Islam v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1423
•1 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Islam v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1423
File number(s): SYG 1970 of 2021 Judgment of: JUDGE ELDERSHAW Date of judgment: 1 September 2025 Catchwords: MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the application was found not to be a genuine temporary entrant – Application dismissed Legislation: Migration Act1958 (Cth), ss 474, 476, Div 4 Pt 5
Migration Regulations 1994 (Cth), 500.212
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (20024) 221 CLR 1
Carrascalao v Minister for Immigration andBorder Protection (2017) 252 FCR 352
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kumar v Minister for Immigration and Border Protection [2020] 274 FCR 646
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff M64-2015 v Minister for Border Protection (2015) 258 CLR 173
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZVUP v Minister for Immigration & Border Protection & Anor [2015] FCCA 1287
Division: General Number of paragraphs: 68 Date of hearing: 15 July 2025 Applicant: In person Solicitor for the First Respondent: Mr A. Sharma (HWL Ebsworth) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1970 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD ARIFUL ISLAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
1 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application filed 22 October 2021 be dismissed.
2.The name of the first respondent be amended to the “Minister for Immigration and Citizenship”.
3.The applicant shall pay the first respondent’s costs of and incidental to the proceedings fixed in the sum 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 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 ELDERSHAW
INTRODUCTION
By his application filed on 22 October 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 October 2021 (Decision) concerning his application for a Student (Temporary) (Class TU) visa. By its Decision, the Tribunal affirmed a decision of the delegate of the first respondent (Minister) to refuse to grant the said visa.
The applicant relevantly seeks that the decision of the Tribunal be quashed and a writ of mandamus directed to the Tribunal requiring it to determine the student visa application according to law. The Minister seeks that the application be dismissed with costs.
DOCUMENTS
The applicant relies on his application and affidavit both filed on 22 October 2021. The Minister relies on his response filed 11 January 2022, Court Book filed 9 December 2021, and written submissions filed on 30 June 2025. The Court Book has been marked as Exhibit R‑1.
In these Reasons, references to the Court Book are styled CB followed by the page number.
LEGAL FRAMEWORK
Section 476(1) of the Migration Act1958 (Cth) (Act) confers power on this Court to undertake judicial review of migration decisions where a writ of mandamus or prohibition, or an injunction is sought against a Commonwealth officer, subject to the limitations imposed by s 476(2). This Court’s power to review the Tribunal’s decision is limited to review for judicial error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The Court is not permitted to undertake a review of the merits of the application for a visa: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
Clause 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) sets out the criteria for the grant of subclass 500 student visas.
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfies clause 500.212(a) of Schedule 2 of the Regulations (genuine temporary entrant criterion), the Tribunal is to apply Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications” (Direction).
BACKGROUND AND MIGRATION HISTORY
The applicant was born in Bangladesh on 1 February 1981.
The applicant first arrived in Australia in 2011. At the time of the Tribunal’s Decision, the applicant had not departed Australia since arriving.
In March 2011, the applicant was granted a student visa. He was granted another student visa in October 2014.
On 11 October 2019, the applicant applied to the Department of Home Affairs (as it was then known) for a student (subclass 500) visa (visa application).
On 19 November 2019, an officer of the first respondent wrote to the applicant and invited him to comment on unfavourable information concerning his study history. Specifically, the officer identified that the applicant’s Provider Registration and International Student Management System (PRISMS) record demonstrated that the applicant had not been studying since 21 October 2018, contrary to a condition of his then-student visa.
On 19 December 2019, a delegate of the first respondent refused the Application on the basis that the applicant had not satisfied the genuine temporary entrant criterion (Delegate’s Decision).
On 6 January 2020, the applicant sought to review the Delegate’s Decision in the Tribunal.
On 31 January 2020, the applicant nominated Mr Mohiuddin Ahmed of First Choice Visa and Education Service to be his authorised recipient of correspondence from the Tribunal.
On 11 February 2020, Mr Obaydul Huq emailed the Tribunal from the email address [email protected] to inform the Member that he no longer worked for First Choice Visa and Education Service and no longer used the email [email protected] (“myfirstchoice” email address).
