Federal Court of Australia

Singh v Minister for Immigration and Citizenship [2026] FCA 1098

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3.    The appeal be dismissed.

4.    The Appellant pay the First Respondent’s costs to be fixed in the sum of $5,900.

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

REASONS FOR JUDGMENT

HESPE J:

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court) dismissing the appellant’s application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal) made on 9 October 2019. The reasons for judgment of the Federal Circuit Court are published in Singh v Minister for Immigration Citizenship and Multicultural Affairs [2024] FedCFamC2G 623 (primary judgment or PJ). The Tribunal had made a decision to affirm the decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Student (Temporary) Class TU (Subclass 500) visa (Student Visa) because the Tribunal was not satisfied that the appellant met the criterion in cl 500.212(a) of Sch 2 of the Migration Regulations 1994 (Cth). The Tribunal was not satisfied that the appellant was a genuine applicant for entry and stay as a student.

BACKGROUND

2    The background facts are set out in the primary judgment at PJ [2]-[12].

3    Briefly, the appellant is a citizen of India who arrived in Australia on 7 March 2009 as a holder of a student visa which expired on 11 April 2011. The appellant subsequently held four further student visas, the last of which expired on 17 November 2017. Over the period between April 2009 and November 2017, the appellant completed various training and diploma courses. On 18 November 2017, the appellant applied for the Student Visa in order to undertake a further diploma in which he had enrolled.

4    On 12 January 2018, a delegate of the Minister refused to grant the Student Visa to the appellant on the basis that the appellant did not satisfy the criterion in cl 500.212(a) of Sch 2 of the Regulations. In short, the delegate was not satisfied that the appellant did not genuinely intend to stay temporarily in Australia as a full time student. On 24 January 2018, the appellant sought review of the delegate’s decision. The Tribunal made a decision on 2 September 2019 affirming the delegate’s decision on the basis that the appellant had not demonstrated that he was currently enrolled in a course. The Tribunal accepted that it had fallen into jurisdictional error in making that purported decision and subsequently made a further decision on 9 October 2019, affirming the delegate’s decision on the basis that the appellant did not intend genuinely to stay in Australia temporarily.

5    On 31 October 2019, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 18 July 2024, the Federal Circuit Court dismissed that application. The appeal from that judgment was filed on 7 August 2024 and allocation of this matter was delayed until May 2026 due to a backlog created by restrictions with in-person hearings in 2020 and 2021 as a result of the Covid-19 Pandemic.

THE APPEAL

6    The appellant’s notice of appeal raised the following two grounds:

(1)    The Federal Circuit Court failed to find that the Tribunal “fell in jurisdictional error in determining without a logical and probative basis that all the evidence upon which his claim was based was false”.

(2)    The Federal Circuit Court failed to find that the Tribunal “fell in misapprehending the evidence and then use its erroneous findings about the evidence”.

7    The appellant filed no written submissions in support of those grounds. The appellant appeared at the hearing as a litigant in person.

8    It is difficult to discern how the grounds of appeal relate to the grounds of review that were raised before the Federal Circuit Court and how they relate to the reasoning in the primary judgment. In these circumstances, it is convenient to address the grounds of appeal by reference to the Tribunal’s reasons without summarising the reasons of the Federal Circuit Court.

TRIBUNAL’S REASONS

9    The appellant at hearing indicated that he did not understand the basis on which the Tribunal had refused to grant his Student Visa. The reasons may be summarised as follows.

10    The criteria for a student visa are set out in cl 500.2 of Sch 2 to the Regulations. Relevant to this case, there are two primary criteria that must be satisfied. One of the primary criteria is that the applicant for the visa is enrolled in a course of study. The Tribunal proceeded on the basis that the appellant was enrolled in a course of study.

