Federal Court of Australia

Kaur v Minister for Immigration and Citizenship [2026] FCA 1379

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 the judgment of the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court) made on 13 September 2024 in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 884 (primary judgment or PJ). The primary judge dismissed the application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa).

2    The Court notes that a few days prior to the scheduled hearing date before this Court, the appellant requested an adjournment, providing a medical certificate in the following terms (without amendment):

This is to certify that I have today examined [the appellant].

In my opinion she will be unfit for her normal work/study from 31st August 2026 to 6th September 2026 inclusive

This certificate was completed on 31/08/2026

3    The appellant’s request was refused. This matter has been filed for years, and the appellant has been on notice of the hearing date since 29 May 2026. The terms of the medical certificate were entirely inadequate to support a conclusion that the appellant was incapable of preparing for and attending a hearing.

4    The appellant also indicated that an adjournment might enable her to obtain legal representation. The appellant has had sufficient time to obtain legal representation had she wished. The appellant is not entitled to legal representation and an absence of legal representation of itself is not a basis for adjournment: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19] (McKerracher, Farrell and Banks-Smith JJ); WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2] (Jackson J).

5    To accommodate the convenience of the appellant, she was invited to appear at the hearing remotely, which she did. An interpreter was present in Court at the hearing to assist the appellant.

BACKGROUND

6    On 30 December 2016, the appellant applied for the Visa.

7    On 14 February 2017, a delegate of the Minister refused to grant the appellant the Visa. The delegate found that the appellant did not meet the requirements in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) because the delegate was not satisfied that the appellant genuinely intended to stay in Australia temporarily.

8    On 6 March 2017, the appellant lodged an application for review of the delegate’s decision to the Tribunal. The appellant appeared before the Tribunal on 17 July 2018, at which she was represented by her registered migration agent. The hearing was conducted with the assistance of an interpreter.

TRIBUNAL’S REASONS

9    In the Tribunal’s reasons (TR), the Tribunal identified that the issue before it was whether the appellant was a genuine temporary entrant as required by cl 500.212 of the Regulations. In determining that issue, 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 (Direction 69), the applicable Ministerial direction at the time.

10    The Tribunal had regard to the appellant’s circumstances in India. The Tribunal records that the appellant tendered no evidence to support the appellant’s submission about her financial circumstances in India. Although accepting that the appellant remained in regular contact with her family in India, the Tribunal found that the appellant’s family ties and her family’s assets in India were not sufficient incentive for her to wish to return there permanently.

11    The Tribunal had regard to the appellant’s potential circumstances in Australia, recording that the appellant divorced in 2015 and her ex-husband had returned to India in 2017. At the time of the Tribunal’s decision, the appellant was not married, had not had any children and was not in a relationship with an Australian citizen or permanent resident. Although the appellant had cousins who were residents in Australia, the appellant had no strong social or community ties to Australia. The appellant had worked as a personal care assistant in an aged care facility for almost six years and as a cook at a restaurant and cafe.

12    The Tribunal found that although the appellant had no strong personal ties to Australia, the appellant had little economic incentive to leave Australia. The appellant had been able to earn an income well in excess of her living expenses. The Tribunal found that the appellant had established a comfortable working life in Australia where she has been able to earn an income far higher than what she might expect to have earned in her home country. The Tribunal found the prospect of well-paid employment in Australia to be the primary motivation for her wishing to remain in Australia.

13    The Tribunal recorded that the appellant had first arrived in Australia on a student visa on 31 December 2008, and if the Visa were granted, the appellant’s study plan would see her remain in Australia for almost 10 years. The Tribunal found it difficult to reconcile the length of the appellant’s proposed stay in Australia with her claim to be a genuine temporary resident. The Tribunal found that potential economic circumstances in Australia outweighed any incentive for the appellant to depart.

14    The Tribunal considered the appellant’s study history and the value of the proposed course to her future. The Tribunal observed that the appellant had made significant changes to her study and proposed career objectives numerous times – from printing and graphic arts, to interactive digital media, to management, business and marketing and most recently to cooking and hospitality. The Tribunal considered these changes to go beyond the reasonable changes to career plans contemplated by Direction 69. The Tribunal found that the appellant’s claimed aspirations to a hospitality career appeared to have been tailored to the course she had enrolled in rather than the other way around. The Tribunal found that the evidence given by the appellant of her plans to open a hospitality business in India to be vague and inchoate and was not persuaded that those plans were a genuinely held career goal.

