Singh v Minister for Immigration & Multicultural Affairs [2025] FedCFamC2G 705

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. By application filed on 6 January 2021 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 8 December 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicant's Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (the Act).

1. The applicant is a citizen of India. The applicant arrived in Australia in January 2018 on a temporary activity subclass 408 visa and then was granted a subclass 500 visa which ceased in July 2019. The applicant applied for the visa, the subject of these proceedings, on 1 July 2019.
2. On 15 July 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.
3. On 28 July 2019 the applicant applied to the Tribunal for review of the delegate's decision.
4. The applicant appeared before the Tribunal on 8 December 2020 to give evidence and present arguments, with the assistance of an interpreter in the Punjabi and English languages.
5. On the same day (being 8 December 2020), the Tribunal made a written decision affirming the delegate's decision to refuse the applicant the visa.

1. The dispositive issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student under cl 500.212, the criteria for which was outlined by the Tribunal.
2. The Tribunal identified that it must have regard to Ministerial Direction No. 69 (the Ministerial Direction), 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act. The Tribunal noted that it had a discussion with the applicant regarding the considerations in the Ministerial Direction.
3. The Tribunal summarised the applicant's travel history and his circumstances generally, including his study progression, employment, living costs, and economic and familial connections to India. In doing so, the Tribunal considered the applicant's genuine temporary entry statement made on 19 May 2020 as well as his academic records, employment letters for his car wash employment, a letter of support and other materials.
4. At [21] and [23] of its decision, the Tribunal noted the applicant's reasons for choosing to study in Australia and the circumstances of his arrival here on the temporary activity visa. The applicant stated that he arrived here under the sponsorship of the Newcastle Sikh Association to perform music as a member of a religious musical band and that once here, he decided he wanted to study in Australia. He stated that he had completed a diploma level qualification in business and a basic English course and then enrolled in an advanced diploma business course which began in October 2020 and was expected to end in October 2021. When asked by the Tribunal why he did not return home to study such courses in business he stated that the Australian education system was better. In regard to his future intentions and the importance and value of his current enrolments to his future intentions he stated that he wished to open a music business in his home country and that he needed to learn business skills to do that. He did indicate that there may be similar courses back in his home country. He further stated that he had a future plan for his music business, and that there were significant music industry opportunities for employment back home in his home country.
5. The Tribunal raised credibility concerns regarding the applicant's evidence. The Tribunal found that the applicant had not established the value of pursuing a further diploma in business, that the course was not consistent with his current level of education (having already achieved professional music qualifications and worked as a musician) and that these courses in business at diploma level would not assist the applicant to obtain employment or improve his employment prospects in his home country. The Tribunal found that the applicant had not provided evidence that this change in his study pathway was reasonable under the circumstances. The Tribunal also found the relevance of these enrolments to the applicant's past or proposed future employment either in his home country or a third country was not established on the evidence before it and that the remuneration the applicant could expect to receive in his home country or a third country using the qualifications to be gained from the proposed course of study was also not established. The Tribunal also found that the applicant had not provided reasonable reasons for not undertaking this study in his home country or region as similar courses were available there. The Tribunal found that this lent weight to the contention that the applicant was seeking to use the student visa program to circumvent the migration program.
6. The Tribunal considered the applicant's evidence as to his economic circumstances in Australia and India and found that the economic circumstances of the applicant would present a significant incentive for him not to return to his home country. The Tribunal also found that the applicant's personal ties in Australia being the association that sponsored him, a local religious dance group and his friendship group, would present a strong incentive for him to remain in Australia. The Tribunal also noted that the applicant was in regular contact with his family in India, that he had family land and residential assets back in his home country but stated that these assets could be leased, sold or managed from Australia or by his family in any case. The Tribunal found that these factors lent weight to the contention that the applicant was seeking to use the student visa program to circumvent the migration program.
7. Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212. As such, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.

1. The application for judicial review was filed on 6 January 2021. The applicant also filed an affidavit annexing the Tribunal's decision. It was not necessary for the Court to take this affidavit into evidence as the Tribunal's decision was included in the Court Book filed by the Minister on 2 February 2021 which was tendered at the hearing (as exhibit CB) and is in evidence.
2. The matter was listed for hearing on 5 May 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 13 March 2025.
3. At the hearing on 5 May 2025, the applicant appeared in person and was assisted by an interpreter in the Punjabi and English languages. The Minister was represented by Mr J. Pinder of Mills Oakley.
4. Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
5. The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in the application, which he did.

1. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.
2. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

1. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 at [32].
2. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

1. The grounds of review advanced in the application (without alteration) are:

1. AAT did not give me chance to provide response to satisfy the reason of student visa refusal. Instead, AAT concluded the decision that I do not meet cl.500.212 in schedule 2 of the Migration Act 1958 (Cth). I did provide detail submission and documents to AAT, but AAT ignore important evidence and used direction 69 as checklist against law also mention in paragraph 9, 10 of case 1920642 and ignored important facts.

2. The AAT has the power, under s.359 of the Migration Act 1958 (Cth) to seek any information considers relevant. I was never asked for clarification of provided information, apart from on line submission, Therefore, AA T failed to give me fair, genuine and realistic chance during hearing.

3. In AAT there is no appropriate mentioned of my submitted statement regarding review application, AAT failed consider information provided. For instance, main reason for affirming my case was that after 12 class completion in India, I do not have genuine intention to study in Australia but AA T member and Visa office who refused my visa failed to consider that meanwhile my student visa was approved, and I completed study. Sole purpose to apply student visa was to learn new skills for better professional job. AA T decision show that all student who are studying in Australia have no better future and under valued Australia study, which is not true. Major point for GTE criteria.

4. AAT use Direction 69; to accuse me as non-genuine student unlawfully and did not even followed direction 69 guidelines, there was communication gap as well, hearing was conducted over the phone and although interpreter was available AA T did not allow me to use interpreter to communicate my views properly and I also struggled to understand member questions. AA T accused me to use student visa for migration outcome without any concrete argument or evidence

5. AAT failed to review my case as fresh application, rather respected decision maker, reiterate the same decision I was given by DHA. Which means my case was never reviewed as per law.

6. There are many valid points which need to be hearing before finalizing this case, but AAT fail to provide me genuine and realistic chance. I will request for FOI so that I can organise my case properly and present to honourable court to consider my case and give me justice.

1. By ground one the applicant contends that the Tribunal failed to give him an opportunity to respond to the reasons for refusal of his student visa, that it applied the Ministerial Direction as a checklist and that it ignored important evidence. When invited to provide further details about this ground, the applicant indicated that whilst the Tribunal had asked him some questions, he felt that he did not get an opportunity to say everything he wished about his studies. He said the Tribunal failed to take into account that he had completed his English course and his studies in the diploma of business.
2. The complaints made by the applicant appear to overlap with some of the other grounds raised by him in the application. It may be appropriate to address the applicant's complaints in detail under this ground.
3. In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to the Ministerial Direction. It provided guidance to decision makers when considering the applicant's circumstances as a whole in reaching a conclusion about whether the applicant met the genuine temporary entrant criterion. It required decision makers to assess whether, on balance, the genuine temporary entrant criterion was satisfied, by: (a) considering the applicant against all factors specified in this Direction; and (b) considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
4. The reasons for the decision indicate that the Tribunal, in undertaking the evaluative exercise required by the Ministerial Direction, had regard to the relevant factors pertaining to the applicant's immigration history, circumstances in his home country and Australia, the value of the courses to the applicant's future and other relevant matters.
5. The Tribunal's reasons for decision do not disclose that it used the Ministerial Direction as a checklist. The Tribunal stated at [10] that the factors specified in the Ministerial Direction should not be used as a checklist and its reasons, when read in their entirety, demonstrate that its considerations focused on the factors relevant to the applicant's circumstances and the evidence he provided in support of his claim to be a genuine temporary entrant.
6. As to the applicant's complaint that he did not have an opportunity to provide evidence at the hearing, particularly in relation to his studies, which he says the Tribunal failed to take into account, this is not made out.
7. I accept that it was for the applicant to advance his case before the Tribunal, and that it was then a matter for the Tribunal to determine whether the case was made out: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 (Abebe), at [187] & [197] per Gummow and Hayne JJ, at [295] per Callinan J.
8. The evidence before the Court indicates that the applicant had been given the opportunity to present his case and provide supporting evidence on the issues that arose in the review. The issue that was before the Tribunal was the same as that which was before the delegate, namely, whether the applicant satisfied cl 500.212(a) which required the Tribunal to be satisfied that the applicant intended genuinely to stay in Australia temporarily having regard to the relevant factors in that provision. The applicant was invited by the Tribunal under s 359(2) of the Act to provide information to demonstrate that he was a genuine and temporary applicant for entry and stay as a student (CB 64 - 65). He availed himself of that opportunity by providing various documents, which relevantly included a completed student visa information form, a GTE statement, confirmation of his enrolment and evidence of studies he had completed and/or was undertaking (CB 71 - 107, 121).
9. The applicant was invited to appear before the Tribunal at a hearing to give evidence and present arguments (CB 109 - 111). That invitation also indicated that the applicant could provide up to date information about his enrolment and studies in Australia.
10. The Tribunal's decision at [22] - [25] sets out the discussions it had with the applicant at the hearing regarding the circumstances of his initial arrival in Australia on a temporary activity visa, the reasons he decided to stay in Australia and study rather than return to his home country, the value of the courses to his future career in the music industry, whether the courses were available in his home country and his economic circumstances in Australia and his home country.
11. The Tribunal's decision record demonstrates that it had meaningful discussions with the applicant at the hearing and that it explored with the applicant issues about which the applicant had already been given an opportunity to provide evidence. There is no evidence before the Court (such as a transcript) which suggests that the Tribunal failed to afford the applicant the opportunity to give evidence at the hearing or that the hearing was conducted in a perfunctory manner.
12. It is also evident from the Tribunal's discussion with the applicant at the hearing, as disclosed in its reasons for decision, that it had taken into account that the applicant had been studying in Australia, had completed the diploma in business qualification and was enrolled in the advanced diploma of business course. However, these were not the only factors considered by the Tribunal. As set out in the summary above, the Tribunal considered a number of other factors, as guided by the Ministerial Direction, when determining whether the applicant was a genuine temporary entrant. The weight given to each of these factors was a matter for the Tribunal and I accept the Minister's submission that the Tribunal's reasons were open to it on the evidence before it.
13. For these reasons, I am not satisfied that any of the matters raised by the applicant in respect of this ground disclose any jurisdictional error on the part of the Tribunal.

