not take into account as put by the second ground.
2. In a similar vein, there is no particular given of how adequate inquiries were not made or what information would have been provided had Mr Singh been given additional opportunity as contended by his third ground.
3. Further to the above, in circumstances where Mr Singh could not meet the mandatory criteria at cl.500.211(a) (and does not now say otherwise), the Court would not be persuaded that any error - even if one were identified by any of the first, second or third grounds - was material in the sense of the established authorities.
4. For completeness, the fourth ground does not articulate an error of jurisdiction as to engage the power of the Court and can not succeed.

1. For the above reasons, I am required to dismiss the application that is before the Court and will order costs fixed in the amount of $3,210 being less than the relevant scale for final hearing in the Regulations.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.