Hussain v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1035
•4 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hussain v Minister for Immigration and Citizenship [2025] FedCFamC2G 1035
File number(s): MLG 1915 of 2019 Judgment of: JUDGE JOHNS Date of judgment: 4 July 2025 Catchwords: MIGRATION – student visa – refusal to grant Student (Subclass 500) visa – whether Tribunal erred in applying Genuine Temporary Entrant criterion – whether Tribunal failed to consider inability to obtain Confirmation of Enrolment – whether Tribunal failed to afford procedural fairness – no jurisdictional error – application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 47(2), 190, 203
Migration Act 1958 (Cth), ss 357A, 359, 359C(1), 360(3), 363A, 363(1)(b), 376, 379C(5), 476, 476(2)(a), 499
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhasker v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 620
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 3 July 2025 Place: Melbourne (Video - Microsoft Teams) Applicant: Appeared on his own behalf and behalf of the Secondary Applicants Solicitor for the First Respondent: Anthony Gardner, Solicitor Mills Oakley Second Respondent Submitting appearance, save as to costs ORDERS
MLG 1915 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAHERYAR HUSSAIN
First Applicant
SAFORA SHAHERYAR
Second Applicant
HOORIYA SHAHERYAR (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
4 JULY 2025
THE COURT ORDERS THAT:
1.The Applicant’s application for judicial review filed on 18 June 2019 be 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 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 JOHNS
Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (Delegate). The Delegate refused to grant Mr Hussain a Student (Subclass 500) visa (Student Visa). Because the visa applications of the other applicants in this proceeding were dependant on Mr Hussain’s visa application, their applications were also refused.
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed within the 35-day time period prescribed under the Act.
This matter was:
(a)allocated to the Court as presently constituted on 21 May 2025,
(b)listed for hearing on 21 May 2025, and
(c)heard by video-link on 3 July 2025.
To obtain relief from this Court, the Applicant must show that the Tribunal fell into jurisdictional error. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal’s decision.
The application for judicial review is accordingly dismissed.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed a jurisdictional error in affirming the decision of the Delegate refusing the Applicant a Student Visa.
The application for a visa
The primary applicant, Mr Shaheryar Hussain (hereafter referred to as the Applicant), is a citizen of Pakistan who arrived in Australia on 16 January 2012, after having been granted a Student (Subclass 572) visa offshore on 27 October 2011.[1]
[1] Court Book (CB) 60.
After arriving in Australia, over the next cumulative period of 5 years, the Applicant has held various student visas or associated bridging visas and resided in Australia.[2]
[2] Ibid.
On 12 March 2017, the Applicant lodged an application for a Student Visa.[3] His application also included his wife, Mrs Safora Shaheryar, and their children, Hooriya Shaheryar, Muhammad Abdusami Shaheryar, and Eshal Shaheryar (Secondary Applicants).[4]
[3] CB 1.
[4] CB 1 – 8.
The form was submitted from a gmail account email address.[5] The Applicant included that gmail address in that part of the application that asked for an email address for correspondence purposes.[6] The application indicated that the Applicant did not authorise any other person to receive written correspondence on his behalf.[7] However, he included a different yahoo email address in the representative space on the form (s[given name)_k(surname)[email protected]).[8]
[5] CB 1.
[6] CB 10.
[7] CB 10.
[8] CB11.
Since coming to Australia, the Applicant has completed the following courses of study from the Technical College in Western Australia:
(a)Diploma of Business in July 2015,
(b)Diploma of Management in March 2016, and
(c)Diploma of Marketing in February 2017.[9]
[9] CB 25 – 28.
In his application, the Applicant proposed to undertake an Advanced Diploma of Business and a Certificate III in Commercial Cookery. In support, the Applicant submitted Confirmation of Enrolments (CoEs) for:
(a)an Advanced Diploma of Business from ALIF Australia Pty Ltd, scheduled to commence on 20 March 2017 and finish on 15 October 2017[10], and
(b)a Certificate III in Commercial Cookery from the same provider, scheduled to commence on 7 November 2017 and finish 2018.[11]
[10] CB 22.