On 12 February 2020, the Tribunal emailed Mr Ahmed at the “myfirstchoice” email address in relation to the applicant’s matter. The letter to the applicant that was attached to that email had the subject line “Confirmation of representative no longer acting and withdrawal of authorised recipient”. This appears to be a draft letter as the third paragraph contains prompts in square brackets to the author.
On 30 July 2021, the Tribunal emailed Mr Ahmed at the “myfirstchoice” email address. Attached to that email was a letter to the applicant inviting him to provide information to satisfy the Tribunal that he was currently enrolled in a course of study and was a genuine applicant for entry and stay as a student. The letter identified that the Tribunal would have regard to the Direction when considering his application, a copy of which was enclosed.
The applicant provided a completed Request for Student Visa Information (Request for Information) to the Tribunal, in which the applicant provided the following responses.
(a)As to how and why he chose the education provider for the Australian course he was currently studying or proposed to study, the applicant said:
Australian Harbour International College (AHIC) is one of largest, most diversified and highly respected VET Provider in Sydney when I enrolled for my courses. The facilities offered by the College is exceptional. Their class size is comparatively small, equipment is new and modern. Teachers are very friendly and caring to their students as they are also migrated to Australia in the past. As classes are small, thus teachers can pay close attention to the students who need their help the most. As I came from different background, therefore I was in need to have such classroom environment where I can get help immediately when I needed and AHIC offering exactly the service what I was looking for. Their curriculum is modern and AQF standard. Thus, I will learn the most and will have hand on experience also international value of my degree after I completed from AHIC.
Furthermore, AHIC is in the heart of Sydney C BD and close to public transport so it is easy to commute. This college also provide Weekly support tutorials for each course also welfare counselling, so I choose AHIC for my current courses.
(b)As to whether there are similar courses in his home country or region and his reasons for not undertaking such study there, the applicant said:
In Bangladesh there is no such Diploma or Advanced Diploma Courses offered by any institutions. Most of the training institutes provides short courses on Leadership and Management which is mainly designed for very basic. Some institute provide professional education in university level as Bachelor course for 4 years. On the other hand, those short courses do not have any international standard education or value. Some Bangladeshi institutes education also not recognized or equivalent to International standard even Bachelor degree from Bangladesh in Management.
Therefore, there have no reason to spend my valuable time and money for my study in Bangladesh. Australian education is highly valued internationally and I have been studying in Australia, I got used to with Australia education systems. Moreover, I am learning almost same knowledge what a student will learn in Bangladesh after completion their Bachelor. By studying in Australia, I am learning and experiencing the implementation of the modern business sector in this country, which is impossible in Bangladesh and it is not as advanced as Australia. I wanted to learn as much as possible in a short period of time, so I decided to study in Australia rather than in Bangladesh.
(c)The applicant conceded that he had not been enrolled in a registered course of study from October 2019 to July 2021 because he did not have student visa.
(d)The applicant said that his parents and six siblings lived in Bangladesh with one sibling living in Malaysia, and that he last saw each of them in March 2011. The applicant said of his contact with his family:
I have regular contact with my parents in Bangladesh. They are aged and struggling to maintain their daily activities. they need my constant support; therefore, I need to talk to almost daily basis with my parent in Bangladesh on the phone or through online platforms.
I also need to talk to Support worker of my parents to provide help to my parents as needed.
Keeping in touch with my parent in daily basis become more important as they are all alone and getting concern about their daily life. all my siblings are very busy with their own things Thus, there have no one to look after my parents and as a child of the family I have ultimate responsibility to look after my parent, therefore I talk to them almost every day. I also Contact with all my siblings regularly as I missed them a lot and also for consulting about our family matter.
(e)As to his community ties with his home country, the applicant said:
I am a family-oriented person. I do not go out much or do spend much time outside without my family, work and study. I am not involved in any political, social or any type of group either in Bangladesh or in Australia. I love to spend time with those people, I love the most. I have very close friend circle from my school, college in Bangladesh. I always keep in touch with them through social media and on the phone. As I completed my school and college from my home town, so I have many close friends back home in Bangladesh. My friends and my family are my community.
(f)As to his community ties to Australia, the applicant said:
As I mentioned earlier, I do not like to involve in any community group or organisation, so I am not involved in any such activity in Australia. I love Bangladeshi culture and food so living in Lakemba since 2005. Majority of Bangladeshi in Sydney living in Lakemba, so I choose this suburb to live in. this helps me to live within my culture as close as possible.
