Federal Court of Australia

Kaur v Minister for Immigration and Citizenship [2026] FCA 500

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended to “Minister for Immigration and Citizenship”.

2.    The application for leave to appeal be dismissed.

3.    The applicants pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWNES J:

1    This is an application for leave to appeal from a decision of a judge of the Federal Circuit and Family Court of Australia: Kaur v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 920 (J). By that decision, dated 18 September 2024, the primary judge summarily dismissed an application seeking review of the decision of a judicial registrar in Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 722 dated 8 August 2024. The judicial registrar’s decision summarily dismissed an application brought under s 476 of the Migration Act 1958 (Cth) for judicial review of the decision of the second respondent (Tribunal), dated 9 June 2020, affirming the decision of a delegate of the first respondent refusing the first applicant’s student (Subclass 500) visa application on the basis that she did not satisfy cl 500.211 of sch 2 to the Migration Regulations 1994 (Cth) for the purposes of s 65 of the Migration Act.

2    The first applicant is married to the second applicant. The applicants are citizens of India.

3    The hearing of the application in this Court was originally listed on 19 March 2026. However, the hearing was adjourned by consent until 24 April 2026 to allow the first respondent to recover from intensive surgery performed on 26 February 2026.

4    The first applicant appeared at the re-listed hearing on behalf of the applicants and was given the assistance of an interpreter. The first applicant only made oral submissions.

5    The relevant background information is contained in J [3]–[10].

Proposed grounds of appeal

6    The grounds of appeal as contained in the proposed Notice of Appeal are as follows:

(1)    The Appellant respectfully requests that the honourable JUDGE KAUR-BAINS failed to give consideration to my history of being a genuine student before the delegate of the Minister of Home Affairs refused my student application (File No.: BCC2017/3468383) on 14 November 2017. This decision of the Delegate of Minister threw my life off of my path being a genuine student and I was unable to continue my studies as I had to fight for justice in Tribunal and then in FCC. In the meantime, I fell pregnant 2 times and given birth to two children.

(2)    When The Administrative Appeals Tribunal confirmed Department of Home Affairs decision on 09 June 2020 (Case Number: 1932087), they quoted that the reason is because I did not have any active CoE at the time of their decision. Now in FCC, I have submitted active CoEs at the time of my hearing on 18 Sept 2024 but the honourable Judge failed to give consideration to this fact and still dismissed my appeal. I think the FCC judge has made a jurisdictional error by not considering the circumstances under which I was unable to produce active CoE to the Tribunal and, the honourable judge also made a jurisdictional error by not giving consideration to the active CoEs I produced on 18 Sept 2024.

Ground One

7    By ground 1 of their proposed Notice of Appeal, the applicants allege that the primary judge failed to consider the first applicant’s history of being a genuine student before the refusal decision was made and the impact of that decision on her ability thereafter to pursue or maintain genuine student status.

8    Clause 500.211(a) conditions the grant of a student visa on the applicant being “enrolled in a course of study”. That condition does not permit the decision-maker to consider the applicant’s history of being a genuine student or any personal hardship that may arise if their application is refused. It follows that the primary judge did not err in failing to consider the first applicant’s history of being a genuine student and the impact of the refusal decision.

Ground Two

9    By ground 2 of their proposed Notice of Appeal, the applicants allege that the primary judge failed to consider the circumstances in which the first applicant was unable to produce an active certificate of enrolment to evidence her enrolment status before the Tribunal as well as the active certificates of enrolment produced on 18 September 2024.

10    As explained above, cl 500.211(a) leaves no scope for consideration of the circumstances surrounding an applicant’s enrolment status; rather, the inquiry is confined to consideration of whether the first applicant was enrolled at the time of the impugned decision. Additionally, evidence of enrolment that post-dates the Tribunal’s decision is irrelevant to the correctness of that decision and, accordingly, to the correctness of the primary judge’s decision. In the absence of a current certificate of enrolment before the Tribunal, the application for judicial review of the Tribunal’s decision had no reasonable prospect of success, and the primary judge was correct to so find at J [32].

Conclusion and disposition

11    For these reasons, the proposed grounds of appeal lack merit, and the application for leave to appeal will be dismissed as I am not persuaded that the judgment of the primary judge is attended by sufficient doubt to warrant reconsideration by this Court. There is no reason why costs should not follow the event. An ancillary order will also be made reflecting the change of name of the first respondent, which order was not opposed by the applicants.

Associate:

Dated:    24 April 2026