[11] CB 23.
The Applicant’s enrolment information establishes that, as at 4 June 2019, that is the date when the Tribunal made its decision about his application for a Student Visa, the Applicant was not enrolled in any course of study. Before this Court the Applicant conceded the same.
When initially applying for a Student Visa in March 2017 the Applicant also provided
(a)a letter from Tatts Group which stated that the Applicant was employed on a permanent ongoing basis as a Network Engineer since 23 May 2016.[12]
(b)a Genuine Temporary Entrant (GTE) statement, in which the Applicant stated that he:
(i)came to Australia to pursue further education, having previously completed a bachelor’s degree in Pakistan.
(ii)had a longstanding interest in business and management studies and noted that both he and his wife have worked part-time in cafes and restaurants to gain industry experience while studying,
(iii)was currently studying mall and medium business management to learn how to start and run small businesses successfully, and
(iv)had plans to return to Pakistan to open a restaurant in Karachi or pursue opportunities related to the China-Pakistan Economic Corridor.[13]
[12] CB 24.
[13] CB 10 – 11.
Decision by the Delegate
On 15 July 2017, the Delegate refused to grant the Applicant the Student Visa. The Delegate was not satisfied that the Applicant met cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[14] That is, the Delegate was not satisfied that the Applicant was a genuine temporary entrant for stay in Australia.
[14] CB 58 – 66.
The Delegate’s Notification of Refusal was sent to the yahoo email address of the Applicant’s migration agent.[15]
[15] CB 50.
The Delegate’s reasons for refusing the Student Visa included that the Applicant had:
(a)been residing in Australia for over five years with limited academic progression during that period,
(b)changed courses multiple times and his chosen courses have been of relatively short duration, low cost, and lacking relevance to each other,
(c)not demonstrated how his proposed study would substantively improve his future career prospects in Pakistan, and
(d)spent only 33 days outside Australia since first arriving in 2012, suggesting that the Applicant had minimal ties to Pakistan.[16]
[16] CB 60 – 61.
The Delegate concluded that these factors, when taken as a whole, led to the conclusion that the Applicant was likely using the student visa program as a means to extend his stay in Australia as opposed to being here for genuine study purposes.[17]
[17] CB 61.
Because the visa applications of the Secondary Applicants were conditional on the Applicant’s visa application, their applications were also refused.[18]
[18] CB 62 – 66.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.[19]
[19] Migration Act 1958, s 476(2)(a).
Application to the Tribunal
On 3 August 2017, the Applicant applied to the Tribunal for review of the Delegate’s decision.[20] The Application nominated the Applicant as having a representative, namely a registered migration agent.[21] The migration agent was the authorised recipient for all correspondence. The email address provided by the migration agent was the same yahoo email address of the representative identified in the original application for a Student Visa.[22]
[20] CB 67 – 69.
[21] CB 68
[22] Ibid.
In September 2017 there was an exchange of correspondence between the Tribunal and a different Migration Consultant, M Shamraiz Mehdi about the inclusion of one of the Applicant’s daughters in the application to the Tribunal. Mr Mehdi used a hotmail email address.
On 18 February 2019 the Tribunal decided to issue a ‘Student refusal GTE’ invitation under s.359(2) of the Act.[23]
[23] CB 113.
On 22 February 2019, the Tribunal issued a written invitation under s 359 of the Act (s 359 Letter) inviting the Applicant to provide information addressing both:
(a)cl 500.211 of the Regulations (the Enrolment Requirement), and
(b)cl 500.212 of the Regulations (the Genuine Temporary Entrant Criteria).[24]
[24] CB 106.
The s 359 Letter was sent to the hotmail email address of Mr Mehdi, the Applicant’s agent. The covering letter stated,
As the authorised recipient, we are required to give you, instead of the applicants, any document that we would otherwise have given to the applicants.
