Farooqi v Minister for Immigration and Citizenship
[2025] FedCFamC2G 895
•12 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farooqi v Minister for Immigration and Citizenship [2025] FedCFamC2G 895
File number(s): SYG 1568 of 2021 Judgment of: JUDGE CLEARY Date of judgment: 12 June 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal failed to consider GTE information submitted by applicant – whether Tribunal failed to consider claims cumulatively - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 476, 499
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670
LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Singh v Minister for Home Affairs (2019) 267 FCR 200
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 27 May 2025 Place: Parramatta Solicitor for the Applicant: In person Solicitor for the Respondents: Mr S. Knuckey of HWL Ebsworth ORDERS
SYG 1568 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD MUHTASHIM FAROOQI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
12 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pays the first respondent’s costs fixed in the amount of $5, 600
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 CLEARY
INTRODUCTION
The applicant has filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). The applicant seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 26 July 2021 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicant a Student (Temporary) (Class TU) visa (student visa) under s 65 of the Act.
FACTUAL BACKGROUND
On 13 January 2015, the applicant, a citizen of Pakistan, first arrived in Australia on a student visa.
On 19 September 2019, the applicant lodged an application for a second student visa. In his application, he provided a statement addressing the Genuine Temporary Entrant criteria (GTE statement).
On 5 November 2019, the delegate refused to grant the visa on the basis that they believed the applicant was not a genuine temporary entrant, which is a requirement of clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
On 31 November 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 26 February 2021, the Tribunal invited the applicant to provide further information. The applicant provided the Tribunal with the following:
(a)A completed Request for Student Visa Information form; and
(b)A number of supporting documents.
On 8 July 2021, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments.
On 21 July 2021, the applicant provided the Tribunal with the following:
(a)Written submissions by the applicant’s representative; and
(b)An updated GTE statement.
On 26 July 2021, the applicant appeared before the Tribunal. The Tribunal affirmed the decision under review.
TRIBUNAL’S DECISION
The Tribunal identified that the primary issue before it was whether the applicant was a genuine applicant for entry and stay in Australia as a student in accordance with cl 500.212(a) of the Regulations. The Tribunal further noted that in their consideration of cl 500.212, they regarded Direction 69 – ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act (Direction 69).
In affirming the delegate’s decision, the Tribunal considered the following documents provided by the applicant:
(a)Confirmation of Enrolment (CoE) for an Advanced Diploma of Leadership and Management;
(b)Response to a Request for Student Visa Information (in accordance with s 359 of the Act);
(c)GTE Statement;
(d)Suite of academic documents evidencing grade attainment and course completion;
(e)Business registration certificate;
(f)Valuation of land certificate;
(g)Letter of reference from a former employer in Pakistan;
(h)Submissions of the applicant’s migration agent; and
(i)Delegate’s decision record.
The applicant gave evidence to the Tribunal that his reason for studying in Australia over Pakistan was that Australia had more vocational training.
At the time of his application to the Tribunal, the applicant had enrolled in the following courses:
(a)Master of Business Professional Accounting and Business Administration (completed);
(b)Professional ECA (completed);
(c)Diploma of Leadership and Management (not completed)
(d)Certificate of Marketing and Communications (completed); and
(e)Diploma of Marketing and Communications (set to complete after the Tribunal’s decision).
Prior to entering Australia in 2015, the applicant completed a Bachelor of Business Administration and worked as a marketing executive. The applicant stated in his GTE statement that this professional role gave him experience in the marketing field.
The Tribunal considered the applicant’s previous academic and professional qualifications, as well as a letter from the applicant’s former employer in Pakistan dated 1 January 2015. This letter emphasised that he was an asset to the company during his role as a marketing executive. The Tribunal came to the determination that this academic and professional experience he already possessed meant that the course he was currently enrolled in, being the Diploma of Marketing and Communications, will not improve his career prospects any more than his previous qualifications will allow him to. In this determination, the Tribunal further noted that the applicant’s circumstances in Pakistan do not provide a “significant incentive for him to return there at the conclusion of his studies”.
The Tribunal also considered the intention behind the applicant’s reason for studying the courses he did. In his GTE statement, the applicant explained that he initially enrolled himself in a Diploma of Leadership and Management, but “even after completing some units, [he] did not feel like [he] was learning anything new”. The Tribunal took this as the applicant not undertaking significant research in the courses he enrolled in, which they claim was inconsistent with his intention being to stay in Australia for the primary purpose of study.
