Mohammed v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1413
•29 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohammed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1413
File number(s): SYG 2015 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 29 August 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) – Whether the Tribunal erred in its consideration of evidence – Where the Tribunal incorrectly applied the Ministerial Direction – Court satisfied that the error is not material – Judicial review application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 65, 359AA, 499
Migration Regulations 1994 (Cth) Schedule 2, cl 500.212
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2024] HCA 12
Nathanson v Minister for Home Affairs [2022] HCA 26
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 52
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 15 August 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Pattinson, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2015 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IMRAN PASHA MOHAMMED
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
29 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,100.00.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal) dated 22 July 2024, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
The matter was initially listed for hearing on 15 August 2025, before me in the Parramatta Registry of this Court. At the commencement of the first respondent’s oral submissions, the first respondent raised to the Court that the Tribunal erred in its decision made on 22 July 2024. The Tribunal made reference to, and applied, Ministerial Direction 69 (Direction 69), which was no longer in force at the time of the Tribunal’s decision. Instead, the Tribunal was required to apply Ministerial Direction 108 (Direction 108). Accordingly, the first respondent accepted that the Tribunal erred in applying Direction 69. It was put that this error was not material, in that there was no essential difference between Direction 69 and 108.
In the interest of procedural fairness, the matter was adjourned to 27 August 2025 for a further hearing, and orders were made for the first respondent to file supplementary written submissions as to the raised error in the Tribunals decision, and for the applicant to file any response.
On 19 August 2025, the first respondent filed supplementary written submissions.
On 25 August 2025, the applicant advised the Court that he consented to a decision being made on the papers and that he did not wish to attend a second hearing. Accordingly, the hearing set for 27 August 2025 was vacated, and the decision was made on the information before the Court.
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant is a citizen of India.
On 13 August 2020, the applicant applied for the visa.
On 7 October 2020, the Department of Home Affairs (the Department) sent a letter to the applicant (the October letter), inviting him to comment on information, that being the applicant had a study gap between 12 December 2019 and 25 June 2020, despite it being a condition of his visa to be enrolled in a full-time course.
In response to the October letter, the applicant submitted a number of further documents to the Department.
On 13 July 2022, the delegate refused to grant the applicant a Student visa, as they were not satisfied that the applicant met the criteria in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), being that the applicant was a genuine temporary entrant.
On 18 July 2022, the applicant applied for review of the delegate’s decision with the Tribunal.
THE TRIBUNAL’S DECISION
At [1] – [6], the Tribunal outlined the application for review, the background of the matter, the evidence that the applicant submitted to the Tribunal, and the evidence that was before the Department.
At the Tribunal hearing, the Tribunal put to the applicant that the Department had written to him inviting him to comment on his study history in Australia and the gap in his studies from 12 December 2019 to 25 June 2020 [9]. The applicant explained he had submitted information to the Department about his first child, who was born in October 2019 in India, but had passed away at the age of three months. The applicant said his second child, who was born in Australia, regularly had to go to the hospital, which resulted in stress and the applicant being unable to do anything. The applicant informed the Tribunal that he now has a third child born in India. and his family has continued to live there. The applicant told the Tribunal that he wanted to return to India after completing his current course, an Advanced Diploma of Leadership and Management.
In accordance with s 359AA of the Act, the Tribunal put to the applicant particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review [10]. The information put to the applicant was that according to the Provider Registration and International Student Management System (PRISMS), he had several courses of study cancelled. The applicant was advised that, according to PRISMS, he had already completed a Diploma and an Advanced Diploma of Leadership and Management. The applicant was told that if the Tribunal relied on the information it may lead to the decision under review being affirmed.
When questioned about the PRISMS search showing that he had already completed an Advanced Diploma of Leadership and Management in 2022, the applicant stated that this was incorrect, as he had only finished the diploma course [11].
The Tribunal went on to consider and outline the criteria for the grant of the visa, including the requirements of cl 500.212 of Schedule 2 to the Regulations [15] – [16].
In considering whether the applicant satisfied cl 500.212(a), the Tribunal had regard to Direction 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ made under s 499 of the Act[17].
While the Tribunal accepted the applicant provided some explanation for studying in Australia rather than India, the Tribunal was not satisfied the applicant enrolled in a Diploma and Advanced Diploma of Leadership and Management for the reasons claimed [19]. The Tribunal was not persuaded the applicant needed to enhance his job prospects with further study after completing master’s qualifications and being granted a temporary graduate visa in Australia.