By providing you with these documents, we are taken to have given the documents to the applicants. You should ensure that all applicants included in the review are informed of this invitation as soon as possible.[25]
[25] CB 104.
The Tribunal wrote (reproduced without alteration):
… you are now invited to give, in writing, information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student.[26]
[26] CB 106.
The s 359 Letter stated that if the Applicant did not respond, the Tribunal may proceed to make a decision without inviting the Applicant to a hearing. The Tribunal wrote (reproduced without alteration):
…If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.[27]
[27] CB 107.
The s 359 Letter was sent to the Applicant’s migration agent and required the Applicant’s response by 8 March 2019.[28]
[28] CB 107.
The Applicant did not respond to the s 359 Letter. Consequently, the Tribunal did not hold a hearing and proceeded to determine the matter on the papers.
On 2 June 2019, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the Student Visa.[29] That decision was communicated to the Applicant on 4 June 2019 by email sent to Mr Mehdi’s hotmail email address.
[29] CB 120 – 123.
TRIBUNAL’S DECISION
At paragraphs 11 to 16 of the Minister’s outline of submissions filed 24 June 2025, solicitors for the Minister summarised the Tribunal’s reasons as contained in the Decision Record[30]. I have carefully read the Tribunal’s reasons and accept the Minister’s summary as comprehensive, fair and properly referenced. I adopt it for the purposes of this judgment (citations omitted):
11.The Tribunal summarised the background to the matter and noted it wrote to the applicant pursuant to section 359 of the Act.
12.The Tribunal noted that the section 359 invitation was sent to the applicant’s last address provided in connection with the review, and that as the applicant had not responded, the Tribunal found he was no longer entitled to attend a hearing.
13.The Tribunal considered that the applicant had a “fair opportunity to provide the relevant information” and opted not to exercise its discretion under paragraph 363(1)(b) of the Act to adjourn the matter.
14.The Tribunal considered the criteria for a student visa and noted there was no evidence before it that the applicant was currently enrolled in a course of study and proceeded to find that it was not satisfied that at the time of the decision, the applicant was enrolled in a course of study and clause 500.211 of Schedule 2 to the Regulations was not met. The Tribunal found that the criteria for the grant of a student visa was not met and that the decision under review had to be affirmed. Accordingly, the Tribunal affirmed the decision not to grant the applicants student visas.
[30] CB 120.
PROCEEDINGS IN THIS COURT
On 18 June 2019, the Applicant filed an application for judicial review of the Tribunal’s decision (Originating Application). The Originating Application indicates that it was prepared by the Applicant. The email address included was s[given name) _k(surname)[email protected]. That is, it was the same email address included in the representative section of the original Student Visa application.
The application is brought pursuant to s 476 of the Act. In his Originating Application, the Applicant seeks the following orders (reproduced with minor alterations made for clarity):
1.An order that the decision of the Minister and the Tribunal be quashed,
2.A declaration that the decision of the Minister and Tribunal is invalid and has no effect,
3.A writ of mandamus directed to the Minister requiring him to determine the Applicant’s application according to the law,
4.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
The Originating Application lists five grounds of alleged error (reproduced without alteration):
1.The Minister for Home Affairs and the Tribunal erred in applying Ministerial Direction No 69 towards the assessment of GTE (Genuine Temporary Entrant) requirements for this application.
Particulars:
The Minister for Home Affairs and the Tribunal carried out the assessment with a biased focus based on a general checklist prepared to help the case officer determine the GTE requirements. Applicant’s course selection towards his career plan was disregarded with no clear reasoning by the delegate.
2.The Tribunal and the Minister erred in applying ‘clause 500.212 of the Migration Act 1958’ towards the assessment criteria for the grant of a Student visa requirements for this application.
Particulars:
Clause 500.211 was not applied in its correct meaning by the Tribunal. More specifically, CoE was not provided at the time of decision as evidence that ‘the applicant is enrolled in a course of study’ due to the fact that the applicant was not provided the CoE by any college due to ‘not holding a Student Visa’.