11    The issue before the Tribunal was whether the appellant satisfied the second of the primary criteria, which is set out in cl 500.212. At the time of the Tribunal’s decision, that clause provided:

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

(c)    of any other relevant matter

12    The Tribunal considered whether the appellant intended genuinely to stay in Australia by having regard to cl 500.212(a). In considering that question, the Tribunal was required by s 499 of the Migration Act 1958 (Cth) to have regard to Direction No. 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications”, the applicable Ministerial direction at the time.

13    The Tribunal recorded that the appellant has lived continuously in Australia since entering Australia on 7 March 2009, except for three trips to India (in 2011, 2012 and 2017, for a total of 92 days). By his application for the Student Visa, the appellant was seeking to extend the total duration of his stay in Australia to approximately 13 years and four months. The Tribunal considered this period to not be consistent with the appellant intending to be in Australia temporarily.

14    The appellant stated to the Tribunal that courses similar to the one he was then currently enrolled in were available in India. The appellant did not explain to the Tribunal why those courses were not sufficient. The Tribunal was not satisfied that the appellant had reasonable reasons for undertaking his then current studies in Australia.

15    The appellant told the Tribunal he had personal property worth $300,000 in India but provided no documentation to support that claim.

16    The Tribunal found that the appellant’s career objectives were vague and undeveloped because of the lack of detail the appellant had provided about those plans.

17    The Tribunal accepted that the appellant has family in India.

18    Having regard to the length of time the appellant had stayed in Australia and the small number of return visits to India and the appellant’s stated desire to remain in Australia for a further three years, the Tribunal was not satisfied that the appellant had a significant incentive to return to India.

19    The appellant did not provide the Tribunal with current information about the appellant’s employment history in Australia or his earnings or living expenses in Australia.

20    The appellant had not been enrolled in any course between 1 October 2018 and 23 July 2019. The Tribunal considered that this gap in study of approximately 10 months was not consistent with entry and stay in Australia as a student. The Tribunal found that the appellant had obtained his confirmation of enrolment dated 23 July 2019 for the purpose of maintaining his residence in Australia and that the appellant’s presence in Australia for the 10 months between October 2018 and July 2019 was motivated by factors other than study.

21    The Tribunal found that the appellant had stayed in Australia for too long for his entry to be regarded as temporary.

22    The Tribunal found that the appellant had already completed four courses and had not provided the Tribunal with any information that would have enabled the Tribunal to assess what additional value his then current course of study would have brought him.

23    The Tribunal found that the appellant had been abusing the student visa program in order to maintain his residence in Australia.

24    The Tribunal was not satisfied that the appellant was a genuine applicant for entry and stay as a student as required by cl 500.212.

CONSIDERATION

Ground 1

25    This ground of appeal is not made out for two reasons:

(1)    The Tribunal did not determine that all of the evidence of the appellant was false. The Tribunal accepted that the appellant held a certificate of enrolment and accepted that the appellant had family in India.

(2)    When rejecting the appellant’s claims, the Tribunal gave logical reasons for doing so. The Tribunal explained where it considered the appellant’s claim not to be supported by documentation (such as his claim to have $300,000 worth of property in India) or where the claim was not consistent with the objective facts (such as the length of his stay in Australia and the 10 month gap in his studies).

Ground 2

26    This ground is entirely unparticularised. The appellant did not identify with any specificity how the Tribunal misapprehended the evidence. As best as it could be understood, the appellant disagrees with the Tribunal’s conclusions. A disagreement with a finding of fact made by the Tribunal does not demonstrate jurisdictional error. By this ground, the appellant seeks to challenge the merits of the Tribunal’s decision. That is not the role of judicial review.

27    Ground 2 must be dismissed.

DISPOSITION

28    The appeal is to be dismissed. The first respondent is entitled to costs and seeks costs in the fixed sum of $5,900. This is less than the sum to which the Minister is entitled under r 40.43(3) of the Federal Court Rules 2011 (Cth). An order that the applicant pay the first respondent’s costs in the fixed sum of $5,900 will be made.

Associate:

Dated:    10 August 2026