Khan v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1091
•15 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1091
File number(s): SYG 3028 of 2020 Judgment of: JUDGE ELDERSHAW Date of judgment: 15 July 2025 Catchwords: MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of the Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges procedural unfairness as a consequence of the reconstitution of the Tribunal – Where s 19A of the Administrative Appeals Tribunal Act 1975 (Cth) enables the Tribunal to be reconstituted – Where the applicant alleges that without a written transcript of the first Tribunal hearing the reconstituted Tribunal Member could not make findings about the applicant’s credibility – Where the applicant alleges “apparent” bias on the part of the Tribunal Member – Where bias on behalf of the Tribunal Member was not made out – Where the applicant was found not to be a genuine temporary entrant – Where the applicant alleges that the Member did not give proper consideration to documentary evidence – Where the applicant did not avail himself of opportunities to provide further documentary evidence to the Tribunal – Application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 19A, 19D
Migration Act1958 (Cth), ss 375A, 474, 476
Migration Regulations 1994 (Cth), sch 2 cl 500
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
CHT15 v Minister for Immigration and Border Protection [2016] FCCA 2030
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Frugtneit v Tax Practitioners’ Board (2018) 74 AAR 279
Frugtniet v Tax Practitioners’ Board [2019] FCAFC 193
Kaur v Minister for Home Affairs [2019] FCA 2026
Kioa & West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Minister for Immigration v Jia (2001) 205 CLR 507; [2001] HCA 17
Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [20065] HCA 63
SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1
SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223; [2012] FCAFC 45
Division: General Number of paragraphs: 132 Date of hearing: 11 March 2025 and 6 June 2025 Place: Sydney Counsel for the Applicant: Mr N. Cearney Solicitor for the Applicant: BNS Lawyers Solicitor for the First Respondent: Ms S. Lloyd (MinterEllison) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3028 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HASAN MAHMUD KHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
15 JULY 2025
THE COURT ORDERS THAT:
1.The Amended Application filed on 4 April 2025 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 ELDERSHAW
INTRODUCTION
By his Amended Application filed on 4 April 2025, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 2 December 2020 (Decision) concerning his application for a Student (Temporary) (Class TU) visa (Student Visa).
The applicant seeks an order 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 Amended Application filed on 4 April 2025, his affidavits filed on 30 December 2020 and 4 April 2025 (notwithstanding paragraph 4 which describes the affidavit as being filed in support of an interlocutory application), his written submissions filed on 4 April 2025, and his list of authorities filed on 30 May 2025.
The Minister relies on his Response filed on 25 January 2021, written submissions filed on 16 May 2025, a list of authorities filed on 30 May 2025, and his Court Book filed on 24 March 2020 (marked Exhibit R1). References in these Reasons 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. It relevantly provides:
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 cl. 500.212(a), i.e. that he “intends genuinely to stay in Australia temporarily”, the Tribunal is to apply Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications” (Direction). The Direction addresses various factors which guide the decision-making process relating to the genuine temporary entrant requirement.
Section 375A of the Act sets out an exhaustive statement of the natural justice hearing rule as follows:
357A Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
The phrase “natural justice hearing rule” is not defined by the Act. The High Court in Kioa & West (1985) 159 CLR 550 at 582 per Mason J and at 628-629 per Brennan J identified that natural justice usually requires that a person, whose interests are affected by a decision, is given an opportunity to comment or respond to material that is adverse to those interests. Furthermore, the decision maker needs to bring the substance of adverse information, which may bear upon the decision, to the applicant’s attention: Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319 at [91].
Section 19A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), as applied at the Tribunal at the time of the Decision provides:
19A President’s directions—constitution
(1) The President may give written directions in relation to:
(a) the members who are to constitute the Tribunal for the purposes of a proceeding; and
(b) if there is more than one such member—the member who is to preside.
(2) Paragraph (1)(b) does not apply to a proceeding in the Security Division.
Section 19D of the AAT Act deals with the reconstitution of the Tribunal and provides:
19D Reconstitution
Before hearing commences
(1) At any time before the hearing of a proceeding commences, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction.
After hearing commences
(2) At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction, if:
(a) the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:
(i) stops being a member; or
(ii) is for any reason unavailable; or
(iii) is directed by the President not to take part in the proceeding; or
(b) the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding.
(3) Subsection (2) does not apply in relation to a proceeding in the Security Division.
(4) The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
There is no issue that the President of the Tribunal had the power to reconstitute the Tribunal with Member Cullen as in this case.
BACKGROUND AND MIGRATION HISTORY
The applicant was born on 9 September 1987 in Bangladesh. His family resides in Bangladesh. At the time of the application to the Delegate, the applicant was married.
On 31 April 2009, the applicant completed a bachelor’s degree in electrical engineering from an institution in Bangladesh. On 23 July 2010, the applicant first arrived in Australia on a student visa.
Applicant’s Study History
According to the Provider Registration and International Student Management System (PRISM), the applicant had been enrolled as follows:
Course Commenced Concluded Status Graduate Diploma of Information Systems Management 5 July 2010 4 July 2011 Cancelled Master of Engineering Studies 14 February 2011 31 December 2011 Finished Graduate Diploma of Management 27 February 2012 27 February 2013 Cancelled Graduate Diploma of Management 27 February 2012 31 July 2012 Finished Graduate Diploma of Management 1 August 2012 12 October 2012 Finished Diploma of Software Development 21 January 2013 17 January 2014 Finished Advanced Diploma of Leadership and Management 6 September 2017 20 March 2019 Finished[1] Advanced Diploma of Management (Human Resources) 27 May 2019 24 May 2020 Finished Diploma of Project Management 13 July 2020 20 June 2021 Studying at time of Decision [1] The PRISMS record indicates that the applicant completed an Advanced Diploma of Leadership and Management in March 2019 however there were various changes to the course provider during the period of study.
Visits to Bangladesh
The applicant returned to Bangladesh about eight times between July 2015 and December 2017 for the purpose of visiting his family. The duration of each of these trips ranged from about two weeks to about a month.
Application to Department
On 26 July 2017, the applicant applied to the Department of Home Affairs (Department) for a Student Visa. This application was refused by the Delegate on 31 August 2017 on the basis that the Delegate was not satisfied that the applicant was a genuine temporary entrant.
Application to Tribunal
On 18 September 2017, the applicant applied to the Tribunal for a review of the Delegate’s decision.
On 2 April 2019, the Tribunal wrote to the applicant inviting him to provide further information by 16 April 2019. The letter identified that it was a requirement of a student visa that the applicant be enrolled in a course of study and be a genuine applicant for entry and stay as a student. The Tribunal further stated:
In considering whether an applicant is a genuine applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No. 69 ‘Assessing genuine temporary entrant criteria for Student visa and Student guardian visa applications.’ A copy of this is attached for your reference.
On 16 April 2019, the applicant requested an extension of time to provide the information sought by the 2 April 2019 letter, which was granted.
Request for Student Visa Information
On 26 April 2019, the applicant lodged a Request for Student Visa Information (Request for Information).
As to why the applicant had chosen the education provider for the courses he was then studying, the applicant said in the Request for Information:
The applicant want to enhance his skills in the Management so that he could get better prospects of ether get suitable employment or start his own business. The course was intended to improve the prospect of employability and it is in line with this previous study.
(Emphasis added)
As to why the applicant was not undertaking the then course of study in Bangladesh, the applicant said in the Request for Information:
Australia is known for its quality education and method of teaching the courses , The reason for study in Australia is not simply because the similar course available in the home country, It is about the practical experience, skill and knowledge gained while completing the study. The reason for choosing the study in Australia to get the International qualification , knowledge and skills to get better employment in the home country.
In the Request for Information, the applicant stated that his parents and sister resided in Bangladesh and that he last saw each of them in December 2016 but maintains contact with them twice a week. He responded “N/A” to the question regarding community ties in Bangladesh and left the question about community ties in Australia blank. As to his assets, the applicant identified a garment factory with an asserted value of AUD$500,000, family residence with an asserted value of AUD$500,000 and a vehicle with an asserted value of AUD$30,000.
As to his future plans, the applicant said in the Request for Information:
The applicant has completed his Engineering Degree and now want to get knowledge and experience in the area of Management. The applicant is from Bangladesh and the economy in Bangladesh is now emerging in the area of Engineering, with the knowledge of the overseas qualification the applicant will significantly improve his chances to get a top position either in the Management. In addition, the applicant is belong to the family who operates the business, this qualification will also help to expand the existing business in Bangladesh.
(Emphasis added)
In relation to the details of remuneration that he expected to receive in his home country or a third country using the qualifications he would gain from the then-current and/or proposed course of study, the applicant wrote:
In the current market, with the Australian qualifications the applicant expect to get a high salary in excess of about 70,000.00 which quite reasonable to achieve.