The applicant’s reasons for not having her CoE at the time of decision were out of Applicant’s control and this was not considered towards the decision making.
3.The Tribunal and the Minister made an error in applying the Clause 500.211 in Schedule 2 of the Migration Regulations towards assessing whether the applicant meet the requirements for entry and stay as a student.
Particulars:
The Applicant’s request to allow additional time to obtain a new CoE was not considered. Instead, the Tribunal and the Minister made the decision without providing sufficient time to the Applicant to satisfy this requirement.
4.The Administrative Appeals Tribunal did not provide the applicant a fair chance of a hearing. No review of the department’s decision took place hence depriving the Applicant of the natural Justice.
Particular:
The Applicant was not called by the Tribunal for a hearing, thus the Applicant was not given a fair chance to explain his situation, especially the reasons behind his inability to obtain a CoE.
5.The Department and the Tribunal failed to afford procedural fairness and natural justice.
Particulars:
Particulars of grounds 1, 2, 3 and 4
Case management
On 5 July 2019, the First Respondent (Minister) filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted that the application failed to articulate or establish any jurisdictional error on the part of the Tribunal.
On 28 January 2022, the Minister filed a bundle of relevant documents (Court Book).
On 13 May 2025, the Minister filed an amended response.
On 14 May 2025, a Registrar of this Court issued an Order (Registrar’s Order) programming the matter for hearing at the Melbourne Registry of this Court.
The Registrar’s First Order amended the name of the:
(a)First Respondent to ‘Minister of Immigration and Citizenship’, and
(b)Second Respondent to ‘Administrative Review Tribunal’.
The Registrar’s First Order also directed the:
(c)Applicant to file any amended application, written submissions, and further evidence 28 days before the hearing, and
(d)Respondent to file any amended response, written submissions and further evidence in response 14 days before the hearing.
On 21 May 2025, the matter was allocated to this Court as presently constituted. On the same day, the matter was listed for hearing on 3 July 2025.
The Applicant did not file any written submissions, despite being given the opportunity to do so.
On 12 June 2025 the Applicant filed a “Notice of Address for Service”. The email address included was s[given name)_k(surname)[email protected]. That is, it was the same email address included in the representative section of the original Student Visa application and the Originating Application.
On 24 June 2025, the Minister filed an outline of written submissions, outside of the time prescribed by the Registrar’s order. At the hearing, the Minister sought leave for the late filing of those submissions. The reason given for the late filing was that the Minister’s representative made an incorrect assumption that the Court would accede to the Applicant’s request to transfer the proceedings to Queensland; a request the Minister consented to. The Court granted leave for the late filing, but reminded the Minister’s representative that consent between parties is not binding on the Court.
Therefore, the materials before the Court are as follows:
(a)the Originating Application filed on 18 June 2019,
(b)an accompanying Affidavit which annexed the Tribunal’s decision,
(c)a response filed by the Minister on 5 July 2019,
(d)a Court Book numbering 153 pages filed on 28 January 2022, marked as Exhibit R1, and
(e)an outline of written submissions filed on 24 June 2025.
Adjournment and transfer of proceedings to Queensland
On 8 June 2025, the Applicant emailed the Court requesting that the hearing on 3 July 2025 be adjourned and the proceedings be transferred to Queensland, stating that he had relocated there. In support of his request, he filed an incomplete application and Affidavit.
On 13 June 2025, the Court advised the Applicant that his documents were incomplete and directed him to file properly completed and witnessed forms. The Court also requested that the Applicant provide reasons explaining why he could not travel to Melbourne or attend the hearing remotely.
On 18 June 2025, the Court reminded the Applicant to remedy these issues promptly and also sought the Minister’s position on his request. Despite this, the Applicant did not rectify the outstanding deficiencies in his documents.
On 20 June 2025, the Minister indicated that it consented to the Applicant’s request.
