Federal Court of Australia

Sidhu v Minister for Immigration and Citizenship [2026] FCA 1103

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be agreed or taxed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The appellant, Inderpreet Singh Sidhu, appeals against a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): Sidhu v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 546. The primary judge dismissed Mr Sidhu’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the predecessor of the first respondent, the Minister for Immigration and Citizenship (Minister), refusing to grant Mr Sidhu a Student (Class TU) (Subclass 500) visa (student visa) pursuant to s 65 of the Migration Act 1958 (Cth).

2    For the reasons that follow, Mr Sidhu has not established any error in the primary judge’s decision, and has not demonstrated that the decision of the Tribunal was affected by jurisdictional error. It follows that the appeal to this Court must be dismissed with costs.

The visa application and the delegate’s decision

3    Mr Sidhu is a citizen of India. On 31 July 2009, he arrived in Australia on a Student (Temporary) (Class TU) (Subclass 572) visa. By 2017, Mr Sidhu had been granted three further student visas and had attained a Certificate III in Automotive Specialist, a Diploma of Automotive Technology, and a Diploma of Leadership and Management.

4    On 10 June 2017, Mr Sidhu applied for a student visa on the basis of his intention to study a Diploma of Automotive Management at Sheffield College. In support of his application he provided a written explanation regarding his choice to pursue further study in Australia, in which he stated, among other things:

I want to get a job in management role in automotive company and further want to start my own automotive workshop. But I feel that before to get a job and to start my own business I have to update with current automotive Management skills. After finishing my Certificate III in Automotive specialist and Diploma in Automotive Technology. I did not have work rights so I could not get any experience in similar field. So, now I choose to do Diploma of Automotive Management to update my skills in automotive industry. During this course I will have chance to attend practical placement which will give me hands on experience in this area.

5    Mr Sidhu also said that he missed his parents and brother in India and that it was his intention, once he finished his study, to go back to them and find a job in the automotive field.

6    On 29 August 2017, a delegate of the Minister refused to grant Mr Sidhu a student visa on the basis of his finding that Mr Sidhu did not satisfy the requirements of cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth). Clause 500.212 required an applicant for a student visa to satisfy the Minister that they were “a genuine applicant for entry and stay as a student”, having regard to various considerations.

The application for merits review and the Tribunal’s decision

7    On 12 September 2017, Mr Sidhu applied to the Tribunal for review of the delegate’s decision to refuse to grant him a student visa. Ahead of the Tribunal hearing (which was later scheduled for 19 December 2019), the Tribunal sent Mr Sidhu, by email to his registered migration agent, a letter dated 24 October 2019, entitled “Invitation to provide information – Mr Inderpreet Singh Sidhu”. Insofar as it is relevant to the appeal before this Court, that letter included the following:

…

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. The information requested may be given by completing the online form and clicking “Submit” on the Declaration page.

…

In considering whether an applicant is a genuine applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No 69 “Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications”. A copy of this is attached for your reference.

The written information requested in the Request for Student Visa Information form should be received by 7 November 2019. …

If you cannot provide the information by 7 November 2019, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 7 November 2019 and it must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

…

(Emphasis in original.)

8    Mr Sidhu did not provide any information to the Tribunal or otherwise respond to the invitation to provide information before 7 November 2019. On 14 November 2019, the Tribunal sent a letter to Mr Sidhu, advising him that the hearing before the Tribunal had been cancelled, given that he had not provided any response to the invitation to provide information.

9    On 18 and 20 November 2019, and again on 5 December 2019, Mr Sidhu attended in person at the Adelaide office of the Tribunal. According to the reasons of the Tribunal (at [9]), he was advised that his right to a hearing had been lost and that he needed to write to the Tribunal outlining his circumstances and seeking additional time to provide the information requested.

10    Subsequently, on 9 December 2019, Mr Sidhu provided a three-page written statement to the Tribunal, setting out further information in respect of his immigration, visa and study history. The statement did not include any explanation for Mr Sidhu’s failure to provide the information within the timeframe required by the Tribunal, did not seek additional time for Mr Sidhu to provide further information, and did not include any evidence demonstrating that he was enrolled in a course of study.

11    On 13 December 2019, the Tribunal notified Mr Sidhu of its decision to affirm the delegate’s decision to refuse to grant Mr Sidhu a student visa, and provided a statement of decision and reasons.