Whilst the Tribunal accepted that the applicant owns property in India, and that the applicant has ongoing personal ties to in India, the Tribunal noted the applicant had not resided in India permanently since 2015 and had lived in the UK for approximately five years from 2008 to 2013 [20]. Instead of returning to India after completing a master’s degree, the applicant enrolled in lower-level courses, extending his stay in Australia for at least a further five years. As such, the Tribunal was not satisfied that the applicant’s circumstances in India would serve as a significant incentive for him to return.
While the applicant stressed the value of qualifications achieved in Australia, the Tribunal found that he would be at a distinct disadvantage in entering the workplace in India as his qualifications were not current and he would be competing against younger and more recent graduates [21]. Additionally, due to his lack of relevant work experience, the Tribunal found that the applicant would have difficulty finding employment in a field related to his studies. The Tribunal weighed this factor against its assessment of the applicant’s application for a further student visa.
The Tribunal was not satisfied that the applicant had enrolled in leadership and management courses for genuine purposes, as they were not related to his past studies in Commerce and IT. The Tribunal was not persuaded that it would assist him to obtain employment on his return to India, over and above the qualifications he already held [22].
At [23], the Tribunal noted that the applicant had not followed a logical academic path, that his time as a student had been excessive, and that his career prospects would be adversely affected as a result. The Tribunal weighed this against the applicant in assessing whether he was a genuine applicant for entry and stay as a student.
Whilst the evidence before the Tribunal indicated the applicant did not comply with conditions attached to his previous student visa, that is, he failed to maintain enrolment between 12 December 2019 and 25 June 2020, the Tribunal did not place adverse weight on the six-month gap in the applicant’s enrolment history [24].
Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 [27].
As such, at [29], the Tribunal affirmed the decision not to grant the applicant the visa.
GROUNDS OF JUDICIAL REVIEW
The applicant advances two grounds of judicial review contained in an Originating Application filed on 19 August 2024. The grounds are as follows:
1.The decision made by the Tribunal assessing the evidence individually and cumulatively
2.I request to Circuit Court to consider my application for my review.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was not assisted by an interpreter. The Court was satisfied that the applicant’s English language skills were more than sufficient for him to actively participate in the hearing.
Prior to the hearing commencing, the Court ensured that the applicant had been provided with a copy of the relevant Court books and that the first respondent’s written submissions had been provided to him and he had read them.
The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of his case.
The applicant agreed that the second ground of judicial review did not reveal any error in the decision of the Tribunal, and relied solely on the first ground of judicial review.
When asked what the error in the Tribunal’s decision was, the applicant stated that he applied for the visa during the COVID-19 pandemic, and that he had a child born in India who had a heart condition. This resulted in him being stressed and unable to concentrate. Due to the pandemic restrictions, the applicant was unable to visit his child, nor was he able to attend classes, which resulted in the gap in his enrolment and subsequent visa refusal.
The applicant agreed that he came to Australia on a study visa for the purpose of temporarily studying in Australia, however, he had been onshore since 2015. The applicant stated that in 2015, he came to Australia to study a Master’s in IT and networking. After he completed his Master’s degree, the applicant was granted a 485 visa (Temporary Graduate) for two years. Following that, the COVID-19 pandemic began, and the applicant wished to pursue further education, and hence he applied for the visa.
When asked to identify the error in the Tribunal’s decision, the applicant stated that the Tribunal did not consider his personal situation and that he wanted to study an Advanced Diploma of Leadership and Management in order to better his future. Whilst the applicant agreed that there was a gap in his enrolment between 12 December 2019 and 25 June 2020, he stated this was due to his personal circumstances, and emphasised that he had complied with all his visa conditions between 2015 and 2020. The applicant stated he just wanted a visa for one year.
When asked to identify what material the Tribunal did not consider, the applicant stated that the Tribunal did not consider his personal circumstances. The applicant agreed that the Tribunal did, in fact, outline his personal circumstances in its decision.
When asked to point the Court to any legal error in the Tribunal’s decision, the applicant responded, “not at this stage”.
When asked if there was anything further the applicant wished to state, he answered “no”.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted that it was unclear what was alleged in Ground One, however, when read generously, it could be said to either allege that the Tribunal erred in its assessment of the evidence or that there was evidence that the Tribunal failed to consider.
