Aldhafeeri v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1606
•3 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aldhafeeri v Minister for Immigration and Citizenship [2025] FedCFamC2G 1606
File number(s): SYG 498 of 2022 Judgment of: JUDGE SKAROS Date of judgment: 3 October 2025 Catchwords: MIGRATION – Judicial Review – where Administrative Appeals Tribunal (Tribunal) refused to grant applicant a student visa as it found the applicant was not a genuine applicant for entry and stay as a student as required under cl 500.212 – where the applicant contends the Tribunal did not consider their evidence, did not afford them natural justice and argues the Tribunal’s decision was unreasonable – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 359, 359A, 359C, 360(3)
Migration Regulations 1994 (Cth) cl. 500.212 of Sch 2
Cases cited: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
WZAVH v Minister for Immigration & Anor [2016] FCCA 1020
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 17 September 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms C. Warren, Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 498 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAMI ABDULRAHMAN H ALDHAFEERI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
3 OCTOBER 2025
THE COURT ORDERS THAT:
1.The Application filed on 29 March 2022 is dismissed.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS
INTRODUCTION
By application filed on 29 March 2022, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal [1] (the Tribunal) dated 10 March 2022. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicant’s Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The applicant is a citizen of Saudi Arabia. He arrived in Australia on 28 December 2014 as the holder of a student visa to study a Master of Management course.
He applied for the visa, the subject of these proceedings, on 10 January 2020 to study a Diploma of Leadership and Management course.
On 11 February 2020, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.
On 17 February 2020, the applicant applied to the Tribunal for review of the delegate’s decision.
On 30 August 2021, the Tribunal wrote to the applicant inviting him to provide information under s 359(2) of the Act by 13 September 2021. It advised him that if he did not respond, he would lose any entitlement to appear at a hearing. The applicant did not respond.
On 6 December 2021, the Tribunal wrote to the applicant under s 359A of the Act requesting his comments or response to adverse information by 20 December 2021. The information related to a recent check of the Provider Registration and International Student Management System (PRISMS) records, which indicated he did not hold a current Confirmation of Enrolment (CoE). The information was relevant to the requirement of whether the applicant was enrolled in a registered course of study.
The applicant responded by providing CoEs for a Certificate IV, Diploma and Advanced Diploma courses. He also provided a statement in support of his application.
The Tribunal made a written decision affirming the delegate’s decision to refuse the applicant the visa on 10 March 2022.
THE TRIBUNAL’S DECISION
The issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily, as required by cl 500.212(a).
At [1]–[4], the Tribunal outlined the procedural history of the matter. At [5], the Tribunal noted it had invited the applicant to provide further information, under s 359(2) of the Act, regarding the courses of study he was undertaking and his entry and stay in Australia as a student.
The Tribunal noted that the applicant did not respond to the s 359 letter and did not request an extension of time: at [6]–[7]. Accordingly, the Tribunal found the applicant was not entitled to appear before it and the Tribunal had no power to permit the applicant to appear: ss 359C, 363A.
At [8], the Tribunal considered whether, in the circumstances, information that the applicant meets the requirements of the Act and Regulations was likely to be forthcoming and whether the applicant had a fair opportunity to provide relevant information. The Tribunal considered whether it should adjourn the review under s 363(1)(b) and noted the authorities on which it relied: at [9]. The Tribunal was satisfied the applicant had a fair opportunity to provide relevant information and accordingly it elected not to exercise its discretion under section 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time and decided to proceed to make a decision having regard to the information before it: at [10]–[13].
At [14], the Tribunal noted all the evidence it had regard to, noting that the decision referenced information found to be fundamentally or materially significant to the determination of the issues in the case.
At [15]–[19], the Tribunal set out the relevant criteria in cls 500.211 and 500.212.
At [20]–[22], the Tribunal noted that in considering whether the applicant intended genuinely to stay in Australia temporarily under cl 500.212(a), it had to have regard to Ministerial Direction No. 69 made under s 499 of the Act.
At [23]–[39], the Tribunal considered the claims and evidence before it.
At [23], the Tribunal noted that the applicant’s course progress from his time of arrival until 2018 was commendable.