(g)The applicant said he owned three parcels of land in Bangladesh with an asserted value of $1,008,623.
(h)Of his employment plans, including how they relate to his future, the applicant said:
I will establish a Hospitality Business in Bangladesh. By working In the hospitality industry in Australia I know how much opportunity I have in this business sector in Bangladesh without investing huge amount. I have done my research and slowly creating my network to start this business. The mail skill I need for this business is leadership and management skill and that's why I have decided to enroll (sic) in this course and willing complete this course and go back to Bangladesh to use this skills to run my business.
(i)Of the remuneration the applicant expected to receive in his home country, the applicant said:
I can easily earn around TK 250000 equivalent to AUD 5000 per Months at the beginning.
(j)The applicant denied any concerns about military service commitments or political or civil unrest in his home country.
On 6 September 2021, the Tribunal emailed Mr Ahmed at the “myfirstchoice” email address, attaching a letter which invited the applicant to attend a telephone hearing on 30 September 2021 to give evidence and present arguments. The letter identified to the applicant that he needed to satisfy the Tribunal that he was enrolled in a course of study and satisfied the genuine temporary entrant criterion. The Tribunal requested that the applicant complete a Response to hearing invitation.
On 7 September 2021, Mr Ahmed emailed the Tribunal from the “myfirstchoice” email address attaching the applicant’s Response to hearing invitation.
The applicant’s Response to hearing invitation identified that:
(a)he and Mr Ahmed would be attending the hearing;
(b)he required an interpreter but left the language blank;
(c)there was no issue that may affect his ability or that of another person participating, to take part in the hearing, nor did he believe that he or another person participating in the hearing would experience difficulty participating by telephone or videoconference; and
(d)he would provide written submissions and other documents prior to the hearing.
By document dated 17 September 2021, the applicant provided to the Tribunal a document styled “Statement by Parents”. The document set out the applicant’s parents’ financial position and identified, inter alia, that they could support the applicant while he studied. The applicant also provided a document styled “Supporting Statement by Siblings” signed by three of the applicant’s siblings.
By document dated 24 September 2021, the applicant provided to the Tribunal a document styled “Supporting Statement/Argument of my student visa application”.
Study History
The PRISMS record for the applicant accessed on 29 September 2021 recorded the following study history for the applicant:
Course Commenced Status Diploma of Accounting 24 April 2011 Finished General English (Beginner to Advanced) 18 June 2012 Finished Bachelor of Accounting 30 July 2012 Finished Bachelor of Accounting 28 July 2014 Cancelled – unsatisfactory course progress Bachelor of Professional Accounting 10 August 2015 Cancelled – unsatisfactory course progress Master of Business Administration 14 March 2016 Cancelled – deferment/suspension compassionate or compelling circumstances Bachelor of Business (Professional Accounting) 6 March 2017 Cancelled – non commencement of studies Bachelor of Business (Accounting) 26 June 2017 Cancelled - student transferred to another provider Master of Business Administration 9 July 2018 Cancelled – non commencement of studies Diploma of Leadership and Management 16 August 2021 Studying
On 30 September 2021, the applicant appeared before the Tribunal by telephone to give evidence and present arguments in his case.
On 5 October 2021, the Tribunal published its Decision to affirm the Delegate’s Decision not to grant the applicant a student visa on the basis that he did not satisfy the genuine temporary entrant criterion.
The Minister’s written submissions conveniently summarised the Tribunal’s findings, which I adopt:
14. The Tribunal reached its decision because:
(a)it was not satisfied that the applicant intended genuinely to stay in Australia temporarily (at [42]), as:
(i)it found the Applicant had not been a student who had progressed satisfactorily academically during his time in Australia and weighed that fact against him (at [24]);
(ii)it found the Applicant did have an incentive to remain in Australia, being his close family ties in Australia (at [28]);
(iii)it placed significant weight on the Applicant's familial ties against him (at [26] - [29]);
(iv)it was not satisfied considering the Applicant's visa history and the time he had lived in Australia that he considers living in Australia to be temporary (at [30]);
(v)it found the Applicant had not provided sufficient evidence about his prospects of employment in his home country and weighed that against his case (at [34]);
(vi)it found the Applicant's testimony to be fluid, vague and unconvincing (at [37]);
(vii)it considered the Applicant's present study to be at a lower level of education than what he previously sought to achieve (at [37]);
(viii)it considered the planned courses of study reflected the Applicant's aspirations of a career in Australia rather than outside of Australia (at [38]);
(ix) it was concerned that the Applicant proposed to use the Student Visa program to maintain ongoing residence in Australia (at [39]).
