Chaudhry v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1504
•23 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chaudhry v Minister for Immigration and Citizenship [2025] FedCFamC2G 1504
File number(s): MLG 2812 of 2019 Judgment of: JUDGE FARY Date of judgment: 23 September 2025 Catchwords: MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not comply with cl 500.212(a) of the Migration Regulations – whether the Tribunal’s decision was affected by jurisdictional error – found no jurisdictional error on behalf of the Tribunal – application dismissed. Legislation: Australian Constitution s 75(v)
Migration Act 1958 (Cth) ss 47(1), 65(1), 359A, 360, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) Sch 2 Pt 3 Div 1, r 25.13
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 7.01, 7.02
Migration Regulations 1994 (Cth) cll 500.211, 500.212(a), reg 2.05(1)
Ministerial Direction 69
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Anor (1996) 162 CLR 24
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297
Poonia v Minister for Immigration & Border Protection [2016] FCA 1120
Poonia v Minister for Immigration & Border Protection [2016] FCCA 908
Division: Division 2 General Federal Law Number of paragraphs: 111 Date of last submission/s: 11 September 2025 Date of hearing: 11 September 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Ms Griffiths-Mark, Clayton Utz Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 2812 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD HAZIM CHAUDHRY
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
23 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $7,509.70.
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 FARY:
INTRODUCTION
By way of Application filed on 29 August 2019, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 30 July 2019 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) Student (Subclass 500) visa (Visa) on the basis that the Applicant did not satisfy the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
The hearing of the Application took place at the Melbourne Registry of the Court on 11 September 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of an Urdu interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 11 September 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant was a genuine student, with an intention to reside temporarily in Australia.
BACKGROUND
The Applicant is a citizen of Pakistan.
On 26 October 2015, the Applicant arrived in Australia as the holder of a Student (Higher Education Sector) (Subclass 573) visa.[2]
[2] Court Book (CB) 41.
On 29 December 2017, the Applicant applied for the Visa, the subject of these proceedings.[3]
[3] CB 1-27.
On 28 February 2018, a Delegate of the Minister refused to grant the Visa (Delegate’s Decision) on the basis that they were not satisfied that the Applicant had the intention to genuinely stay in Australia temporarily for the Visa pursuant to cl 500.212(a) of Schedule 2 of the Regulations.[4]
[4] CB 35-42.
On 20 March 2018, the Applicant applied to the Tribunal for review (Review Application).[5]
[5] CB 43-52.
On 21 March 2018, the Tribunal acknowledged receipt of the Review Application.[6]
[6] CB 53-62.
On 14 May 2019, the Tribunal invited the Applicant’s representative (Representative) to provide further information by 28 May 2019.[7]
[7] CB 63-81.
On 28 May 2019, the Applicant’s Representative responded to the Tribunal and attached further information.[8]
[8] CB 82-84.
On 1 July 2019, the Tribunal invited the Applicant to attend a hearing on 30 July 2019.[9]
[9] CB 85-96.
On 11 July 2019, the Tribunal accessed the Applicant’s student records on the Provider Registration and International Student Management System (PRISMS).[10]
[10] CB 97-98.
On 30 July 2019, the Applicant attended the hearing.[11] At the hearing, the Applicant provided further written evidence in support of the Review Application.[12]
[11] CB 99-101.
[12] CB 99-108.
On date same, the Tribunal made an oral decision and affirmed the Delegate’s Decision.[13]
[13] CB 109-115.
On 9 August 2019, the Tribunal attempted to email the Applicant’s Representative, however, an error notification indicated that the email was undelivered.[14]
[14] CB 116-117.
On 6 August 2019 and 12 August 2019, the Tribunal wrote to the Applicant’s Representative by way of email with a copy of the Tribunal hearing recording attached.[15]
[15] CB 118-121.
On 26 August 2019, the Applicant wrote to the Tribunal and requested that a copy of the written reasons be provided.[16]
[16] CB 122.
On date same, the Tribunal advised that written reasons would not be provided as the request was made outside of the prescribed 14 day period.[17]
[17] CB 123-126.