1. By ground two, the applicant contends that the Tribunal failed to obtain further information under s 359 of the Act, and that he was not given a fair, genuine and realistic opportunity to give evidence at the hearing. When asked to provide particulars, the applicant said that while the Tribunal had asked him about his enrolment, it did not ask him about his past studies or his intentions of studying in Australia. He said he was only asked one question about his studies and felt that the hearing had ended quickly.
2. The evidence before the Court at CB 63 - 70 clearly demonstrates that the Tribunal sent the applicant a letter pursuant to s 359 of the Act inviting the applicant to provide information in support of his review application. The invitation also enclosed a copy of the Ministerial Direction which sets out the factors the Tribunal would have regard to when assessing the genuine temporary entrant criterion for the student visa.
3. The applicant has not indicated what other information the Tribunal should have sought under s 359 of the Act or the basis on which it should have done so. I accept the Minister's submission that it was for the applicant to provide whatever information he wished in support of the review.
4. As to the applicant's complaint about the hearing, as I noted above, the decision record appears to disclose that the Tribunal had discussions with the applicant about various matters, including his past studies in Australia and the value of the intended courses of study to his future.
5. At the hearing before me, I observed that the duration of the Tribunal hearing was just under 30 minutes and asked the Minister whether this may raise concerns about whether the applicant had been given a genuine opportunity to be heard. In response, the Minister submitted that the length of a hearing depended upon the nature of the case and that in this matter the applicant had already provided evidence to the Tribunal in support of the issues in the review, there were no witnesses and the Tribunal set out at [20] - [25] the discussions it had with the applicant at the hearing regarding the issues it sought further evidence on. The Minister contended that in the absence of a transcript, which is not before the Court, there was no probative evidence to establish that the hearing before the Tribunal was not real and meaningful.
6. In reply to the Minister's submissions, the applicant indicated that at the hearing he would have liked to give more details about his courses of study and how they would have benefited his future, and he would have liked to explain that he was a genuine student.
7. The Tribunal's decision record, being the only evidence before the Court as to what transpired at the hearing, suggests that the Tribunal discussed with the applicant his past study in Australia, the value of the business-related courses to his future in the music industry in India and why the courses could not be undertaken in his home country. There is no probative evidence before the Court which suggests that the applicant was not given a meaningful opportunity to give evidence at the hearing before the Tribunal or that he was prevented from saying whatever he wished to say in support of his review application.
8. For these reasons, I am not satisfied that the matters raised by the applicant in respect of ground two disclose any jurisdictional error on the part of the Tribunal.

