Nath v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1425
•1 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nath v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1425
File number(s): SYG 201 of 2021 Judgment of: JUDGE ELDERSHAW Date of judgment: 1 September 2025 Catchwords: MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges that the Tribunal did not place significant weight on certain key facts – Where the applicant was found not to be a genuine temporary entrant – Application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12
Migration Act1958 (Cth), ss 474, 476
Migration Regulations 1994 (Cth), cl 500.212
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Carrascalao v Minister for Immigration andBorder Protection (2017) 252 FCR 352
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kumar v Minister for Immigration and Border Protection [2020] 274 FCR 646
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Saleh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 619
Division: General Number of paragraphs: 77 Date of hearing: 15 July 2025 Place: Sydney Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr L. Dennis (Mills Oakley) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 201 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PROVASH NATH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
1 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application filed 10 February 2021 be dismissed.
2.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE ELDERSHAW
INTRODUCTION
By his application filed on 10 February 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 12 January 2021 (Decision) concerning his application for a Student (Temporary) (Class TU) visa (Student Visa).
The applicant seeks that the decision of the Tribunal be quashed, a writ of mandamus directed to the Tribunal requiring it to determine the Student Visa application according to law, and a declaration that the recommendation of the Tribunal was not made in accordance with law. The Minister seeks that the application be dismissed with costs.
DOCUMENTS
The applicant relies on his application and affidavit both filed on 10 February 2021. The Minister relies on his response filed 15 February 2021, Court Book filed 12 May 2021, and written submissions filed on 2 July 2025. The Court Book has been marked as Exhibit R-1. In these Reasons, references to the Court Book are styled CB followed by the page number.
The Minister’s response filed on 15 February 2021 sought that the application be listed for a show cause hearing under r 44.12 of the then-Federal Circuit Court Rules 2001 (Cth). Paragraph 4 of the response asserts that the application fails to establish any jurisdictional error. Paragraphs 3 and 40 of the Minister’s written submissions filed on 2 July 2025 identify that the Minister seeks that the substantive application be dismissed with costs. I am satisfied that the applicant has been on notice of the substance of the Minister’s position since 15 February 2021, namely that the application for judicial review should be dismissed with costs. As such, no prejudice is occasioned by allowing the Minister to make an oral amendment to his response at the outset of the final hearing and for the hearing to proceed as listed.
LEGAL FRAMEWORK
Section 476(1) of the Migration Act1958 (Cth) (Act) confers power on this Court to undertake judicial review of migration decisions where a writ of mandamus or prohibition, or an injunction is sought against a Commonwealth officer, subject to the limitations imposed by s 476(2). This Court’s power to review the Tribunal’s decision is limited to review for judicial error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The Court is not permitted to undertake a review of the merits of the application for a visa: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
Clause 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) sets out the criteria for the grant of subclass 500 student visas.
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the applicant satisfies clause 500.212(a) of Schedule 2 of the Regulations (genuine temporary entrant criterion), the Tribunal is to apply Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications” (Direction). The Direction addresses various factors which guide the decision-making process relating to the genuine temporary entrant requirement.
BACKGROUND AND MIGRATION HISTORY
The applicant was born in Bangladesh on 6 January 1983. His parents and siblings live in Bangladesh, and he is not married.
The applicant first arrived in Australia on 30 January 2010 on a student visa. He was granted a Temporary Graduate (Subclass 485) visa in August 2015.
The Provider Registration and International Student Management System (PRISMS) record, accessed on 11 January 2021, recorded the following study history for the applicant:
Course Commenced Concluded Status Certificate IV in Information Technology (Networking) 1 February 2010 28 January 2011 Completed Advanced Diploma of Information Technology (Network Security) 31 January 2011 27 January 2012 Completed Master of Professional Accounting (Professional Practice) 27 February 2012 - Cancelled – non commencement Master of Professional Accounting (Professional Practice) 27 February 2012 30 November 2013 Completed Master of Professional Accounting (Professional Practice) 17 March 2014 30 November 2014 Completed Master of Business Administration 16 March 2015 - Cancelled – non commencement Master of Business Administration 13 April 2015 - Cancelled – student notified cessation of studies Diploma of Leadership and Management 20 February 2017 - Cancelled – change of provider Diploma of Leadership and Management 20 February 2017 12 March 2018 Completed (see paragraph 13 below) Advanced Diploma of Leadership and Management 9 April 2018 - Cancelled – non-payment of fees Advanced Diploma of Leadership and Management 9 April 2018 15 March 2019 Completed Advanced Diploma of Leadership and Management 11 January 2021 - Current enrolment
Despite the PRISMS record stating that the applicant finished the Diploma of Leadership and Management, the applicant told the Tribunal that he did not finish the course. The documents at CB75 and CB127, being enrolment records from the providers of these courses demonstrate that the applicant had completed all but one unit. The PRISMS record also suggested that the applicant had finished an Advanced Diploma of Leadership and Management in March 2019. However, as demonstrated by CB154, the applicant changed education provider and was enrolled in that course at the time of the Tribunal’s Decision.