15    The Tribunal had regard to the appellant’s immigration history. In the almost 10 years the appellant had been in Australia, she had not ever studied at a higher education level and had not complied with the conditions of her original student visa (a Higher Education visa). The Tribunal noted that the appellant had returned to India three times in the almost 10 years she had been in Australia. The Tribunal found that the appellant’s immigration history to raise “concerns” that the appellant was misusing the student visa program to maintain ongoing residence in Australia.

16    Overall, the Tribunal found that the appellant’s study history, her lengthy stay in Australia, the questionable value of her proposed studies and her immigration history suggested that the appellant was not a genuine student but was seeking to use the student visa program to maintain ongoing residence in Australia. The Tribunal was not satisfied that the appellant intended to genuinely stay in Australia temporarily and did not satisfy cl 500.212(a). The Tribunal affirmed the refusal of the grant of the Visa.

PRIMARY JUDGE’S REASONS

17    On 26 October 2018, the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court.

18    The grounds of review were expressed by way of narrative, in the following form (without amendment):

1.    My subclass 500 visa is refused by immigration department and by AAT department.

2.    The reason provided by both departments is that I do not meet genuine temporary applicant (500.212) criteria.

3.    My concern is that how a student visa is refused for an existing student who is already in Australia studying for last many years and has completed all of the courses he/she was enrolled in.

4.    I have a very strong history of academic performance in Australia. I completed all of my courses without any study gap.

5.    I had sufficient funds to support my studies.

6.    I never breached any condition associated to any of my student visas throughout the time I was in Australia.

7.    I want to dispute the decision in Federal Circuit Court.

19    The primary judge observed that the appellant’s complaint appeared to be that the Tribunal had incorrectly determined that the appellant did not meet the criteria for the Visa and had failed to take into account her academic history.

20    The hearing of the application took place on 12 August 2024 at which the appellant was self-represented and assisted by an interpreter.

21    The primary judge concluded that:

    grounds 1, 2 and 7 did not purport to assert any error by the Tribunal.

    ground 3 appeared to express dissatisfaction with the Tribunal’s conclusion and was a request for merits review, which was outside the scope of the jurisdiction of the Federal Circuit Court.

    grounds 4, 5 and 6 did not assert any jurisdictional error on behalf of the Tribunal. The appellant was seeking to challenge the merits of the Tribunal’s decision. The findings of fact that had been made by the Tribunal were reasonably open.

22    Accordingly, the primary judge dismissed the application.

THE APPEAL

23    The appeal from the primary judgment was filed on 14 October 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 listing of the appeal for hearing was delayed for a few months because of the impending birth of the appellant’s child.

24    The appellant seeks to rely on 14 purported grounds of appeal, expressed in narrative form as follows (without amendment):

1.    I lodged my subclass 500 visa application on 30/12/2016 with the immigration department.

2.    On14/02/2017, my subclass 500 visa application was refused as I didn’t meet the subclause 500.212 criteria.

3.    That was the first time that I was denied procedural fairness.

4.    During my time (November 2008 – February 2017) in Australia on student visa, I completed all courses (10 courses) for the total duration of nearly 8 years. I don’t know what the definition of a genuine student is.

5.    Anyway, I lodged my AAT review application on 06/03/2017.

6.    My AAT review application was unsuccessful as the tribunal member wasn’t satisfied that I met the Subclause 500.212 criteria

7.    That was the 2nd time when I was denied procedural fairness.

8.    I lodged my judicial review application with the Federal Circuit Court in October 2018.

9.    On 13/09/2024, my Judicial review application was unsuccessful

10.    I believe that I have been denied procedural fairness again in my review application at Federal Circuit & Family court of Australia.

11.    FCC failed to acknowledge that the AAT made a jurisdictional error by not following the Migration Regulations 1994 in assessing my review application (GTE Criteria)

12.    I believe that I am a victim of unfairness by both AAT department and FCC.

13.    I believe that AAT and FCC didn’t consider the migration Regulations properly and made a jurisdictional error while deciding on my application.

14.    I request to Federal Court of Australia to intervene in this matter. Thank You

25    The relief sought by the appellant has been incorrectly expressed. The Court understands the appellant to be seeking an order that her appeal be allowed and that an order of mandamus be made directing the Tribunal to reconsider the matter.