(b) [F]or the above reasons
(i)it found the Applicant did not meet clause 500.212(a) of the Regulations (at [42]);
(ii)it was not satisfied the Applicant was a genuine applicant for entry and stay as a student as required by clause 500.212 of the Regulations (at [43]).
On 22 October 2021, the applicant filed an application for judicial review in this Court alleging two Grounds, which I will consider in turn.
CONSIDERATION
Ground One
Ground One reads as follows:
1. The Tribunal decision was affected by erred of law, procedural fairness, and jurisdictional error in relation to exercise its discretion under the Migration Act in relation to grant of a student visa sub class 500 visa.
Particulars:
Discretion has the meaning of acting on one1s own authority and judgement. In law, discretion as to legal rulings, such as whether evidence is excluded, may be exercised by a judge or tribunal member at all levels of law enforcement, which was denied in this matter. The tribunal failed to consider student visa application and failed to provide an opportunity to continue studies herein Australia, even all criteria of the grant of sub class 500 met by the applicant and therefore denied natural justice to consider student visa.
Submissions
I have understood Ground One to express the contentions that the Tribunal failed to provide procedural fairness to the applicant, and that the Tribunal failed to consider the visa application.
As to why there was a denial of procedural fairness, the applicant submitted that it did not give him the opportunity to continue his studies. The applicant submitted that he had completed a Doctor of Veterinary Medicine and a Diploma of Accounting and then been admitted into a Bachelor of Accounting. The applicant also referred to a “boost” to his career through study, and that “If they granted the study visa, it would have been good for me, and I would have continued.”
As to why the Tribunal failed to consider his application, the applicant referred to having done half of his bachelor’s course and that he wanted to return to his subjects in Leadership and Management.
The Minister relied on his written submissions which stated:
16.By this ground, the Applicant alleges the Tribunal did not afford him procedural fairness.
17.However, after considering the particulars to the ground, including:
'The tribunal failed …to provide an opportunity to continue studies herein Australia, even all criterial of the grant of sub class 500 met by the applicant and therefore denied natural justice to consider student visa'
it appears the Applicant is expressing dissatisfaction or disagreement with the Tribunal's findings, and the consequences of that decision. That may be an attempt to engage the Court into impermissible merits review. Importantly, the Applicant is not taking issue with the natural justice obligations of the Tribunal.
18.In any event, the Applicant does not particularise any alleged breach of any provision within the former Division 5 of Part 5 of the Migration Act 1958 (Cth) (Act) nor does he provide any evidence in support of this ground. Section 357A of the Act had the effect that the relevant provisions of Division 5 of Part 5 were an exhaustive statement of the natural justice hearing rule.
19.The Applicant was invited to provide information in support of his application pursuant to s 359 of the Act. The Applicant availed himself of that opportunity. The Applicant was invited to appear before the Tribunal in accordance with ss 360 and 360A of the Act. The Applicant availed himself of the opportunity to appear before the Tribunal to give evidence and present arguments in support of his application. The Tribunal relied on evidence that the Applicant gave during the Tribunal hearing in making its decision and therefore did not breach s 359A by failing to put to the Applicant information that might be a reason, or part of the reason for making the decision.
20.The Tribunal did not breach its procedural fairness obligations and otherwise had complied with them.
Discussion
Having regard to the applicant’s oral submissions, the substance of Ground One is that, because of the Decision, he could not complete his studies. This is a statement of the effect of the Decision, not an identification of legal error. Whether the continuation of his study would have benefitted the applicant invites an impermissible review of the merits of the application.
Nevertheless, I turn to the Tribunal’s procedure. The evidence demonstrates that the applicant was invited to provide information in support of his application relating, inter alia to the dispositive issue of whether he satisfied the genuine temporary entrant criterion. The applicant availed himself of this opportunity. The applicant had been provided with a copy of the Direction which identified the relevant considerations of the dispositive issue.