12    In its statement of reasons, the Tribunal stated (at [12]) that it had proceeded to make a decision having regard to the information before it. The Tribunal said (at [15]) that it had read and had regard to the statement provided by Mr Sidhu to the Tribunal on 9 December 2019, but had determined that it was not a response to the Tribunal’s invitation to provide particular information dated 24 October 2019, and did not include any details of Mr Sidhu’s (then) current enrolment in a course of study. The Tribunal identified the relevant criterion in cl 500.211 of Sch 2 to the Migration Regulations, that an applicant for a student visa be “enrolled in a course of study”, and then explained (at [18]-[19]):

“Course of study” is relevantly defined in cl.500.111 of the [Migration Regulations] as a “full-time registered course”. “Registered course” is defined in r 1.03 of the [Migration Regulations] as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students. [Mr Sidhu] has made no claim to meet any of the alternative criteria of cl 500.211.

The Tribunal has not been provided with any information by [Mr Sidhu] that he is currently enrolled in a course of study as required by cl 500.211. As such, the Tribunal cannot be satisfied that the criteria for a grant of a Subclass 500 (Student) visa are met. [Mr Sidhu] does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

The application for judicial review and the decision of the primary judge

13    Mr Sidhu filed an application for judicial review of the Tribunal’s decision in the FCFCOA, in which he advanced five grounds of review. The primary judge heard the application for judicial review on 30 September 2024. The primary judge fairly pointed out to Mr Sidhu that the submissions which he had filed in the FCFCOA appeared to raise questions about the conduct of his migration agent. The primary judge granted leave to Mr Sidhu to provide further affidavit evidence in support of his assertions regarding the conduct of his migration agent. Mr Sidhu availed himself of that opportunity, and a further hearing was conducted before the primary judge on 11 March 2025.

14    On 17 April 2025, the primary judge dismissed the application for judicial review. The primary judge (at [38]-[54] of his Honour’s reasons) considered each of Mr Sidhu’s grounds of judicial review, and found that Mr Sidhu had not established that the Tribunal’s decision was affected by jurisdictional error. The primary judge also considered (at [55]-[67]) whether the evidence adduced by Mr Sidhu established that the Tribunal’s decision was affected by jurisdictional error by reason of his migration agent’s alleged fraudulent conduct. Mr Sidhu’s claims with respect to the conduct of his migration agent and its effect on the Tribunal’s decision are explained more fully below. The primary judge found (at [65]) that the evidence regarding the conduct of the migration agent “does not rise to the level so as to support a finding of fraud” and (at [66]) that it “did not have the effect of stultifying the Tribunal’s process”. The primary judge also accepted (at [66]) that “the Tribunal made the only decision open to it in circumstances where [Mr Sidhu] was not enrolled in a course of study”.

15    Accordingly, the primary judge dismissed the application for judicial review.

The appeal to this Court

16    Mr Sidhu now appeals to this Court against the decision of the primary judge. The grounds of appeal on which Mr Sidhu relies in this Court are expressed in his notice of appeal as follows:

(1)    The Federal Circuit Court of Australia failure to found fraud in the case where a migration agent breached the Code of Conduct on his occupation and provided misleading information to the applicant regarding enrolment and did not provide accurate information to applicant.

(2)    In immigration decision used wrong information used to make a factor to refuse the visa by immigration officer and that factors ignored by the Federal Circuit Court of Australia during make decision and did not sent matter back to the AAT for review because immigration officer used wrong information and factors to refuse the visa application.

(3)    AGS lawyer provided a affidavit which miss lead the court to make a dismiss decision dismiss and in this affidavit information and immigration officer information mismatched in

17    Mr Sidhu did not file written submissions in support of his appeal, but made oral submissions at the hearing with the assistance of an interpreter.

Ground 1 – alleged fraud by migration agent

18    By Mr Sidhu’s first ground of appeal, he contends that the primary judge erred by failing to find that the decision of the Tribunal was affected by fraud.

19    The authorities establish that “fraud” on the part of a third party, including a migration agent, may result in a decision of a Tribunal being affected by jurisdictional error: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 (SZFDE). In SZFDE, the fraudulent conduct of a person who falsely held himself out as a solicitor and registered migration agent was held to have “subverted” the “processes” of the Tribunal, because his conduct dissuaded the visa applicants in that case from appearing at a hearing of the Tribunal. The High Court observed that the fraud of the agent in that case “had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants” (at 206 [49]) and that, by reason of his fraud, the Tribunal “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review” (at 206 [51]). The Court emphasised (at 207 [53]) that:

… there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.

20    In Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 at 509 [33], the Full Court of the Federal Court described the decision in SZFDE as requiring, in order for jurisdictional error to be established, “that the agent in question is fraudulent in a way that [a]ffects the tribunal’s Pt 7 decision-making process”.