Application to the Department
On 31 January 2017, the applicant applied to the Department of Home Affairs (as it was then known) for a student (subclass 500) visa (the visa application). The applicant included a statement in support of that application, which read:
I, Provash Nath, permanent resident of Bangladesh, currently in Australia on a Temporary Residency Visa; would like to write this application in regards to my visa extension.
I completed Master of Accounting (Professional Practice) from Charles Darwin University in 2015 and have been in Australia on a TR visa. I believe that I have so many more things to learn (businesswise) in order to have a successful career ahead. I studied accounting to gain knowledge on the accounting section of business and learn how it operates. Likewise, I would like to study Leadership and Management to gain leadership and management skills.
So for that, I have acquired myself a new COE from Clarendon Business College and my course will be Diploma of Leadership and Management; which will start from the 20th of February 2017 and will end on the 12th of March 2018. After that, I will be continuing to Advanced Diploma of Leadership and Management from 9 April 2018 to 15 March 2019. I would really like to utilise this time on learning new things as it can help me expand and enhance my career. I believe that leadership and management provides a pathway to work in any sector of business industry.
Also, with no doubt I will be returning to my home country as all my family resides there. I hope that I will be capable enough to contribute to my country in terms of business and other social aspects.
I would be glad if you could give me a chance and help me achieve and fulfil my dreams.
At the time of the visa application, the applicant was enrolled in a Diploma of Leadership and Management which was to be conducted from February 2017 to March 2018, and an Advanced Diploma of Leadership and Management which was to be conducted from April 2018 to March 2019.
On 11 April 2017, the Delegate refused the visa application on the basis that the applicant had not satisfied the genuine temporary entrant criterion (First Delegate’s Decision).
First Tribunal Review
On 28 April 2017, the applicant sought to review the First Delegate’s Decision in the Tribunal.
On 6 August 2018, the Tribunal wrote to the applicant and invited him to attend a hearing on 30 August 2018. The letter identified to the applicant that he needed to satisfy the Tribunal that he was enrolled in a course of study and satisfied the genuine temporary entrant criterion.
On 22 August 2018, the applicant provided to the Tribunal:
(a)his current Confirmation of Enrolment in an Advanced Diploma of Leadership and Management through Clarendon Business College; and
(b)an enrolment summary for a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management through Academies Australasia.
On 27 August 2018, the applicant provided a statement to the Tribunal as follows:
My name is Provash Nath, case number 1709328, writing truly and honestly in regarding my intention to study an advanced diploma of leadership and management, which i believe i have had lack of my wit - as my future professional goal is to not only do my parents garments business which is located in Bangladesh, but also to build up a career in business leadership, therefore i have opted to study the course. And i believe this is a key course which can unlock my potentiality that i cherish.
Never do i feel i can stop thinking to complete my desire. And i have already completed more than a half of my course of leadership and management despite not having since been granted a student visa.
Therefore, i humbly request to the concerned authority of MRT giving me a chance to complete my remaining course.
On 30 August 2018, the applicant attended a hearing before the Tribunal.
On 13 September 2018, the applicant provided to the Tribunal a copy of a bank statement in his name, a foreign exchange remittance advice dated 30 January 2017, recent pay slips, and his PAYG payment summaries for the financial years ending 30 June 2017 and 30 June 2018.
On 18 January 2019, the Tribunal affirmed the Delegate’s Decision on the basis that the applicant did not satisfy the genuine temporary entrant criterion (First Tribunal Decision). The applicant sought judicial review of that Decision.
First Judicial Review
On 19 August 2020, by consent, this Court issued a writ of certiorari directed to the Tribunal quashing the First Tribunal Decision, and a writ of mandamus directed to the Tribunal requiring it to review the Delegate’s Decision. The Court found that the Tribunal erred by assessing the applicant’s ties, and incentive to return, to Pakistan, whereas the applicant’s home country was Bangladesh.
Second Review in the Tribunal
On 4 December 2020, the Tribunal wrote to the applicant inviting him to comment or respond to information concerning his enrolment in a course of study.
