Federal Court of Australia

Patel v Minister for Immigration and Citizenship [2026] FCA 1216

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal dated 18 October 2024 be dismissed.

2.    The first appellant is to pay the first respondent’s costs, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The first appellant is a 48-year-old citizen of India. The second appellant is 39 years old, a citizen of India, and the first appellant’s wife. The third appellant is 15 years old and the child of the first and second appellants.

2    The appellants seek judicial review of a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) made on 25 September 2024: Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedFamC2G 946 (Primary Judgment or PJ). In that decision, the primary judge upheld a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), affirming the decision of a delegate of the first respondent (Minister) to refuse the appellants application for a Student (Temporary) (Class TU) Student (subclass 500) visa (Student Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

3    The first appellant is the main applicant for the Student Visa. The second and third appellants are secondary applicants for the Student Visa as accompanying members of the family unit.

4    The first appellant appeared as a litigant in person at the hearing of the appeal with the assistance of an interpreter. The second and third appellants did not appear.

5    The insurmountable obstacle to the appeal is that the first appellant, as the main applicant, was not enrolled in a registered course of study and was therefore not able to satisfy the mandatory criteria in cl 500.211 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) for the issue of a Student Visa.

6    For the reasons that follow, the appeal must be dismissed, and the first appellant is to pay the costs of the Minister.

B.    Factual background

7    On 23 April 2009, the first appellant arrived in Australia as the holder of a Student (Subclass 572) visa.

8    On 7 November 2018, the appellants applied for a Student Visa on the basis of the first appellant’s alleged enrolment in a Graduate Diploma of Management at the Australian Health and Management Institute Pty Ltd.

9    On 9 January 2019, the delegate refused to grant the Student Visas because he was not satisfied that the first appellant intended genuinely to stay temporarily in Australia (delegate’s decision).

10    On 26 January 2019, the appellants applied to the Tribunal for merits review of the delegate’s decision.

11    On 17 April 2020, the Tribunal invited the appellants to provide information pursuant to s 359(2) of the Act regarding the course of study the first appellant was undertaking and his entry and stay in Australia as a student.

12    On 28 April 2020, the first appellant provided the Tribunal a completed “Request for Student Visa Information” form. In that form, the first appellant consented to the Tribunal deciding the review without a hearing and further stated that he did not have a current Confirmation of Enrolment in a registered course of study.

13    On 11 May 2020, the Tribunal affirmed the decision of the delegate on the basis that the first appellant was not enrolled in a course of study (Tribunal’s decision) and provided written reasons for its decision (Decision Record or DR).

14    On 4 June 2020, the appellants applied to the FCFCOA for judicial review of the Tribunal’s decision.

15    On 25 September 2024, the primary judge affirmed the Tribunal’s decision.

C.    Legal principles

16    Section 65 of the Act relevantly provides:

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

 (a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)     the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

 (iv)     any amount of visa application charge payable in relation to the application has been paid;

     is to grant the visa; or

 (b)    if not so satisfied, is to refuse to grant the visa.

17    The criteria for a Student Visa are set out in “Subclass 500—Student” of Sch 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least the main applicant. Clause 500.211 relevantly provides that one of the following must apply:

(a)     the applicant is enrolled in a course of study;

(b)     if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

(c)     if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

(d)     if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

18    Other members of the family unit, if any, who are applicants for the Student Visa need only satisfy the secondary criteria in cl 500.311 to cl 500.318. Clause 500.311 relevantly provides:

The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

(a)    the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

(i)     the primary person’s application under subregulation 2.07AF(3); or

(ii)    information provided in relation to the primary person’s application under subregulation 2.07AF(4)[.]

19    An appellant alleging jurisdictional error arising from a denial of procedural fairness must establish that (a) an error arose in the decision-making process and (b) the threshold of materiality has been met. The relevant principles were recently stated by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 as follows (at [12] and [15]):

Where the jurisdictional error alleged is one concerned with the process of the decision making, such as a denial of procedural fairness, what must be proved by the applicant will depend upon the precise error alleged to have occurred in the decision-making process, having regard to any relevant statutory provisions within the applicable legislative framework. Examples of the types of evidence that have been sufficient for establishing the relevant facts in such cases include the appellate record, and evidence of the content of a document or information that was required to be provided as part of the decision-making process. […]

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error [...] Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker.

(Citations omitted.)

20    In conducting judicial review, this Court may not consider the merits of the administrative decision-maker’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272.