21    In the FCFCOA, Mr Sidhu relied on affidavit evidence, and also gave oral evidence, about the conduct of his migration agent. For the purposes of considering this ground of appeal, it is convenient to assume (without deciding) that that evidence should be accepted at its highest. The primary judge identified the effect of Mr Sidhu’s evidence as follows (at [57] of his Honour’s judgment, adopting a summary set out in written submissions of the Minister):

(a)    Mr Sidhu had previously hired a migration agent to assist with his student visa application;

(b)    the migration agent “did not listen” to Mr Sidhu’s advice that he was already enrolled in an Advanced Diploma of Leadership and Management, and advised him to enrol in a Diploma of Automotive Management;

(c)    the migration agent did not give Mr Sidhu information about his debt to the Minister’s Department when he filed the student visa application;

(d)    Mr Sidhu heard people say that migration agents get a commission per enrolment but “is not sure if this is true or just a rumour”; and

(e)    the Tribunal sent all correspondence about Mr Sidhu’s review application to his registered migration agent, but the agent did not respond to those emails, or otherwise submit any information to the Tribunal in support of Mr Sidhu’s case.

22    Mr Sidhu does not submit that this summary of his evidence was incorrect or incomplete. I note that, even though correspondence was sent by the Tribunal to the migration agent, it is evident that, before the Tribunal made its decision, Mr Sidhu was aware of the need to provide information to the Tribunal. He attempted to do so by providing a document to the Tribunal on 9 December 2019, before it made its decision (although that document did not include information confirming that he was, at that time, enrolled in a course of study). The Tribunal referred to and had regard to the information that Mr Sidhu did provide.

23    In the course of oral submissions on the appeal, Mr Sidhu also submitted:

… When I finished my study, I spoke to my migration agent and I told him that I’ve got the hearing date, what should I do now? He said, “You don’t have to do any course. I’m not sure how long they’ll take. They take long, long, long time.” So he didn’t do anything for me. He didn’t postpone the hearing. He didn’t do any submissions in that time. He went to India for his holidays, so there was no submission provided by him to the Tribunal.

(Clean verbatim of English interpretation.)

24    While this was not itself evidence but a statement made in the course of submissions, it is broadly consistent with what Mr Sidhu told the primary judge (as recorded at [37] of the primary judgment). It suggests that the reason why Mr Sidhu was not enrolled in a course in December 2019 was because, by that time, he had already completed the Diploma of Automotive Management (being the course on which he had relied when he applied for the visa) and because his migration agent had informed him not to enrol in another course at that time.

25    The evidence does not establish that there was dishonesty or fraud on the part of the migration agent. As the primary judge found (at [64]), it is, rather, “indicative of omissions and a lack of diligent communication, but not of dishonesty or deception”. It may be, as Mr Sidhu submits, that the conduct of his migration agent was inconsistent with the code of conduct applicable to migration agents, but that does not support a conclusion that the Tribunal’s decision was affected by jurisdictional error.

26    Further and in any event, it does not appear that the migration agent’s conduct can be said to have disabled the Tribunal from conducting a review of the delegate’s decision, or to have subverted the “processes” of the Tribunal. This is not a case where the decision-making process of the Tribunal (as opposed to the factual situation which the Tribunal had to assess) was adversely affected by the conduct of the migration agent. Mr Sidhu was given an opportunity to advance evidence on which he sought to rely before the Tribunal. He eventually did so, and the Tribunal took account of what he had submitted. The Tribunal was able to, and did, conduct a review of the delegate’s decision by reference to the evidence before it, and was able to make a finding – as it turns out, an accurate finding – about whether Mr Sidhu was enrolled in a course of study at the date of the Tribunal’s decision. Not being satisfied that he was, the Tribunal was legally bound to refuse to grant the visa and to affirm the delegate’s decision, albeit for reasons that differed from those of the delegate.

27    For these reasons, the primary judge was correct to conclude that the Tribunal’s decision was not shown to have been affected by jurisdictional error by reason of the conduct of the migration agent, and the first ground of appeal cannot succeed.

Ground 2 – use of “wrong information” in delegate’s decision

28    By his second ground of appeal, I understand Mr Sidhu to contend that the primary judge erred in refusing to uphold his application for judicial review on the basis that the “immigration officer” – meaning the delegate who made the original decision which was the subject of the review in the Tribunal – relied on incorrect information to refuse his application for a student visa. This was the subject of ground 1 of the application for judicial review.

29    As explained above, the delegate’s decision to refuse to grant Mr Sidhu a student visa was based on a finding that he did not satisfy the genuine temporary entrant criteria in cl 500.212 of Sch 2 to the Migration Regulations. It is understandable that Mr Sidhu may feel that, in effect, his visa application was refused due to what he says was an error in the reasoning of the delegate because, had that alleged error not been made, he might have satisfied all the criteria for the grant of a student visa at that time.

30    Nevertheless, the Tribunal, when reviewing the delegate’s decision, was required to determine for itself whether Mr Sidhu satisfied the criteria for the grant of a student visa. The Tribunal first considered the criterion in cl 500.211(a), which required that Mr Sidhu be “enrolled in a course of study” at the time of the decision. The Tribunal was entitled to consider that criterion first. The Tribunal found that Mr Sidhu had not submitted any evidence to show that he was enrolled in a course of study at the time when it made its decision, and so found that it was not satisfied that the criterion was satisfied.