The applicant was invited to attend a hearing to give evidence and present arguments. Again, the applicant availed himself of this opportunity. He also provided written statements from himself and family members in support of his case. The applicant denied that there was any issue that may affect his ability or that of another person participating, to take part in the hearing; nor did he believe that he or another person participating in the hearing would experience difficulty participating by telephone or videoconference.
The applicant was asked by the Tribunal if he required an interpreter. Although the applicant answered in the affirmative in his Response to hearing information, he left the language blank. The hearing occurred without an interpreter which was reasonable where no language was nominated and the applicant was assisted by his representative, who could have made the appropriate application if required.
Although no issue was raised in the judicial review proceedings about this, mindful of my duty to a self-represented litigant, there was a passage of the evidence which suggested that there may have been issue about the correct email contact address for the applicant’s representative. I refer to paragraphs 15 to 18, 20 and 21 of these Reasons in that regard. However, any concern that the applicant may not have received information about the Tribunal process due to the wrong email address is alleviated given:
(a)the applicant provided the Request for Information in response to the Tribunal’s email dated 30 July 2021 which was sent to the “myfirstchoice” email address; and
(b)the representative emailed the Tribunal on 7 September 2021 from the “myfirstchoice” email address.
Having regard to the matters addressed at paragraphs 36 to 39 of these Reasons, I find that the applicant was afforded procedural fairness.
I now turn to whether the Tribunal considered the visa application. It is well established that “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant statutory criteria: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at [11] per Gummow J. Consideration of a claim requires engagement in an active intellectual process: Carrascalao v Minister for Immigration andBorder Protection (2017) 252 FCR 352 at (45], per Griffiths, White and Bromwich JJ.The extent and nature of this requirement was explained by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24]-[27].
The Tribunal did not need to formulaically traverse every piece of evidence: Kumar v Minister for Immigration and Border Protection [2020] 274 FCR 646 at [106] per Logan, Derrington and Thawley JJ, and a factor may be so insignificant that a failure to take it into account could not materially affect the outcome: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [15] per Mason CJ. The Direction is only a guide and not a checklist.
The applicant did not take me to any part of the Decision which was said to demonstrate a failure to consider a claim or any aspect of the evidence or submissions that were made by him. I firstly note that, the absence of a transcript, the Tribunal’s record is ordinarily accepted to be the best record of what occurred: SZVUP v Minister for Immigration & Border Protection & Anor [2015] FCCA 1287 at [13], [14] citing Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (20024) 221 CLR 1.
It is apparent that paragraphs 15, 16, and 18 to 23 of the Decision set out the applicant’s written and oral evidence concerning his study history and future plans. This engaged clause 12 of the Direction. In particular, paragraph 15 demonstrates that the Tribunal had regard to written forms of evidence and inconsistencies within the applicant’s evidence over time.
Paragraphs 26 to 28 of the Decision concern the applicant’s ties to his home country and to Australia and the incentive that such ties provide to the applicant to remain in Australia. It was uncontroversial that the applicant had been in Australia for ten years at the time of the Tribunal’s Decision, that his parents and siblings were outside Australia but there was an uncle and cousins in Australia, and that he was not married. These matters engaged clauses 9 and 10 of the Direction. Against the background of this evidence, I am satisfied that the findings at paragraphs 29 and 30 of the Decision as to the applicant’s circumstances were open to the Tribunal.
Paragraphs 31 and 32 of the Decision traverses the evidence concerning the applicant’s reasons for choosing his education provider and the availability of similar courses in Bangladesh. These matters engage clauses 9(a) and 11(e) of the Direction. Paragraphs 31 and 32 of the Decision read as follows:
31. The Tribunal has concerns regarding the evidence of the applicant as to why he has chosen the education provider as it is generalised and vague as he states in his written evidence as follows:” Australian Harbor International College is one of the largest most diversified and highly respected VET provider in Sydney when I enrolled for my courses. The facilities offered by the college is exceptional. Their class size is comparatively small, equipment is new and modern. Teachers are very friendly and caring to their students as they are also migrated to Australia in the past. As classes are small, thus teachers can pay close attention to the students who need their help the most. As I came from different background therefore, I was in need to have such a classroom environment where I can get help immediately when I needed and AHIC offering exactly the service what I was looking for. Their curriculum is modern and a AQF standard. Thus, I will learn the most and will have hands on experience also international value of my degree after I completed from AHIC. Furthermore, AHIC is in the heart of Sydney CBD and close to public transport so it is easy to commute. This College also provides weekly support tutorials for each course also welfare counselling, so I choose AHIC for my current courses.”