On 24 June 2025, after considering the request, the Court advised the Applicant that it would not grant leave to transfer the proceedings to Queensland. The Applicant had not provided any substantive reasons explaining why he could not attend via video link. In the absence of any technological, medical or other barriers, the Court determined that the matter should proceed via video on Microsoft Teams. This ensured the Applicant’s ability to fully participate in the hearing while avoiding the delay, inconvenience and additional costs associated with transferring proceedings interstate.
In denying the request to transfer the proceedings the Court as presently constituted was conscious of the duty that the Court has under the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) to “facilitate the just resolution of disputes … as quickly, inexpensively and efficiently as possible.”[31] Further the Court has legislative objectives that include “the efficient disposal of the Court’s overall case load”[32] and “the disposal of all proceedings in a timely manner.”[33] Adjourning the matter so as to transfer it to Queensland would have unnecessarily delayed the conduct of a hearing in circumstances where video-link facilities are equally effective. The FCFCOA Act provides that a “Judge may, for the purposes of any proceeding direct … a person to appear before the … Judge by way of video link…”. The FCFCOA Act also provides for the making of submissions by video-link.[34] In the present matter, the Court was satisfied that a hearing via video on Microsoft Teams would effectively facilitate a hearing and afford the Applicant procedural fairness.
[31] Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), s 190(1)
[32] FCFCOA Act, s 190(2)(c).
[33] FCFCOA Act s 190(2)(d).
[34] FCFCOA Act s 203.
On 27 June 2025, the Court emailed the Applicant confirming that the hearing would proceed on 3 July 2025 at 10:15am via MS Teams and that parties were not required to attend in person. The Applicant was advised that it is very important to attend the hearing at the listed time and date, and if he did not appear, his application may be dismissed, and costs may be ordered against him.
On the morning of 2 July 2025 (that is the day before the hearing), the Applicant emailed the Court again, requesting a transfer of the hearing to Queensland, stating he would not be comfortable attending online and believed he could not present his case effectively via MS Teams.
In response to the Court emailed the Applicant advising him that his previous requests had not been supported by a formal Application or Affidavit, and that the hearing would proceed as scheduled on 3 July 2025 via MS Teams.
On 7:52 pm on 2 July 2025, the Applicant emailed Court asserting he had previously submitted an Affidavit in support of his transfer request and sought confirmation that the hearing would be rescheduled and relocated.
On 8:53 pm on 2 July 2025 the Court emailed the Applicant reiterating that he could attend via MS Teams using the link provided and noting that if he failed to attend, the Minister may apply to have his matter dismissed in his absence.
The Applicant attended before the Court on 3 July 2025 with the assistance of an Urdu translator. Before the Court, the Applicant was seen, heard clearly and presented his case effectively with the assistance of the interpreter.
The judicial review hearing
At the hearing, the Applicant appeared before the court without legal representation, assisted by an Urdu translator. The Minister was represented by Anthony Gardner, solicitor, with Mills Oakley.
The Court confirmed with the Applicant that he had received a copy of the Court Book and the Minister’s written submissions. During the hearing the Applicant raised some doubt about receipt of the Court Book. However, the Affidavit of Service from the Minister confirmed that he had received it.
To assist the Applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the Applicant that this Court cannot review the merits of the Tribunal’s decision or grant the Applicant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The explanations provided to the Applicant were interpreted. Based on the Applicant’s responses the Court is confident he properly comprehended the scope and purpose of the hearing.
Noting that the Applicant appeared without legal representation, the Court gave the Applicant an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
Before this Court, the Applicant made submissions in support of the grounds set out in their application. Those submissions are considered below.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 15 April 2015.
After the Minister made their submissions, the Court invited the Applicant to respond to what the Minister’s representative had said. After a short adjournment taken to allow the Applicant to gather his thoughts, the Applicant made further submissions also considered below.
Having regard to the active involvement of the Applicant in making submissions and submissions in reply, the Court is satisfied that the Applicant availed himself of every opportunity to advance his case. The use of a video link was no impediment to him doing so.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
In Bhasker v Minister for Immigration and Multicultural Affairs[35] his Honour Judge Fary summarised the role of the Court in judicial review proceedings,
48.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.