On 16 December 2020, the applicant emailed the Tribunal as follows:
My name is Provash Nath and writing in regards to a recent email I have received from AAT. Despite having all efforts I had, I have been unable to accomplish some units due to stress and uncertainty that eventually led me to failing to complete my diploma and advanced diploma of leadership management course. However, the recent email from Tribunal shows me a new hope and a light at the end of the tunnel that I can achieve my goal and can be able to meet my parents’ one of requirements to be employed in their business- clothing business- requiring leadership and manager who can be qualified for planning, organizing and managing the resources of the business for future expansion widely.
I have been offered with some credit exemptions from Kensington International College that considers my some subjects which I have completed previously from my diploma and advanced diploma in leadership management course and, therefore, they have shortened my course duration that is 78 weeks instead of 104 weeks in advanced diploma in leadership management. I have attached my COE of advanced diploma in leadership management and previous study history and transcripts of diploma and advanced diploma of leadership management course.
Therefore, my humble request to Tribunal to consider my case and allow me to complete my aspiration that paves the way in expanding my parents’ business.
The applicant attached:
(a)a copy of his Confirmation of Enrolment in an Advanced Diploma of Leadership and Management, a Statement of Attainment and academic transcript for this course; and
(b)a Statement of Attainment relating to an Advanced Diploma of Leadership and Management and academic transcript from Clarendon Business College.
On 24 December 2020, the Tribunal invited the applicant to attend an electronic hearing on 12 January 2021.
On 3 January 2021, the applicant returned a “Response to hearing invitation” form to the Tribunal. He answered “No” in response to questions about whether he required an interpreter, whether there was any issue that may affect his ability to take part in the hearing, and whether he believed that he would experience any difficulty participating in the hearing or that the hearing could not be conducted as arranged. The applicant answered “Yes” in response to the question of whether he intended to rely on documents at the hearing but did not identify such documents. He did not request the Tribunal to take evidence from another person and left blank the lines where he could have nominated such additional witnesses.
On 5 January 2021, the applicant provided to the Tribunal a letter from his father addressed to the Tribunal as follows:
I, Indro Mohan Dev Nath, father of Provash Nath, owner and founder of Adi Srilaxmi Bostralaya located in Puran Bazar, Sreemongal, Moulvibazar, Sylhet, offered my son a job as a manger of my business. A specific condition that needs to be fulfilled before getting into the job is to complete a management and leadership course. The condition is required due to the position needed for planning, organising and employee management and expansion of the business.
The reason given to complete study from overseas like Australia is the quality and standard of the education system in Australia, unlike Bangladesh, where lack of expertise and professionals are a concerning issue leading to less learning outcomes after completion of study. In addition to that, Australia has a diversified working culture and organisations which can help diversify the experiences and can help acquire knowledge needed to innovate ideas and boost the profit of a business. Therefore, my humble request is to consider the applicant's student visa and allow him to complete his study.
(Emphasis added).
On 6 January 2021, the applicant provided to the Tribunal a copy of a bank statement in his name and a letter of offer from an education provider for an Australian Advanced Diploma of Leadership and Management commencing 11 January 2021 and concluding 8 July 2022.
On 11 January 2021, the applicant provided to the Tribunal a copy of an Application for Credit Transfer of units in the Advanced Diploma of Leadership and Management to a new education provider.
Hearing before the Tribunal and its Decision
On 12 January 2021, the applicant appeared before the Tribunal by telephone to give evidence and present arguments in his case. An oral decision was given at the end of the hearing. The Tribunal published its Decision in writing on 29 January 2021.
The Minister’s written submissions conveniently summarised the effect of the Tribunal’s Decision, which I incorporate into these Reasons:
18.The Tribunal was satisfied the applicant was enrolled in a course of study ([10]-[11]) and identified the critical issue was whether the applicant met the GTE criteria ([12]).
19.The Tribunal found that the Regulations were “expressed in a way such that there are at least three constituent elements of which I must be satisfied of in order for him to meet that particular criterion under clause 500.211” (sic). It then found that the applicant was required to demonstrate: (1) that he was “a genuine, authentic applicant for entry and stay as a student”; (2) that he intended to stay in Australia temporarily; and (3) that he intended to comply with the conditions to which the visa may be subject.
20.Whilst it accepted that “on the face of his declared intentions” the applicant did intend to remain in Australia temporarily, the Tribunal also found that it was required take into account the “more objective considerations”, the most significant of which was that the applicant’s residence in Australia for 10 years raised a concern that he was attempting to use the Student visa program to maintain ongoing residence ([18]). The Tribunal accepted that the applicant had studied “reasonably consistently” for the first five years of his stay in Australia ([19]). However, it found on the applicant’s own evidence that he had not completed any course successfully since then, although he “came close” to completing a Diploma of Leadership and Management ([20]).