The applicant denied any military service commitments or political or civil unrest in his home country and answered “No” in response to the question of whether he wished to provide any additional documents to the Tribunal.
First Hearing
On 15 May 2019, the Tribunal invited the applicant to attend a hearing (First Hearing Invitation). The First Hearing Invitation requested that the applicant provide “all documents you intend to rely on to establish that you meet the criteria for the visa.” The Tribunal also stated:
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
3. We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached. Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
In determining whether you are a genuine applicant for entry and stay as a student, we may also have regard to cl.500.212(b) of Schedule 2 to the Regulations. This clause requires that you intend to comply with any conditions subject to which the visa is granted, having regard to your record of compliance with any previous visa conditions and your stated intention to comply with any conditions to which the visa may be subject. Please be prepared to answer any questions the Tribunal may have on this issue and provide any supporting information or documents you may wish to provide to the Tribunal.
On 5 June 2019, the applicant attended an in-person hearing with his representative (First Hearing) before Member Young at which time the applicant gave evidence and presented arguments. The transcript of the proceeding before Member Young is Annexure A to the applicant’s affidavit filed on 4 April 2025. Without derogation from the totality of the transcript, I note the following:
(a)Member Young raised with the applicant that the course for which the visa application applied had already concluded, such that the purpose of the visa had already been fulfilled. The applicant stated that he wanted to study more (at page 3);
(b)when asked what his study plans were, the applicant said that he owned a factory in Bangladesh, which was a family business for which he needs skills in management (at page 4);
(c)when asked what further study the applicant intended to do, apart from the human resources course in which he was then enrolled, the applicant said that after he finishes the current course, he would decide if he wanted to study more or not (at page 9);
(d)the applicant told Member Young that he was working as a self-employed consultant but previously worked in the marketing of solar panels (at page 18);
(e)Member Young asked the applicant why, after completing Bachelor and Masters level courses, he regressed to vocational study in administration, to which the applicant said:
Because my level, I’m not very good on these courses. Like, if it is engineering, I know everything. I have completed four case subjects in my bachelor’s in Engineering. If you give me any master’s course in engineering, I can do it easy, but when it comes to business administration, I am a baby.
(f)Member Young asked the applicant if there was a succession plan relating to the family business. The applicant said he would take over the factory “maybe in a year, maybe in six months” depending on the situation and “it should have to be in by one year” … “Because my dad was getting old, you know” … “I have to take some responsibility” (at pages 29 to 30);
(g)Member Young asked the applicant about the elective units in the course in in which he was currently enrolled. The applicant said of the elective units “I still haven’t looked at them. I just came over here. I don’t have the full brochure yet.” When asked “If you haven’t looked at them, if you don’t know what the content is, how do you know the course that you’re having?” the applicant responded: “The Human Resources course in different sites, like what they will teach, all the colleges will teach the same thing.” When further pressed with the question: “What I’m asking is if you don’t know what the content of the course is, how do you know it will meet what it is you want it to meet? How do you know it will meet your expectations or your requirements?”, the applicant said “I’m searching online, but what Human Resources want. But what I knew, I told you, this one, that’s why, to handle all the sections, that’s why I enrolled in this course.” (at page 33);
(h)Member Young identified that being in Australia for ten years on a series of temporary visas was a concern and that the history of visas may indicate that the applicant was maintaining his stay in Australia. The applicant refuted this on the basis that, if he wanted to achieve permanent residency, he could do that by engaging in a professional year as an electrical engineer (at page 16); and
(i)the applicant described his family’s garment making business in Bangladesh and described his father’s role in the business. The applicant did not make any mention of his uncle.
At the close of the hearing, Member Young directed the applicant to provide “information/comments/response” by 19 June 2019. This was to afford the applicant an opportunity to overcome some deficiencies in his evidence as to the genuine temporary entrant requirement.
On 18 June 2019, the applicant submitted the documents to the Tribunal, namely:
(a)an affidavit from his father, Mr Delowar Khan dated 17 June 2019;
(b)bundle of medical documents relating to the applicant’s mother;
(c)Bangladeshi Taxpayer’s Identification Number Certificate for Icon Fashion Limited dated 15 May 2014;
(d)Bangladeshi Export Promotion Bureau Certificate for Icon Fashion Limited dated 7 February 2017;
(e)Bangladeshi Certificate of Incorporation dated 11 May 2014;
(f)Bangladeshi Import Registration Certificate;
(g)list of shareholders of Icon Fashion Limited dated 31 May 2015 identifying the applicant as holding a shareholder;
(h)letter from Icon Fashion Limited dated 17 June 2019 stating that the applicant is a director of the business, that the applicant went to Bangladesh several times to look after the business and factory production several times in 2014 and 2015 when it was being set up, and that the applicant will take care of the business in the future; and
(i)Advanced Diploma of Leadership and Management Certificate dated 14 June 2019 with a record of results.
The applicant submitted to the Tribunal a Certificate of Net Wealth of Icon Fashion Limited as at 31 May 2019 dated 29 June 2019.
Reconstitution of Tribunal
On 29 July 2020, the Tribunal wrote to the applicant advising him that Member Young was no longer available to review his application and that Member Cullen would finish the review. The letter included the statement:
All documents and other material that were previously considered by Member Young have been given to Member Cullen. This material includes the Department of Home Affairs file; recordings of any hearings with us; and any submissions or other evidence provided to us. We will write to you if Member Cullen requires any further information.
Second Invitation to Attend a Hearing
On 15 September 2020, the Tribunal wrote to the applicant inviting him to attend a hearing on 29 October 2020 before Member Cullen to give evidence and present arguments (Second Invitation). The Second Invitation identified that the hearing would be conducted by telephone and included the same information as to the provision of evidence of current enrolment and the need to satisfy the Tribunal of the genuine temporary entrant requirement.
On 27 October 2020, the applicant’s representative emailed the Tribunal attaching a Confirmation of Enrolment for the Diploma of Project Management and an enrolment letter. The applicant also provided a completed “Response to hearing invitation – MR Division”, in which the applicant identified himself and his representative as those who would take part in the hearing, stated the mobile telephone number and email address of each participant and stated he did not require an interpreter and answered “no” to the question “Is there any issue that may affect your ability, or that of any other person participating, to take part in the hearing (e.g. a health problem or disability)?”.
On 28 October 2020, the applicant’s representative emailed the Tribunal attaching a copy of the applicant’s Advanced Diploma of Management (Human Resources) and student transcript.
Resumed Hearing on 29 October 2020
On 29 October 2020, the hearing before Tribunal Member Cullen was conducted at which time the applicant gave evidence and presented arguments by telephone. The transcript of the 29 October 2020 hearing is Annexure B to the applicant’s affidavit dated 4 April 2025. Without derogation from the totality of the transcript, I note:
(a)Member Cullen asked the applicant whether he was studying to just stay in Australia or for some future career aim or value to his future. The applicant responded “Yeah, it is value to my future. As I told, like I have to manage people when I go back to overseas. Like, there are 200 people working in my factory and I have to handle this. There are different sections of the accounting section, human resources section and everything” (transcript page 2);
(b)Member Cullen ascertained that the applicant was a 40 per cent shareholder in the factory and asked who owned the other 60 per cent share, to which the applicant stated, “My uncle”. In response to “And it is just your uncle as the family member involved?”, the applicant said “Yes” (transcript page 2);
(c)the applicant said that his uncle is the Managing Director of the factory and his father works in the accounting section but he is retired and sometimes helps as a consultant (transcript page 3);
(d)Member Cullen raised with the applicant that, at the first hearing, the applicant’s evidence was that his father was involved in the factory, not the uncle and that he never mentioned the uncle. The applicant said “I think I have mentioned and if I have not mentioned, then maybe I missed it. But my father is retired because of my mother’s health condition …” (transcript page 5). Member Cullen asked “But your father was only a consultant. Your uncle was there”, to which the applicant said “My uncle was there, Member. My uncle has been always there, okay…” (transcript page 6);
(e)Member Cullen identified that the duration of the applicant’s stay in Australia of 11 years raised the question of whether he is a temporary entrant. The applicant responded:
Member, what happened, I got married, then my mum got sick. I went to Bangladesh to establish the factory. I was having difficult times. And then in 2017, like, I could not – I previously – if you see my record, like when I first came for two years’ student visa, I had completed, after that I got married. After getting married, I went to Bangladesh because my mum was sick. Then I thought I will do the [inaudible]. I went a couple of times over there and established the factory. Then I came back again and I was having some issues, so I decided, okay, let’s learn something for the future. Because I could not from – after I got married, I could not do what, like, if I wanted to study something or I wanted to buy a car, I could not do on that time.”
