FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nayeem v Minister for Immigration and Citizenship [2025] FedCFamC2G 1525
File number(s): SYG 2000 of 2021 Judgment of: JUDGE LAING Date of judgment: 19 September 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence that was before it – whether the Tribunal’s reasoning was open to it on the material before it – limitations of the Court’s role on judicial review – application dismissed Legislation: Migration Act 1958 (Cth) s 499
Migration Regulations 1994 (Cth) Sch 2, cl 500.211, 500.212
Cases cited: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347
Division: General Number of paragraphs: 29 Date of hearing: 21 July 2025 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Mr T Qian of Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2000 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED NAYEEM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
19 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application 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 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 LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (as it was) (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
For the following reasons, I consider that I am obliged to dismiss the application before the Court.
BACKGROUND
The applicant applied for the student visa that is the subject of this review on 5 September 2019. On 10 December 2019, the Delegate refused to grant the applicant’s student visa application.
On 20 December 2019, the applicant applied to the Tribunal for review of the Delegate's decision. On 16 August 2021, the applicant attended a hearing before the Tribunal.
On 23 September 2021, the Tribunal affirmed the Delegate's decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Migration…
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- AGLC
- Nayeem v Minister for Immigration and Citizenship [2025] FedCFamC2G 1525
- Case
- [2025] FedCFamC2G 1525
- Decision Date
CaseChat Overview and Summary
The case of Nayeem v Minister for Immigration and Citizenship involved the applicant, Nayeem, seeking a judicial review of a decision made by the Administrative Appeals Tribunal (AAT) to affirm the Minister's refusal of a student visa application. The central issue was whether the AAT had failed to consider evidence that was before it and whether the AAT's reasoning was open to it on the material before it.
The court examined the AAT's consideration of factors relevant to determining whether Nayeem met the criterion for being a genuine temporary entrant under the Migration Regulations. The AAT assessed Nayeem's circumstances in India, his potential circumstances in Australia, the value of the proposed course to his future, his immigration history, and other relevant matters. The AAT found that Nayeem had not demonstrated a significant incentive to return to India and that his intention to live in Australia appeared to be motivated by factors other than genuine study. The AAT was satisfied that Nayeem was using the student visa programme as a means to maintain ongoing residence in Australia, rather than having a genuine intention to stay temporarily.
The court concluded that the AAT had considered the relevant factors and had provided sufficient reasoning for its decision. The court held that the AAT's decision was open to it on the material before it and that the application for judicial review should be dismissed. The court emphasised the limited role it plays in reviewing such decisions, noting that it does not substitute its judgment for that of the AAT unless the decision is Wednesbury unreasonable or there has been a failure to consider relevant material or an error of law.
The final orders of the court were to dismiss the application for judicial review with no orders as to costs.
The court examined the AAT's consideration of factors relevant to determining whether Nayeem met the criterion for being a genuine temporary entrant under the Migration Regulations. The AAT assessed Nayeem's circumstances in India, his potential circumstances in Australia, the value of the proposed course to his future, his immigration history, and other relevant matters. The AAT found that Nayeem had not demonstrated a significant incentive to return to India and that his intention to live in Australia appeared to be motivated by factors other than genuine study. The AAT was satisfied that Nayeem was using the student visa programme as a means to maintain ongoing residence in Australia, rather than having a genuine intention to stay temporarily.
The court concluded that the AAT had considered the relevant factors and had provided sufficient reasoning for its decision. The court held that the AAT's decision was open to it on the material before it and that the application for judicial review should be dismissed. The court emphasised the limited role it plays in reviewing such decisions, noting that it does not substitute its judgment for that of the AAT unless the decision is Wednesbury unreasonable or there has been a failure to consider relevant material or an error of law.
