Afzal v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1257
•7 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Afzal v Minister for Immigration and Citizenship [2025] FedCFamC2G 1257
File number(s): SYG 2014 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 7 August 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – applicant claimed to have poor mental state or mental health condition on day of hearing before Tribunal - whether Tribunal overlooked this matter – complaint by applicant about conduct of migration agent at hearing before Tribunal – whether agent’s conduct might be fraud which vitiated or made invalid Tribunal’s decision
PRACTICE AND PROCEDURE – whether applicant should be given additional time to file and serve evidence
Legislation: Migration Act 1958 (Cth) ss 65, 476, 499
Migration Regulations 1994 (Cth) cl 500.212 of Sch 2
Cases cited: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 31 July 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Annabelle Wilford (Sparke Helmore Lawyers) ORDERS
SYG 2014 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARIF BIN AFZAL
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
7 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $6,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 27 October 2021, the applicant lodged an application, under s 476 of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 29 September 2021. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided as a time of decision criterion for a student visa:
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.
In considering whether an applicant satisfied cl 500.212(a), the Tribunal must have regard to Direction 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (Direction 69), made under s 499 of the Act, which required the Tribunal to have regard to specified factors in relation to:
(a)the applicant’s circumstances in their home country;
(b)the applicant’s potential circumstances in Australia;
(c)the value of the course to the applicant’s future; and
(d)the applicant’s immigration history.
FACTUAL BACKGROUND
In July 2019, the applicant, a citizen of India, arrived in Australia as the holder of a visitor visa.
On 5 September 2019, the applicant applied for a subclass 500 student visa on the basis of his enrolment in a Diploma of Leadership and Management at an educational institution in Australia.
On 3 December 2019, a delegate of the first respondent refused to grant the applicant the visa on the basis that he did not satisfy cl 500.212 of Schedule 2.
On 19 December 2019, the applicant applied to the Tribunal for review of the delegate’s decision.
On 2 August 2021, the Tribunal invited the applicant to attend a hearing by telephone on 18 August 2021.
On 18 August 2021, the applicant appeared at the hearing before the Tribunal by telephone, assisted by his representative.
On 29 September 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a student visa.
TRIBUNAL’S DECISION
The Tribunal at [7]-[9] stated that the issue before it was whether the applicant intended genuinely to stay in Australia temporarily within the meaning of cl 500.212(a) of Schedule 2 and noted that, in considering this issue, it was required to have regard to Direction 69.
The Tribunal at [16]-[47] set out the applicant’s evidence provided prior to the hearing before the Tribunal on 18 August 2021, as well as during the hearing.
In relation to the applicant’s circumstances in his home country, the Tribunal at [52] was “not satisfied that there is a significant incentive for the applicant to return to India”. The Tribunal at [61] added that it “assesses the applicant’s incentive to return to India to be poor”.
In relation to the applicant’s potential circumstances in Australia, the Tribunal at [53] found that the applicant “is studying for the purposes of staying in Australia” and the applicant’s conduct “is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme”.
In relation to the value of the course to the applicant’s future, the Tribunal at [54] “[did] not place weight on the value of the course to the applicant’s future”, at [57] was “not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications”, and at [60] was “not satisfied that the applicant has demonstrated the value of his proposed course to his future”.
In balancing all of the information presented to it, the Tribunal at [63]-[64] found that the applicant had not demonstrated that he had a genuine intention to stay in Australia temporarily but was instead using the student visa system for ongoing residence in Australia.
Ultimately, the Tribunal at [66]-[68] in affirming the decision under review, was not satisfied the applicant intended to genuinely stay in Australia temporarily within the meaning of cl 500.212(a).
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 31 July 2025
On 27 October 2021, the applicant lodged in this Court an application for judicial review of the Tribunal’s decision (Application). The Application contained the following six grounds (as written):
1. My student visa was refused by the Department of Home Affairs on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994.
2. The department failed to consider the compelling reasons and circumstances presented to them.
3. I applied to the AAT for the merit review of my case.
4.The Tribunal conducted the hearing and affirmed the decision of the department to refuse my student visa
5. The tribunal did not consider my compelling arguments properly. I strongly believe its decision is affected by the jurisdictional error which was not determined according to the law as the circumstances at the time of application were not considered and were overlooked.
6. The member erred in affirming the applicant's review application without paying due attention to my circumstances and its implications on my future and family.
In March 2022, the applicant departed Australia.