21.The Tribunal found the PRISMS report disclosed a number of enrolments and cancellations since 2015 which ultimately showed “a pattern of conduct” which raised concerns as to whether or not the applicant intended to comply with the conditions of a Student visa ([21]) and noted that when this was raised with the applicant during the hearing “pursuant to section 359AA”, the applicant responded that he had not completed his enrolments during that period due to a range of factors including mental stress and uncertainty about his visa status ([22]). The Tribunal found the applicant’s evidence went to his intention to comply with the conditions of the visa ([22]).
22.The Tribunal accepted that Australia offered better courses than Bangladesh in leadership and management and that there would be some benefit of doing an Advanced Diploma of Leadership and Management in Australia, rather than Bangladesh. It noted the applicant had not specifically investigated alternative courses but found that it did not consider this was particularly material ([23]).
23.The Tribunal also accepted that, except for his sister in Canada, the applicant’s family resided in Bangladesh, which might suggest that he had strong familial ties to his home country. However, it found that seemed to be undermined by the fact the applicant had not made any return trips to Bangladesh since 2014 (although he was in touch with his family by video messenger).The Tribunal was not satisfied that the applicant’s family ties were of such significance that they provided a significant incentive for him to return ([24]).
24.The Tribunal found that the applicant’s community ties in Bangladesh would have diminished with the passage of time, and that although he did refer to a lot of property his family owned in Bangladesh it was not satisfied that those assets operated as a significant incentive for him to return to Bangladesh ([25]). The Tribunal also found that the relative social and economic conditions in Australia were “generally better” than in Bangladesh and presented a significant incentive for the applicant not to return to Bangladesh ([26]).
25.The Tribunal found there did not appear to be any evidence of political or civil unrest, or potential military service for the applicant in Bangladesh ([27]).
26.As the applicant had been living in Australia for 10 years purportedly as a temporary resident and had not completed a course for the last five years ([28]), the Tribunal found it was “obvious the applicant [was] satisfied living in Australia”, or else he would already have returned to Bangladesh. It did not accept that the only reason he had stayed was because he wanted to fulfil his father’s desire for him to complete a management qualification as he had already achieved a very significant qualification (the Masters course) and “if he was so set on completing a management course” he would have completed a Diploma course “at least two or more years ago” ([29]).
27.The Tribunal found that the proposed course was not “very valuable at all” to the applicant as he already had a master’s degree and that it did not appear to be essential for the role the applicant had been offered in his father’s business, given the applicant was “highly intelligent enough to have already obtained a Master’s of Professional Accounting” and that “people such as the applicant are employed by their parents in family businesses without such qualifications” ([30]). It also found that the applicant had enough skills to be able to “pick up a job” in his father’s business without completing an Advanced Diploma of Leadership and Management, taking into account that he had “virtually completed” a Diploma of Leadership and Management previously ([31]).
28.Although it was concerned there were a number of enrolment cancellations, the Tribunal accepted that the applicant had been compliant with conditions of his visas and accepted that he had been “a good non-citizen resident in Australia”. However, it found that his protracted period of purportedly temporary stay was becoming more permanent and that after 10 years the Tribunal had concerns that the applicant was attempting to maintain ongoing residence on a more long-term basis, rather than simply wanting to study ([32]).
29.On the basis of all these considerations, the Tribunal was not satisfied the applicant intended to remain in Australia temporarily: cl500.212(a). Based on the applicant’s five-year recent history of enrolments and cancellations, the Tribunal was also not satisfied that he intended to comply with the conditions of a visa if one was issued to him and found that cl500.212(b) was not met ([33]).
30.On these bases the Tribunal affirmed the decision under review ([34]-[35]).
Current Judicial Review Proceedings
On 10 February 2021, the applicant filed an application for judicial review in this Court alleging three Grounds:
1.The decision was made based on assumption rather than considering real facts and evidence provided.
2. The value of the course of study was not considered.
3. The decision made by Tribunal was very harsh and travesty of justice.
CONSIDERATION
Ground One
1.The decision was made based on assumption rather than considering real facts and evidence provided.
For convenience, “Representation” means the representation in the applicant’s father’s letter dated January 2021 that, for the applicant to work as a manager in the family business, it was a “specific condition” that he completed a leadership and management course.
The applicant submitted that:
(a)the Tribunal did not consider the letter from his father and the Representation it contained.