31    In those circumstances, as the primary judge correctly held (at [38]-[43]), the Tribunal was bound to affirm the decision under review, because there was no evidence before the Tribunal to establish that Mr Sidhu met one of the criteria for the grant of a student visa. The Tribunal was not obliged to go on to consider whether the genuine temporary entrant criteria in cl 500.212 were met. Nor was the Tribunal required to consider whether the delegate’s factual findings relating to those criteria or the information on which those findings were based were correct. Whether the delegate’s findings were correct or not could make no difference to the Tribunal’s decision. It follows that there was no error in the Tribunal failing to address, or make findings about, the genuine temporary entrant criteria, or in the Tribunal failing to consider and determine whether the delegate’s findings relevant to the genuine temporary entrant criteria were factually correct.

32    For the purposes of an application for judicial review of the Tribunal’s decision (or an appeal from a decision made on such an application), it does not matter whether the delegate made an error in their decision, because that decision was superseded by the decision of the Tribunal. As the primary judge correctly observed (at [29], [39] and [47]), the FCFCOA had no jurisdiction to review the original decision of the delegate: see Migration Act, s 476(2)(a).

33    For these reasons, the second ground of appeal must be rejected.

Ground 3 – alleged error in an affidavit relied on by the Minister

34    Mr Sidhu’s third ground of appeal appears to assert that an affidavit which was filed by the Minister in the FCFCOA led the primary judge into error. The ground does not specify the nature of the error. The only affidavit filed by the Minister in the FCFCOA was directed to establishing that, as a matter of fact, his department’s Provider Registration and International Student Management System (PRISMS) recorded that Mr Sidhu was not enrolled in a course of study as at the date of the Tribunal’s decision (or, indeed, subsequently).

35    In oral submissions, Mr Sidhu did not identify any factual inaccuracy in the affidavit on which the Minister relied. I understood him to say that he believed that the Minister’s solicitor had “submitted some kind of evidence that [Mr Sidhu] did not provide a [confirmation of enrolment] or something like that”. However, the evidence presented in the affidavit was not to the effect that Mr Sidhu had never provided a confirmation of enrolment in support of his visa application. It showed that he had been enrolled in a Diploma of Automotive Management between 31 July 2018 and 20 September 2019, but not thereafter. This was consistent with the position that I understood Mr Sidhu to maintain at the hearing, namely that he had completed that course of study in 2019, before the Tribunal made its decision on 13 December 2019.

36    The Minister submits that ground 3 raises an issue that was not raised by Mr Sidhu in the FCFCOA. The Minister contends that Mr Sidhu requires leave to rely on this ground, and that leave should be refused because the ground lacks merit, because Mr Sidhu has failed to explain why he did not raise the issue before the FCFCOA, and because, insofar as Mr Sidhu seeks to submit that the primary judge was wrong to accept that he was not enrolled in a course of study at the time of the Tribunal’s decision, that is inconsistent with the position that he took before the primary judge.

37    I am satisfied that the third ground of appeal has no merit. Before the primary judge, Mr Sidhu accepted that he was not, in fact, enrolled in a course of study at the time of the Tribunal’s decision, and explained that that was because his migration agent had advised him against enrolling in a further course of study: see [37] of the primary judgment. Mr Sidhu has provided no evidence to suggest that he was enrolled in a course of study at the time of the Tribunal’s decision. The primary judge made no reference to the Minister’s affidavit in his judgment, and in any event, its relevance was only to establish a fact that Mr Sidhu accepted. It is not reasonably arguable that the primary judge was misled by the affidavit. In those circumstances, leave should not be granted to rely on this ground and, in any event, it should not be upheld.

Conclusion

38    It is apparent that Mr Sidhu finds it difficult to understand why he has not been granted a visa when he had enrolled in and, by the time of the Tribunal’s decision, had completed, a course of study, and when (as he claims) he was not enrolled in any further study at that time because he followed the advice of his migration agent. As I have attempted to explain, the Tribunal was bound to refuse to grant Mr Sidhu a student visa if, at the time of its decision, it was not satisfied that he was enrolled in a course of study. Even if the reasons why Mr Sidhu was not enrolled in a course of study at that time were because he had already completed his Diploma of Automotive Management and because, following the advice of a migration agent, he had not enrolled in any other course, the Tribunal made no error in refusing to grant him a student visa. On an appeal from the decision of the FCFCOA on an application for judicial review, the Court can only set aside a decision of the Tribunal if it was affected by jurisdictional error.

39    The appeal must be dismissed with costs.

Associate:

Dated:    10 August 2026