On 10 March 2025, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application and any additional evidence on which the applicant sought to rely.
On 21 May 2025, the registry of the Court notified the parties that the matter was listed for hearing on 31 July 2025.
On 17 July 2025, the first respondent filed a written submission (RS).
The applicant did not file a written submission or any further documents prior to the hearing.
Hearing on 31 July 2025
At the hearing in this Court on 31 July 2025, in circumstances where the applicant was outside Australia, the parties appeared by video link. The applicant appeared unrepresented, assisted by a Hindi interpreter. Annabelle Wilford of Sparke Helmore Lawyers appeared for the first respondent.
The applicant had a copy of the Court Book, filed by the first respondent in January 2022, which contained the Tribunal’s decision and documents before the Tribunal. At the commencement of the hearing, I directed the applicant’s attention to the Tribunal’s decision. I explained that the Court’s role was limited to considering whether or not there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. With reference to the Tribunal’s decision, I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error in the Tribunal’s decision.
I offered the applicant a break of 10 minutes to consider the oral submissions he wanted to make to the Court. The applicant did not take up this opportunity.
Ms Wilford tendered a copy of the Court Book.
The applicant sought to tender a medical certificate from Dr Chen dated 22 August 2022. I asked the applicant to explain the relevance of the certificate to his case. The applicant gave an answer which shed no light on the relevance of the certificate in establishing a jurisdictional error in the Tribunal’s decision.
While discussing the relevance of the medical certificate, part of the applicant’s answer was that he had a “poor mental state” on the day he attended the hearing before the Tribunal and the Tribunal failed to understand his medical condition at that time. I asked the applicant to explain the error made by the Tribunal. The applicant replied that the Tribunal did not give importance to his mental health condition during the hearing. The applicant confirmed that, other than the medical certificate from Dr Chen, the applicant had no other medical record on which he relied to establish that he had a poor mental state or mental health condition on the day of the hearing before the Tribunal.
I asked the applicant to explain the evidence he gave to the Tribunal concerning his mental state or mental health condition on the day of the hearing. The applicant replied that he did not say anything to the Tribunal about his mental state or mental health condition during the hearing.
The applicant then said that he told his registered migration agent that he was not in a position to give evidence to the Tribunal because of his poor mental state , and the agent made a mistake in not telling the Tribunal about the applicant’s poor mental state. In circumstances where the applicant was now complaining about the conduct of his agent in a proceeding concerning whether there was a jurisdictional error in the Tribunal’s decision, I asked the applicant to explain why, in the years since he commenced this Court proceeding, he had not filed or served any evidence complaining about his agent’s conduct, or otherwise communicated this complaint to the first respondent’s solicitor or the Court. The applicant gave a lengthy reply which did not respond to the question I asked. The applicant’s answer contained no explanation for why, if he wished to complain in this Court proceeding about the conduct of his agent, he did not previously file or serve evidence concerning the complaint, or otherwise communicate the complaint to the first respondent’s solicitor or the Court.
Although the applicant did not ask the Court, at the hearing on 31 July 2025, for more time to prepare, file and serve further evidence, in circumstances where he was unrepresented, I turned my mind to this question. I decided that I would not offer to give him more time. My reasons were:
(a)In relation to the applicant’s complaint that the Tribunal failed to understand his poor mental state or mental health condition on the day of the hearing, the applicant did not identify any further evidence he might want to obtain. For example, he stated that he did not say anything to the Tribunal about his mental state or mental health condition during the hearing, but instead said something to his agent. He also confirmed that, other than the medical certificate from Dr Chen, he had no other medical records on which he wished to rely.
(b)In relation to the applicant’s complaint concerning the conduct of his agent, first, the applicant was unable to explain why he did not file or serve any evidence concerning this issue earlier in the proceeding. Second, the circumstances in which misconduct by an agent may result in a jurisdictional error in the Tribunal’s decision are limited: see, for example, SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501; and Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 (DUA16). For example, mere negligence by an agent is not sufficient: see DUA16 at [15]. Third, I had reservations about the genuineness of the applicant’s complaint and was concerned that the applicant would not file and serve any further evidence if given the opportunity. One reason for my reservation was because the applicant, during the hearing on 31 July 2025, changed his description of his complaint relating to his mental health or state of mind a number of times. A second reason for my reservation was because the applicant was unable to explain why he did not file or serve any evidence concerning this issue earlier in the proceeding. Fourth, I was concerned about the additional costs burden on the first respondent.
