Singh v Minister for Immigration and Multicultural Affairs [2026] FedCFamC2G 481

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal ('Tribunal') as it then was, orally delivered on 30 September 2019. The decision was put in writing on 18 October 2019. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a student (Temporary) (Class TU) (Subclass 500) visa.
2. The applicant seeks orders quashing the Tribunal decision, directing the Tribunal to reconsider the applicant's application according to law and an injunction restraining the Minister from taking any action the subject of these proceedings.

1. In his application filed on 22 October 2019, the applicant raised the following eight grounds of review:
   1. The Tribunal made an error of law in incorrectly applying section 65 of the Migration Act 1958.
   2. The Tribunal made an error of law in incorrectly applying Cl. 500.211 and 500.212 of Schedule 2 of the Migration Regulations 1994. The Applicant is a genuine applicant for a student visa.
   3. The Tribunal made errors of law and procedure in determining Direction No 69.
   4. The Tribunal ought to have allowed the Applicant further time to obtain and produce a COE.
   5. The Tribunal drew an unreasonable inference that the Applicant was not a genuine student.
   6. The Tribunal failed to take into account relevant consideration that the Applicant was genuinely seeking to study and complete his qualifications.
   7. The Tribunal failed to notify Applicant before hearing that he needed a COE to be successful.
   8. The Tribunal acted unreasonably, unfairly and irrationally in dismissing the review.

1. On 15 March 2018, the applicant applied for the visa.[1]
2. By letter dated 12 March 2018, the applicant set out his reasons for choosing his course, his course provider and his reasons for choosing to study in Australia. In this document, the applicant also set out the relevance that his proposed course of study had to his academic/employment background and his future career plans. He also detailed ties to his home country.[2]
3. By letter dated 8 May 2018, the applicant was advised that his visa application had been refused.[3] In the delegate's decision, the reasons for the refusal were set out and relevantly, the applicant's visa was refused on the basis that the delegate was not satisfied that the applicant met the genuine temporary entrant requirements in clause 500.212 of the Migration Regulations 1994 (Cth) ('Regulations').
4. On 25 May 2018, the applicant sought a review by the Tribunal of the delegate's decision.
5. By letter dated 23 August 2019, the applicant was invited to provide certain information about his course of study.[4] Relevantly, in that letter the Tribunal also provided the applicant with a copy of the Ministerial Direction 69 which contained details of the requirements for assessing the genuine temporary entrant criteria.
6. By letter dated 12 September 2019, the applicant was invited to attend a hearing at the Tribunal, scheduled for 30 September 2019. Relevantly, that letter contained the following:[5]

Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. ...

In addition please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 and as is required by cl.500.211(a) of schedule 2 to the Migration Regulations 1994 ... for the grant of the visa.
2. ...
3. ...

