Nussierat v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1017
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nussierat v Minister for Immigration and Citizenship [2025] FedCFamC2G 1017
File number(s): SYG 1377 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 11 June 2025 Catchwords: MIGRATION - Whether the Tribunal failed to adequately engage with cl 500.212 of Schedule 2 of the Regulations – whether the Tribunal took into account irrelevant considerations Legislation: Migration Act 1958 (Cth) ss 359, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.03
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: Kaur v Minister for Home Affairs [2019] FCA 2026
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Division: General Federal Law Number of paragraphs: 46 Date of hearing: 11 June 2025 Place: Sydney The Applicant: In person Solicitor for the Respondents: Ms S Frankel, MinterEllison ORDERS
SYG 1377 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMER SALEEM MAHMOUD NUSSIERAT
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application filed on 21 July 2021 is dismissed.
3.The applicant must pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $5,900.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN
By an application to show cause filed on 21 July 2021, the applicant seeks review of a decision of the then Administrative Appeals Tribunal (Tribunal) made on 22 June 2021 which affirmed a decision of a delegate of the first respondent (delegate) to not grant the applicant a Student (Temporary Class TU) (subclass 500) visa (visa).
BACKGROUND
The following background is primarily derived from the written submissions of the first respondent, and (unless otherwise indicated) does not appear to be in dispute.
The applicant is a citizen of Jordan.
On 26 August 2019, the applicant applied for a student visa (Court Book (CB) 18 to 34).
On 30 September 2019, the delegate refused to grant the applicant a student visa, on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), because they were not satisfied the applicant genuinely intended to stay in Australia temporarily (CB 59 to 63).
On 16 October 2019, the applicant applied for review of the delegate's decision with the Tribunal (CB 64 to 65).
On 3 February 2021, the Tribunal invited the applicant to provide information in relation to whether he was enrolled in a registered course of study and whether he was a genuine applicant for entry and stay as a student (s 359 invitation). The Tribunal noted that, in considering whether the applicant was a genuine applicant for entry and stay as a student, it was required to have regard to Ministerial Direction No. 69 (Direction No. 69) (made under s 499 of the Migration Act 1958 (Cth) (Act)) (CB 90 to 96).
On 17 February 2021, the applicant responded to the s 359 invitation by providing a completed 'Request for Student Visa Information' form (information form) (CB 97 to 107). The information form provided consent for the Tribunal to decide the review without a hearing. The applicant provided a number of supporting documents with the information form, including a written statement by him (CB 108 to 113).
On 22 June 2021, the Tribunal affirmed the decision under review (CB 116 to 123).
Tribunal Decision
The Tribunal identified the issue under review as being the same before the delegate, namely whether the applicant was a genuine temporary applicant for entry and stay as a student, and listed the matters to which it was required to have regard under cl 500.212 of Schedule 2 to the Regulations, as well as the matters in Direction No. 69 (CB 118, 120 to 121 at [7], [14] to [17]).
The Tribunal summarised the material provided by the applicant (CB 117 to 120 at [4] to [6], [11] to [12]).
For the following reasons, the Tribunal was not satisfied the applicant met cl 500.212(a) of the Regulations, and affirmed the decision under review (CB 121 to 123 at [18] to [29]).
Circumstances in the applicant's home country
The Tribunal identified the following of the applicant’s circumstances as being indicative of a person who is a temporary entrant with incentives to return to their home country (CB 121 at [18]):
(a)no evidence had been presented that the applicant's economic circumstances would present as a significant incentive for him not to return to Jordan;
(b)there was no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely, or of military commitments that would present as a significant motive not to return to Jordan; and
(c)the Tribunal accepted that study in Australia is highly regarded, the applicant's reasons for not studying in Jordan, and that his family lives in Jordan.
However, the Tribunal was also concerned about the fact that the applicant had not departed Australia since his arrival in 2016 and considered it to undermine any claim that his family and circumstances in Jordan represented a significant incentive for him to return (CB 121 at [18]).
Circumstances in Australia
The Tribunal accepted that the applicant had been enrolled in, and successfully completed, a Certificate IV and Diploma of Marketing and Communication and that he was now enrolled in, and studying, an Advanced Diploma of Communication and Marketing. It found the successful completion of registered courses was persuasive that the applicant was a genuine student (CB 121 at [19]). However, the Tribunal noted that the applicant intended to remain in Australia to study for a period of over five years, and was concerned that in that time he had only completed two courses at the vocational level and was enrolled in a further vocational level course, being a lower-level course than the course he successfully completed in Jordan. Further, the Tribunal was concerned that the applicant had not successfully completed any course in which he was enrolled between October 2016 and February 2019 (CB 122 at [20]). The Tribunal did not accept the applicant's reasons for studying a lower-level course and for his lack of completion of earlier courses (CB 122 at [21]).
Value of the course to the applicant's future
The Tribunal did not accept there was any value in the applicant studying the proposed courses to his future (CB 122 at [21]). The Tribunal found the applicant's earlier evidence that he planned to extend his knowledge and skills in the marketing field and work in a marketing department for private companies to be vague and lacking detail, particularly in light of his higher-level qualification in Business Administration, and compared to the length of time he proposed to spend studying in Australia. The Tribunal considered that a genuine student would have been able to provide more detailed information as to the value of the courses to his future employment prospects, although it did acknowledge his further (changed) evidence to the Tribunal regarding his future plans.
