Federal Court of Australia

Singh v Minister for Immigration and Citizenship [2026] FCA 828

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be fixed in the sum of $3,350.

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

REASONS FOR JUDGMENT

BEACH J:

1    This is an appeal from the orders of the primary judge in the court below who dismissed an application for judicial review of a decision made by the then Administrative Appeals Tribunal on 7 June 2019 which affirmed a decision of a delegate of the Minister to refuse to grant to the appellant a student (class TU) (subclass 500) visa. Now the appellant did not appear, but shortly before the hearing sent an email to my chambers requesting that I decide the matter on the papers. I have so decided the matter on its merits, rather than as a default judgment.

2    For the reasons that follow the appeal should be dismissed.

Background

3    The appellant is a citizen of India. On 20 October 2008, he first arrived in Australia as the holder of a student visa. He subsequently held three student visas, a temporary graduate (class VC) (subclass 485) visa and associated bridging visas. On 19 May 2017, the appellant applied for a further student visa. At the time of the delegate’s decision, the appellant was enrolled in an Advanced Diploma of Leadership and Management.

4    It was a requirement for the grant of the student visa that the appellant satisfy cl 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth), which required that he genuinely intended to stay in Australia temporarily. Decision makers dealing with such applications were required to comply with Direction No. 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications, which direction was made under s 499 of the Migration Act 1958 (Cth). This direction directed decision makers to consider certain factors as a guide when considering the appellant’s circumstances as a whole. Relevant to the appellant’s circumstances were the circumstances in his home country, his potential circumstances in Australia, the value of the relevant course to his future, his immigration history and any other relevant matter.

5    On 3 August 2017, the delegate refused to grant the student visa on the basis that the appellant was not a genuine temporary entrant and did not meet cl 500.212.

6    On 21 August 2017, the appellant applied to the Tribunal for a review of the delegate’s decision.

7    On 17 January 2019, the Tribunal sent an invitation to the appellant under s 359 which contained a link to a generic student visa questionnaire. On 31 January 2019, the appellant provided a response to this questionnaire to the Tribunal.

8    On 5 February 2019, the Tribunal invited the appellant to attend a hearing on 20 February 2019 and to provide any further information in support of his application. On 13 February 2019, the appellant provided a response including further information in support of his application.

9    On 20 February 2019, the appellant attended a hearing before the Tribunal.

10    On 7 June 2019, the Tribunal affirmed the delegate’s decision on the basis that the appellant was not a genuine temporary entrant and did not meet cl 500.212.

11    The Tribunal was concerned that the appellant was enrolled in the same course that he had been enrolled in at the time of the delegate’s decision. It considered that this weighed in favour of the conclusion that the appellant maintained enrolment for the purposes of ongoing residence in Australia.

12    The Tribunal was also concerned by the number of diploma level courses that revolved around management and business management that had already been completed by the appellant. It found the appellant’s current enrolment did not amount to a significant advance from the courses completed by him previously and found that he did not provide evidence of any material difference between his current enrolled course and his completed courses.

13    The Tribunal noted that since arriving in Australia, the appellant had departed only once to return to India, being in 2011. The appellant claimed that he did not return to India on any other occasion because he had lost his passport and did not know how to get another one. But the Tribunal did not accept this explanation for a number of reasons. The unreliability of the appellant’s evidence on this aspect made the Tribunal disinclined to accept the appellant’s evidence more generally unless that evidence was substantiated by corroborative evidence.

14    The Tribunal was satisfied that the appellant’s ties to Australia would present a strong incentive to remain in Australia. The Tribunal relied on the fact that the appellant had remained in Australia for ten and a half years, had returned to India only once and provided an implausible reason for not returning to India again. The Tribunal was concerned that the appellant was not a genuine temporary entrant but was using the student visa program to maintain ongoing residence in Australia.

15    Further, the Tribunal was not satisfied that the appellant had reasonable reasons for not undertaking studies in India. Further, the Tribunal considered that there was no evidence that the appellant’s then currently enrolled course was substantially different from the courses he had already completed in Australia.

16    Further, the Tribunal was satisfied that the appellant’s personal ties to India would not serve as a significant incentive to return to India. Further, the Tribunal was satisfied the appellant’s economic circumstances in Australia would present a significant incentive for the appellant not to return to India. The Tribunal provided a number of reasons for this finding, including the fact that the appellant was employed and had saved $12,000 in his time in Australia.

