Federal Court of Australia

Kakkar v Minister for Immigration and Citizenship [2026] FCA 1139

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 taxed if not agreed.

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 8 March 2019. The reasons for judgment of the Federal Circuit Court are published in Kakkar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 508 (PJ).

2    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 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.

3    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 19 March 2019. On 6 June 2024, the Federal Circuit Court dismissed that application.

4    The appeal from that judgment was filed on 1 July 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.

BACKGROUND

5    At the time of the Tribunal’s decision, the appellant was a 33 year old Indian national who first arrived in Australia in 2007 on a student visa.

6    The appellant had completed courses in June 2007 (vocational English), June 2008 (Certificate in Hairdressing), November 2009 (Diploma of Hairdressing Salon Management), April 2015 (Certificate in Hairdressing), March 2016 (Certificate in Business), June 2016 (Certificate in Business), March 2017 (Diploma of Business). He also enrolled in courses in August 2008 and May 2017, which he either did not commence or did not complete. At the time of the Tribunal’s decision, the appellant was enrolled and studying a Diploma of Leadership and Management which he commenced in October 2018 and was enrolled to study an Advanced Diploma of Leadership and Management commencing October 2019. The appellant had also completed a Bachelor of Arts in May 2013 in India.

TRIBUNAL’S REASONS

7    The Tribunal considered whether the appellant intended genuinely to stay in Australia by having regard to cl 500.212(a) of the Regulations. 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.

8    The Tribunal was “very trouble[d]” by three issues:

(1)    The gap in the appellant’s study for a period of in excess of 18 months from March 2017 to October 2018;

(2)    The period of time that the appellant had spent onshore (being a total of nearly seven years at the time of the Tribunal’s decision); and

(3)    The very limited value the proposed courses would have to the appellant’s future career plan.

9    The Tribunal was of the view that the courses the appellant had completed would provide him with more than sufficient skills to return to India and open a successful hairdressing salon, as the appellant had said was his ultimate career goal.

10    The Tribunal found that the appellant had returned to India for five years after he was assaulted in late 2009. The Tribunal accepted that the appellant had personal ties to India that served as a significant incentive to return.

11    Critical to this appeal, the Tribunal found at [23] that:

The applicant stated he is currently not working at all and that his parents are supporting him financially. The Tribunal considers that [the] applicant’s economic circumstances in Australia relative to India are not presenting as a significant incentive for the applicant not to return to India.

12    The Tribunal found that the appellant had no ties with Australia that presented as a strong incentive for him to remain in Australia.

13    The Tribunal expressed its final conclusion at [30] in the following terms:

Ultimately, the Tribunal considers that the limited (if any) value of the applicant’s proposed studies to his career in hairdressing and the length of time the applicant has been on shore (even accounting for his five year departure in 2009) are of significant concern. They indicate, and the Tribunal finds that, the student visa programme is being used to circumvent the intentions of the migration programme and that the applicant is using the student visa to maintain ongoing residence. The Tribunal has placed considerable weight on these factors in coming to its decision. Hence, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

PRIMARY JUDGE’S DECISION

14    In his application to the Federal Circuit Court, the appellant relied upon a single ground of review:

The Tribunal erred by failing to take into account an integer of a claim which clearly arose from the material.

Particulars

(a) The Tribunal found at [23] that the applicant’s economic circumstances was not a disincentive for the applicant to return to India.

(b) The Tribunal failed to consider whether the applicant’s economic circumstances would make it more likely that the applicant would return to India.

15    The primary judge did not accept that the claim identified by the appellant was a claim that had clearly emerged from the materials before the Tribunal. The primary judge reasoned:

    The appellant’s evidence, in the manner in which it appeared to have been presented, supports the Tribunal’s finding that the appellant’s economic circumstances “do not present as an incentive for him not to return to India”. However, it does not, on its own, give rise to any claim that the appellant’s economic circumstances provide a positive incentive for him to return to India: PJ [43].

    The evidence before the Tribunal shows that the appellant was supported by his parents in Australia at a particular point in time but did not go further: PJ [44].

    The Tribunal would not have been able to make a finding as to whether the appellant’s economic circumstances present a positive incentive for him to return to India without making assumptions that were not supported by the evidence before it. This was said by the primary judge to weigh “against a finding that any unarticulated claim or integer clearly emerged from the materials before the Tribunal”: PJ [45].

    Taking into account the way in which the appellant’s evidence appeared to have been presented to the Tribunal, and the absence of any further information which might suggest that the economic support he received from his parents while in Australia amounted to an incentive for him to return to India, the primary judge found that there was no expressly articulated claim, or unarticulated claim, which clearly emerged on the material before the Tribunal, to the effect that the appellant’s economic circumstances provided a positive incentive for the appellant to return to India: PJ [46].