D.    The Tribunal’s decision

21    Prior to making its decision, the Tribunal wrote to the first appellant on 17 April 2020 pursuant to s 359(2) of the Act inviting him to provide further information. The first appellant provided the Tribunal with a written response to its s 359(2) request on 28 April 2020. The Tribunal noted that in his written response, the first appellant had consented to the Tribunal deciding the review without a hearing (DR [6]).

22    In his response to the s 359(2) request, the Tribunal noted that the first appellant answered “No” to the question “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study” (DR [18]).

23    The Tribunal also found that there was no evidence to suggest that the first appellant had entered into any legally binding contract with a registered course provider (DR [16]) or engaged in any further studies since he completed a Bachelor of Accounting at UBSS College in December 2016 (DR [18]).

24    The Tribunal observed that all student visas are subject to a condition that visa holders remain enrolled in a registered course of study, and therefore a Student Visa could not sensibly be granted if a main applicant was not currently enrolled in a registered course of study because it would be breached as soon as it was granted (DR [16]).

25    The Tribunal stated that given the other primary criteria for the issue of a Student Visa are premised on satisfying the enrolment criteria in cl 500.211, there was no administrative utility in considering any further primary criteria (DR [17]).

26    For these reasons, the Tribunal then found that it was not satisfied that at the time of making its decision, the first appellant was enrolled in a course of study, and therefore the criteria for the grant of a Student Visa were not met (DR [20]). It also found that the failure of the first appellant, as the main applicant, to satisfy those criteria also meant the second and third appellants, as secondary applicants, also failed to meet the criteria for the issue of a Student Visa (DR [22]). It concluded that the delegate’s decision must accordingly be affirmed (DR [23]).

E.    Decision of the Primary judge

27    The appellants advanced a single ground of review before the primary judge, that they were not afforded procedural fairness by the Tribunal. The appellants provided the following particulars (PJ [34]):

(a)    the conduct of the delegate in making a decision based on a hearing and not giving him time to provide documents.

(b)    that he is not in breach of cl 500.212 and has complied with the conditions of his visa.

(c)    he is a victim of procedural fairness issues as the Tribunal made an error in his decision because it did not look at all the necessary aspects of his case and give him time to produce documents.

28    The primary judge did not accept the contention that the Tribunal had erred in not giving the first appellant time to produce documents to establish that he would not be in breach of cl 500.212 or the conditions of the Student Visa. The primary judge found at PJ [41]-[42]:

The issue that was before the Tribunal, at the time of its decision, was whether the applicant satisfied the criterion in cl 500.211(a) which required him to be enrolled in a course of study. Notwithstanding that the delegate refused the application for the visas on a different basis, namely whether the applicant intends genuinely to stay temporarily in Australia, as required by cl 500.212(a), the Court is satisfied that the applicants were made sufficiently aware of the issues that may be dispositive of the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [33]. In the s 359(2) letter, the applicants were put on notice that it was a requirement of the visa that one of the applicants (the main applicant) be enrolled in a registered course of study. Further, in the RFSVI form, the following information was provided to the review applicants (CB 71):

Not being enrolled in a registered course of study may be a reason, or part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker

In the same form, the applicant (as the main applicant) was asked whether he had a current Confirmation of Enrolment (CoE) in a registered course of study, to which he responded “No”. In view of this information, and the applicants consenting to the Tribunal deciding the review without a hearing, which is the subject of further consideration below, the Tribunal was entitled to consider the issue of enrolment at the time of its decision and to determine the review on that basis. No procedural unfairness arose out of the Tribunal deciding to affirm the delegate’s decision on a different criterion than that which was considered by the delegate.

29    Nor did the primary judge accept the first appellant’s submission that the Tribunal did not consider all necessary aspects of his case and did not give him time to produce documents. The primary judge found at PJ [45]-[46]:

The Court accepts, as submitted by the Minister, that the Tribunal’s invitation to provide information under s 359(2) requested the applicant to provide information to satisfy the requirement that he was enrolled in a registered course of study and informed him that if he could not provide the information by 1 May 2020, being the prescribed period by which he had to provide the information, he could seek an extension of time to provide the information.

The evidence before the Court is that the applicants did not seek an extension of time to provide information (or documents). The Court considers that in the circumstances, where the applicants had not sought an extension of time to provide additional information (or documents), and where they had consented to the Tribunal deciding the review without a hearing, it was not unreasonable for the Tribunal to proceed to a decision on the information before it. No error, let alone a jurisdictional error is established by this complaint.