On 18 September 2019, the Tribunal provided written reasons, by way of email, to the Applicant’s Representative.[18]
[18] CB 127-134.
TRIBUNAL’S DECISION
The Tribunal's Decision is at 130 to 134 of the Court Book.
The Tribunal identified the issue before it as whether the Applicant genuinely intended to stay in Australia temporarily pursuant to cl 500.212 of the Regulations.[19]
[19] CB 131 [6]-[11].
The Tribunal considered the Applicant’s visa and study history as well as relevant criteria under Ministerial Direction 69 (Direction 69). The Tribunal noted that the Applicant applied for the Visa one day prior to the expiry of his Student visa. The Tribunal noted that this indicated that he was seeking to “extend” his stay in Australia “rather than pursue academic progression”.[20]
[20] CB 132-133 [20].
The Tribunal considered the Applicant’s delay in completing a Bachelor of Commerce and Advanced Diploma of Business.[21] The Tribunal accepted that the delay was affected by his mother’s illness,[22] however, found that this was not a satisfactory explanation for not completing his studies.[23]
[21] CB 132 [17].
[22] CB 133 [21]-[22].
[23] CB 133 [22].
The Tribunal found that it was “unusual” that the Applicant failed to include an income on his Student Visa Information form.[24]
[24] CB 133 [25].
The Tribunal considered the criteria in Direction 69, including:
(a)the value of the proposed studies to the Applicant’s future;[25]
(b)the Applicant’s circumstances in Pakistan, noting that he had not provided any valid reasons for not pursuing his studies in Pakistan;[26]
(c)the Applicant’s circumstances in Australia, which included his regular work, his previous studies and a lack of knowledge regarding his proposed studies;[27] and
(d)the Applicant’s immigration history.[28]
[25] CB 133 [23]-[24].
[26] CB 133 [26], [28]-[29].
[27] CB 132 [14]-[16], [18]-[19],133 [28].
[28] CB 133 [28].
The Tribunal was ultimately not satisfied that the Applicant intended to genuinely stay in Australia temporarily under cl 500.212 of the Regulations.[29]
[29] CB 132 [30]-[31].
PROCEEDINGS IN THIS COURT
On 29 August 2019, the Application was filed in this Court, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 5 February 2021, Orders were made by Registrar Carlton of this Court for the directions hearing on 3 February 2021 be vacated. For the application be listed for hearing. For the First Respondent to file and serve by 31 March 2021: the Court Book. For the Applicant to file and serve 28 days before the hearing: any amended application, supplementary Court Book (if any) and written submissions. For the First Respondent to file and serve 14 days before the hearing: written submissions.
On 8 April 2025, Orders were made by Registrar Roberts of this Court for the First Respondent’s name be amended to “Minister for Immigration and Multicultural Affairs”. For the Second Respondent’s name be amended to “Administrative Review Tribunal”. Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (2021 Rules), that the application filed on 29 August 2019 be taken to have been amended to seek a writ of mandamus. Pursuant to rr 1.07 and 7.02, that the Court dispense with any requirement to make, file or serve the amended application referred to in Order 3. That Orders 5, 6 and 7 of the Orders made by Registrar Carlton on 5 February 2021 be vacated. That the matter be listed for final hearing. That the Applicant file and serve at least 28 days before the hearing: any amended application, written submissions and any additional evidence. That the First Respondent file and serve at least 14 days before the hearing: written submissions and any additional evidence. The Court noted that the solicitor for the First Respondent would provide the Applicant with another copy of the Court Book by email.
This matter was heard on 11 September 2025 for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)the Application filed 29 August 2019; and
(b)affidavit of the Applicant affirmed 29 August 2019 (Applicant’s Affidavit).
The Minister relied upon:
(a)the response, filed 25 September 2019;
(b)affidavit of service of Kate Laurice Buckley affirmed and filed 4 September 2025; and
(c)outline of submissions filed 28 August 2025.
Both parties relied on the Court Book.