(b)the Tribunal said that he had achieved a Masters qualification. However, he had not specialised in management, which was the course that his father required even though the Masters qualification had some management units.
(c)he almost completed the Diploma of Leadership and Management but stopped due to the mental stress because of not getting a visa.
(d)the Tribunal assumed that he would not be in Australia temporarily.
As to the genuine temporary entrant criterion, the Minister submitted:
33.In relation to cl 500.212(a), the Tribunal had regard to the evidence and material submitted by the applicant insofar as it was relevant to the dispositive issues on the review and assessed the applicant’s circumstances having regard to Direction 69. The Tribunal provided clear reasons for concluding that it was not satisfied the applicant was a genuine temporary entrant. Its findings were open to the Tribunal on the available evidence and for the reasons it gave. The Tribunal had regard to all the considerations identified by Direction 69 that were raised “by the evidence”: Minister for Immigration v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145 at [65] per Stone, Foster and Nicholas JJ. There was no obligation on the Tribunal to “formulaically address” or “laboriously set out” each and every matter in Direction 69: Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 at [106] per Logan, Derrington and Thawley JJ. The Minister submits that it is apparent that the matters that were considered to be relevant to the applicant’s circumstances or sufficiently material to the applicant were given weight.
As to the requirement that the applicant intends to comply with any conditions subject to which the visa is granted pursuant to clause 500.212(b) of Schedule 2 of the Regulations, the Minister submitted:
34.The Tribunal also found that the applicant failed to satisfy cl 500.212(b),which relevantly requires that the applicant intends to comply with any conditions subject to which the visa is granted having regard to: the applicant’s record of compliance with any conditions of a visa previously held by the applicant (if any); and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
35.In assessing whether the applicant intended to comply with these conditions, the Tribunal relied on PRISMS records that disclosed “a number of enrolments and cancellations” (the Tribunal did not identify how many) since 2015 as evidence that he may not intend to complete his course ([21]). The Tribunal noted the applicant’s evidence that he had not completed his enrolments in the previous five years due to a range of factors including “mental stress” and uncertainty around his visa status ([22]). The Tribunal’s ultimate finding makes clear that it was not satisfied the applicant would comply with the conditions of his visa “based on the five year recent history of his enrolments and why that was the case” ([33]). The Minister contends that the Tribunal’s findings were open to it for the reasons it gave.
36.The requirements of cl 500.212 are cumulative, and the applicant was required to satisfy [the] Tribunal that each of the criteria in (a), (b) and (c) were met: Vidyala v Minister for Home Affairs [2018] FCA 1973 at [28] per Perry J. Accordingly, the applicant would need to establish error in relation to both bases of the Tribunal’s decision to succeed in his application: Minister for Immigration, Citizenship and Multicultural Affairs v Qazizada [2024] FCA 989 at [21]-[24] per Perram J.
In his oral submissions, the Minister’s legal representative:
(a)identified that paragraph 8 of the Decision referred to the letter from the applicant’s father;
(b)submitted that there is no basis for the contention that the letter was overlooked, and the Tribunal’s analysis as to the substance of the letter was logical, rational and reasonable, and the findings it made were open to it; and
(c)the Tribunal grappled with the fact that the applicant had completed a Master’s degree but the real issue was that there were a number of enrolments and cancellations, such as to result in findings that were open on the evidence that the applicant was seeking to maintain residence in Australia and that the applicant would not comply with the condition of his visa (for the purpose of clause 500.212(a) and (b) of Schedule 2 of the Regulations respectively).
Discussion
At paragraph 8 of its Decision, the Tribunal said, inter alia:
8.[…] There is also an undated letter from a Mr Nath, who appears to be the applicant's father. The applicant in evidence stated that his father provided him that letter in January of this year, so it is a relatively recent document and it is basically in summary a document that offers his son a job in the family business but it is contingent upon the applicant completing "a management and leadership course", and the father in that letter seeks to explain that this qualification is needed for planning, organising and employee management and expansion of the family business. And also the father in that letter makes some comment about the benefits of studying in Australia and Australia's education system as opposed to Bangladesh's education system by comparison.
At paragraph 16 and 17 of the Decision, the Tribunal said:
16. So I turn first of all to the applicant's declared intentions. The applicant, when asked about why he wishes to do the Advanced Diploma of Leadership and Management, said that he wishes to do this course because first and foremost his father has told him to complete this course because his father believes that it will provide him with the necessary skills to become more involved or to become involved and to be offered a job at the family business. The applicant described the business as a clothing manufacturing retailer and wholesaler garment business and that the job to be offered to the applicant by his father would involve planning and organising the business. The applicant made it clear that his father had said that his Master's Degree is not sufficient and that skills and education obtained from this Advanced Diploma of Leadership and Management course will broaden his knowledge for management.