49.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.[36]
50.“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.[37]
51.The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[38] 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”.[39] Different kinds of error may overlap.[40] The categories are not closed.[41] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[42]
52.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.[43] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[44] It has been described as an “undemanding” standard.[45]
[35] [2025] FedCFamC2G 620
[36] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[37] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[38] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[39] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[40] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[41] LPDT at [3].
[42] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
[43] LPDT at [7].
[44] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[45] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu.[46]
[46] (1999) 197 CLR 611; [1999] HCA 21 at [40].
CONSIDERATION
At the hearing before the Court, the Applicant was invited to make submissions about:
(a)Why he believes the Tribunal made a jurisdictional error, and
(b)each of the grounds of review in the Applicant’s Originating Application.
The grounds of review advanced by the Applicant had a character of sophistication and professionalism. The Court as presently constituted asked the Applicant if he had assistance drafting the grounds, noting that there was nothing wrong with him have sought assistance. The Applicant responded by indicating that that he had “spoken to some friends” but that most of the material was the product of his Google searches.
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds.
The Minister submitted that the decisions of the Tribunal were not affected by jurisdictional error. I incorporate (without repetition) paragraphs 20 to 36 of the Minister’s outline of submissions.
Ground 1
1.The Minister for Home Affairs and the Tribunal erred in applying Ministerial Direction No 69 towards the assessment of GTE (Genuine Temporary Entrant) requirements for this application.
Particulars:
The Minister for Home Affairs and the Tribunal carried out the assessment with a biased focus based on a general checklist prepared to help the case officer determine the GTE requirements. Applicant’s course selection towards his career plan was disregarded with no clear reasoning by the delegate.
By this ground, the Applicant alleges that the Delegate and Tribunal erred in applying Direction 69 in the assessment of the Genuine Temporary Entrant Criterion.
Insofar as this ground is directed at the Delegate’s decision, this Court does not have jurisdiction to review the decision of the Delegate.[47]
[47] Migration Act 1958, s 476(2)(a).
As to the Tribunal’s decision, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the Student Visa on a different basis to the Delegate. The Tribunal refused the Student Visa because the Applicant did not satisfy the Enrolment Criteria. Having been invited to do so the Applicant had not provided the Tribunal with any evidence that he was enrolled in a registered course of study, consistent with the requirement of cl.500.211 of the Regulations.
Because the Tribunal was not satisfied that the Applicant met the Enrolment Criteria, it was not required to (and did not) consider the Genuine Temporary Entrant Criteria. It cannot be said that the Tribunal erred in applying Ministerial Direction No 69 in circumstances where it was not required to (and did not) apply it. Faced with the fact that, despite a request to do so, the Applicant had not provided the Tribunal with any evidence of a CoE, the Tribunal made the only decision available to it to make; that is, deny the Student Visa.
No jurisdictional error arises in the Tribunal’s approach. Accordingly, ground 1 is dismissed.
Ground 2
2.The Tribunal and the Minister erred in applying ‘clause 500.212 of the Migration Act 1958’ towards the assessment criteria for the grant of a Student visa requirements for this application.
Particulars:
Clause 500.211 was not applied in its correct meaning by the Tribunal. More specifically, CoE was not provided at the time of decision as evidence that ‘the applicant is enrolled in a course of study’ due to the fact that the applicant was not provided the CoE by any college due to ‘not holding a Student Visa’.
The applicant’s reasons for not having her CoE at the time of decision were out of Applicant’s control and this was not considered towards the decision making.
Insofar as this ground is directed at the Minister, this Court does not have jurisdiction to review the decision of the Delegate.[48]
[48] Migration Act 1958, s 476(2)(a).
In so far as it relates to the Tribunal, by this ground, the Applicant alleges that the Tribunal erred in applying the Genuine Temporary Entrant Criteria and failed to consider his reasons for not having a CoE at the time of the decision.