The Application contains the following grounds of review (Grounds of Review):
1. I am applying Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations in 35days time frame. (Ground 1).
2. The Tribunal decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations. (Ground 2).
3. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it failed to take into account that the Tribunal failed to take into account the circumstances that led to the refusal of my visa. (Ground 3).
4. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it failed to take into account that the Tribunal failed to take into account the circumstances that led to the refusal of my visa. (Ground 4).
5. The Tribunal erred in not giving due considerations to the personal circumstances of my including health and my family issues which prevented me from achieving satisfactory academic results. (Ground 5).
6. The Tribunal expressly did not referred to having considered the evidence submitted including my documents and my oral explanation at hearing. It seemed to me that tribunal has decided to affirm the decision not considering any of my edveince and giving the oral decision on same day. (Ground 6).
" I am not a genuine student" mentioned by Immigration officer and Tribunal arguable case of relevant error by the Tribunal.
7. My argument that I am a genuine student , the material before the Tribunal was ignored, therefore I feel it is arguable case of jurisdictional error. (Ground 7).
8. Tribunal decision is not justified properly that is the reason I am bring the matter to Federal circuit court under the judicial Review. (Ground 8).
9. My question how come Tribunal has discretion on other applicant's exceptional circumstances and why not considering my circumstances? (Ground 9).
10. Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances and give me decision legitimately that I could finish my studies in Australia. (Ground 10).
(Words in bold added, otherwise as written)
APPLICANT’S SUBMISSIONS
The Applicant did not file written submissions.
The Applicant sought an adjournment at the Hearing on the basis that he wished to seek legal advice. I refused that adjournment application for reasons that I gave orally.
The Applicant made oral submissions at the Hearing of the Application. A central complaint was that the Tribunal did not take into account the fact that at the time of the Tribunal hearing, he was studying a Bachelor of Commerce and Diploma, but had not finished. He said, “they refused to hear that point”, namely that he needed time to finish. His contention was that he was well advanced in his studies which showed that he was a genuine student. He also referred to difficulties and a lack of focus because of his mother’s cancer. The Applicant made observations about other cases that were heard on the day of his hearing which I refer to below.
RESPONDENT’S SUBMISSIONS
The Minister submits that the Applicant’s Grounds of Review fail to demonstrate any jurisdictional error in the Tribunal’s Decision and that the Application should be dismissed.
Grounds 1 and 10
The Minister submits that these grounds do not assert jurisdictional error and should be dismissed on this basis alone.
Grounds 2, 3, 4, 5 and 9
The Minister interprets these grounds as allegations that the Tribunal failed to take into account relevant considerations, including the Applicant’s course of study and personal circumstances.
The Minister submits that error can only be established where a decision-maker fails to take into account a consideration that they are “bound” to consider.[30] There are no prescribed set of circumstances that the Tribunal was “required” to consider. Nonetheless, the Minister submits that the Tribunal did consider the issues raised by the Applicant, including:
(a)the circumstances that led to his Visa being refused;
(b)his claim that he wanted to finish his studies;[31] and
(c)his mother’s illness and that he had returned home for a period of time to care of her.[32]
[30] Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Anor [1986] HCA 40; (1996) 162 CLR 24 per Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at [39].
[31] CB 132 [17]-[18].
[32] CB 133 [22] and [28].
The Minister contends that the Applicant has failed to articulate what his “exceptional circumstances” were and how they were relevant to the Tribunal’s Decision. The Minister submits that the Tribunal did not fail to take into account any relevant considerations.
Procedural fairness
By grounds 2, 3 and 4, the Applicant appears to allege that he was not afforded procedural fairness.
The Minister submits that any assessment of the Tribunal’s procedural fairness obligations must be considered in the context of s 357A of the Migration Act. This section states that Division 5, Part 5 of the Migration Act is taken to be an “exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”
The Applicant was properly invited to a hearing before the Tribunal, which he attended.[33] The Minister submits that the Applicant was on notice of the issues arising under review.[34]
[33] s 360 of the Migration Act.
[34] cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [35].