17. The tribunal asked the applicant how many people are employed by the business. He said about 10 to 11 employees. Sometimes it gets up to 15 employees. And the average turnover is approximately $A60,000 per annum. The tribunal inquired of the applicant as what he wants or what he will do once he completes this course if he is granted his visa. He said he will go back to Bangladesh and start that job. The tribunal made this inquiry because the applicant has been here for approximately a decade already and that length of time is a significant length of time given the applicant is 38. He has spent most of his adult life in Australia, and so the tribunal asked the applicant whether he actually intends to remain in Australia permanently. He said, emphatically, ‘no’. He said he wishes to return to Bangladesh.
At paragraph 23 of the Decision, the Tribunal accepted the proposition contained in the second paragraph of the applicant’s father’s letter that Australia offers better courses in leadership and management than Bangladesh.
As demonstrated by paragraphs 8, 16, 17 and 23 of its Decision, the Tribunal was aware of the letter from the applicant’s father and the Representation. Although the Tribunal stated at paragraph 8 of its Decision that the letter was undated, nothing turns on this as it accepted the applicant’s oral evidence that the letter was from January 2021.
At paragraphs 30 and 31 of its Decision, the Tribunal said:
30. The value of the proposed course, I have also taken into account, is not very valuable at all given the applicant already has a Master’s course. He said he needs it to become involved in his father’s work, which currently employs between 10 and 15 employees. I do not consider this Advanced Diploma to be essential for that purpose given that the applicant is highly intelligent enough to have already obtained a Masters of Professional Accounting and that people such as the applicant are employed by their parents in the family business without such qualification.
31. In any event, the applicant, in my view, has enough skills to be able to pick up a job in his father’s business without completing an Advanced diploma in Leadership and Management. I also take into account that he has virtually completed, or almost completed by his own evidence, a Diploma of Leadership and Management.
I have understood the substance of the applicant’s submission to be that the Tribunal erred because, while recognising that he had achieved a Masters qualification which included some management units, his father required him to complete a course that specialised in management. That is, that the Tribunal ought to have accepted the Representation in its literal terms, namely that a management qualification was a “specific condition” to working as a manager in the family business.
Paragraphs 30 and 31 of the Decision demonstrate that the Tribunal placed limited weight on the Representation. This is most readily seen from paragraph 31, in which the Tribunal found that the applicant could “pick up a job” (which contextually means learn the skills of a job, rather than procure a job) without an Advanced Diploma in Leadership and Management. From this paragraph, I infer that the Tribunal accepted that the extent of the applicant’s training in leadership and management would assist him to work as a manager in the family business. That is, the Tribunal did not reject the proposition advanced by the applicant that some training in leadership and management would be valuable to him. Rather, it was saying that the extent of the training undertaken to that point was sufficient in the context of the applicant’s other training to enable the applicant to work as a manager in the family business. That finding was open to the Tribunal on the evidence of the study already undertaken by the applicant, noting that:
(a)The Tribunal was not required to uncritically accept the applicant’s evidence and did not require rebutting evidence before holding that a factual assertion was not made out: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 per McKerracher, Griffiths and Rangiah JJ at [65].
(1)The attribution of what weight should be applied to the evidence is a matter for the Tribunal: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ,
I now turn to whether the conclusions at paragraphs 30 and 31 of the Decision were open to the Tribunal. The first sentence of paragraph 30 operates as a chapeau to the third sentence of that paragraph and the whole of paragraph 31. The second sentence of paragraph 30 stated the applicant’s assertion that he needs to complete the Advanced Diploma and the number of employees in the business.
As to the third sentence of paragraph 30 of the Decision:
(a)I find that it was open to the Tribunal to infer that the applicant was intelligent, given he had obtained a Masters of Professional Accounting such as to assist him in his work in the family business.
(b)I am somewhat more circumspect about the rational foundation which would enable me to understand the features of the cohort of “people such as the applicant” and the cohort of “parents in family businesses”.
However, any misgivings that I have about the matter set out at (b) in the preceding paragraph of these Reasons are ameliorated because, the Tribunal distanced itself from paragraph 30 by the introductory words “in any event”. In so doing, the content of paragraph 31 is disaggregated from the third sentence of paragraph 30 and stands in isolation from it.