30    Finally, the primary judge found that no procedural unfairness arose from the Tribunal determining the review without a hearing, given the first appellant had consented to not having a hearing on behalf of the appellants (at PJ [50]-[51]).

F.    Grounds of appeal

F.1.    Overview

31    The appellants advance the following three grounds of appeal in their notice of appeal (as written):

1.    The Hon. Federal Circuit Court judge erred in dismissing an application for judicial review without giving consideration of fact presented at the AAT hearing.

2.    The Hon. Federal Circuit Court Judge made legal error in his judgment by not properly Appling provision of s 36 of the Migration Act – 1958

3.    The Administrative Appeals Tribunal (AAT) erred in its judgment by not applying cl.s65 of the Migration Act-1958P

F.2.    Ground 1: Failure to consider facts presented at the Tribunal Hearing

32    The first appellant did not provide any particulars of any alleged facts that the Tribunal failed to consider “at the AAT hearing”.

33    In any event, the first ground of appeal is largely inexplicable because there was no hearing before the Tribunal. Moreover, when asked at the hearing of the appeal what facts were not otherwise taken into account by the Tribunal in making its decision, the first appellant was only able to say that he had “applied for leadership” (being the Graduate Diploma of Management) and that the Tribunal had erroneously stated he was “downgrading” by enrolling in a graduate diploma after his Bachelor of Accounting. He confirmed, however, that he was not actually enrolled in a graduate diploma at the time of the hearing before the Tribunal and he was not able to identify any other alleged fact that the Tribunal did not consider.

34    The first ground of appeal must be rejected.

F.3.    Ground 2: Improper application of s 36 of the Act

35    The first appellant did not provide any particulars of the alleged improper application by the primary judge of s 36 of the Act.

36    The ground is misconceived. Section 36 of the Act is directed at the criteria for the grant of a protection visa, not a Student Visa. The first appellant was not able to provide any explanation at the hearing of the appeal why he had included this ground in the notice of appeal. He simply responded, “I don’t remember now”.

37    The second ground of appeal must be rejected.

F.4.    Ground 3: Failure to apply s 65 of the Act

38    The third appeal ground is also misconceived. As submitted by the Minister, the role of the Tribunal was to conduct a review under s 348 of the Act, not to decide whether to grant a visa after considering a valid visa application under s 65 of the Act. Section 65 of the Act has no relevant application to the decision of the Tribunal.

39    Again, the first appellant was asked at the hearing of the appeal why this ground of appeal had been included in the notice of appeal, but he was not able to provide any explanation. When asked why it had been included, he responded “[w]ell that time when they had cancelled my visa, accordingly I’d read and understood all this. Nothing else. Nothing, I don’t want to say anything now”.

40    The third ground of appeal must be rejected.

F.5.    Other jurisdictional error

41    Given the first appellant is a litigant in person and the largely misconceived appeal grounds advanced in the notice to appeal, I have otherwise reviewed the Tribunal’s decision and the Primary Judgment to discern whether either decision might have given rise to any jurisdictional error. I am satisfied from that review that there is no suggestion of any jurisdictional error. In particular, (a) the essential threshold issue for determination by the Tribunal was whether the appellants had complied with the requirements of cl 500.211 – given the first appellant was not enrolled in a registered course of study, any finding by the delegate that the first appellant was a genuine applicant for entry and stay as a student for the purposes of cl 500.212 did not need to be reconsidered by the Tribunal, (b) the first appellant expressly consented, on behalf of the appellants, to not having an oral hearing before the Tribunal, (c) the necessity to be currently enrolled in a registered course of study was brought to the first appellant’s attention prior to the Tribunal’s determination and he provided written confirmation to the Tribunal that he was not currently enrolled in a registered course of study, and (d) the first appellant confirmed at the hearing of the appeal that he was not currently enrolled in a registered course of study.

42    The fundamental and insurmountable obstacle for the appellants is that at the time that they applied for a Student Visa, the first appellant was not enrolled in a registered course of study. That requirement was a necessary precondition to the grant of a Student Visa given the first appellant plainly did not otherwise satisfy any of the other essential criteria in cl 500.211(b)-(d).

G.    Disposition

43    The notice of appeal is to be dismissed, and the first appellant is to pay the costs of the Minister.

Associate:

Dated:    26 August 2026