Further, the Tribunal noted that the course the applicant was currently enrolled in and the course he intends to do, being the Marketing and Communications courses, were at a lower level and a regression of the applicant’s previous qualifications. The Tribunal further found that the applicant’s GTE statement was broad in the sense of not specifying why he wants to study marketing but rather wanting to learn whatever related courses he could. The statement reads as follows:
"When I went to Pakistan in 2018 for my vacations, I started my own business with the name of IOLD – Institute of Leaming and Development (loLD), which prepares candidates for international certifications like CSCP, CSCM, CIM and HRM. When I came back to Australia after that vacation, my whole perspective had changed. I was constantly thinking about the business and how I can level myself up to make the business grow. As the future is going to be all about digitalization and connectivity, I am learning digital marketing out of my interest from Google, Udemy and Coursera. I want to run my online stores on Facebook, Amazon, and eBay, and later I also have plans to launch a store on Etsy. I am also planning to register for a patent in the US as I want to start my clothing line as well. I am a very curious person with thousands of dreams. Being here in this dreamland, I do not want to miss out on the opportunity to study here and utilize it afterwards. I want to learn everything while I am here that will help me to run my own business back in Pakistan."
The Tribunal acknowledged that it was not uncommon for the applicants to want to re-educate themselves or acquire practical skills, however, they believe this not to be consistent with the behaviour of someone who genuinely wants to remain in Australia temporarily for the purposes of studying, which is an inherent requirement of cl 500.212 of the Regulations. They believed the applicant was intentionally circumventing the student migration program to remain in Australia on a more permanent basis.
Moreover, the Tribunal took the applicant’s previous immigration history into consideration. While it was noted that there was no evidence of further visa refusals or cancellations, they were concerned that at the point of the hearing, the applicant had been in Australia for approximately six (6) years and not completed any courses that “objectively” will add a value to his future. The Tribunal notes that, as aforementioned, the applicant could not himself demonstrate the specific value these courses will add to his future.
The Tribunal additionally noted in its decision that the applicant had expressed no concerns about any civil or political unrest in Pakistan, any concerns about military service, or any communal or familial ties to Australia that would provide him an incentive to remain in Australia on a permanent basis. The applicant also owned a plot of land valued at $21,000 in Pakistan which, tied with his familial ties, provides him with some financial incentive to return to Pakistan. However, the Tribunal was not convinced that these socioeconomic prospects, when compared to his in Australia (in the form of ongoing paid employment), are enough to encourage him to return home upon finishing his studies. This made the Tribunal question whether the applicant intended genuinely to stay in Australia temporarily in accordance with cl 500.212(a) of the Regulations.
The Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily, and thus did not satisfy the criteria in cl 500.212(a) of the Regulations. As the applicant did not claim to meet any of the criteria for a subclass 590 (Student Guardian) visa, the Tribunal affirmed the decision not to grant the applicant a temporary student visa.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 8 April 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 4 March. The application contains two (2) grounds of review, both containing several particulars. They are (as written):
1.The Tribunal failed to consider following information or consideration expressly submitted by the applicant in relation to Genuine Temporary Entrance Criteria and failed to engage in genuine and realistic consideration of applicant's information and circumstances.
a.The applicant has submitted that it was his late Father's intention that the applicant should serve the country.
b.The Tribunal failed to advert or consider a relevant information which if considered would have changed the Tribunal decision. That is applicant's stay in the~ a western country and his return from UK after completing Foundation Course to look after the family.
It is respectfully submitted that Clause 14 (b) (iv) of the DIRECTION NUMBER 69 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS expects the decision-maker to consider the following:
"If the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance."
In the above application, it is expressly submitted that the applicant went to the UK on a student visa and successfully completed his Foundation Course and returned and there were no any non-compliance issues. The AAT failed to consider the above and accordingly, it is submitted that the AAT's decision is infected with a legal error.
c. The applicant's plan to build a house to live with his mother.
d. The applicant return travel to Pakistan.
2.The Tribunal failed to consider applicant's claims cumulatively and if it has considered all information individually and cumulatively, the Tribunal would have formed a different decision.