I find that it was open to the Tribunal to infer that the fact that the applicant had almost completed a Diploma of Leadership and Management meant that he had enough skills to work in the family business as a manager. This finding is bolstered by the proposition at paragraph 29, wherein the Tribunal said:
29. It is obvious that the applicant is satisfied living in Australia. If he was not he would have returned to Bangladesh by now. I do not accept that the only reason he has stayed here is because he wants to fulfil his father's desire for him to complete a management qualification. He has already achieved that it seems with a very significant qualification being the Master's course. If he was so set on completing a management course I would think he would have completed a Diploma course at least two or more years ago.
This finding was rationally open to the Tribunal considering the applicant’s study history of a successfully completed Masters course and the completion of all but one unit in the Diploma of Leadership and Management.
I do not accept the applicant’s contention that the Tribunal “assumed” that the applicant would not be in Australia temporarily. That was the Tribunal’s determination pursuant to clause 500.212(a) of Schedule 2 of the Regulations having regard to the factors set out in the Direction. In addition to considering the value of the proposed course of study on the applicant’s plans as discussed above, I find that the Tribunal had regard to the applicant’s circumstances in Bangladesh and Australia (see paragraphs 8, 23 to 28 of its Decision), to his immigration history (see paragraphs 18, 24 and 28 of its Decision) and study history (see paragraphs 19 to 22 of its Decision).
For the reasons set out at paragraphs 39 to 51 above, I find that the Tribunal did not err as contended by Ground One.
The Tribunal affirmed the Delegate’s Decision on the dual bases that the applicant satisfied neither clause 500.212(a) nor 500.212(b) of Schedule 2 of the Regulations. The applicant did not articulate a challenge to the latter aspect of the Decision. Nevertheless, I will turn my mind to it.
I am satisfied that the Tribunal’s finding that the applicant did not satisfy clause 500.212(b) of Schedule 2 of the Regulations was sound. Its reasons are located at paragraphs 19 to 22 and 29 of the Decision. The evidence on which the finding was based was the applicant’s study history recorded in the PRISMS document dated 11 January 2021, as corrected by the applicant’s oral and documentary evidence.
The applicant had only one subject to complete in the Diploma course but, rather than completing it, commenced an Advanced Diploma. The finding that the applicant had been in Australia for ten years but had not studied any course to completion in the preceding five years as to disclose a concerning pattern of conduct, and that the applicant could have completed a management course at least two years prior, were open on the evidence of the PRISMS record and the applicant’s evidence; and was rationally and logically connected to the Tribunal’s conclusion that the applicant did not satisfy clause 500.212(b) of Schedule 2 of the Regulations.
I accept the Minister’s submission that clause 500.212 (a) and (b) of Schedule 2 of the Regulations are cumulative. Irrespective of whether the Tribunal erred in relation to its analysis of clause 500.212(a), there is no error in its approach to clause 500.212(b).
For the reasons set out at paragraphs 54 to 56 above, I find that the conclusion reached by the Tribunal in relation to clause 500.212(b) of Schedule 2 of the Regulations was rational and logical.
As such, I find that the Tribunal made no error in its conclusion that the applicant was not a genuine applicant for entry and stay as a student.
Ground One fails.
Ground Two
2. The value of the course of study was not considered.
In his oral submissions, the applicant impressed on the Court the “importance of the course in my life to get the job offer provided by my father.”
The Minister submitted that:
37.This ground alleges that the proposed course of study was not considered. This Minister contends that there is no substance to this ground and it should be dismissed. The applicant provided the Tribunal with a confirmation of enrolment for an Advanced Diploma of Leadership and Management and gave oral evidence that this was the course he wished to undertake ([16]). The Tribunal plainly considered that this was the course the applicant proposed to study ([23], [30], [31]) but found that it was not valuable given the applicant’s study history and stated goals. These findings were open on the available evidence and the applicant has otherwise failed to identify the basis for his claim that the course was “not considered”.
Discussion
It is well established that “consider” imports an obligation to give proper, genuine and realistic consideration to the relevant statutory criteria: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at [11] per Gummow J.
Consideration of a claim requires engagement in an active intellectual process: Carrascalao v Minister for Immigration andBorder Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
The extent and nature of this requirement was explained by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24]-[27] thus:
[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
[25]It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26] Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Peko-Wallsend, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
(References omitted)
The issue about the value of the course of study engages clause 12 of the Direction, which provides:
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
As to what the applicant said about the value of the course to his future plans:
(a)In his visa application at CB9, the applicant said that, after completing his degree, he would “certainly be able to gain more knowledge in the related [fields] and will be able to utilise back in my home country.”
(b)In his statement submitted with the visa application at CB18, the applicant said, inter alia, “I hope that I will be capable enough to contribute to my country in terms of business and other social aspects”.