At the hearing, when asked what the Applicant meant by this ground, the Applicant submitted that the Tribunal should have granted him a visa so that he could continue his studies. He contended that he could not provide a CoE because he could not enrol in a course of study without a Student Visa (because the Delegate had refused him one). Of course, it is not necessary to have a Student Visa in order to enrol in a course of study. It is however mandatory to be in a course of study (and have a CoE) in order to obtain a Student Visa. It is simply not the case that “the Applicant’s reasons for not having [a] CoE at the time of the decision were out of the Applicant’s control…”. In any case, this submission goes to the merits of the Tribunal’s decision, which this Court cannot review. The Court’s role is limited to determining whether the Tribunal’s decision is affected by a jurisdictional error.
As noted in the consideration of ground 1, the Tribunal determined that the Applicant did not satisfy the Enrolment Criteria (cl.500.211). The Tribunal’s decision did not turn on the Genuine Temporary Entrant Criteria (cl.500.212). Because there was no CoE, the Tribunal did not need to (and did not) consider the GTE Criteria. There can be no jurisdictional error in respect of a matter the Tribunal did not consider.
Insofar as the Applicant alleges that the Tribunal failed to consider his reasons for not having a CoE, there is no evidence before the Court that he advanced any such claim before the Tribunal. It bears repeating that the Applicant did not provide any information to the Tribunal and, consequently, there was no hearing. In the absence of an articulated claim before the Tribunal, the Tribunal was under no obligation to consider this matter.
This ground does not establish a jurisdictional error. Accordingly, ground 2 is dismissed.
Ground 3
3.The Tribunal and the Minister made an error in applying the Clause 500.211 in Schedule 2 of the Migration Regulations towards assessing whether the applicant meet the requirements for entry and stay as a student.
Particulars:
The Applicant’s request to allow additional time to obtain a new CoE was not considered. Instead, the Tribunal and the Minister made the decision without providing sufficient time to the Applicant to satisfy this requirement.
Insofar as this ground is directed at the Minister, this Court does not have jurisdiction to review the decision of the Delegate.[49]
[49] Migration Act 1958, s 476(2)(a).
In so far as it relates to the Tribunal, by this ground, the Applicant contends that the Tribunal committed a jurisdictional error by not allowing him additional time to obtain a CoE. A decision by the Tribunal to not allow an adjournment to allow an Applicant time to furnish it with a CoE, could in some circumstances amount to jurisdictional error if the refusal is unreasonable.[50] A failure to adjourn proceedings may, conceivably, constitute a failure to allow a party the opportunity of properly presenting their case. However, that is not what happened in the present matter.
[50] Minister for Immigration and Citizenship v Li [2013] HCA 18, [63]
On 22 February 2019, the Tribunal invited the Applicant to provide information regarding his enrolment by 8 March 2019.[51] The Applicant did not respond to the request within the prescribed time. There is no evidence before the Court that the Applicant requested an extension of time to provide the information sought. The Tribunal was under no obligation to grant additional time absent any request. The consequence of the Applicant not providing additional information was that he lost his entitlement to a hearing.
[51] CB 106 – 107.
No jurisdictional error is disclosed in this ground. Accordingly, ground 3 is dismissed.
Ground 4
4.The Administrative Appeals Tribunal did not provide the applicant a fair chance of a hearing. No review of the department’s decision took place hence depriving the Applicant of the natural Justice.
Particular:
The Applicant was not called by the Tribunal for a hearing; thus the Applicant was not given a fair chance to explain his situation, especially the reasons behind his inability to obtain a CoE.
By this ground, the Applicant submits that the Tribunal committed a jurisdictional error by not inviting the Applicant for a hearing.
While it is correct that the Applicant was not invited to a hearing, this was because he was not entitled to one under the Act.
On 22 February 2019, the Tribunal issued a s 359 Letter in which it invited the Applicant to provide information addressing both the Enrolment Requirement and the Genuine Temporary Entrant Criteria. In that letter, the Tribunal also noted that if the Applicant did not respond, the Tribunal may proceed to made decision without inviting the Applicant to a hearing. The Tribunal noted:
…If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.[52]
[52] CB 107.