The Tribunal was required to give the Applicant clear particulars of information that would form the reason or part of the reason for its decision.[35] The Minister submits that the information relied upon by the Tribunal fell within exceptions under ss 359A(4)(b) and 359A(4)(ba) of the Migration Act.
[35] ss 359A and 359AA of the Migration Act.
The Tribunal found that the Applicant had not completed his Bachelor of Commerce. The Minister submits that the Tribunal reached this conclusion as a direct result of the Applicant’s oral evidence that he “needed to complete” the course.[36]
[36] CB 132-133 [12]-[21]; SZYBR v MIAC [2007] HCA 26; (2007) 235 ALR 608 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [78]-[86].
The Minister submits that the Tribunal was not required to put information to the Applicant under s 359A or s 359AA of the Migration Act.
Grounds 6 and 7
The Minister interprets these grounds as an allegation that the Tribunal failed to consider the Applicant’s written and oral evidence.
The Minister acknowledges that a failure to consider evidence or information may amount to jurisdictional error.[37] Whether jurisdictional error is established is a “case specific enquiry”[38] and merely to ignore “relevant material” is insufficient.
[37] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT).
[38] SZRKT per Robertson J at [77].
The Minister submits that it is “plainly not necessary” for the Tribunal to “refer to every piece of evidence and every contention made by [the] applicant in its written reasons”.[39] The Tribunal is an administrative body “operating in an environment which requires the expeditious determination of a high volume of applications”.[40] As such, its reasons are not to be scrutinised “with an eye keenly attuned to error”.[41]
[39] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAC 184;
[40] WAEE (2003) 236 FCR 593 at [46].
[41] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) per Brennan CJ, Toohey, McHugh and Gummow JJ at [30].
The Minister submits that the Tribunal plainly considered evidence put forward by the Applicant in relation to his claims, for instance:
(a)the decision records excerpts of the Applicant’s oral evidence;[42]
(b)the Tribunal expressly referred to the Applicant’s provision of a Confirmation of Enrolment (CoE) code;[43]
(c)the Tribunal had regard to the Applicant’s Student Visa Information form;[44] and
(d)the Tribunal explicitly noted the absence of a genuine temporary entrant statement.[45]
[42] CB 132 [17],133 [21], [26] and [28].
[43] CB 132 [15],133 [23].
[44] CB 72-81, 133 [25].
[45] CB 132 [12].
The Minister notes that the Applicant may be asserting that the Tribunal failed to consider the Applicant’s academic transcript from Deakin University dated 28 August 2019. In this regard, the Minister submits that:
(a)the Tribunal considered oral evidence by the Applicant at the hearing that he “had not completed” his commerce degree but only units of the degree;[46]
(b)the Tribunal accepted that the Applicant had commenced a Bachelor of Commerce, which he was yet to complete. The transcript was therefore futile;[47] and
(c)any failure to have specific regard to the transcript was not material to the Tribunal’s Decision and would not have changed the outcome.[48]
PRINCIPLES
[46] CB 133 [21] and [28].
[47] CB 132 [16],133 [21].
[48] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT ) at [14].
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[49]
[49] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[50] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[51]
[50] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O’Callaghan JJ at [17].
[51] LPDT at [2].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[52] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[53] Different kinds of error may overlap.[54] The categories are not closed.[55]
[52] Plaintiff S157/2002.
[53] LPDT at [3].
[54] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[55] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[56] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[57] It has been described as an “undemanding” standard.[58]
[56] LPDT at [7].
[57] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[58] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].
Student Visa (Subclass 500)
The Student visa (Subclass 500) allows international students to live and study in Australia at an accredited institution.
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in Part 500 to Schedule 2 of the Regulations.[59]
[59] See Regulation 2.05(1).
Clause 500.211 of Schedule 2 of the Regulations provides:
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.
Clause 500.212 of Schedule 2 of the Regulations provides:
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. because of any other relevant matter.
Intends genuinely to stay in Australia temporarily
In Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[60] Allsop CJ stated:[61]
It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: "a genuine applicant for entry and stay as a student". This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause.