There is nothing to suggest that the Tribunal misconstrued or failed to consider any of the applicant’s evidence. The Tribunal accurately set out the documents before it at [5], and made cogent findings open to it in light of the applicant’s written and oral evidence.
At [20], the Tribunal considered the applicant’s circumstances in Australia and India, and accepted that the applicant had ongoing personal ties to India, but found that these would not serve as a significant incentive to return in light of the applicant’s choice not to reside in India for over nine years.
At [21] – [22], the Tribunal considered the value of the proposed Advanced Diploma of Leadership and Management to the applicant’s future, but found that the applicant was studying a course inconsistent with his level of education, in a field unrelated to his previous qualifications, and that the proposed qualification would not assist the applicant to obtain employment upon his return to India.
At [23] – [24], the Tribunal considered the applicant’s immigration history and found that the applicant had not followed a logical academic path and had spent excessive time as a student. Additionally, the Tribunal did not place any adverse weight on the period of time during which the applicant was not enrolled.
In the absence of any further particulars or explanation as to how the Tribunal erred in its consideration of the evidence, or identification of any evidence it failed to consider, the first respondent submitted that this ground should not succeed.
As to Ground Two, it was submitted that this ground failed to allege any error on part of the Tribunal, and to the extent that the ground is intended to request that the Court review the merits of the applicant’s visa application, the Court has no jurisdiction to do so.
In the supplementary submissions filed on 19 August 2025, the first respondent accepted that Direction 69 was no longer in force at the time of the Tribunal’s decision, and that the Tribunal was required to apply Direction 108. Whilst the first respondent conceded that the Tribunal erred in its application of Direction 69, it was submitted that this error was not material, and therefore not jurisdictional.
An error is material only where there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: Nathanson v Minister for Home Affairs [2022] HCA 26 at [32] per Kiefel CJ, Keane and Gleeson JJ; LPDT v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) at [7], [13], and [14] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
The contents of Direction 69 and Direction 103 are, insofar as they relate to the applicant’s visa application, identical. Both Directions require the decision-maker to consider the same factors when assessing a student visa application, that is, the applicant’s circumstances in their home country, the applicant’s potential circumstances in Australia, the value of the course to the applicant’s future, the applicant’s immigration history, and any other relevant matters.
In these circumstances, the first respondent submits that there is nothing to suggest that the applicant was deprived of any realistic possibility for the Tribunal to have reached a different decision had it applied Direction 108. Accordingly, the first respondent submits that the error in applying Direction 69 was not material
The issue of an incorrect application of Direction 69 was recently considered by the Court in Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 52 (Singh). In Singh, her Honour Judge Coulthard held that the Tribunal’s error in applying Direction 69 was immaterial in circumstances where the two directions are “substantively indistinguishable”: Singh at [36]–[38]. The first respondent respectfully submits that whilst Singh is not binding on the Court in this case, it was nevertheless correctly decided and should be followed.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
The only issues raised by the applicant in his oral submissions went to the merits of the decision, with the applicant expressing his disagreement with the ultimate factual outcome found by the Tribunal. As these matters are only related to merits review, they do not point towards any jurisdictional error on the part of the Tribunal.
Ground One
Ground one complains that the Tribunal failed to properly consider the evidence provided by the applicant in support of their visa application. No particulars are provided as to what information was not properly considered. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
The Court notes that the Tribunal fully set out the evidence that was before it and discussed it at length, ascribing appropriate weight to the various factors that it was required to consider. I am not satisfied there was any failure to consider any item of evidence that was required to be considered. Having looked at each required factor, the Tribunal then came to an overall conclusion that the applicant’s visa should be refused. That finding was open to the Tribunal, based on the evidence that was before it and for the reasons it gave. There is nothing illogical, irrational or legally unreasonable in the ultimate finding arrived at. Ground one has no merit
Ground Two
Ground two is not a proper ground of judicial review, merely a statement that the applicant seeks the Court to consider his application for review.
Other Matters
The Court notes the error of the Tribunal in referring to Direction 69 instead of Direction 108. The Court is satisfied, for the reasons set out above by the first respondent, that the error is not material, as in the circumstances of this case, the two directions are substantively indistinguishable. Accordingly, no error arises.
As the applicant is unrepresented, the Court has perused the relevant Court book and associated documentation. The Court is unable to detect any articulated jurisdictional error.
DETERMINATION
As none of the grounds of judicial review have any merit, the application must be dismissed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 29 August 2025
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