1. By ground three the applicant alleges that the Tribunal failed to appropriately mention his statement or the reasons he provided for why he wanted to study in Australia.
2. This complaint is not made out, as the Tribunal expressly referred to the applicant's statement at [20] of its reasons. The Tribunal set out the evidence contained in the applicant's statement and had regard to that evidence in its considerations.
3. I accept, as submitted by the Minister, that the Tribunal was not obliged to accept uncritically the assertions made by or on behalf of the applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, at [27] per Beaumont J.
4. In this case, it cannot be said that the Tribunal failed to have regard to the relevant evidence before it. It is clear from its reasons that the Tribunal considered the information in the applicant's statement. Further, as submitted by the Minister, the fact that it decided adversely to the applicant is not a jurisdictional error, and this complaint rises no higher than to invite the Court to engage in impermissible merits review.
5. For these reasons, I am not satisfied that the matters raised by the applicant in respect of ground three disclose any jurisdictional error on the part of the Tribunal.

1. By ground four the applicant contends that he was not permitted to use an interpreter at the hearing before the Tribunal and that he struggled to understand the questions asked by the Tribunal. When asked to provide further detail to this ground, the applicant said an interpreter was provided at the hearing and the Tribunal told him he could use the interpreter if he had any difficulty with communication. The applicant said there were some problems with communication because he did not use the interpreter all the time.
2. The hearing record (at CB 122) indicates that a Punjabi interpreter had been booked to assist the applicant, and that the interpreter was present for the duration of the hearing. There is no probative evidence before the Court which suggests that the applicant was prevented from using the services of the interpreter. On the contrary, the applicant indicated from the bar table that the Tribunal had advised him to use the interpreter if he had any difficulty with communication. The Tribunal indicated at [5] that the hearing was conducted with the assistance of an interpreter, and its reasons do not disclose that the applicant had any difficulty understanding the proceedings before it or that any issues were raised by the applicant about not understanding the questions being asked or wanting to use the services of the interpreter. Further, the decision record at [22] - [25] appears to suggest that the applicant responded appropriately to the Tribunal's questions about his travel to Australia, his studies, the value of the courses to his future and his personal and financial circumstances.
3. The Court is not satisfied on the evidence before it that the applicant was denied the use of an interpreter or that he was unable to meaningfully participate in the hearing because of interpreter issues. For these reasons, ground four does not establish jurisdictional error on the part of the Tribunal.

1. By ground five the applicant contends that the Tribunal's decision was not lawfully made. When asked at the hearing which law he believed the Tribunal had misapplied or which procedure it may have failed to follow, the applicant said he was unsure and had nothing further to say in relation to this ground.
2. In respect of this ground, the Minister submitted that the Tribunal understood its statutory review function, it considered the available evidence before it and complied with relevant statutory obligations. By reference to the matters discussed above in respect of ground one, I accept the Minister's submission.
3. I am satisfied that the Tribunal has discharged its statutory obligation to conduct a review of the delegate's decision to refuse the applicant a student visa. I have been unable to identify any jurisdictional error in the Tribunal's decision or any failure on its part to comply with any of the procedural obligations required by the Act.
4. For these reasons, ground five does not establish jurisdictional error.

1. Ground six does not appear to raise any error on the part of the Tribunal but appears to suggest that the applicant would be obtaining evidence in support of his judicial review application. When asked whether he wished to say anything further about this ground and whether there was other evidence that was before the Tribunal which was not included in the Court Book that he was referring to, the applicant indicated that the relevant evidence pertaining to his case was in the Court Book and he did not have anything further to say in respect of this ground.
2. Ground six is not a proper ground of judicial review and does not disclose any jurisdictional error on the part of the Tribunal

1. As none of the grounds raised by the applicant establish jurisdictional error, the application for judicial review must be dismissed.

1. The Minister sought an order that the applicant pay the Minister's costs fixed in the sum of $6,700. The applicant did not wish to make any submission on the issue of costs. Having regard to the work undertaken and the scale costs for a standard migration matter as provided for in Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the Court is satisfied that the costs sought in this matter are reasonable and that costs should follow the event and will so order.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.