The expression is followed by the word "because" and a list of various matters in subcll (a)(i)-(iv), (b)(i)-(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise. That said the width of subcll (a)(iv) and (c) are to be recognised: that is "any other relevant matter". Such a wide frame of reference is, of course, limited by reference to the subject matter, scope and purpose of cl 500.212: Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505.
[60] [2020] FCA 1061.
[61] At [8] and [9].
Allsop CJ also stated:[62]
The proper approach to the application of the clause requires an appreciation of the relationship between the disaggregated elements of cl 500.212 in subcll (a), (b) and (c), and the whole question requiring evaluation in the chapeau. There are many considerations that may be relevant to assessing whether someone is genuine in his or her intention to stay temporarily for subcl (a) or whether he or she is a genuine applicant for entry and stay as a student for the chapeau to cl 500.212. Those considerations will be taken up in (a)(ii) and (iii) and especially (iv) insofar as they relate to the applicant’s intention as to how long to stay; and in (b) and (c) (especially (c)) as to whether the applicant is genuine in his or her desire to be a student. But subcl (a) is concerned, as Logan J said in [Saini v Minister for Immigration and Border Protection [2016] FCA 858], with the genuine intention as to length of stay, and nothing else.
(Emphasis added)
CONSIDERATION
[62] At [13].
Grounds 1 and 8
Ground 1 is that:
I am applying Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations in 35days time frame.
Ground 8 is that:
Tribunal decision is not justified properly that is the reason I am bring the matter to Federal circuit court under the judicial Review.
No jurisdictional error or arguable jurisdictional error is identified in Grounds 1 and 8.
I am not satisfied that jurisdictional error is made out by reference to Grounds 1 and 8.
Ground 2, 3 and 4
Ground 2 is that:
The Tribunal decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.
Ground 3 is that:
The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it failed to take into account that the Tribunal failed to take into account the circumstances that led to the refusal of my visa.
Ground 4 is that:
The Tribunal failed to provide procedural fairness in that it did not take into account the reasoning that I needed obtain a visa so I could finish the course.
Grounds 2, 3 and 4 raise two issues:
(a)first, whether the Tribunal breached procedural fairness obligations; and
(b)second, whether the Tribunal failed to take into account relevant considerations.
Procedural fairness
The requirements of natural justice in relation to the Applicants' hearing before the Tribunal were codified by Division 4 of Part 5 of the Migration Act in relation to the matters dealt with in that Division.
Section 359A(1) of the Migration Act provided (at the date of the Tribunal's Decision) the Tribunal must give the applicant clear particulars of any information that the Tribunal considers "would be the reason, or a part of the reason, for affirming the decision that is under review"; and ensure as far as reasonably practicable “that the applicant understand why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review"; and invite the applicant to comment on it.
Two of the exceptions to the requirement in s 359A(1) of the Migration Act is information “that the applicant gave for the purpose of the application for review”[63] or “that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department”.[64]
[63] Section 359A(4)(b) of the Migration Act.
[64] Section 359A(4)(ba) of the Migration Act.
Given that the PRISM record was not referred to in the Delegate’s Decision, and was not the subject to notification under ss 359A or 359AA of the Migration Act, a question arises as to whether there has been a breach of s 359A.[65]
[65] CB 97.
The PRISMS record has the following information:
Paragraph 17 of the Tribunal’s Decision provides:[66]
We asked you to provide evidence of previous studies. You provided no evidence of studies you claim to have done at Deakin and you told me today that, ‘I’ve got one unit to finish.’ That course was scheduled for completion in June 2016. A further COE was created extending that until November 2017 and then a further COE was created until June 2018. Today is the first time you have made anyone aware, that I am aware of, that you have not completed this course. And as I say, in your lead up you provided documents saying, ‘my job is to finish this diploma.’ You made no reference anywhere to needing to finish a Bachelor of Commerce.[67]
(Emphasis added)
[66] CB 132.
[67] At [17].
Paragraph 21 of the Tribunal’s Decision provides:[68]
You say, ‘I’d like to stay and finish this one unit.’ And when I ask what moves have you made to study the unit?’ You said, ‘I’ve plan to take tuition. I’ve done that before, it didn’t work but that’s what I plan.’ Your answer indicates you have done nothing up until now.[69]
(Emphasis added)
[68] CB 133.