1. The Tribunal conducted a hearing on 30 September 2019 and an oral decision was delivered in that matter on that day. By letter dated 30 September 2019,[6] the applicant was provided with a written outcome of review which indicated that the decision under review was affirmed.[7]
2. By email dated 3 October 2019, the applicant requested a copy of the written decision and the 'recording for the case'.[8] By letter dated 18 October 2019, the Tribunal provided the applicant with a copy of the written statement of decision as requested.[9] Relevantly that statement of reasons contained the following:
   1. While the issue before the delegate was whether the applicant is a genuine temporary entrant the issue before the tribunal now is whether at the time of decision the applicant meets the enrolment requirements for a student visa. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one application.
   2. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study. Course of study is relevantly defined in clause 500.111 of the Regulations as a fulltime registered course. Registered course is defined in the Regulations as a course of education or training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act 2000 to provide the course to overseas students.
   3. The applicant was provided with a written invitation dated 12 September 201 to attend today's hearing. In that invitation the applicant was requested to provide evidence of enrolment in a fulltime registered course to the tribunal at least seven days before today's hearing. Such evidence has not been provided. At the hearing today the applicant was again requested to provide evidence of current enrolment to the tribunal. The applicant informed the tribunal that he is not currently enrolled in a registered course. The applicant further informed the tribunal that he has not been enrolled in a registered course for a period of approximately five months.
   4. The applicant also informed the tribunal that he has had some difficulty with illnesses in the family and other such difficulties. However, the tribunal informed the applicant that it is necessary for the applicant to produce a confirmation of current enrolment at the time of hearing otherwise the matter can be taken no further.
   5. Accordingly, there is no evidence before me that Mr Singh is enrolled in any course of study, therefore the tribunal is not satisfied that at the time of this decision that the applicant is enrolled in a course of study and accordingly, clause 500.211 is not met.
   6. Given the above findings the tribunal finds that the criteria for the grant of a subclass 500 student visa are not met. For these reasons the tribunal finds that the decision under review must be affirmed. The tribunal affirms the decision not to grant the applicant a student temporary class TU visa.
3. The Minister relies upon the affidavit of Emma Louise Hubball filed on 10 March 2026, annexed to which is a copy of the applicant's PRISM records which indicate that the applicant is not currently enrolled in a course of study.[10]
4. On 22 January 2025, the matter came before a Registrar of this court. The applicant appeared at this hearing by telephone. On that occasion, various procedural orders were made including listing the matter for final hearing on a date to be fixed. Orders were also made permitting the applicant to file and serve any amended application, written submissions and further evidence upon which he would seek to rely at the final hearing.
5. Notwithstanding those orders, the applicant did not file any amended application. Nor did he file any written submissions or further evidence.
6. When the matter came before me for final hearing, the applicant appeared on his own behalf. After explaining the court's role in a judicial review application, I invited the applicant to make any further submissions that he wished to make in support of the grounds of review in his application. The applicant indicated that he was a genuine student, but that there were circumstances that made it difficult for him. He sought additional time to provide more documents in support of his visa application and his judicial review application.
7. When asked to clarify, the applicant confirmed that by this, he was seeking an adjournment of this hearing.
8. That request for an adjournment was opposed by the Minister.
9. I indicated at the time that the adjournment request would not be granted. I indicated that I would provide more detailed reasons for that decision. These are those reasons. This matter has been on foot since 2019. Aside from participating in at least one directions hearing before a Registrar of this court, the applicant has not actively engaged in a meaningful way with this proceeding. Moreover, as indicated in the material filed by the Minister, the applicant has not been enrolled in a course of study for over 5 years.
10. Aside from a general request for more time to get more evidence, the applicant did not explain how an adjournment would assist him to properly prosecute his case or indeed, why he has not been able to do so to date.
11. In those circumstances, I am not satisfied that it is in the interests of the administration of justice for an adjournment to be granted.

1. I will now turn to consider the grounds of review raised in the applicant's application. In doing so, I note that the applicant was invited to make any additional submissions in support of the grounds of review in his application at the hearing.
2. Without in any way being critical of the applicant, he did not make any further submissions when invited to do so and simply requested more time.

The Tribunal made an error of law in incorrectly applying section 65 of the Migration Act 1958.

1. Section 65 of the Migration Act 1957 (Cth) ('Act') relevantly requires that the Minister grant a visa if, among other things, the criteria prescribed for the granting of such a visa are met, and if not so satisfied, to refuse the visa. Similarly, on review, the Tribunal is required to consider whether the criteria for the granting of the visa have been met.
2. In this case, the relevant criteria that the Tribunal considered on review was contained in clause 500.211 of the Regulations, which relevantly provided:

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.

1. The applicant does not assert, nor is there any evidence, that clause 500.211(b) - (d) applied. Therefore, the only criteria which the applicant could satisfy in order to meet the criteria for the granting of the visa was that he was 'enrolled in a course of study'.
2. The applicant was not so enrolled at the time of the Tribunal decision and therefore, the only decision that the Tribunal could make was to refuse the visa.
3. Ground 1 is therefore not made out.

The Tribunal made an error of law in incorrectly applying cl 500.211 and 500.212 of Schedule 2 of the Migration Regulations 1994. The applicant is a genuine applicant for a student visa.

1. As stated above, the Tribunal correctly applied clause 500.211. As the applicant was not enrolled in a course of study, that criteria was not met. The visa could therefore not be granted. No error arises in so far as the Tribunal considered and applied clause 500.211.
2. Having come to this conclusion, there was no need for the Tribunal to go on and consider whether the applicant satisfied the requirements of clause 500.212. Clause 500.212 relevantly sets out the basis on which an applicant would be considered to be a genuine applicant for entry and stay as a student. As stated, in circumstances where the applicant had not satisfied the Tribunal that he was enrolled in a course of study, he did not meet the first hurdle, namely, he did not establish that he was a student and therefore, the Tribunal was not required to go on to consider whether, as a student, he was a genuine applicant for entry and stay as a student.
3. The Tribunal did not err in not considering the criteria of clause 500.212.
4. As such ground 2 is not made out.

The Tribunal made errors of law and procedure in determining Direction No 69.