(f)Member Cullen asked: “Why couldn’t you study while you were married?” to which the applicant responded: “I could not because I was just busy with the washing and other stuff. I could not” (transcript page 8).
The Tribunal’s decision and its reasons
On 3 December 2020, the Tribunal affirmed the Delegate’s decision not to grant a Student Visa to the applicant. The Tribunal’s decision to affirm the Delegate’s decision and its reasons for doing so were summarised in the Minister’s written submissions which I adopt:
19. The Tribunal set out the background to the application, including the applicant's migration and study history, documentary evidence and evidence given at the first hearing.
20. The Tribunal summarised the applicant's oral evidence at the second hearing.
21. In respect of the matters listed in Direction 69, the Tribunal made the following findings:
(a) Circumstances in home country: The Tribunal was satisfied that there was no evidence to suggest that any military commitment, civil unrest or the applicant's economic situation in Bangladesh would present as a significant motive not to return (CB 222, [46]). It accepted the applicant's claims as to his family living in Bangladesh, his mother's illness and his 40% ownership of a factory there (CB 222, [46]). It also accepted that while the applicant was still married in Australia, he was no longer in that relationship (CB 222, [46]). It accepted that the applicant's circumstances in Bangladesh were indicative of a person who is a temporary entrant and that they indicated that the applicant had a significant incentive to return to Bangladesh.
(b)Potential circumstances in Australia: The Tribunal accepted that the applicant had been consistently enrolled and had been completing courses while in Australia. The Tribunal viewed the applicant's extended length of stay in Australia as indicative of a person who did not wish to stay in Australia temporarily, noting its acceptance that part of that time was spent in a marital relationship on a temporary spouse visa and that it did not accept that his short visits to Bangladesh undermined this concern.
(c) Value of the course to the applicant's future: The Tribunal viewed as concerning the vocational courses studied by the applicant being at a lower level to that already achieved by the applicant in Australia and Bangladesh. It found the evidence for the reason of the applicant's study given in the applicant's response to the s 359 letter to be inconsistent with his oral evidence at the second hearing. It found further inconsistencies between his oral evidence at the first and second hearings as to the running of the factory in Bangladesh and his employment over the previous four years. The Tribunal found that the applicant was not studying for the reason he claimed and viewed this inconsistent evidence as undermining his claim to be a genuine student and added to the finding that he was using the student visa programme to maintain ongoing residence. This was reinforced by the applicant having completed a higher degree management course in 2012, which would be sufficient if the applicant was studying for the claimed reason. The Tribunal noted that it had considered the applicant's father's and Emrat Khan's affidavits as to the applicant's past and future role in the family business, but they did not overcome the Tribunal's concerns.
(d) Immigration history: The Tribunal found that, apart from the length of the applicant's stay in Australia and marriage which had concluded, nothing in the applicant's immigration record indicated that he did not genuinely intend to stay in Australia temporarily.
22. On the basis of its findings overall, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that the student program was only being used to maintain ongoing residence. Accordingly, the Tribunal was not satisfied that the applicant intended to genuinely stay in Australia temporarily and as such did not meet cl 500.212(a) of Schedule 2 of the Regulations.
(References omitted)
THE PROCEEDING IN THIS COURT
On 29 December 2020, the applicant filed an application for judicial review in this Court. On 26 February 2025, the applicant was granted leave to amend his application.
CONTENTIONS
Both parties filed written submissions on which they relied at the final hearing, supplemented by oral submissions.
Applicant’s Oral Submissions
Counsel for the applicant submitted that the change in constitution of the Tribunal from one member to another about sixteen months apart, and the fact that one part of the hearing was in person whereas the second part was by telephone was “not a change of jockey but a change of horse”. Counsel submitted that SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 highlights the importance of procedural fairness especially when adverse credibility findings are made.
Counsel for the applicant submitted that, at the second hearing, “all of a sudden we see close questioning on matters that effect credibility” over twenty minutes for which it was necessary to see and hear the witness, which was procedurally unfair. Counsel identified that a copy of the transcript of the first hearing was not available although Member Cullen had listened to the audio of the first hearing. Counsel for the applicant submitted that, without a written transcript, it was “nigh on impossible to determine issues of credibility”.
When asked about the concession made by the applicant’s representative to Member Cullen that the Tribunal needed to consider the genuine temporary entrant requirement at the time of the determination, as to warrant questions about that issue in the second hearing, and the representative‘s request that Member Cullen determine the application on the basis of all the material before the Tribunal including that which was before Member Young, counsel for the applicant referred to the competence (or lack of) of the applicant’s representative at the hearing.
Counsel for the applicant submitted that Member Cullen did not believe the applicant “in totality”. He further submitted that the applicant said that he needed skills to take back to his family business in Bangladesh. As I understood the submission, counsel was asserting that while there is an aspect of this submission that invites a merits review of the application, the fact that the applicant’s evidence was not accepted introduces a credibility issue, which raises an issue of procedural fairness having regard to the manner in which the Tribunal was constituted. Counsel for the applicant submitted that the credibility assessment made by Member Young was incomplete, and Member Cullen could not conclude that assessment independently without having heard the evidence herself or by reading a transcript.
When asked why the applicant needed to consent to the reconstitution of the Tribunal in circumstances where s 19D of the AAT Act empowers the President to do so, counsel for the applicant submitted that “the safeguard of consent might help but, as you say, the power is there but gets down to the credibility issue.”
Counsel for the applicant did not cavil with the proposition that the applicant did not raise an issue of procedural fairness at the time of the hearing or when notified of the reconstituted Tribunal, either as to the fact of a telephone hearing or that all previous evidence would be available to the Member who would determine the application.
As to the arrangements within the family business, counsel for the applicant submitted that it was open to infer from the applicant’s answer that in the time between the hearings, the circumstances had changed in that his father had retired and was supporting his wife with her health, and the uncle was now managing the factory. Counsel submitted that the applicant ought to have been given an opportunity to explain this change, that the attack on his credibility was based on the apparent inconsistency of evidence at the first hearing, and that there should have been a fresh hearing because of the credibility issues.
Minister’s Oral Submissions
The Minister’s legal representative reiterated in her oral submissions that s 19D of the AAT Act confers power on the President to reconstitute the membership of the Tribunal, that there is no need for a fresh oral hearing and the Tribunal has a broad discretion in terms of how it implements s 19D of the AAT Act (per Frugtneit v Tax Practitioners’ Board (2018) 74 AAR 279 at [28] per Steward J (Frugtniet First Instance), undisturbed on appeal per Frugtniet v Tax Practitioners’ Board [2019] FCAFC 193 at [43] (Frugtniet Full Court).
The Minister’s legal representative submitted that the credibility finding was based on a factual recount of the applicant’s inconsistent evidence, and that it was open on the evidence for the Tribunal to make that finding which involved a weighing of the evidence. There is nothing in the reasons concerning the applicant’s demeanour, body language or manner of stating his evidence. Moreover, Member Cullen accepted many of the applicant’s factual claims, which weighed in his favour (per [46] of the Tribunal’s Reasons).
The Minister’s legal representative submitted that the evidence about whether the applicant’s father or uncle was involved in running the family business (which commences on page 5 of the transcript per Annexure B of the applicant’s affidavit dated 4 April 2025 and is addressed in these Reasons at paragraphs 28, 29 and 52) was weighed by the Tribunal and it was open to the Tribunal to reach the conclusion it did, namely that the inconsistency concerned a central and easily recalled fact, which led to the finding that the applicant was not studying for the reason he claimed (i.e. to return to Bangladesh to run the factory).
The Minister’s legal representative submitted that the applicant was afforded procedural fairness as the inconsistencies in his evidence about the factory were raised with him. The absence of a transcript is of no consequence because the audio file was available, which is more instructive than a transcript because it reveals tone and other aspects of demeanour. However, given no credit finding relating to such matters as demeanour arises, the issue goes no further.
The Minister’s legal representative submitted that, to the extent there is an issue about a telephone hearing, there is no evidence that the applicant expressed discomfort with that approach, having answered “No” to both questions in the Second Hearing Invitation.
CONSIDERATION
Ground One
Ground One is expressed as:
1.Procedural Error: Flawed and Improper Reconstitution of Tribunal Hearings
1.1. The Tribunal failed to preserve procedural fairness by improperly reconstituting the panel between two hearings without ensuring an independent re-evaluation of the case.
1.2. Member Gabrielle Cullen, who presided over the subsequent hearing on 29 October 2020, improperly relied on evidence and testimony given before Member Linda Young during the prior hearing on 5 June 2019. This was particularly problematic in circumstances where issues of credibility or fact. critical to the Applicant's case, ought to have been determined by the first member who heard the evidence (i.e .. Member Linda Young).