THE APPEAL

16    On appeal, the appellant contends that the primary judge erred in that conclusion. The appellant contends that the primary judge conflated the question of whether a claim clearly emerged from the materials before the Tribunal with the separate question of how that claim was required to be resolved on the evidence. The appellant submits that his evidence that he was wholly dependent on his parents and that he had no employment raised the obvious “counterpart” to whether there was no economic incentive to stay in Australia; namely whether the absence of an economic foothold in Australia made the appellant’s return to India more likely.

CONSIDERATION

17    The parties proceeded on the basis that a failure to take into account a claim which clearly emerges on the face of the material and which engages a factor listed in Direction 69 may constitute jurisdictional error. That premise is consistent with Kaur v Minister for Home Affairs [2019] FCA 2026 at [31] (Steward J).

18    Direction 69 expressly stated that the factors listed were intended to be a guide to considering a visa applicant’s circumstances as a whole and that decision makers need to consider “any other relevant information provided by the applicant (or information otherwise available to the decision-maker)”: Direction 69 [1]–[2]. The factors specified in Direction 69 are not to be taken as a “checklist”: Direction 69 [1].

19    Clause 500.212(a)(i) of the Regulations requires regard to be had to the visa applicant’s circumstances. As Direction 69 makes apparent, in determining whether a visa applicant intends genuinely to stay in Australia temporarily, it is relevant to consider the visa applicant’s economic circumstances in a comparative way – by comparing the circumstances in Australia with the circumstances in the home country. Paragraph 9(c) of Direction 69 relevantly provides:

9.    When considering the applicant’s circumstances in their home country, decision makers should have regard to…

c.    economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

…

20    The Tribunal considered the appellant’s economic circumstances in Australia and concluded, in the language of Direction 69, that those circumstances would not present as a significant incentive for the appellant not to return to India.

21    The appellant submits that it clearly emerged from the evidence of the appellant’s economic circumstances that those circumstances did more than not act as an incentive to stay in Australia but acted as a positive incentive for the appellant to return to India. It was common ground that the appellant had made no express submission to the Tribunal along those lines.

22    The appellant points to the following evidence as the basis from which the submission was said to clearly emerge:

    The appellant had no employment in Australia (although he stated in his visa application that he sometimes gets an on-call job for cleaning).

    The appellant was being financially supported by his parents and was “wholly” dependent on them.

    The appellant’s total annual living expenses were estimated by him at just over $10,300, suggesting a frugal and basic existence in Australia.

23    The evidence about the appellant’s remuneration in India was described by the Tribunal as “lacking in detail”. There was also no evidence before the Tribunal about the basis on which or duration for which the appellant’s parents were willing to provide him with financial support. As the primary judge correctly observed at PJ [44]:

The evidence before the Tribunal shows that the applicant was supported by his parents in Australia at a particular point in time. There is nothing in the materials before the Court to indicate that the applicant gave any evidence to the Tribunal relevant to matters such as whether or not the level of financial support the applicant received from his parents was sufficient to meet his financial needs, whether that support would continue indefinitely in Australia or whether equivalent financial support to that provided to the applicant in Australia would also be provided to him in India.

24    In these circumstances, the primary judge was correct to conclude that a submission that the appellant’s economic circumstances presented a positive incentive for him to return to India did not clearly emerge from the materials before the Tribunal. Contrary to the submissions of the appellant, the Tribunal was not obliged to make inquiries of these matters. The Tribunal was not under an obligation to construct a claim that did not clearly emerge from the materials before it. The principle has been expressed in the following terms in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ):

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ)… It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

25    It follows that based on the material before it, the Tribunal was not required to consider such a submission that the appellant’s economic circumstances acted as a positive incentive for him to return to India, as contended for by the appellant on appeal.

26    The appellant went so far as to submit to this Court that because the Tribunal will always have before it evidence of the economic circumstances of a visa applicant, it is necessary in every case for the Tribunal to make an assessment about whether the visa applicant’s economic circumstances act as a positive incentive for the visa applicant to return to their home country. That submission cannot be accepted. The Tribunal is not required to consider matters beyond those raised in Direction 69 and those which are either expressly raised by the visa applicant or which clearly emerge from the evidence before the Tribunal.

27    The ground of appeal relied upon by the appellant has not been established.

DISPOSITION

28    The decision of the primary judge was correct and the appeal is to be dismissed, with costs to be taxed if not agreed.

Associate:

Dated:    14 August 2026