[69] At [21].
Paragraph 24 of the Tribunal’s Decision provides:[70]
I do not believe that your proposed studies, that for which you have done little or no research, will provide any value to your future career in Pakistan but rather, as already stated, I believe that you are seeking to obtain enrolment for the purpose of being granted a visa so that you can remain resident in Australia and earning an income here. Applicant gave evidence that enrolled in 2015 and was continuing to complete in 2019.[71]
[70] CB 133.
[71] At [24].
For s 424A(1)(a) of the Migration Act to be engaged, the material in question should in its terms contain a "rejection, denial or undermining” of the Applicant’s claims.[72]
[72] SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297 at [17].
In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs,[73] McHugh J stated:
In addition, s 424A "is enlivened only at the point at which the RRT has information and has determined that the information would be the reason or part of the reason for affirming the decision" under review (29). The Tribunal may not realise that information it has obtained from a third person will form the reason or part of the reason for affirming the decision until after the applicant has appeared before it. Information obtained before the hearing may become the reason or part of the reason for affirming the decision only after an applicant has responded to questions at the hearing. It would seem to be contrary to the requirements of procedural fairness if the Tribunal were not required to invite the applicant to comment on such information (that is found to be adverse to the applicant) simply because the Tribunal has already invited the applicant to appear before it.
(Emphasis added) (Citation omitted)
[73] (2005) 228 CLR 294 at [56].
The fact that the Applicant had not completed his studies was information that was part of “the reason, or a part of the reason, for affirming the decision that is under review”. The source of that information was the Applicant’s own answers (recorded at [17] and [21]).[74] On the basis of what is recorded in the Tribunal’s reasons, I am not satisfied that the Tribunal ever “determined that the information [contained in the PRISMS record] would be the reason or part of the reason for affirming the decision”. There is no reference to that information in the critical reasoning in the decision, and I do not infer that it formed part of it.[75] I am not satisfied that the obligation in s 424A of the Migration Act was ever enlivened.
[74] CB 132-133.
[75] Compare Poonia v Minister for Immigration & Border Protection [2016] FCCA 908 at [56] (Barnes J) approved on appeal in Poonia v Minister for Immigration & Border Protection [2016] FCA 1120.
Section 360 of the Migration Act provided, amongst other things, that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments “relating to the issues arising in relation to the decision under review”.
Where the Tribunal takes no steps to identify issues, other than those considered by the Delegate to be dispositive, the applicant is entitled to assume that those are the issues on review. Hence, unless the Tribunal tells an applicant something different, they would be entitled to assume that the reasons of the Delegate will identify the issues that arise in relation to that decision.[76]
[76] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [36].
In the present case, the Delegate’s Decision sufficiently identified the “issues arising in relation to the decision under review”.
I do not consider that the Tribunal breached its procedural fairness obligations.
Failure to take into account relevant considerations
The second aspect of Grounds 2, 3 and 4 is a claim that the Tribunal failed to take into account relevant considerations.
Grounds 2, 3 and 4 identify three matters that the Tribunal failed to consider:
(a)“relevant considerations”;
(b)“circumstances that led to the refusal of my visa”; and
(c)“reasoning that I needed obtain a visa so I could finish the course of study”.
In Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,[77] Mason J set out the legal principles which apply on judicial review in relation to failing to take into account relevant considerations or failing to take into account irrelevant considerations as follows:
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision…
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision... A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision...
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it… However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice… So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.
The principles stated above apply to an administrative decision made by a Minister of the Crown… However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.
(Emphasis added)
[77] (1986) 162 CLR 2 at [15].
The premise of Grounds 2, 3 and 4 is that the Tribunal did not consider certain matters. Consideration of the Tribunal’s Decision demonstrates that the Tribunal considered:
(a)relevant circumstances generally;
(b)the circumstances that led to the refusal of the Applicant’s Visa by the Delegate.[78] Those same circumstances substantially overlap with the circumstances considered in the Tribunal’s Decision; and
(c)reasoning that the Applicant needed to obtain a visa so he could finish his course.[79]
[78] CB 39.