However, at [24], the Tribunal noted the applicant had yet to complete the intended course of study, the Diploma of Leadership and Management. The Tribunal noted that due to the delays in the matter coming before the Tribunal, it expected the applicant to have completed this Diploma and returned to his home country. Additionally, the Tribunal was puzzled by the applicant’s failure to complete the questionnaire requested in the s 359(2) letter, which enquired about the status of his course progress.
At [25], the Tribunal noted it had undertaken a PRISMS search on 30 November 2021 which specified the applicant was not enrolled. It also stated the applicant provided CoEs for a Certificate IV, Diploma and Advanced Diploma of Leadership and Management, with cumulative course dates from December 2021 to July 2025, the confirmations of which were created on 17 December 2021. The Tribunal raised concerns that the applicant had recommenced his studies to meet the requirements in cl 500.211. The Tribunal observed that the undertaking of these courses would result in the applicant’s total time onshore being over ten years, which was not ‘temporary’ as required by the Act and Regulations.
At [26], the Tribunal was concerned that the applicant had not completed any studies following his Master of Management in 2018. Whilst the Tribunal empathised with the application’s personal circumstances, it noted they were ‘unkind life stressors that everyone must deal with’. The Tribunal noted at [27] that it had no evidence, beyond that of the applicant himself, that he was suffering from any clinically diagnosable mental health condition that extended beyond the ordinary mental health difficulties suffered by day-to-day individuals.
At [28], the Tribunal noted that the applicant had not taken any positive steps, notwithstanding the visa refusal, to achieve the educational qualification he proposed in his original application. The Tribunal considered that this raised concerns about his intentions in applying for the student visa, and that it appeared the applicant was utilising the student visa program to circumvent the intentions of the migration program.
The Tribunal noted the applicant’s submission pertaining to his future plans, being that he intended to start his own business. The applicant had stated he had ‘IT Skills but needed all skills in leadership and management to run a business’. The Tribunal accepted that these qualifications may assist in running a business, but it considered the applicant’s future business plans were too vague for it to form any firm conclusions in his favour: at [29].
The Tribunal was not persuaded by the applicant’s explanation regarding the downgrade in his studies, in circumstances where he already held a Master in Management: at [30].
The Tribunal considered the applicant’s ties to Australia. The Tribunal noted the applicant did not respond to the questionnaire, which directly requested information about the applicant’s community ties in Australia, income, expenses, and assets. The Tribunal, nevertheless, concluded his significant length of stay in Australia, being seven years, would have enabled him to cultivate strong ties to the Australian community which would act as a strong incentive for him to remain onshore: at [31]. It also concluded it did not have sufficient information before it to determine whether the applicant’s economic circumstances were a significant incentive for him to remain onshore: at [32].
At [33], the Tribunal accepted the applicant may have personal ties in his home country but did not consider the evidence supported a finding that those ties acted as a significant incentive for him to return to Saudi Arabia.
At [34], the Tribunal considered the applicant had provided reasonable reasons for undertaking his study in Australia as opposed to his home country. It also noted there was no evidence he had any potential military service obligations or political or civil unrest circumstances in Saudi Arabia: at [35].
However, on the balance, the Tribunal found the factors weighing against the applicant outweighed those in his favour and was not satisfied that he genuinely intended to stay in Australia temporarily: at [37]–[38].
The Tribunal concluded that the applicant had not met cl 500.212. As such, it affirmed the decision of the delegate not to grant the applicant the visa.
APPLICATION TO THIS COURT
The originating application filed with the Court on 29 March 2022 advanced three grounds. The applicant also filed an affidavit annexing the Tribunal’s decision. It was not necessary for the Court to take this affidavit into account as the Tribunal’s decision was included in the Court Book filed by the Minister on 21 June 2022, which was tendered into evidence at the hearing and marked exhibit CB.
The matter was listed for hearing on 17 September 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 1 August 2025.
At the hearing on 17 September 2025, the applicant appeared in person and was assisted by an interpreter in the Arabic and English languages. The Minister was represented by Ms C. Warren of Sparke Helmore.
Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in the application, which he did.
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [32].
Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
GROUNDS OF REVIEW
The grounds of review advanced in the application for judicial review filed on 29 March 2022 (without alteration) are:
Ground 1
The Tribunal failed to engage in active intellectual process considering the evidence of the applicant.
Particulars
The Tribunal noted in its decision at para 11 that it did not refer all the documents submitted by the applicant in its decision. As an inquisitorial merits reviewer that Tribunal has an obligation to consider all the documents and submission which in relevant to its decision in the decision record.
Ground 2
The Tribunal's decision is infected with a legal error due its failure to provide natural justice opportunity to the applicant.
Particulars
The Tribunal noted in its decision in para 29 the applicant may be using the student visa option to further his stay. The Tribunal failed to put this concern to the applicant for his response. In addition, the term the Tribunal used in the case is "the applicants submissions are difficult to follow" "tribunal has no clear understanding what business exactly the applicants plan to run" and therefore, the Tribunal was not certain that whether he in fact has that intention and it seems that the Tribunal formed its view on the basis if mere assumption. It is submitted that the Tribunal should have exercised care when making findings of fact in determining a matter which affects a party in the case.
Ground 3
The decision of the Tribunal is unreasonable.
Particulars
The Tribunal formed an adverse view affecting Genuine Temporary Entrant criteria on the basis that applicant's future further study in Australia has marginal benefit. It is submitted that the Tribunal ought to decide whether his study in Australia has any benefit in his home country or not and not whether it has marginal benefit or not.
The Tribunal noted that it sent the invitation to comment to him. The Tribunal did not mention what mode that it sent to me the document. The Tribunal failed to invite me for a hearing or advise me that it would take an adverse decision on my case. The Tribunal failed to give natural justice opportunity to me.
Particulars
In WZAVH v Minister for Immigration & Anor [2016] FCCA 1020 (6 May 2016), the Federal Circuit Court held that Tribunal acted unreasonably in exercising discretion to proceed without taking further steps to allow applicant to appear. In my case, this case is relevant because the Tribunal failed to take further steps to contact me before taking its adverse decision.
At the hearing, the applicant was invited to make submissions on each ground, however, he could not provide any more detail than what was stated in the application. When asked what error he believed the Tribunal had made in his case, the applicant said he felt he deserved the visa, he gave the Tribunal his reasons for wanting to study but the Tribunal did not consider them. The Minister’s oral submissions reflected their written submissions.
I have considered each ground in turn.
Ground one
By ground one, the applicant contends that the Tribunal failed to engage in an active intellectual process in considering the applicant’s evidence because it noted that ‘it did not refer all the documents submitted by the applicant in its decision’ at [11] of its decision. It was contended that the Tribunal as an ‘inquisitorial merits reviewer’ had an obligation to consider all the documents and submissions relevant to its decision in the decision record.
It is clear from the description, that the ground is directed at paragraph [14] of the Tribunal’s decision and not [11], which related to the Tribunal’s consideration of whether to adjourn the review or proceed to a decision on the information before it.
At [14], the Tribunal expressly stated that not all the evidence and material before it was specifically referred to in its decision. This statement of itself does not disclose any error on the part of the Tribunal. As submitted by the Minister, it is well established that the Tribunal is not required to refer to or make findings on every piece of evidence and every contention in its decision record: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67]–[68], [73]–[74], [77], [89], and [91]. In any case, the Tribunal stated in its reasons that it had regard to all written material filed by the applicant as well as relevant documents on the Tribunal and Department files: at [14]. Further, as noted by the Minister, the applicant has not identified what evidence the Tribunal failed to consider.
Ground one does not establish jurisdictional error.
Ground two
By ground two, the applicant contends the Tribunal failed to afford him ‘natural justice’ as it had not invited him to comment on its concern that he may be using the student visa program to further his stay. The particulars to this ground also contend that the Tribunal formed this view on mere assumption as it had stated ‘the applicant’s submissions were hard to follow in this regard and it had no clear understanding of what business the applicant planned to run: at [28].
When asked at the hearing to clarify what natural justice the applicant considered he was not afforded, he claimed that it was natural to feel wronged as he felt that he had a right to the visa. Mere disagreement with the decision-maker’s findings or conclusions does not of itself amount to jurisdictional error.
