Mohammed v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1413

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

  1. 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).

  2. 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…

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Mohammed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1413
Case
[2025] FedCFamC2G 1413
Decision Date

CaseChat Overview and Summary

The case of Mohammed v Minister for Immigration and Citizenship concerns an Indian national who applied for a Student (Temporary) (Class TU) visa but was refused by the delegate on the basis that he did not meet the genuine temporary entrant criteria. The applicant subsequently sought review of this decision by the Administrative Appeals Tribunal (AAT), which affirmed the delegate's decision. Dissatisfied with the AAT's decision, the applicant sought judicial review of the AAT's decision in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the AAT erred in its consideration of the evidence and whether it correctly applied the relevant Ministerial Direction.

The court considered two grounds of judicial review put forward by the applicant. The first ground alleged that the AAT failed to properly consider the evidence provided by the applicant. However, the court found that the AAT had set out the evidence in detail and gave appropriate weight to the various factors it was required to consider. The court concluded that the AAT's finding was open to it based on the evidence before it and the reasons given. The second ground was not a proper ground of judicial review but rather a request for the court to consider the application for review. The court also noted the error in the AAT's reference to Direction 69 instead of Direction 108 but found that the error was not material as the two directions are substantively indistinguishable in the circumstances of this case.

The court dismissed the applicant's application for judicial review with costs. The court found that the AAT's decision was lawful and that the applicant's grounds of review did not point towards any jurisdictional error on the part of the AAT. The court held that it did not consider the merits or wisdom of the decision but rather the legality or lawfulness of the decision by reference to the complaints made about it. The court concluded that the AAT's decision was open to it based on the evidence before it and the reasons given. The court also found that the error in the AAT's reference to Direction 69 instead of Direction 108 was not material in the circumstances of this case.

Orders

Orders of the court

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Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 meritGround 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.