1.3. The improper reconstitution of the Tribunal was flawed. conducted ultra vires. And undermined the Applicant's right to procedural fairness and the opportunity for critical evidence to be thoroughly and independently assessed.
1.4. This procedural defect precluded an impartial reassessment of material evidence and contravened established principles of procedural fairness.
1.5. The Applicant was denied the opportunity to have his evidence, credibility, and case presented and evaluated afresh by an unconstrained Tribunal member. This constitutes jurisdictional error.
In addition to his oral submissions, the applicant’s written submission relating to Ground One are that:
a)The Tribunal failed to preserve procedural fairness by improperly reconstituting the panel between two hearings, replacing Member Young with Member Cullen without providing proper notice or ensuring that the applicant’s case was reassessed independently.
b)Member Cullen’s reliance on incomplete credibility determinations made by Member Young prejudiced the proceedings, undermining the applicant’s right to have evidence considered impartially. This procedural defect violated fundamental principles of procedural fairness articulated in Miniter for Immigration v Eschetu (1999) 197 CLR 611.
c)Procedural fairness mandated a full independent re-evaluation of all credibility determinations and evidence, which was absent in this case. The Tribunal’s actions amounted to a jurisdictional error requiring judicial intervention.
Under the heading “Response to Respondent’s Submissions”, the applicant further submitted that the respondent’s argument that the applicant had an ample opportunity to prepare submissions ignores the impact of the improper Tribunal panel reconstitution and the prejudgment tainting the subsequent hearings, and that the issues before the Court concern “procedural irregularities undermined by Tribunal inconsistencies in membership.”
In addition to her oral submissions, the respondent’s written submissions relating to Ground One may be summarised as:
(a)section 19D(2) of the AAT Act empowers the President of the Tribunal to revoke a direction pursuant to s 19A(1) of the AAT Act if one of the criteria in s 19D(2)(a) and (b) are satisfied, and that pursuant to s 19D(4), if the Tribunal is reconstituted by the President, it “must continue the hearing and may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding)”;
(b)the power conferred by s 19D(4) of the AAT Act leaves it largely to the Tribunal to determine how it is to be informed;
(c)there was no obligation on Member Cullen to conduct a fresh hearing, only to finish the review and that she was entitled to have regard to any record of the proceedings before Member Young pursuant to s 19D(4) of the AAT Act (per Frugtniet Full Court at [43]);and
(d)the findings of credibility were based on an evaluation of the applicant’s inconsistent evidence across the two hearing days and were thus findings of fact which were for Member Cullen to determine: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67] per McHugh J. Accordingly, the reconstitution of the Tribunal did not cause an unfairness to the applicant per CHT15 v Minister for Immigration and Border Protection [2016] FCCA 2030 at [44]-[45] per Judge Driver.
Ground One: Discussion
Ground One may be analysed by its various particulars, namely:
(a)that the Tribunal was reconstituted “improperly” (Ground 1.1);
(b)as an extension of its improper reconstitution, the applicant was not afforded an independent re-evaluation of his case (Ground 1.1); and
(c)that Member Cullen improperly relied on evidence before Member Young. This was especially problematic, it is said, because of the credibility findings (Ground 1.2).
Ground 1.3, 1.4 and 1.5 effectively reiterate Ground 1.1 and 1.2.
I do not accept the applicant’s contention that the Tribunal was improperly reconstituted. Section 19D of the AAT Act clearly empowers the President to reconstitute the membership of the Tribunal if, inter alia, the first presiding Member is for any reason unavailable. The Tribunal’s letter to the applicant dated 29 July 2020 identified that Member Young was no longer available to review the application. The basis for the reconstitution thus accords with s 19D(2)(a)(ii) of the AAT Act. There is no requirement for the Tribunal to procure the applicant’s consent to the reconstitution.
I do not accept the applicant’s contention that he was not afforded an independent re-evaluation of his case as the basis for jurisdictional error. No such right exists. On the contrary, s 19D(4) of the AAT Act mandates the Tribunal (as reconstituted) to continue the proceeding. The continuation of the proceeding is logically incompatible with the abortion of the earlier proceeding and recommencement afresh. To place the matter beyond any doubt, the language of that subsection is to be noted for its precision. That is, the Tribunal “must” continue the proceeding and, in so doing, “may” (i.e. permissively or facultatively) have regard to any record of the proceeding before the Tribunal and previously constituted (including a record of any evidence taken in the proceeding). That the Tribunal may have regard to the record of the proceeding before the previously constituted Tribunal reinforces the continuation of the proceeding rather than its commencement afresh.
Counsel for the applicant suggested that it would have been preferable to start the proceeding afresh. With respect, it would likely have been an impermissible derogation from the mandatory terms of s 19D(4) of the AAT Act and the introduction of error, though this is not a point I need to decide.
I do not accept that Member Cullen improperly relied on the evidence before Member Young. As already identified, s 19D(4) permits the reconstituted Tribunal to have regard to all such evidence. Furthermore, the letter to the applicant dated 29 July 2020 informed him that all documents and other material that were previously considered by Member Young had been given to Member Cullen including the Department file, the recording of the earlier hearing, submissions and evidence. The applicant did not take issue with that approach either before or during the hearing with Member Cullen. Having found that Member Cullen did not improperly rely on the earlier evidence, I need not engage further with this aspect of Ground One. However, for an abundance of caution, the fact that Member Cullen referred to the applicant’s evidence across both hearings which included inconsistencies was within her fact-finding remit as the presiding member.
For the reasons given, Ground One fails.
Ground Two
Ground Two is expressed as:
2. Denial of Procedural Fairness
2.1. The Tribunal failed to provide the Applicant with sufficient time to obtain additional documentation needed to substantiate his claims, despite the delays caused by external factors, including the COVID-19 pandemic.
2.2. The refusal to grant a reasonable extension of time adversely impacted the Applicant's ability to adequately present his case.
2.3. The Tribunal focused disproportionately on perceived inconsistencies in oral evidence while failing to meaningfully engage with key documentary evidence provided by the Applicant, including Certificates of Enrolment (CoEs), financial statements, and affidavits affirming familial and business commitments.
In addition to his oral submissions, the applicant’s written submission relating to Ground Two are that:
a)The Tribunal unreasonably denied the applicant’s requests for an extension of time to submit additional supporting documentation, despite the delays caused by external factors such as the COVID-19 pandemic. The refusal hindered the applicant’s ability to present his case.
b)Sufficient time to obtain crucial evidence is an essential aspect of procedural fairness under Kioa & West (1985) 159 CLR 550, particularly in circumstances where external constraints impact the ability of th parties to secure relevant documentation.
c)The Tribunal disproportionately focused on perceived inconsistencies in oral testimony while disregarding key documentary evidence submitted by the applicant, including Certificates of Enrolment (CoEs), affidavits affirming familial and business commitments, and financial statements. This failure deprived the application of a fair consideration of his case.
I have had regard to paragraph 6 of the applicant’s affidavit filed on 4 April 2025 which reiterates his written submissions in a truncated form.
In addition to her oral submissions, the respondent’s written submissions relating to Ground Two may be summarised as:
(a)the applicant has not identified a specific request for an extension of time which was declined by the Tribunal and, in any event, the applicant was given ample opportunity to submit documents having regard to the correspondence from the Tribunal to the applicant inviting him to provide documents dated:
(i)22 September 2017, in response to which no documents were provided;
(ii)2 April 2019, which was the subject of a request for an extension of time which was granted;
(iii)15 May 2019, in response to which the applicant provided documents on 4 June 2019;
(iv)5 June 2019, wherein, at the applicant’s request, Member Young made directions for the provision of further documents concerning evidence of the factory ownership. Such documents were to be provided by 18 June 2019. The applicant provided a bundle of such documents on 18 June 2019 and a further document on 2 July 2019, all of which were accepted by the Tribunal despite the last document being late; and
(v)15 September 2020, wherein the applicant was invited to provide documents at least seven days prior to the resumed hearing. The hearing date of 29 October 2020 was fixed in that letter such that documents were required by not later than 22 October 2020. The applicant provided documents to the Tribunal on 27 and 28 October 2020 which were accepted by Member Cullen despite being late.