Particulars
a.The applicant's interest in learning digital marketing from Google, Udemy and coursera and his intention to further enhance his digital marketing knowledge and his current course.
b.Applicant's registered business in Pakistan which prepares candidates for international certifications such as CSCP, CSCM; CIM and HRM and applicant's devotion, intention, and involvement in that.
c.The applicant’s intention to invest more time in his registered business which is running for more than 2 years and his intention to take his registered business to a new level.
On 12 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
On 9 April 2025, the proceedings were docketed to me and set down before me for final hearing on 27 May 2025.
Hearing on 27 May 2025
At the hearing of this matter on 27 May 2025, the applicant was unrepresented. Mr Knuckey of HWL Ebsworth appeared for the first respondent.
Prior to the hearing commencing, I ensured that the applicant was in possession of a copy of the Court Book and the first respondent’s outline of submissions, and that he had read the first respondent’s submissions.
At the commencement of the hearing, I explained to the parties that my role in deciding the case was limited to considering whether the Tribunal had committed a jurisdictional error. I described jurisdictional error as a serious legal error or mistake made by the Tribunal. I also explained the procedure by which the hearing would be undertaken. I then allowed the Court Book, which contained the Tribunal’s decision and other documents that were before the Tribunal, a supplementary Court Book and the applicant’s affidavit in support of his application to be admitted as evidence.
I then invited the parties to make final oral submissions. I took the applicant through each of the two (2) grounds of review (and their particulars) in his application and asked him if he wanted to make any submission about them, and to tell the Court why he considered the Tribunal’s decision was wrong. The applicant made submissions on ground 1 (discussed below), but declined to make submissions on ground 2. Mr Knuckey made brief submissions summarising the first respondent’s written submissions. The applicant declined to make any further oral submissions in reply to Mr Knuckey.
CONSIDERATION
The issue before this Court is whether the Tribunal’s decision contained a jurisdictional error; that is, a serious legal error that results in an administrative decision lacking any legal force: LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [2] (LPDT). 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: LPDT at [32].
The Court does not consider the merits or wisdom of the decision; nor does it remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
Genuine temporary entrant criteria
The genuine temporary entrant criteria are set out in cl 500.212 of Sch 2 to the Migration Regulations. The Tribunal identified that in considering whether the applicant satisfied cl 500.212(a) of Sch 2 to the Regulations, the Tribunal must have regard to Direction 69.
In Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 (Kaur) at [13]-[15] per Middleton J the Federal Court of Australia recently observed that:
13 In discussing Direction 69, in Kaur v Minister for Home Affairs [2019] FCA 2026 Steward J said at [30] and [31]:
“[30] Then, for the purpose of applying those factors, the Minister has made a Direction which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a ‘guide’ in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a ‘checklist’; rather they are to guide a decision-maker ‘when considering the applicant's circumstances as a whole’. In other words, a decision-maker is not required to check each identified factor in the Direction. In my view, this language is inconsistent with the first appellant's contention that every factor must be considered as a mandatory consideration. It is also inconsistent with the function and purpose of Direction No. 69 as a guide to assist in applying cl 500.212.
[31] In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v Minister for Home Affairs [2019] FCAFC 135; SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at 172-176 [75]-[81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ.”
14 There may be some question whether the approach adopted in [31] by Steward J is in fact correct. A different approach to the construction of Direction 69 was taken by SC Derrington J in Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1861 at [22], having regard to the differences between Direction 69 and its predecessor, Direction No. 53:
“The text of Direction 69 differs in some minor respects from that of Direction 53. In particular, Direction 53 used language in terms that a decision maker ‘must have regard to [the relevant factor or factors]’ (emphasis added). Direction 69 replaces ‘must’ with ‘should’. It was not suggested that this made any material change to the substance of the Direction, at least to the extent of lessening the strength of the Direction. Indeed, that it is unlikely that any such change was intended might be discerned from the Preamble, where the previous wording in Direction 53 to the effect that ‘factors should be considered’ is replaced in Direction 69 with the ‘factors that require consideration’”
(emphasis added).