32. The evidence supplied as to whether there are similar courses in Bangladesh is confusing as the applicant states as follows:” Australian education is highly valued internationally and I have been studying in Australia I got used to with Australian education systems. Moreover, I am learning almost same knowledge what a student will learn in Bangladesh after completion their Bachelor. By studying in Australia, I am learning and experiencing the implementation of the modern business sector in this country which is impossible in Bangladesh and it is not as advanced as Australia. I wanted to learn as much as possible in a short period of time, so I decided to study in Australia rather than in Bangladesh”
I am satisfied that the Tribunal’s description that the evidence at paragraph 32 was “difficult to follow” was open to it, having regard to its internal inconsistency as to the desire to learn as much as possible “in a short space of time” while being the holder of a student visa for ten years and a proposal to continue studying for a further two years.
The matters raised at paragraph 34 of the Decision relate to the weight that the Tribunal attributed to evidence, that being a matter for the Tribunal: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ.
As to paragraph 35 of the Decision, it was the applicant’s written evidence that he could “easily earn around TK250000 equivalent to AUD5000 per month at the beginning”. This matter engaged clause 12(c) of the Direction. Absent any evidentiary foundation for this bare assertion, it was open to the Tribunal to not accept it as accurate.
I am satisfied that the analysis and findings expressed by the Tribunal at paragraphs 37 to 39 of its Decision were open to it. The evidence demonstrated that the applicant had been in Australia for ten years without returning to his home country and had regressed in his studies over time. Further, his evidence was found be inconsistent, vague or insufficient on issues such as the value of the studies to his future plans, his prospects of employment in his home country, his reasons for studying in Australia rather than his home country, and his future remuneration.
When read fairly and as a whole: Plaintiff M64-2015 v Minister for Border Protection (2015) 258 CLR 173 at [59]-[60], I am satisfied that the Tribunal’s conclusion that the applicant did not satisfy the genuine temporary entrant criterion was rational, reasonable, and intelligible. I am further satisfied that the ultimate findings at paragraphs 42 to 44 of the Decision were also open on the evidence and rational, reasonable and intelligible.
Having regard to the matters addressed at paragraphs 41 to 51 of these Reasons, I find that the Tribunal considered the applicant’s application.
Ground One fails.
Ground Two
Ground Two reads as follows:
2. The Tribunal made erred law and [1] denial of natural justice [by] not to consider applicants student visa and [2] apprehended bias by the delegates decision not to grant student visa because of the applicant's long terms staying in Australia under the student visa. [3] The tribunal failed to provide proper explanations rather raising leading questions at oral hearing and [4] not included such questions and answers in her decision records. [5] It was in the members mind that the applicant is in Australia more than 10 years, and it was no included/mentioned in the decision records along with other oral evidence in the decision records.
Particulars:
[6] The Tribunal failed to exercise its power, [M]inisterial [D]irection No: 69 and Directions under section 499 to consider genuine intention of the applicant to stay and study in Australia under the sub class 500 visa.
(Square bracketed numbers [1] to [6] added for ease of reference)
Submissions
I asked the applicant to make submissions on each of the six aspects of Ground Two (including the particular), namely:
(a)That there was a denial of natural justice by not considering the visa application (first aspect).
(b)That there was an apprehension of bias (second aspect).
(c)That the tribunal “failed to provide proper explanations rather raising leading questions” (third aspect).
(d)That the tribunal did not include questions and answers in the record of the Decision (fourth aspect).
(e)It was in the member’s mind that the applicant had been in Australia for more than ten years, but this was not included in the record of the Decision (fifth aspect).
(f)The Tribunal did not apply the Direction (sixth aspect).