(b)The Tribunal otherwise complied with its procedural fairness obligations under Division 5 of Part 5 of the Migration Act, the dispositive issues before the Tribunal were the same as before the Delegate (i.e. whether the applicant satisfied the genuine temporary entrant requirement), and the applicant was afforded a sufficient opportunity to give evidence and present arguments about the determinative issue on review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [20065] HCA 63 at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ
Ground Two: Discussion
As to Ground 2.1, I do not accept that the Tribunal failed to afford the applicant sufficient time to obtain additional documents to substantiate his claims. The applicant was invited to provide documents to the Tribunal on multiple occasions, as recorded in the correspondence described in paragraph 36 of the Minister’s submissions and recorded in the Court Book. The transcript of the hearing on 29 October 2020 does not record any request by the applicant for further time to provide documents. On the contrary, the transcript of 29 October 2020 confirms that the applicant’s representative was invited to determine the application on the basis of the material presently before it (at pages 12 to 13):
Member Cullen: Sure, okay. And Mr Peerzada, I cut you off. Is there anything more you want to say?
Applicant:No, thank you Member. Sorry, my Irfaan Peerzada wants to talk to you Member.
Member Cullen: Yeah
Representative: Look, Member, actually first of all, I would like to say thank you for your time listening to this. I know it’s been like you have to revisit all those things which have been done. So I believe that [inaudible] done on your part. What we want is actually the request, actually, to have a look at what has been supplied today, what has been supplied in the past, and on the balance of those things, make a decision, which is, I think, you believe is the right way to do.
[…]
Member Cullen: Yeah, so, if there’s nothing more you want to add, I haven’t made a decision, I’ve got to go away and look at all the information you have provided and make a decision on this issue. Just before I go, is there anything more you want to say?
Representative: Member, finally, if you can – I’m not – just don’t try to be like, funny, we request at this time, you make a decision at least.
(Emphasis added)
Having found that Ground 2.1 fails in circumstances where no request for an extension of time was made, so too must Ground 2.2.
Ground 2.3 propounds two elements, firstly that the Tribunal focused disproportionately “on perceived inconsistencies in oral evidence” and secondly that it “fail[ed] to engage with key documentary evidence provided by the applicant including Certificates of Enrolment (CoEs), and financial statements…” and affidavits affirming familial and business commitments.
The first limb of Ground 2.3 addresses the weight which was applied to the evidence, which is a matter for the Tribunal.
As to the second limb of Ground 2.3, paragraphs 8, 9, 11,13,17, 18, 21 and 22 of the Reasons identify that the Tribunal was aware of all of the documents provided by the applicant in the proceedings.
At paragraph 46 of the Reasons, the Tribunal accepted much of the applicant’s evidence including that he owns a 40 per cent interest in the family business which he will inherit. The Tribunal also accepted that the applicant’s mother was ill, requiring dialysis and that the applicant returned to Bangladesh from 2014 to 2016 frequently due to her illness and to help with the family business. These matters were the subject of the material provided to the Tribunal on 18 June 2019.
The dispositive issue before the Tribunal was whether the applicant satisfied the genuine temporary entrant requirement. There was no issue concerning the currency of his enrolment in a course of study.
I have not been pointed to any “key document” that was not considered by the Tribunal, nor in my engagement with the material, have I identified such an omission for myself.
For the reasons given, Ground Two fails.
Ground Three
Ground Three is expressed as:
3. Errors in Applying Clause 500.212 of the Migration Regulations 1994
3.1. The Tribunal erroneously equated the length of the Applicant's lawful stay in Australia as evidence against his genuine temporary entrant (GTE) status under Clause 500.212.
3.2. The Tribunal failed to holistically assess the Applicant's compliance with visa conditions, genuine academic achievements, and broader context.
3.3. The Applicant's explanations regarding his vocational training and career progression were improperly dismissed without proper evaluation.
In addition to his oral submissions, the applicant’s written submission relating to Ground Three are that:
a)The Tribunal exhibited misinterpretation of Clause 500.212 of the Migration Regulations 1994, equating the length of the applicant’s lawful stay in Australia with unfounded doubts about his genuine temporary entrant (GTE) status.
b)The Tribunal neglected to follow the holistic approach mandated under Ministerial Direction No. 69, failing to consider factors such as visa compliance, academic achievements, and vocational relevance to the applicant’s intended studies.
c)The Tribunal improperly dismissed the applicant’s explanation of his vocational training aimed at managing a family business, focussing instead on irrelevant considerations rather than properly evaluating the broader context of the applicant’s career aims.
In addition to her oral submissions, the respondent’s written submissions relating to Ground Three may be summarised as:
(a)Ground 3.1 is misconceived in that:
(i)the length of the applicant’s stay in Australia was evidence to which weight could be afforded, being a matter for the Tribunal as part of its fact-finding function: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41] per Mason J;
(ii)The Tribunal considered the applicant’s evidence and circumstances and the relevant factors in Direction No. 69, in reaching a conclusion after weighing the factors for and against affirming the decision under review: cf Kaur v Minister for Home Affairs [2019] FCA 2026 at [31] per Steward J; and
(iii)The Tribunal’s findings were open to it and its reasoning disclosed a proper evaluation of the applicant’s evidence that was logical, rational and had a probative basis in the circumstances: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
(b)As to Ground 3.2, the Tribunal considered the applicant’s academic achievements and accepted that he had successfully completed various courses, but that the completion of courses were only two of the relevant considerations as to whether the applicant was a genuine temporary entrant (per paragraph [47] of the Reasons). The Minister also submitted that, once the Tribunal was not satisfied that the applicant was a genuine temporary entrant for the purposes of cl 500.212(a) of the Migration Regulations, it did not need to consider whether the applicant intended to comply with any visa conditions having regard to, inter alia, his prior record of visa compliance; and
(c)As to Ground 3.3, the Tribunal considered the vocational relevance of the applicant’s intended studies but was not satisfied on the evidence that he had provided any credible evidence of it (per paragraphs [49]-[54] of the Reasons).
I pause to note that paragraphs 44 and 45 of the Minister’s submissions refer to Grounds 3.2 and 3.3. I infer from context that the first sentence of paragraph 44 and the whole of paragraph 45 attach to Ground 3.2 and the second sentence of paragraph 44 attaches to Ground 3.3.
Ground Three: Discussion
As to Ground 3.1, I do not accept that the Tribunal erroneously equated the length of the applicant’s lawful stay in Australia as evidence against his genuine temporary entrant status. The Tribunal said at [48] of its Reasons:
48. The above information indicates the applicant has been in Australia since 3 July 2010 when he arrived on a student visa, a period of more than 10 years and wishes to continue to study until June 2021, a period of approximately 11 years. The Tribunal views his extended length of stay in Australia and wishing to remain in Australia for approximately 11 years as indicative of a person who does not intend to genuinely stay in Australia temporarily. In making this finding the Tribunal notes he returned to Bangladesh on numerous occasions from 2014 to 2016 as his mother was ill and to assist running the business, but does not accept that such short visits over the extended period he has been in Australia, as undermining its concern that his extended length of stay in Australia may lead it to find he does not genuinely intend to stay in Australia temporarily. Further, while the Tribunal accepts that for part of this time from 2014 to 2016/7 he was in a marital relationship, holding a temporary spouse visa and not studying, notwithstanding, the Tribunal views his extended length of stay in Australia indicative of a person who does not intend to genuinely stay in Australia temporarily.
The conclusion reached by the Tribunal as to the evidence of the applicant’s length of stay was said to be “indicative”, not determinative, of a person who does not intend to genuinely stay in Australia temporarily. Such a finding was open to the Tribunal having regard to the evidence which was described at paragraphs 48 of the Reasons for which the foundation was laid in paragraphs [3] to [5] and [31], namely:
3. The applicant arrived in Australia on 3 July 2010 as the holder of a subclass 573 visa valid to 4 September 2011. He was granted a further subclass 573 visa to 12 December 2012 and a subclass 572 visa to 19 September 2014. He applied for and then was granted a subclass 820 via and applied for the visa to which this decision relates on 26 July 2017. Since his arrival in Australia he has departed from 6 October 2013 to 2 November 2013, 13 June 2014 to 6 July 2014, 22 September 2014 to 11 December 2014, 5 February 2015 to 24 March 2015, 16 July 2015 to 13 August 2015, 21 September 2015 to 7 October 2015, 12 January 2016 to 28 January 2016, 15 March 2016 to 2 May 2016, 27 July 2016 to 2 August 2016 and 17 December 2016 to 13 January 2017.
4. A Certificate of Enrolment attached to the current application refers to the applicant studying an Advanced Diploma of Leadership and Management from 6 September 2017 to 20 March 2019. He subsequently submitted in 2019 a CoE indicating enrolments again in the Advanced Diploma of Leadership and Management albeit with a new education provider from 23 April 2018 to 21 April 2019 and Advanced Diploma of Management (Human Resources) from 27 May 2019 to 24 May 2020. In 2020 he submitted a COE to study a Diploma of Project Management from 13 July 2020 to 20 June 2021.