The final orders of the court were to dismiss the application for judicial review with no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
For the following reasons, I consider that I am obliged to dismiss the application before the Court.BACKGROUND The applicant applied for the student visa that is the subject of this review on 5 September 2019. On 10 December 2019, the Delegate refused to grant the applicant’s student visa application. On 20 December 2019, the applicant applied to the Tribunal for review of the Delegate's decision. On 16 August 2021, the applicant attended a hearing before the Tribunal. On 23 September 2021, the Tribunal affirmed the Delegate's decision.RELEVANT LAW The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided:500.212The 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 satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:(a)the applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future;(b)the applicant’s immigration history; and(c)any other relevant information. Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.THE TRIBUNAL’S DECISION The Tribunal considered the background to the matter, the criterion in issue and evidence before it (including evidence given at hearing) at [1]-[40] of its decision. The Tribunal gave the following reasons for affirming the Delegate's decision at [41]-[56]:41.In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.42.The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from India. The applicant has provided evidence of direct family ties to his home country which act as an incentive to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.43.The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 11 July 2016 as a holder of student visa. He was subsequently granted another student visa after the expiry of the first. The proposed study would extend the applicant’s stay until at least September 2022. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance, it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.44.The Tribunal does not place substantial weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First, the applicant gave evidence of extremely vague career plans. Second, he has only recently expressed an interest in project management despite undertaking several different courses previously.45.The Tribunal has considered the applicant’s study history since arrival and notes that he has enrolled in but not successfully completed two higher education courses, with periods of significant study gaps, and has completed one vocational course in business during his more than five years in Australia. He has only recently decided to enrol in a project management course after a long period of not studying. The recent interest in the project management course seems to coincide with the notification of hearing of the applicant’s application for review.46.The Tribunal observes that the current course is inconsistent with the applicant’s qualifications obtained in India, and is inconsistent with his plans when he entered Australia.47.The applicant relies on an undated statement in which he addresses the various genuine temporary entry criterion. As discussed above, it has been taken into account and given appropriate weight.48.On balance, the Tribunal is not satisfied that the applicant has established that his study will provide him with significant benefits in his proposed career plan, considering the cost of the study. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.49.The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country, which diminishes his incentive to return to India.50.The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.51.The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 11 July 2016 the applicant has spent more than five years in Australia and returned to his home country on one occasion for 40 days, he has no assets in India, he has no employment history in India, his brother resides in Australia, if allowed he intends to reside in Australia until at least September 2022 and he has stable employment in Australia, all of which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be minimal.52.The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted to student visa specifically to enable him to achieve that goal. On balance, it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.53.The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.54.On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.55.There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country. 56.On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.THE TRIBUNAL’S DECISION The Tribunal considered the background to the matter, the criterion in issue and evidence before it (including evidence given at hearing) at [1]-[40] of its decision. The Tribunal gave the following reasons for affirming the Delegate's decision at [41]-[56]:41.In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.42.The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from India. The applicant has provided evidence of direct family ties to his home country which act as an incentive to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.43.The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 11 July 2016 as a holder of student visa. He was subsequently granted another student visa after the expiry of the first. The proposed study would extend the applicant’s stay until at least September 2022. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance, it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.44.The Tribunal does not place substantial weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First, the applicant gave evidence of extremely vague career plans. Second, he has only recently expressed an interest in project management despite undertaking several different courses previously.45.The Tribunal has considered the applicant’s study history since arrival and notes that he has enrolled in but not successfully completed two higher education courses, with periods of significant study gaps, and has completed one vocational course in business during his more than five years in Australia. He has only recently decided to enrol in a project management course after a long period of not studying. The recent interest in the project management course seems to coincide with the notification of hearing of the applicant’s application for review.46.The Tribunal observes that the current course is inconsistent with the applicant’s qualifications obtained in India, and is inconsistent with his plans when he entered Australia.47.The applicant relies on an undated statement in which he addresses the various genuine temporary entry criterion. As discussed above, it has been taken into account and given appropriate weight.48.On balance, the Tribunal is not satisfied that the applicant has established that his study will provide him with significant benefits in his proposed career plan, considering the cost of the study. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.49.The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country, which diminishes his incentive to return to India.50.The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.51.The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 11 July 2016 the applicant has spent more than five years in Australia and returned to his home country on one occasion for 40 days, he has no assets in India, he has no employment history in India, his brother resides in Australia, if allowed he intends to reside in Australia until at least September 2022 and he has stable employment in Australia, all of which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be minimal.52.The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted to student visa specifically to enable him to achieve that goal. On balance, it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.53.The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.54.On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.55.There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country. 56.On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Ratio Decidendi
Legal Principle Established
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