15 It is unnecessary for me to decide this difference. However, it seems to me that the appropriate approach to the Direction 69 is that taken by Steward J. In my view, the change of wording from “must” to “should” cannot be ignored. Further, the words of the preamble that the Direction “provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d” do not imply that the factors are mandatory considerations, but rather that the Direction indicates what factors are likely to and might require consideration in any given case. As Steward J points out, the decision-maker must only engage with the factors if they are the subject of clearly articulated claims, or they arise clearly on the material.
The views expressed by the Federal Court of Australia in Kaur are binding on this Court, whether obiter or otherwise: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 at [38] per Weinberg, Jacobson and Lander JJ.
Below the Court sets out its consideration of the two grounds of judicial review in this matter. For the reasons given below, neither of the grounds identify the Tribunal committed jurisdictional error.
Ground 1
In ground 1 the Applicant contends the Tribunal failed to consider four matters that were contained in the applicant’s evidence and failed to engage in a genuine and realistic consideration of his information and circumstances.
The four matters the applicant submits the Tribunal failed to consider are set out as particulars of ground 1. I deal with each of them below.
Particular (a) - The applicant’s submission that it was his late Father's intention that the applicant should serve the country
When I asked the applicant at the hearing what he meant by particular (a), he told the Court he disputed that he did not meet the genuine temporary student criteria under the Regulations, and that he wanted to follow his father by working in Pakistan after he had completed his study in Australia.
In reply, Mr Knuckey submitted that particular (a) of ground 1 was an attempt to seek merits review, which was not permitted on judicial review applications in this Court. Mr Knuckey also submitted that on a fair reading of its reasons, in particular paragraphs [10] and [11], it could be inferred that the Tribunal did take the matter referred to in particular (a) into account when making its decision. I agree.
The substance of the applicant’s submission in particular (a) is referred to on the last page of the applicant’s GTE statement (see exhibit R2, Supplementary Court Book Page 3). The GTE statement is listed in paragraph [10] of the Tribunal decision as being one of the documents the Tribunal had before it when it made its decision. At paragraph [11] the Tribunal says it considered the documents listed in paragraph [10] which included the applicant’s GTE statement.
The applicant’s argument that the Tribunal failed to consider the matter set out in particular (a) is rejected.
Particular (b) – The applicant’s submission that the applicant went to the UK on a student visa and successfully completed his Foundation Course and returned and there were no any non-compliance issues
Under this particular the applicant argues that the Tribunal failed to consider the submission that the applicant went to the UK on a student visa and successfully completed his Foundation Course and returned and there were no non-compliance issues, and that this should have been considered by the Tribunal under clause 14(b)(iv) of Direction 69.
The matter of the applicant going to the UK is referred to on page 1 of the GTE statement (Supplementary Court Book Page 1). The GTE statement that was listed as being before the Tribunal is found in the Supplementary Court Book (exhibit R2). In his GTE statement, the applicant does not say he successfully completed his Foundation Course and returned and that there were no non-compliance issues. Rather the applicant says:
In 2010, I got myself enrolled in the international foundation programme at Middlesex University, UK so I could pursue a bachelor’s degree from the same institute in future. However, I had to leave the programme and return home as my younger brother was not old enough to look after the house and our mother. Since family comes first, I went home without any second thoughts. After returning from the UK, I took admission to the institute of business and technology, Karachi and completed my bachelor’s degree in business administration with 3.30 CGPA. For my academic excellence, I was also honoured with Magnum Cum Laude.
I asked the applicant at the hearing if he agreed that his GTE statement did not say he had successfully completed the foundation course at Middlesex University in 2010. The applicant agreed the GTE statement did not say he had completed the foundation course at Middlesex University in the Uk in 2010. He said he did not complete it at the time for family reasons.
Given the above, the argument the Tribunal failed to consider that he had successfully completed the course is rejected. Further, any argument the Tribunal failed to properly take into consideration a matter under clause 14(b)(iv) of Direction 69 also fails because it was misconceived. This is because there was no evidence before the Tribunal the applicant had travelled to countries other than Australia and failed to comply with migration laws of that country.
The applicant’s argument that the Tribunal failed to consider the matter set out in particular (b) is rejected.
Particular (c) - The applicant's plan to build a house to live with his mother
When I asked the applicant what he meant by particular (c) he said the Tribunal failed to consider his claim that he wanted to ultimately live together with his mother in Pakistan.