5. The evidence at the time of this decision, from the applicant and the Department decision1 indicates that he has been enrolled in the following courses with the following outcomes since his arrival on a student visa on 28 May 2009.
•Advance Diploma of Management (Human Resources) from 27 May 2019 to 24 May 2020 – successfully completed
•Advance Diploma of Leadership and Management from 23 April 2018 to 21 April 2019 – successfully completed.
•Diploma of Software Development from 21 January 2013 to 17 January 2014 – he said at the 2019 hearing he did not successfully complete this course.
•Graduate Diploma of Management from 27 February 2012 to 12 October 2012 – successfully completed.
•Master of Engineering Studies from 14 February 2011 to 31 December 2011 – successfully completed
•Graduate Diploma of Information Systems Management from 5 July 2010 to 8 February 2011 when he changed to another course
[…]
31. The Tribunal raised as of concern his length of time in Australia having arrived in July 2010 and wanting to stay to 2021, a period of 11 years and questioned whether he is a temporary entrant. He referred to his marriage, his mother being sick and having difficult times. He said he could not study when he was married as he was busy with work.
As to Ground 3.2, I do not accept that the Tribunal failed to holistically assess the Applicant's compliance with visa conditions and genuine academic achievements. I understand the “broader context” to mean the totality of factors to be considered by the Tribunal pursuant to Ministerial Direction Number 69. Paragraphs [43] and [44] of the Reasons correctly summarise the effect of the Direction and that it is to be used as a guide not a checklist. At paragraph [45] of the Reasons, the Tribunal identified that she considered all the factors in Direction 69 and, on balance, found that the applicant did not meet the genuine temporary entrant requirement. In traversing the reasons that followed, it is apparent that the Tribunal considered a range of factors in favour of the applicant as recorded in paragraph [46] and [56]. The efficient use of language and resultant brevity of that paragraph was proportionate to the task given the findings were favourable to the applicant.
The Tribunal spent more time, and engaged with greater textual discussion, in relation to the factors about which it was concerned. Again, the amplification of such consideration was proportionate given the findings were unfavourable to the applicant and thus warranted a thorough exposition. Those matters are found at paragraphs [47] to [55] of the Reasons.
As to Ground 3.3, I do not accept that the applicant’s explanations regarding his vocational training, which was aimed at managing a family business, and career progression were improperly dismissed without proper evaluation. The applicant submits that the Tribunal focussed on irrelevant considerations rather than properly evaluating the broader context of his career aims.
No issue was taken by the applicant as to the correctness of the Tribunal’s factual finding at paragraph [5] of the Reasons as to the applicant’s study history since arriving in Australia in 2009. As can be seen from that history, the courses of study had regressed from tertiary level courses to vocational courses that were noted to be less expensive (per [15] of the Reasons).
At [11] and [29] of its Reasons (by reference to the 26 April 2019 Request for Information), the Tribunal considered the inconsistency within the applicant’s evidence as to his vocational goals, which were variously to start his own business, to “get a top job” in management in Bangladesh (which necessarily suggests being employed rather than self-employed in his own business) and to help expand the existing family business.
At [24] of its Reasons, the Tribunal considered the inconsistency in the applicant’s approach to study in that, in June 2019, he gave evidence in the Tribunal that he would return to Bangladesh within a year (see Annexure A to the applicant’s affidavit filed 4 April 2025 at pages 29 to 30) but he was still in Australia undertaking courses of study in October 2020.
At [25], [27] and [32] of its Reasons, the Tribunal considered why the applicant had enrolled in a number of different vocational courses in management, and that the applicant’s evidence included that he had a background in engineering but no understanding of management and so had to start at the vocational level but as it had been seven years, he had forgotten everything and needed to start again.
The applicant does not identify, nor do I observe for myself having engaged with the material, how or in what way the Tribunal is said to have focussed on irrelevant considerations and not properly evaluated the broader context of the applicant’s career aims. It was open to the Tribunal to be unpersuaded as to the vocational benefit of the proposed course of study to a series of somewhat disconnected career aims.
I accept the Minister’s submission that, once the Tribunal was not satisfied that the applicant met the genuine temporary entrant requirement prescribed by cl 500.212(a) of the Migration Regulations, there was no warrant for it to consider whether the applicant satisfied cl 500.212(b), inter alia, as to his record of visa compliance.
For the reasons given, Ground Three fails.
Ground Four
Ground Four is expressed as:
4. Apparent Bias and Arbitrary Decision-Making
4.1. The Tribunal exhibited apparent bias by dismissing without sufficient reasoning the Applicant's consistent evidence on matters such as his intention to return to his home country after completion of his studies.
4.2. The Tribunal arbitrarily rejected relevant and credible evidence, including affidavits from the Applicant's family members and financial documents substantiating his claims, without adequate inquiry.
4.3. The improper linkage between the Applicant's lawful stay in Australia and unfounded allegations of non-compliance evidences prejudgment and a failure to consider the Applicant's case neutrally.
In addition to his oral submissions, the applicant’s written submission relating to Ground Four are that:
a)The Tribunal exhibited apparent bias through preconceived views about the applicant’s intentions, evidenced by the dismissal of supportive documentary evidence without sufficient reasoning.
b)The improper linkage between the applicant’s lawful stay in Australia and allegations of non-compliance constitutes prejudgment that fails to accord with the principles of neutrality espoused in Minister for Immigration v Jia Legeng (2001) CLR 507.
c)This arbitrary rejection of relevant documents, including financial records and affidavits affirming succession planning for the applicant’s family business highlights errors that undermined the fairness of the Tribunal’s decision-making process.
[…]
Clause 500.212 Inquiry (Ground 4)
1.The respondent’s dismissal of the relevance of key documentary evidence such as Certificates of Enrolment is inconsistent with established authority in Minister for Immigration v SZIAI (2009) 259 ALR 429, which affirms jurisdictional error from a failure to investigate material facts.
In the reply section of his written submissions under the heading “Apparent Bias (Ground 5)” the applicant submitted:
The Respondent’s assertion that allegations of bias are unsubstantiated fundamentally disregards the subjective credibility determinations expressed by Tribunal members impacting impartial appraisal claims. Validating priority for neutral evaluation under Minister for Immigration v Jia Legeng (2001) CLR 507 is essential for just disposition.
This submission appears to relate to Ground Four, which is the alleged bias ground, not Ground Five. I have treated the reference to Ground Five as a typographical error.
Paragraph seven of the applicant’s affidavit filed on 4 April 2025 addresses Ground Four in the form of a submission as follows:
Unreasonableness and Arbitrary Decision-Making
7. The Tribunal’s decision was unreasonable for the following reasons:
(i)The Tribunal improperly used the extended length of my lawful stay in Australia as evidence of non-compliance with the genuine temporary entrant criterion. It failed to consider that my continued enrollment (sic) in valid academic programs met all the legislative requirements.
(ii)The Tribunal dismissed the relevance of my studies in leadership, management and project management to my role as a director of Icon Fashion Limited without logically addressing the evidence provided.
(iii)The Tribunal misconstrued my decision to pursue additional studies during disruptions caused by the COVID-19 pandemic as an attempt to avoid compliance rather than a genuine effort for professional development.
(iv)Arbitrarily dismissing material evidence, such as the affidavit of my father and financial statements outlining my shareholding responsibilities added further injustice to the decision making process.
In addition to her oral submissions, the respondent’s written submissions relating to Ground Four may be summarised as:
(a)the applicant does not make clear whether he asserts actual or apprehended bias against the Tribunal. Either way, the allegation of actual or apprehended bias is not made out;
(b)the test for actual bias is where the state of mind of the decision maker is so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented: Minister for Immigration v Jia (2001) 205 CLR 507; [2001] HCA 17 at [72] per Gleeson CJ and Gummow J;
(c)the test for apprehended bias requires a court to be satisfied that a fair-minded lay person might think that the decision maker did not bring a fair and impartial mind to the making of the decision: SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223; [2012] FCAFC 45 at [37] per Rares and Jagot JJ; and
(d)either such allegation must be distinctly made and clearly proved. It is rare that such an allegation can be made by reference to the decision record alone and no such inference should be drawn from an adverse finding: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. Despite adducing the transcript of both hearings, the applicant has not provided any particulars of his allegation of bias.
Ground Four: Discussion
I agree with the Minister’s submissions as to the correct test to be applied in relation to actual bias and apprehended bias.
As to Ground 4.1, I do not accept that the Tribunal exhibited actual or apprehended bias by dismissing without sufficient reasoning the applicant's consistent evidence on matters such as his intention to return to his home country after completion of his studies. With respect, this Ground is difficult to comprehend in that the applicant refers to his “consistent evidence” but then gives only one example of his evidence, when consistency necessarily requires at least two points of reference. Furthermore, Ground 4.1 conflates or combines a proposition about bias with a failure to give sufficient reasons.