The Applicant had nominated his migration agent as the authorised recipient of all correspondence from the Tribunal, and the s 359 Letter was sent to the agent’s email address. Pursuant to s 379C(5) of the Act, the Applicant was deemed to have received the notice at the end of the day it was transmitted to his authorised recipient.
As no response was received within the prescribed timeframe, s 359C(1), s 360(3) and s 363A operated to remove any entitlement the Applicant otherwise would have had to appear before the Tribunal and give evidence and present arguments.
The Tribunal considered whether to adjourn the review under s 363(1)(b) of the Act but decided not to do so, noting that the Applicant had already been given a fair opportunity to provide the requested information. That conclusion was open to the Tribunal and does not disclose a jurisdictional error.
Accordingly, ground 4 does not disclose a jurisdictional error and is dismissed.
Ground 5
5.The Department and the Tribunal failed to afford procedural fairness and natural justice.
Particulars:
Particulars of grounds 1, 2, 3 and 4
By this ground, the Applicant alleges that the Tribunal failed to afford him procedural fairness and natural justice. The particulars for this ground repeat those advanced under grounds 1 to 4.
At the hearing, the Court asked the Applicant how the Tribunal had failed to afford him procedural fairness. The Applicant responded that he wished to study cookery and that he worked in aged care, but the Tribunal refused his visa, which he considered to be unjust. This submission goes to the merits of the Tribunal’s decision. As previously explained, this Court cannot review the merits. Its jurisdiction is limited to determining whether the Tribunal’s decision was affected by a jurisdictional error.
The Court has independently reviewed the Tribunal’s decision and the materials before it. For the reasons outlined in the consideration of the grounds above, there is no indication that the Tribunal denied the Applicant procedural fairness. Accordingly, ground 5 is dismissed.
Other matters raised before the Court
At the hearing, the Applicant acknowledged that he was not enrolled in a course of study at the time the Tribunal made its decision and sought to justify his non-enrolment. The Applicant appeared to argue that he could or should only be enrolled in a course of study if he held a Student Visa, and since he did not hold a Student Visa when the Tribunal made its decision, this explained why he was not enrolled in a course of study. However, in light of the statutory scheme, which does not bar or prevent a person from enrolling in a course of study without holding a student visa, this argument does not establish jurisdictional error on the part of the Tribunal.
Towards the end of the hearing, the Court asked the Applicant to explain in his own words why he believed the Tribunal made a jurisdictional error. The Applicant made claims that went to the merits of the Tribunal’s decision, which this Court cannot review.
The Court notes that even if the Applicant were to establish any jurisdictional error in the Tribunal’s decision (and none is apparent), it would be futile to remit the matter. The grant of the constitutional writs is a matter of discretion. If no useful result could ensue from a remittal the Court would be obliged to refuse relief in the exercise of that discretion.[53] That would be the case in the present matter. The Enrolment Criterion in cl.500.211 required the Applicant, at the time of the Tribunal’s decision, to be enrolled in a registered course of study. Before this Court, the Applicant conceded that at the time the Tribunal made its decision, he was not enrolled in a registered course of study. Consequently, there would be no utility in remitting the matter to the Tribunal because it would have to make the same decision (i.e. refuse the Student Visa) because, at the relevant time, the Applicant did not have a CoE. This is a case where irrespective of any question of procedural fairness or individual merits, the Tribunal was bound by the Act to refuse the Student Visa. Nothing would change on remittal.
[53] SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26 at [27]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
DISPOSITION
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were not affected by jurisdictional error.
Accordingly, the application for judicial review is dismissed. The Court will hear the parties on costs.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 4 July 2025
SCHEDULE OF PARTIES
MLG1915 of 2019 Applicants
Fourth Applicant:
MUHAMMAD ABDUSAMI SHAHERYAR
Fifth Applicant:
ESHAL SHAHERYAR
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