17    The appellant claimed that his current course of study would qualify him to establish a business in India based on selling and servicing cars. He further claimed that his brother and he had enquired with people in the car sales sector. But the Tribunal was not satisfied of the appellant’s plans.

18    The Tribunal was not satisfied that the appellant intended to genuinely stay in Australia temporarily. Accordingly, the appellant did not meet cl 500.212.

The proceedings in the court below

19    On 3 July 2019, the appellant filed an application seeking judicial review of the Tribunal’s decision in the court below which raised seven grounds of review.

20    On 25 August 2025, the parties appeared before the primary judge at a hearing. At the hearing, the appellant raised two additional substantial matters in his oral submissions.

21    On 28 August 2025, the primary judge dismissed the application. In summary, the primary judge: (a) held that the court did not have jurisdiction to determine ground 1, which raised a complaint with respect to the delegate’s decision and, even if it was intended to address the Tribunal’s decision, did not disclose jurisdictional error; (b) held that it was not apparent there was any denial of procedural fairness as alleged in ground 2 or denial of an opportunity to provide verbal evidence as raised in oral submissions; (c) rejected ground 3 to the extent that it was claimed that the Tribunal had engaged in the wrong legal assessment and otherwise insofar as it appeared to be an invitation to the court to review the merits of the Tribunal’s decision, which was not permissible; (d) held that there was no error in the Tribunal failing to adjourn the hearing to allow the appellant time to apply for the issue of a passport such that grounds 4 and 5 were not made out; (e) held that the Tribunal had properly addressed the issues in relation to the decision under review such that ground 6 was not made out; and (f) held that ground 7 was a further invitation to the court to review the merits of the Tribunal’s decision.

The present appeal

22    On 10 September 2025, the appellant filed a notice of appeal in this Court from the primary judge’s decision which raised two grounds.

Ground one

23    Ground one asserts that the primary judge erred by failing to find that the Tribunal’s decision was affected by jurisdictional error. The particulars to ground one state that the Tribunal made an adverse credibility finding against the appellant rejecting his explanation for not returning to India, being the loss of his passport, on the basis that there was evidence of photocopies of the passport in the department and Tribunal files. The appellant argues that this finding was made without any probative evidence such that the primary judge erred in not finding jurisdictional error on this basis.

24    This complaint was not raised before the primary judge but I will give the appellant leave to raise it.

25    Adverse credibility findings are not usually capable of giving rise to jurisdictional error, unless encompassed within another ground such as irrationality or more generally legal unreasonableness. In the present case, the appellant gave evidence before the Tribunal that he had lost his passport and did not know how to get another one, in explaining why he had returned to India on only one occasion in 2011 since arriving in Australia in 2008. On the material before the Tribunal, it was plainly open to it to infer that the appellant held a physical copy of the passport at 2017 and also 2019, which post-dated 2011 when the appellant claimed to have lost his passport, and rely upon this to find that the appellant’s evidence that he had lost his passport was unreliable. I reject this first ground.

Ground two

26    Ground two stated that the primary judge erred in law by failing to find that the Tribunal denied the appellant procedural fairness pursuant to s 360. Various particulars were given. Again, this complaint was not raised before the primary judge and the appellant requires leave to raise it on appeal, which I will grant.

27    Section 360(1) required the Tribunal to invite the appellant “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. This required the Tribunal to give the appellant a sufficient opportunity to give evidence or make submissions about the determinative issue in review. With respect to the issues arising in relation to the decision under review, the appellant is entitled to assume that the issues the delegate considered were dispositive, unless some additional issues are identified by the Tribunal. The dispositive issue in the delegate’s decision was the same as that for the Tribunal, being whether the appellant was a genuine temporary entrant as required by clause 500.212. There was therefore no new dispositive issue in respect of which the Tribunal was required to identify and notify the appellant.

28    Further, to the extent that this ground may be taken as a complaint that the Tribunal did not comply with its obligation under s 359A to invite the appellant to comment on adverse information, this obligation does not extend to information that constitutes the existence of doubts, inconsistencies or the absence of evidence.

29    Further, the information under s 359A does not encompass the Tribunal's subjective appraisals, thought processes or determinations, nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps. The Tribunal was under no obligation to put its doubts or the inconsistencies in the appellant’s evidence to him for comment under s 359A.

30    This ground is also not made out.

Conclusion

31    As no error is identified or apparent in the judgment or procedure of the primary judge and no jurisdictional error on the part of the Tribunal has been demonstrated, the appeal must be dismissed with costs.

Associate:

Dated:    26 June 2026