Doing the best I can, I understand Ground 4.1 to mean that the applicant contends that the Tribunal exhibited bias (of whatever kind) towards the applicant by arbitrarily not accepting that it was his intention to return to Bangladesh after completing his studies. I gather that it is contended that the arbitrary nature of the alleged finding suggests a form of bias.
Paragraphs 46 and 47 of the Reasons sets out the Tribunal’s findings about the aspects of the applicant’s evidence that favoured his genuine temporary entrant status, including:
46.… [The Tribunal] accepts he owns 40% of a factory in Bangladesh and that his family have property that he will inherit. It accepts that his circumstances in Bangladesh are indicative of a person who is only a temporary entrant, and these indicate he has a significant incentive to return to his country.
47.The Tribunal also accepts that the applicant is currently enrolled in a Diploma of Project Management to be studied to 20 June 2021. It accepts that since his arrival in Australia he has been enrolled in and successfully completing (sic) courses while the holder of or applying for a student visa. It accepts he has successfully completed an Advance[d] Diploma of Management (Human Resources), Advanced Diploma of Leadership and Management, Graduate diploma of Management and Master of Engineering Studies. However, enrolment and the successful completion of courses are only two considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends to genuinely stay in Australia temporarily as a genuine student.
(Emphasis added)
Paragraphs [48] to [54] of the Reasons contains the Tribunal’s assessment of the evidence concerning:
(a)the applicant’s length of stay in Australia, which was eleven years at the time of the decision;
(b)the regressive character of the courses of study undertaken over time (i.e. from post graduate university courses to vocational courses);
(c)the applicant’s inconsistent evidence since 2017 as to his career goals including being self-employed, gaining a “top position” in management and expanding the family business;
(d)the Tribunal’s acceptance that the COVID-19 pandemic made it difficult for the applicant to return to Bangladesh since March 2020 (the pandemic still being in operation at the time of the second hearing), but was nevertheless of the view based on the evidence before it that the applicant was enrolling in courses to maintain migration rather than as a genuine student;
(e)the applicant’s inconsistent evidence as to central, easily recalled details about the factory namely the roles undertaken by the applicant’s father and uncle;
(f)the applicant’s evidence that he had forgotten the content of the Graduate Diploma in Management that he completed in 2012, that it was not a practical course and does not teach a person how to motivate people. I note that no issue was taken by the applicant’s counsel as to the correctness of the Tribunal’s summary of the evidence in the Reasons. The Tribunal did not accept the applicant’s explanation why, five years after completing the Graduate Diploma in management, the applicant would then commence studying lower-level courses for another four years covering the same area. Such a finding was open to the Tribunal on the evidence and rationally and logically arose from such evidence; and
(g)the Tribunal’s express acceptance of the affidavit evidence of the applicant’s father and uncle as to the applicant’s involvement in the family business but found that such evidence did not overcome the concerns “outlined above” being contextually the content of paragraphs [48] to [54] of the Reasons.
I have not been taken to any passages of the transcript which illustrate bias but have nevertheless reviewed it for myself. I am unable to detect evidence of actual or apprehended bias. Member Cullen raised her concerns about the applicant’s length of stay, engagement in his family business, details about which other family members were involved in the business and in what roles and gave the applicant a reasonable opportunity to clarify his evidence and explain the inconsistencies.
Counsel for the applicant submitted that the management of the factory had changed between the first and second hearing such as to explain the apparent inconsistency, but such a submission does not accord with the applicant’s evidence that “…maybe like I missed it” and “My uncle was there, Member. My uncle has been always there” (annexure B page 6). The applicant’s evidence was effectively that he forgot to mention his uncle to Member Young whereas the submission suggests a reconfiguration of who manages the factory over time, which is a different proposition. Furthermore, it was open to Member Cullen to find that the identity of the managing personnel of the factory, which amounted to no more than two of the applicant’s relatives, was a core, easily recalled fact, the absence of which cast doubt of the veracity of the applicant’s evidence on this topic.
As can be seen from paragraph [47] of the Reasons, the Tribunal accepted the applicant’s evidence about his ties to Bangladesh including through his business interests there. This was a factor that favoured the applicant in the assessment of whether he satisfied the genuine temporary entrant requirement. As such, Ground 4.1 is misconceived from the outset. However, if more is needed, the Tribunal correctly identified that the matters described in paragraph [48] of its Reasons were to be considered in light of the matters set out in [49] of the Reasons and following. I am satisfied that the Tribunal correctly understood the evidence of the applicant and made factual findings in the course of its decision-making process that were rationally and logically open to it having regard to the totality of the evidence. To the extent that the Tribunal made findings that were adverse to the applicant, the transcript records that each Member of the Tribunal raised her concerns with the applicant thus placing him on notice of such issue and that the applicant was given a reasonable opportunity to give evidence and present arguments to overcome such concerns.
As to Ground 4.2, I do not accept that the Tribunal arbitrarily rejected relevant and credible evidence, including affidavits from the applicant's family members and financial documents substantiating his claims, without adequate inquiry. Paragraph [55] of the reasons makes plain that the Tribunal considered the affidavits of the applicant’s father and uncle. That evidence was not “arbitrarily rejected” but balanced against the findings contained in paragraphs [49] to [54] and, in the assessment of weight, was found to not overcome those matters.
In considering whether it was open to the Tribunal to reach such a view, I have read those affidavits and the financial statement of the company, as provided by the Applicant to the Tribunal on 18 June 2020 and 2 July 2020 and note that they did not materially advance the applicant’s own evidence as to his future role in the business. In other words, I am satisfied that it was open to the Tribunal to form the view that it expressed in paragraph [55] of its Reasons and, in any event, such a paragraph expressing a weighing of the evidence which is a matter for the Tribunal.
As to Ground 4.3, I do not accept that the Tribunal made an improper linkage between the Applicant's lawful stay in Australia and unfounded allegations of non-compliance as to demonstrate prejudgment and a failure to consider the applicant's case neutrally. Having regard to paragraph 7(i) of the applicant’s affidavit dated 4 April 2025, “non-compliance” means satisfaction of the genuine temporary entrant criterion. Firstly, the Tribunal’s consideration of the length of the applicant’s stay in Australia, the lawfulness of which was not in issue, was one of several factors that weighed in the balance in reaching the conclusion that the applicant did not satisfy the genuine temporary entrant criterion, as recorded in paragraphs [47] to [55] of the Reasons. There was no “improper linkage” of the length of stay with the finding as to whether the applicant satisfied the genuine temporary entrant criterion, given that was a relevant consideration for the purposes of applying the Ministerial Direction.
I note the applicant’s reply submissions as to an alleged jurisdictional error arising from a failure to investigate material facts. The example given in the responsive submission was that of the applicant’s Certificates of Enrolment. Nothing turns on this as the dispositive issue was whether the applicant satisfied the genuine temporary entrant criterion, not whether he was enrolled in a course of study at the time of the determination. In any event, at paragraph [47] of its Reasons, the Tribunal accepted that the applicant was enrolled in, and had successfully completed courses in the past and was currently enrolled in a course at the time.
I accept the Minister’s submission that no inference of bias or prejudgment should be drawn from the mere fact of an adverse finding: SCAA v Minister for Immigration, Multicultural and Indigenous Affairs (supra). Such a proposition is apposite to this matter and an answer to the applicant’s reply submission under the heading “Apparent Bias (Ground 5)”.
For the reasons given, Ground Four fails.
Ground Five
Ground Five is expressed as:
5. Denial of Proper and Reasonable Consideration of Evidence
5.1. By disproportionately focusing on perceived inconsistencies in oral testimony, the Tribunal neglected its duty to duly engage with key independent evidence, including Certificates of Enrolment (CoEs) and financial records showing a 40% ownership stake in Icon Fashion Limited.
5.2. The Tribunal 's selective engagement with evidence disregarded the need for proper evaluative consideration of all material presented.
In addition to his oral submissions, the applicant’s written submission relating to Ground Five are that:
a)The Tribunal placed disproportionate weight on oral testimony while failing to engage with key independent evidence, including Certificates of Enrolment (CoEs) and financial statements demonstrating the Applicant’s 40% ownership stake in Icon Fashion Limited.
b)This selective engagement fails to meet the expectations laid down in Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259, where thoughtful consideration of all relevant evidence is necessitated.
In his affidavit filed on 4 April 2025, the applicant deposed that he submitted evidence to substantiate compliance with visa conditions, his genuine temporary entrant status and his ties to Bangladesh, thereafter, referencing materials found at CB53, CB117 to 118, CB119 to 160, CB164, CB167 and CB171. The applicant submits at paragraph 5 of his 4 April 2025 affidavit that:
Despite this evidence, the Tribunal dismissed key materials and placed disproportionate reliance on perceived inconsistencies in my responses to its questions.