As to the first, fourth, fifth and sixth aspects of Ground Two, the applicant made no submissions. As to the second aspect the applicant said that he felt that there was bias because he had been in Australia for a long time and his visa was not granted. As to the third aspect, the applicant submitted that the Decision was erroneous because his friends were granted a visa, but he was not.
The Minister relied on his written submissions as follows:
21.By this ground, the Applicant alleges that the Tribunal (again) denied him procedural fairness, that the Tribunal decision was affected by apprehended bias and that the Tribunal failed to provide proper explanations at the hearing (which was not included in the decision record).
22.In support of the ground, the Applicant particularises that the errors occurred because the Tribunal failed to consider Ministerial Direction No. 69 in assessing whether the Applicant had a genuine intention to stay and study in Australia.
23.First, to the extent that the Applicant is alleging a breach of procedural fairness obligations, the First Respondent refers to ground one above.
24.Second, in respect of apprehended bias, the question is whether a fair minded lay-observer might infer from the Tribunal's conduct of the review that the Tribunal might be predisposed against the applicant and not open to persuasion: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]; Charara v Commissioner of Taxation [2016] FCA 451 at [112].
25.In that regard, on a fair reading of the Tribunal's reasons for decision, there is no basis to suggest it may have been predisposed against the Applicant and not open to persuasion. Accordingly, any allegation of apprehended bias does not arise on the face of the Tribunal's reasons for decision.
26.Third, it is not apparent what error is involved in the allegation that the Tribunal 'failed to provide proper explanations' at the hearing and did not include such matters in its decision record. That allegation is difficult to address (considering the Tribunal is under no obligation to include all matters discussed at hearing in its decision). In any event, the Applicant has neither properly articulated nor established any error on the Tribunal.
27.Fourth, contrary to the position of the Applicant, the Tribunal did consider Ministerial Direction No. 69 in reaching its decision (at [12] - [13]). It made specific findings regarding the factors referred to in the Direction throughout its decision at [14] - [41].
28.Finally, any failure of the Tribunal to consider Ministerial Direction No. 69 (which is not conceded) does not support the allegations of error in the ground (ie procedural fairness, bias and failure to provide explanations at hearing and in its decision).
Discussion
As to the first aspect as to whether the Tribunal failed to consider the visa application, and the sixth aspect concerning whether the Tribunal applied the Direction, I reiterate paragraphs 41 to 52 of these Reasons.
As to the second aspect, I accept the Minister’s submissions at paragraphs 24 and 25 of his submissions as a correct statement of legal principle. I have read the whole of the Decision and all the documents in the Court Book and cannot locate any basis for a finding of apprehended bias on the part of the Tribunal.
In light of the applicant’s oral submissions that the Decision was erroneous because his friends were granted a visa and he was not, it is apparent that the third aspect seeks an impermissible merits review.
As to the fourth aspect, the transcript of the hearing does not form part of the Decision record. Also, there was no requirement for the Tribunal to formulaically traverse every piece of evidence: Kumar v Minister for Immigration and Border Protection [2020] 274 FCR 646 at [106] per Logan, Derrington and Thawley JJ.
As to the fifth aspect, and contrary to the applicant’s assertion, the Tribunal referred to the applicant being in Australia for ten years at paragraphs 23, 33 and 37 of the Decision.
Ground Two fails.
FINAL DISPOSITION
For the reasons given, no jurisdictional error has been demonstrated. The application filed on 22 October 2021 must be dismissed.
COSTS
At the conclusion of the hearing of the substantive application, I invited prospective submissions as to costs subject to the outcome of the application.
In the event the application was dismissed, the Minister sought his costs fixed in the sum of $5,600. His legal representative submitted that costs follow the event and, if the Minister is wholly successful, the ordinary principle should apply, that the costs sought are reasonable in that they are below the scale of costs for such matters, and the sum reflects the work undertaken. The applicant asked whether the sum could be discounted but otherwise made no submissions.
Costs are discretionary. The Minister has been wholly successful and has been put to cost. The sum sought by him is reasonable both in terms of it being below the scale sum for final hearing matters and as it reflects the work undertaken. I note that the Minister filed a response and written submissions, prepared the Court Book and appeared at the final hearing and other case management listings.
I am satisfied that costs of and incidental to the proceedings should be awarded in favour of the Minister fixed in the sum of $5,600.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 1 September 2025
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