(c)In his statement dated 27 August 2018 at CB85, the applicant said, inter alia:
… my future professional goal is to not only do my parents garments business which is located in Bangladesh, but also to build up a career in business leadership, therefore i have opted to study the course. And i believe this is a key course which can unlock my potentiality that i cherish.
Never do i feel i can stop thinking to complete my desire. And i have already completed more than a half of my course of leadership and management despite not having since been granted a student visa […]
(d)In his email dated 16 December 2020 at CB131, the applicant said, inter alia,
…However, the recent email from Tribunal shows me a new hope and a light at the end of the tunnel that I can achieve my goal and can be able to meet my parents’ one of requirements to be employed in their business- clothing business- requiring leadership and manager who can be qualified for planning, organising and managing the resources of the business for future expansion widely.
(e)that it was a specific condition of working in his family business that he completed a management and leadership course.
The Tribunal summarised the applicant’s oral evidence on this issue at paragraph 16 to 18 of the Decision, which reads as follows:
16. So I turn first of all to the applicant's declared intentions. The applicant, when asked about why he wishes to do the Advanced Diploma of Leadership and Management, said that he wishes to do this course because first and foremost his father has told him to complete this course because his father believes that it will provide him with the necessary skills to become more involved or to become involved and to be offered a job at the family business. The applicant described the business as a clothing manufacturing retailer and wholesaler garment business and that the job to be offered to the applicant by his father would involve planning and organising the business. The applicant made it clear that his father had said that his Master's Degree is not sufficient and that skills and education obtained from this Advanced Diploma of Leadership and Management course will broaden his knowledge for management.
17. The tribunal asked the applicant how many people are employed by the business. He said about 10 to 11 employees. Sometimes it gets up to 15 employees. And the average turnover is approximately $A60,000 per annum. The tribunal inquired of the applicant as what he wants or what he will do once he completes this course if he is granted his visa. He said he will go back to Bangladesh and start that job. The tribunal made this inquiry because the applicant has been here for approximately a decade already and that length of time is a significant length of time given the applicant is 38. He has spent most of his adult life in Australia, and so the tribunal asked the applicant whether he actually intends to remain in Australia permanently. He said, emphatically, ‘no’. He said he wishes to return to Bangladesh.
18. On the face of his declared intentions he does intend to stay here temporarily. But of course one cannot stop simply with the assertions of an applicant. One must look to more objective considerations, the most significant of which is that he has been here for 10 years, and that raises a significant concern that he is attempting to use the student visa program to maintain ongoing residence.
The Tribunal was entitled to “look at more objective considerations” rather than accept the applicant’s evidence at face value, and it does not require rebutting evidence before holding that a factual assertion is not made out: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 per McKerracher, Griffiths and Rangiah JJ at [65]. Further, there is a difference between a failure to consider a claim and a failure to accept it: Saleh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 619 at [41].
The Minister has pointed to paragraph 23 of the Decision. In that paragraph, the Tribunal accepted that Australia offers better courses than Bangladesh in leadership and management. In my view, paragraph 23 more naturally engaged clause 9(a) and 11(e) of the Direction rather than clause 12.
However, I am satisfied that paragraphs 29 to 31 demonstrate that the Tribunal considered the value of the course to the applicant’s future. In that passage of reasoning, the Tribunal deduced that, based on the “very significant qualification” already held by the applicant, he has already fulfilled “his father’s desire” to complete a management qualification, and that if he “was so set on completing a management course […] he would have completed a Diploma course at least two or more years ago”. These findings were open to the Tribunal on the evidence.
The findings at paragraph 29 led to the consideration and conclusions at paragraphs 30 and 31, being that the course was “not very valuable”, which was in turn logical and rational based on the conclusion at paragraph 29.
Having regard to the evidence and submissions of the applicant which engaged clause 12 of the Direction, and the reasoning disclosed at paragraphs 29 to 31 of the Decision, I find that the Tribunal considered the value of the course to the applicant’s future.
Ground Two fails.
Ground Three
3. The decision made by tribunal was very harsh and travesty of justice.
The applicant submitted that the Decision “was not the right decision for me”, “it did not suit me.” The Minister submitted that Ground Three invites an impermissible merits review.
I find that Ground Three, as better explained by the applicant’s oral submissions, demonstrates that the applicant seeks an impermissible merits review of the Decision.
Ground Three fails.
FINAL DISPOSITION
For the reasons given, no jurisdictional error has been demonstrated. The application filed on 10 February 2021 must be dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 1 September 2025
0