The Minister submitted that:
(a)the Tribunal acknowledged the documentary evidence provided by the applicant including his Certificates of Enrolment and shareholding in the factory but was not satisfied that such evidence overcame inconsistencies in his evidence which led to the finding that he was undertaking his current study to maintain residence in Australia;
(b)the Tribunal considered the evidence from the applicant’s family but was not satisfied that this evidence overcame its concerns arising from the applicant’s oral evidence;
(c)it was open to the Tribunal to make those findings and the weight attributed to the evidence was a matter for the Tribunal: Peko Wallsend Ltd at [41] per Mason J;
(d)as to “Particular 4.2” (which I take to be a typographical error that is intended to read “Ground 5.2”), the Minister submitted that the Tribunal does not have a general duty to make enquiries: Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 at [43] per Gummow and Hayne JJ; and
(e)This was not a case where the Tribunal failed to make an “obvious enquiry about a critical fact, the existence of which is easily ascertained”: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] per French CJ, Gummw, Hayne, Crennan, Keifel and Bell JJ.
Ground Five: Discussion
As to Ground 5.1, the document at CB53 is a portion of the Delegate’s decision dated 31 August 2017 and includes the applicant’s course enrolment history as it was at the time. There was no issue that the applicant had been enrolled in the courses outlined at CB53 (at the time of the Delegate’s decision) and that he was otherwise enrolled in a course of study at the time of the Tribunal’s decision. Such is clear from paragraphs [3] to [5] and [47] of the Tribunal’s Reasons. These matters were accepted by the Tribunal and were favourable to the applicant.
The documents at CB119 to CB160 comprise a bundle of medical records concerning the applicant’s mother and outlining her illness. At paragraph [46] of its Reasons, the Tribunal accepted the applicant’s evidence as to his mother’s illness and the fact that the applicant had returned to Bangladesh to assist his mother and family in relation to this. At paragraph [57] of its Reasons, this evidence is accepted under the more general rubric of an acceptance of the applicant’s “strong family ties in Bangladesh”. This factor was a factor that again operated in the applicant’s favour.
The document at CB164 is partially in English and partially in another script. To the extent it is in English, the document is described as an Import Registration Certificate for Icon Fashion Limited with a date that is difficult to accurately discern. The existence of the factory was not in issue.
Although the applicant describes the document at CB167 as a shareholding certificate at paragraph 4, second bullet point of his affidavit filed 4 April 2025, it is a letter on Icon Fashion Limited letterhead addressed “To Whom It May Concern” dated 17 June 2019 and signed by Mr Emarat Hossain Khan (applicant’s uncle) in his capacity as Managing Director. The letter reads:
This is to inform that I, Mr Md Emarat Hossain Khan, Managing Director of ICON Fashion Ltd. declaring that Mr Hasan Mahmud Khan is one the Director of this company. The factory has been established in the year 2014 and started production in the year 2015 beginning. During set up of the factory Mr Hasan Mahmud Khan came to Bangladesh several times to look after the business and also for factory production.
As a Director, in future he will come in Bangladesh in order to take care the business and maintain his responsibilities as well.
(Emphasis added)
I observe that the document at CB166 is an extract of the shareholders of Icon Fashion Limited dated 31 May 2015 in which the applicant is listed as the holder of 9,800 shares. I am uncertain of the percentage shareholding from this document as it appears to be an incomplete record, noting the cut off row below the applicant’s details where in the incomplete sentence “Transfer to…” appears. The other named shareholders on CB166 are Syed Safiqur Rahman and the applicant’s uncle.
The document at CB171 is styled a Certificate of Net Wealth of Icon Fashion Limited. In that document, the applicant is listed as one of three shareholders with 7,400 shares with an asserted value of “Tk.16,040,000 (Taka One Core Sixty Lac and Forty Thousand) only”. The shareholders are stated as the applicant with 7,400 shares, the applicant’s uncle with 5,000 shares and Mr Syed Safiqur Rahman with 7,600 shares. On my reckoning, 7,400 or a total 20,000 shares is a 37 per cent stake.
At paragraph [46] and [57] of its Reasons, the Tribunal accepted that the applicant was a forty per cent shareholder in Icon Fashion Limited. If my calculation of a 37 per cent interest is correct, then the error operated to the applicant’s advantage. Either way, this was a factor that was favourable to the applicant.
The document at CB117 to CB118 is the affidavit of the applicant’s father, Mr Delowar Rahman Khan born 31 March 1953 (applicant’s father) and dated 17 June 2019. In that document, the applicant’s father deposes that the applicant has come to Bangladesh many times to look after his ill mother and take care of his business, and that the applicant takes care of the business and his mother and family over the phone. The deponent “declared” that the applicant “will has to come to Bangladesh to take care of his mother and family as well as his business”.
The Tribunal clearly had regard to the applicant’s father’s affidavit and the “To Whom it May Concern” letter from the applicant’s uncle, as seen by paragraph 55 of its Reasons. As to the applicant’s uncle’s letter, there was no issue that the applicant was a director and shareholder of the factory, that the factory was established in 2014, and that the applicant had returned to Bangladesh to assist with the factory in 2014 and 2015. Both the applicant’s uncle and father assert that the applicant will return to Bangladesh in the future to take care of his family and business. It was open to the Tribunal to attach limited or little weight to such evidence having regard to the bare assertions that such evidence represented and in light of the balance of the evidence which was discussed at paragraphs [48] to [54] of its Reasons.
The applicant’s contention that the Tribunal disproportionately focused on certain aspects of the evidence is a complaint about weight. I accept the Minister’s submission that matters of weight are for the Tribunal during its fact-finding exercise and that such finding was open to the Tribunal.
As to Ground 5.2, the Tribunal’s engagement with the material provided to it by the applicant on 18 June 2019 and 2 July 2019 is demonstrated by the discussion located at paragraphs [17], [18], [26], [28], [29], [38], [39], [40], and [46] to [57] of its Reasons, much of which was accepted. As such, I do not accept the applicant’s submission that the Tribunal “selectively engaged” with the “key independent evidence”.
I accept the Minister’s submission that the Tribunal does not have a general duty to make enquiries and that was not a case where the Tribunal failed to make an “obvious enquiry about a critical fact, the existence of which is easily ascertained”. The evidence as to the applicant’s ties to Bangladesh were placed before the Tribunal by the applicant over time and in various tranches of material, including the bundle of material provided on 18 June 2019 and 2 July 2019, together with his oral evidence across two hearing events.
To be thorough, I note the following exchange during the second hearing (at Annexure B transcript page 12) concerning the documents:
Member: Okay, so your parents have property. And, I mean, I know you keep referring to the documents, but all the information that I deal with is the prevalence of document fraud in Bangladesh. At that may lead me to place no weight on those documents. As you can go to the UK Home Office report, there’s a new – the DFAT Bangladesh Report, that document fraud is rife in Bangladesh.
Applicant:Member, the documents I have provided is my personal document. IT is not a fraud document […] that I mentioned about the factory. With my student visa, it was not rejected. About my property, my business overseas [when I studied] […] I did not have to provide those things. Because it is about my student visa., I did not have to provide those things. And like I said, I gave the medical report of my mum. You can see, I gave it from the Thailand Hospital, too. So, they are genuine. The medical reports are genuine. You can talk to the hospital, and you can figure it out. You can also call the Bangladesh Stock Exchange and ask my company name. It is genuine. It is not related to my student visa, but I provided that. I did not provide any fraud documents from Bangladesh or from Thailand.
(Emphasis added)
It is apparent from this exchange that Member Cullen expressed doubt about the veracity of the documents which had been provided by the applicant for the reason she stated. However, she did not say that she would not give the documents weight, only that she “may” be lead to place no weight on them. At paragraph 39 of its Reasons, the Tribunal referred to her initial doubts but recognised the applicant’s evidence that he had not provided any false documents. As already identified, the Tribunal accepted the applicant’s evidence as to his factory, property and family ties to Bangladesh including his mother’s illness. Implicitly, the Tribunal did attach weight to the applicant’s evidence on these matters.
The applicant’s invitation to the Tribunal to talk to the hospital or to call the Bangladesh Stock Exchange, even if such a course might be required by the Tribunal, was redundant against the Tribunal’s acceptance of those matters.
For the reasons given Ground Five fails.
FINAL DISPOSITION
For the reasons given, no jurisdictional error has been demonstrated. The Amended Application filed on 4 April 2025 will be dismissed.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 15 July 2025
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