CONSIDERATION

26    Grounds 1, 2, 5, 6, 8 and 9 are not grounds of appeal but recitations of background facts.

27    Ground 3 purports to challenge the decision of the Minister’s delegate on the basis of a denial of procedural fairness. The decision of the delegate is not the subject of the appeal. Ground 3 does not arise for consideration.

28    As best as can be understood, ground 4 appears to challenge the reasonableness of the Tribunal’s conclusion that the appellant did not meet the criteria for a genuine applicant for entry and stay as a student because the appellant had completed all 10 courses in which she had been enrolled from her arrival in Australia to the refusal to grant the Visa.

29    The Tribunal was considering the issue of whether the appellant met the criterion in cl 500.212(a) and in so doing was considering whether it was satisfied that the appellant intended genuinely to stay in Australia temporarily. The Tribunal took into account the appellant’s courses of study in Australia and concluded that her studies had not been undertaken in order to further genuine career plans to be pursued in India, but that the appellant was undertaking her courses of study to extend her stay in Australia. That was a conclusion that was reasonably open to the Tribunal. There is no merit to ground 4.

30    Ground 7 is a claim that the appellant was denied procedural fairness by the Tribunal. The claim is unparticularised and it is not clear whether this ground was agitated before the primary judge (given how the grounds of review and grounds of appeal have been expressed).

31    To the extent that the appellant seeks to challenge the conclusion of the Tribunal as being unfair, that is a request for a review of the merits of the Tribunal’s decision and is outside the jurisdiction of the Court. As the Full Court explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [17] (Allsop CJ, Besanko and O’Callaghan JJ):

… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

32    To the extent that the appellant claims that she was denied a fair hearing before the Tribunal, the appellant’s claim is not supported by the evidence.

33    The delegate’s decision to refuse to grant the appellant a Visa was made pursuant to s 65 of the Act. It qualified as a “Part 5-reviewable decision”: s 338 of the Act. An exhaustive statement of the rules of natural justice (otherwise known as procedural fairness) were provided for in Div 5 of that Part. Relevantly, s 359(2) of the Act empowered the Tribunal to invite, either orally or in writing, a person to give information.

34    By a letter sent to her migration agent dated 12 April 2018, the appellant was invited to provide information in a Request for Student Information questionnaire. In the invitation, the Tribunal explained that it was a requirement for the Visa that she be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The invitation enclosed a copy of Direction 69.

35    The appellant’s migration agent lodged the responses to that questionnaire and the Tribunal’s reasons record the Tribunal having regard to those responses: TR [20]–[21], [32].

36    By a letter dated 18 June 2018 sent to her migration agent, the appellant was invited to attend the Tribunal hearing, as was required by s 360 of the Act.

37    The Tribunal’s decision records that the appellant provided documents and evidence to the Tribunal: TR [11].

38    The Tribunal’s reasons also records at TR [14] that:

At the hearing, the Tribunal discussed with the [appellant] the reasons her [Visa]had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a [s]tudent visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the [appellant] her circumstances in India, her potential circumstances in Australia, her immigration and study history and other relevant matters, including the delegate’s concerns and findings…

39    On the basis of the above, the Court is satisfied that the appellant was accorded procedural fairness by the Tribunal. The appellant was given sufficient notice of the issues and a fair opportunity to be heard and to put her case. Ground 7 is not made out.

40    By grounds 10 and 11, the appellant alleges that the primary judge failed to accord her procedural fairness and erred in failing to find jurisdictional error. The claim is entirely unparticularised. The appellant was afforded a hearing (which she attended) and was provided with the assistance of an interpreter. The appellant was afforded a fair opportunity to present her case. In these circumstances, grounds 10 and 11 amount to no more than a complaint that the primary judge did not agree with the appellant and does not demonstrate appealable error.

41    Grounds 12, 13 and 14 are a general complaint about unfairness. They are not proper grounds of appeal and are in the nature of a request for merits review of the decision of the Tribunal to affirm the delegate’s decision to refuse the Visa. That is not the role of judicial review. To the extent they seek to agitate issues of procedural fairness, they do not add anything to the grounds addressed above.

DISPOSITION

42    For the above reasons, the appeal should be dismissed with costs.

Associate:

Dated:    18 September 2026