I accept the Minister’s submission that, while the Tribunal was required to advise of any adverse conclusion which would not obviously be open on the material, it was not required to give the applicant a running commentary upon what it thinks about the evidence that was given: SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [33]–[35]. The applicant was plainly on notice that the Tribunal may find he was using the student visa program to maintain residence, given the delegate arrived at the same conclusion. This does not disclose any error on the part of the Tribunal.
I am satisfied that the Tribunal complied with its limited procedural fairness obligations under Part 5 of the Act, including s 359A when it invited the applicant to comment on adverse information that would be the reason, or part of the reason, for affirming the decision under review. The Minister correctly submitted that the Tribunal’s subjective appraisals, thought processes and determinations are not ‘information’ for the purposes of s 359A: SZBEL at [18]. Accordingly, the Tribunal’s finding that the visa was being sought to maintain residence did not enliven its obligations under s 359A.
Further, as noted above, the applicant lost his right to a hearing because of the failure to provide the information requested under s 359(2) of the Act within the prescribed period and the Tribunal had no power to permit the applicant to appear before it to give oral evidence or present arguments in relation to the issue under review. In the circumstances, after having considered whether it should adjourn the review, the Tribunal decided to proceed to a decision on the information before it. No error is disclosed in the Tribunal proceeding in this way.
The Tribunal determined the matter on the basis of the same issue that was before the delegate and, as submitted by the Minister, it was open for it to conclude on the material before it that the applicant was using the visa program to maintain residence in Australia given the concerns it had about the applicant’s lack of academic progress, the downgrade in his level of study and the length of time he spent onshore: at [28]–[31], [36].
Ground two does not establish jurisdictional error.
Ground three
Ground three contends that the Tribunal’s decision is unreasonable. Firstly, the applicant complains the Tribunal formed the view that the applicant’s future study had ‘marginal benefit’ but it should have instead considered whether it had ‘any benefit’ in his home country. Secondly, in the particulars to this ground, the applicant asserts he was denied natural justice because the Tribunal failed to invite him to a hearing or advise him that it would make an adverse decision, citing WZAVH v Minister for Immigration & Anor [2016] FCCA 1020 (WZAVH).
As the Minister submitted, the Tribunal did not make any finding that the applicant’s proposed future study had ‘marginal benefit’. In considering the applicant’s submissions regarding the benefits of his proposed study, the Tribunal accepted that he provided reasonable reasons for undertaking his study in Australia as opposed to his home country. The Tribunal did, however, express its concern about the applicant downgrading his studies from a master level course to vocational courses: at [30], [34].
Turning to address the applicant’s second contention, no error is disclosed by the Tribunal not inviting the applicant to a hearing or advising him that it would make an adverse decision. The Tribunal had no power to invite an applicant to a hearing in circumstances where they did not respond to an invitation, issued under s 359A of the Act, within the prescribed period. The Minister correctly submitted that the cascading provisions in ss 359C, 360(3), and 363A operate such that an applicant is not entitled to appear before the Tribunal, nor does the Tribunal have the power to permit them to appear: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413. In the circumstances, there was no denial of natural justice by not inviting the applicant to appear before the Tribunal.
No error is disclosed in the Tribunal proceeding without adjourning the matter. As submitted by the Minister, the Tribunal considered the applicant was afforded an opportunity to provide evidence (in response to the s 359 invitation) that was eschewed: at [8]–[10]. I accept that the Tribunal’s reasons disclosed an evident and intelligible justification for why it decided to proceed to a decision without adjourning the review: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].
As submitted by the Minister, the applicant’s reliance on WZAVH is misguided as in that case, the Court considered whether it was reasonable for the Tribunal to proceed without taking further steps in circumstances where an applicant failed to appear at a scheduled hearing and it had a telephone number at which it could have contacted him: at WZAVH at [47]. The facts of the present case were not analogous.
Ground three does not establish jurisdictional error.
CONCLUSION
As none of the grounds advanced establish jurisdictional error, the application for judicial review must be dismissed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 3 October 2025
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