Again, the first respondent’s submission was the same as for the previous particulars of ground 1. It sought impermissible merits review, and in any event the Tribunal considered the evidence of the applicant contained in his GTE statement.
The applicant's plan to build a house to live with his mother is expressly referred to on page 3 of the GTE statement. The Tribunal also specifically refers to this evidence in paragraph [38] of its reasons. The applicant’s argument that the Tribunal failed to consider the matter set out in particular (c) is rejected.
Particular (d) - The applicant return travel to Pakistan
When I asked the applicant what he meant by particular (d) he said he meant to say he went back to Pakistan every year after 2016 except during COVID. The applicant’s evidence about his return to Pakistan is found on page 2 of the GTE statement. The Tribunal specifically referred to this evidence at paragraph [17] of its reasons. In reply the first respondent submitted the applicant was seeking impermissible merits review.
The applicant’s argument on this particular goes to the merits of the Tribunal decision. The Court is not permitted to conduct a merits review of the Tribunal decision.
Particular (d) is rejected.
Genuine and realistic consideration of applicant’s claims
For completeness, I deal with the argument that the Tribunal and failed to engage in a ‘genuine and realistic consideration’ of the four matters the subject of the particulars in ground 1.
The leading High Court authority on this ground of judicial review is Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [27]. In Plaintiff M1/2021 at [24]-[27] per Kiefel CJ, Keane, Gordon and Steward JJ, with Gageler J agreeing, the High Court said:
24.Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26.Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
27.None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
In Singh v Minister for Home Affairs (2019) 267 FCR 200 (Singh), Reeves, O’Callaghan and Thawley JJ at [34] held that:
34.… If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic ofNauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
A fair reading of the Tribunal decision does not reveal that it either “ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made” by the applicant, including matters raised in his GTE statement. This is because Tribunal expressly stated it had considered the applicant’s GTE statement at [11] of its decision, and it referred to the contents of the GTE statement throughout its decision, see for example, paragraphs [33]-[38].
Mr Knuckey, in his submissions to the Court, also relied upon what the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [46] – [47], that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. Mr Knuckey submitted that that fairly read, the Tribunal’s findings in relation to the claims in the GTE statement, in particular the matters referred to in particulars (a)-(d) of ground 1, were subsumed in its findings of greater generality in relation to findings about the applicant’s circumstances in Pakistan paragraphs [17]-[28] of its reasons; and in relation to findings about the applicant’s immigration history in paragraphs [36]-[39] of its reasons. I agree with his submission.
Ground 1 does not establish the Tribunal committed jurisdictional error.
Ground 2
In ground 2 the applicant argues the Tribunal failed to consider his claims “cumulatively”, and if it had done so “both individually and cumulatively”, it would have come to a different decision.
The applicant sets out three particulars to this ground, concerning the applicant’s study interests, business interests and future intentions. These three matters of evidence are discussed by the applicant in detail in his GTE statement, which was, as discussed above, considered by the Tribunal in its reasons.
The applicant did not want to say anything further about ground 2 at the hearing in this Court.
The first respondent submitted the Tribunal considered the applicant’s claims according to law. Mr Knuckey submitted that the Tribunal’s finding in paragraph [41] that, “considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant”, can be read as the Tribunal considering the claims cumulatively.
I do not consider ground 2 has any merit.
On a fair reading of its decision, the Tribunal considered all of the circumstances and all of the applicant's claims against each of the relevant factors under Direction No 69: see paragraphs [12] to [42] of the decision.
Having considered all the circumstances and all the evidence before the Tribunal, the Tribunal found it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Thus, cl 500.212(a) was not met.
The Tribunal was required under Direction 69 to engage with the factors that were the subject of clearly articulated claims, or claims that arose on the material before it: see Kaur at [15]. On my own reading of the decision, the Tribunal did this.
Ground 2 does not establish the Tribunal committed jurisdictional error.
For the reasons outlined above, the applicant has not established that the Tribunal’s decision is affected by jurisdictional error. Nor have I discerned any jurisdictional error from my own review of the decision.
The application is dismissed.
COSTS
The first respondent has sought an order that the applicant pay the first respondent’s costs in the amount of $5,600. The amount sought is fair and reasonable given the nature of these types of matters. I will make an order in this amount.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 12 June 2025
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