After the discussion explained in the above paragraphs, I accepted the tender of the medical certificate from Dr Chen. As I told the parties, although the certificate appeared irrelevant to whether or not there was a jurisdictional error in the Tribunal’s decision, I would accept the tender because the applicant was unrepresented.
I then invited the applicant to make any further submissions he wished to make, noting that he had already made some submissions about his poor mental state, mental health and the conduct of his agent.
Ms Wilford then made closing oral submissions.
CONSIDERATION
Grounds in Application
In relation to grounds 1 to 4, as stated at RS [21], these grounds “merely summarise the background to these proceedings” and “are not proper grounds”.
In relation to ground 5, as stated at RS [24], the applicant has not particularised what “compelling arguments” or “circumstances” the Tribunal failed to consider. I also agree with the observations at RS [25] and [27] that “the Tribunal’s reasons provide a comprehensive account of the material before it, including the applicant’s oral evidence at hearing” and “the applicant’s contentions by ground 5 go no higher than an expression of disagreement with the Tribunal’s decision”.
In relation to ground 6, as for ground 5, the applicant has not particularised the “circumstances” in relation to which the Tribunal failed to pay due attention. I also agree with the observation at RS [29] that the Tribunal’s reasons indicate that the Tribunal carefully considered the applicant’s circumstances. In relation to the complaint that the Tribunal did not pay due attention to the “implication” on the applicant’s “future and family” in affirming the delegate’s decision to refuse to grant the applicant a student visa, as stated at RS [32], this appears to be a submission that the Tribunal failed to consider the impact of its decision on the applicant’s future and on members of the applicant’s family. However, first, as stated at RS [32], “the applicant advanced no such submissions or evidence” and “the Tribunal cannot fail to consider a circumstance which was never put to it nor arose squarely on the materials” before it. Second, cl 500.212(a) of Schedule 2 required the Tribunal to consider whether “the applicant intends genuinely to stay in Australia temporarily”. It does not appear that the impact of the Tribunal’s decision on the applicant’s future or on members of the applicant’s family is relevant to whether “the applicant intends genuinely to stay in Australia temporarily”.
During the hearing on 31 July 2025, the applicant insisted that he was a genuine student at the time of the Tribunal’s decision and appeared to be genuinely aggrieved by the Tribunal’s finding that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. As explained by Ms Wilford in closing submissions, there is a distinction between being a genuine student who is genuinely enrolled in a course and being a genuine temporary entrant within the meaning of cl 500.212(a) of Schedule 2. I agree with Ms Wilford’s submission that the applicant did not appear to appreciate this distinction.
For the above reasons, the Application does not identify a jurisdictional error in the Tribunal’s decision.
Complaint concerning mental health condition
During the hearing on 31 July 2025, the applicant complained that the Tribunal failed to understand, or give importance to, his poor mental state or mental health condition on the day of the hearing before the Tribunal. However, the applicant acknowledged to the Court that he did not raise with the Tribunal any concern about these matters at the hearing. The Tribunal’s reasons for decision do not indicate that it had any concern about the applicant’s mental state, mental health or ability to participate in the hearing on 18 August 2021. The Tribunal is not required to consider matters not put to it or which did not arise squarely on the materials before the Tribunal: see, for example, NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1. This complaint does not identify a jurisdictional error in the Tribunal’s decision.
Complaint concerning agent’s conduct
As explained above, during the hearing on 31 July 2025 the applicant stated that he told his registered migration agent that he was not in a position to give evidence to the Tribunal because of his poor mental state, and the agent made a mistake in not telling the Tribunal about this.
In DUA16 at [15] the High Court stated:
… it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE, “there are sound reasons of policy” why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.
The applicant did not contend that his agent was fraudulent or dishonest. No submission made by the applicant suggested that, if the applicant told the agent about his poor mental state, the agent’s decision not to communicate this information to the Tribunal involved dishonesty by the agent. Further, in the unlikely event that a decision of the agent not to communicate this information to the Tribunal was dishonest, it is not evident how it affected an “aspect of the operation of the legislative scheme”: DUA16 at [15]. For these reasons, even if I had adjourned the hearing to allow the applicant to give sworn evidence in an affidavit about this, this evidence at its highest would not establish a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Ms Wilford sought an order that the applicant pay the first respondent’s costs in the sum of $6,500 which was less than the first respondent’s solicitor/client costs and less than the scale amount of $8,371.30. The applicant did not oppose this amount. This amount appears reasonable. I will make this order.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 7 August 2025
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