1. Direction No 69 - 'Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications' sets out the factors that must be taken into account in determining whether an applicant satisfies the genuine temporary entrant criterion for a student visa as set out in clause 500.212.
2. For the reasons discussed in relation to ground 2, the Tribunal was not required to consider whether the applicant satisfied the genuine temporary entrant criteria in clause 500.212, having been satisfied that the applicant was not enrolled in a course of study. Therefore, the Tribunal was not required to, and did not apply, Ministerial Direction 69.
3. As such no error as claimed in ground 3 arises.
4. Ground 3 is therefore not made out.

The Tribunal ought to have allowed the Applicant further time to obtain and produce a COE.

1. This ground is also not made out. First there is no suggestion that the applicant sought more time to produce a Confirmation of Enrolment ('CoE') at the hearing before the Tribunal. I accept that in circumstances where the delegate refused the applicant's visa on the basis that he did not satisfy the temporary entrant criteria, rather than on the absence of a CoE, that the applicant was not put on notice by the delegate's decision that this may have been an issue.
2. However, in circumstances where the applicant applied for a student visa and where it is a clear requirement of such a visa that the applicant be enrolled in a course of study, it is arguable that there is no obligation on the Tribunal to put the applicant on notice of this. But in any event, the evidence clearly shows that on two separate occasions prior to the Tribunal hearing, the applicant was, in fact, put on notice that he was required to be enrolled in a registered course of study, and that he was required to provide a CoE.
3. In the Tribunal's letter to the applicant dated 23 August 2019, the Tribunal stated:[11]

As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

• enrolled in a registered course of study; and

• a genuine applicant for entry and stay as a student.

Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. ...

1. Section 6 of the 'Request for Student Visa Information under section 359(2)' form, which the applicant completed and returned, relevantly provided as follows:[12]
   1. Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?
2. In response to this question, the applicant ticked 'No'. In addition, Section 6 contained the following:[13]

Note: Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.

1. In addition, in the applicant's information about his study whilst in Australia, the applicant noted that the last course of study that he completed ended on 26 June 2017.[14]
2. Furthermore, by letter dated 12 September 2019 inviting the applicant to attend a hearing, the Tribunal again requested that the applicant provide a copy of his current CoE or other documents which show that he was currently enrolled in a course of study as defined in clause 500.111.
3. In those circumstances, and absent any request by the applicant for more time to provide a CoE, the Tribunal had no obligation to adjourn the hearing or provide the applicant with more time. Nor could it be said that the failure by the Tribunal to suggest to the applicant that he could seek an adjournment to allow him time to obtain a CoE constituted an error of any kind, let alone a jurisdictional error.
4. For these reasons, ground 4 is not made out.

The Tribunal drew an unreasonable inference that the Applicant was not a genuine student.

1. As stated above, the Tribunal did not consider whether the applicant met the temporary genuine entrant criteria. It did not draw any inference or reach any conclusion about whether the Applicant was a genuine student. As stated, rather, the Tribunal considered whether the applicant met the requirements of clause 500.211 and found that he did not as he was not, on his own evidence, enrolled in a registered course of study.
2. As such, ground 5 is not made out.

The Tribunal failed to take into account relevant consideration that the Applicant was genuinely seeking to study and complete his qualifications.

1. Again, this ground, with respect, misunderstands the basis of the Tribunal's decision. As discussed, earlier, the Tribunal's decision was based solely on its conclusion that the applicant was not enrolled in a registered course of study. That conclusion was open on the applicant's own evidence. Having reached that conclusion, the Tribunal was not required to consider whether the applicant was genuinely seeking to study and complete his qualification.
2. For these reasons, ground 6 is not made out.

The Tribunal failed to notify Applicant before hearing that he needed a CoE to be successful.

1. As discussed in relation to Ground 4, the Tribunal did place the applicant on notice in its correspondence that he was required to be enrolled in a registered course of study and in fact that if he was not so enrolled that this could provide a reason or part of a reason to refuse the visa, even it was not the basis upon which the delegate refused the visa.
2. For this reason, this ground is not made out.

The Tribunal acted unreasonably, unfairly and irrationally in dismissing the review.

1. Ground 8 is not particularised. But in any event, for the reasons discussed above, there is no basis upon which it could be said that having concluded, on the applicant's own evidence that the applicant did not have a current CoE, that he did not meet the criteria in clause 500.211 and therefore did not satisfy the criteria for the granting of a visa.
2. This ground therefore is also not made out.

1. In circumstances where none of the grounds of review are made out, the applicant's application for judicial review ought be dismissed with costs.
2. In the Minister's written submissions, the Minister seeks costs fixed in the sum of $5,454.55. In circumstances where this amount is below the scale amount, I am satisfied that an order for costs in the terms sought by the Minister is appropriate.
3. I therefore make the orders which are set out at the commencement of these written reasons.

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

[9] Court book at pages 125 and following.