[79] CB 132 [17]-[18].
I am not satisfied that the Tribunal failed to take into account relevant considerations as alleged in Grounds 2, 3 and 4.
Conclusion
I am not satisfied that jurisdictional error is made out by reference to Grounds 2, 3 or 4.
Grounds 5, 6, 7 and 10
Ground 5 is that:
The Tribunal erred in not giving due considerations to the personal circumstances of my including health and my family issues which prevented me from achieving satisfactory academic results.
Ground 6 is that:
The Tribunal expressly did not referred to having considered the evidence submitted including my documents and my oral explanation at hearing. It seemed to me that tribunal has decided to affirm the decision not considering any of my evidence and giving the oral decision on same day.
" I am not a genuine student" mentioned by Immigration officer and Tribunal arguable case of relevant error by the Tribunal.
Ground 7 is that:
My argument that I am a genuine student, the material before the Tribunal was ignored, therefore I feel it is arguable case of jurisdictional error.
Ground 10 is that:
Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances and give me decision legitimately that I could finish my studies in Australia
Contrary to the premise of Grounds 5 and 9, the Tribunal’s Decision indicates that it did take into account the Applicant’s “personal circumstances” including “health and family issues”.[80]
[80] CB 133 [22], [28].
Contrary to the premise of Ground 6, the Tribunal’s Decision reveals that it did take into account the Applicant’s evidence. For example, the Tribunal considered the Applicant’s oral evidence (“you have answered a range of questions…),[81] the CoE provided by the Applicant,[82] and detailed exchanges between the Tribunal and the Applicant.[83] It is clear that the Tribunal did not accept the Applicant’s account (“Your words and your actions seem to be different”).[84] The fact that the Tribunal gave an oral decision on the same day is unexceptional, and certainly not indicative of error.
[81] CB 132 [13].
[82] CB 132 [15].
[83] CB 132 [18]-[28].
[84] CB 132 [29].
The complaint in Ground 7 that “the material before the Tribunal was ignored” appears to be little more than a complaint about the outcome. The fact that the Tribunal did not agree with the Applicant’s claims does not mean that they were ignored. Rather, it indicates that those claims were not accepted. The proper role of the court on a judicial review is not to review the merits of the administrative decision-maker’s decision.[85] I am far from satisfied that the Tribunal’s reasoning, fact finding or conclusion were unreasonable, illogical or irrational.
[85] Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at p 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]–[54].
The premise of Ground 10 is that the decision maker had an overarching obligation or discretion to grant relief in the case of “exceptional circumstances”. There is no corresponding obligation or discretion provided for in Part 500 to Schedule 2 of the Regulations[86] or Direction 69. In any event, no “exceptional circumstances” are identified or were established before the Tribunal.
[86] See Regulation 2.05(1).
I am not satisfied that jurisdictional error is made out by reference to Grounds 5, 6, 7 and 10.
Ground 9
Ground 9 is that:
My question how come Tribunal has discretion on other applicant's exceptional circumstances and why not considering my circumstances?
In oral submissions, the Applicant clarified that “other applicant’s exceptional circumstances” was a reference to how other matters listed before the Tribunal on the day his matter was heard. He advised me that he was not aware of the outcome of those other cases.
The conduct and outcome of other matters before the Tribunal is irrelevant to the question of whether the Tribunal committed jurisdictional error in relation to the Applicant’s case.
I am not satisfied that jurisdictional error is made out by reference to Ground 9.
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[87] the Application for review must be dismissed.
[87] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $7,509.70, being less than the scale amount.[88] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[89] I am further satisfied that it is appropriate to make an order for payment of the amount sought by the having regard to the scale and the extent of work undertaken as evidenced by the court file.[90]
[88] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
[89] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[90] See r 25.14 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) and Division 1 of Part 3 of Schedule 2.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 23 September 2025
(2003) 236 FCR 593 (WAEE) at [45]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [38].
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