The Tribunal considered the applicant's reasons for not having completed his two earlier courses, however found that a genuine student would successfully complete the courses in which they are enrolled, and not have a period of over two years of not successfully completing courses (CB 122 at [22]).
The Tribunal found that the applicant's lack of course completion prior to February 2019, studying courses at the vocational level when he had completed a Bachelor's degree in Jordan, and the lack of value to his future of the proposed course were indicative of a person using the student visa program to maintain migration, not as a genuine student (CB 123 at [23]).
Immigration history and other matters
The Tribunal found there was nothing in the applicant's immigration history which indicated that he did not genuinely intend to stay in Australia temporarily, except the length of his stay in Australia without departing (CB 123 at [24]).
Accordingly, the Tribunal was not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore did not meet cl 500.212(a) of Schedule 2 to the Regulations. The decision under reviewed was accordingly affirmed.
APPLICATION BEFORE THE COURT
Upon commencement, the applicant was represented by solicitors and the proceedings were placed immediately in the central migration docket. On 19 August 2021, a Registrar of the Court made procedural orders for the preparation of the matter for hearing, which included leave to the applicant to file any amended application by 11 November 2021. Probably unsurprisingly, in circumstances where his lawyers had drafted the originating process, the applicant did not avail himself of that opportunity to amend. The first respondent filed a Court Book, as ordered, on 3 September 2021.
On 16 July 2024, the applicant's solicitor served Notice of Intention to Withdraw as Lawyer, followed seven days later by a Notice of Withdrawal of Lawyer. The applicant has been unrepresented since that time. Having not filed any further Notice of Address for Service, the applicant’s address for service became that which was provided by his solicitors in the Notice of Intention to Withdraw: see r 9.03(5) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The first respondent has served documents on the applicant at his email address for service and the postal address for service in that document since that time.
On 3 February 2025, the proceedings were docketed to me, and I made orders on that occasion (February orders), again granting the applicant the opportunity to amend his application and for the filing by the parties of written submissions. The applicant has not availed himself of the further opportunity to amend. The first respondent filed submissions and a list of authorities, as ordered, together with an Affidavit of Lilly Joelle Butterfield made on 5 June 2025 in relation to the documents that have been served in the proceedings.
By the February orders, I listed the matter for hearing before me at 2:15pm today. The applicant has appeared unrepresented. He is accompanied by his infant son whose first birthday it is and, the applicant tells me that based on custody arrangements he brought the child to Court with him because he had access to him today for his birthday and otherwise would not have been able to spend time with him. The infant has been well behaved and ultimately slept. His presence did not hamper the applicant’s participation in the hearing. An interpreter in the Arabic language has been present throughout. The applicant speaks very good English and indicated that he wished to use the interpreter only if required, which he did on several occasions, but otherwise, I am satisfied that the applicant has been able to understand the Court and the submissions of the first respondent and has participated throughout the hearing with no difficulties as to language.
At the commencement of the hearing, I identified the documents that I had on the file before me. I have not had regard to the Affidavit in support filed on 21 July 2021 as it served only to annex a copy of the Tribunal's decision which is otherwise in the Court Book. The solicitor for the Minister tendered the Court Book which was marked, without objection, as Exhibit “1R”.
The grounds of the Application are as follows (errors in original):
1.The Decision of the second respondent (Tribunal) is judicially reviewable. The Tribunal failed to exercise jurisdiction following a failure to adequately engage with the elements of Clause 500.212 of Schedule 2 of the Regulations.
a. The Tribunal failed to give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291 at 292.
b. The Tribunal erred in not adequately considering Clause 500.212(a)(iv) any other relevant matter when the Applicants circumstances demanded that the clause be used in his favour.
2.The Tribunal committed jurisdictional error by taking into account irrelevant considerations.
a. The Tribunal came to a conclusion that the Applicant was not a genuine temporary entrant by putting significant weight on the lack of the Applicants course completion and the level of education completed. The Tribunal failed to put weight on the Applicants studies completed, circumstances in Australia and the value of the course to the Applicant. The Tribunal found at paragraph 22 and 23 of its decision:
i.“In making this finding it has considered his reasons as to why he was unable to successfully complete the Master of Business and Certificate IV in Accounting but is of the view a genuine student would successfully complete courses enrolled in and would not have had an over 2 years period of not successfully completing course enrolled in as he did from October 2016 to February 2019.”
ii.“The Tribunal therefore views his lack of course completion prior to February 2019, studying courses at the vocational level when he completed a higher-level bachelor’s course in Jordan, and the lack of value to his future of marketing and communication course enrolled in as indicative of a person using the student visa program to maintain migration not as a genuine student.”
Ground 1
When asked to speak to ground 1 of the application for review, the applicant said that he had been waiting for his lawyer to assist him and then the lawyer said that he was withdrawing. The applicant said he had consulted another lawyer, but that lawyer said that it was too late to do anything.
When asked specifically to address, in turn, particulars 1(a) and 1(b), the applicant said that he had nothing to add. I sought to explore, particularly in relation to particular 1(b), what relevant matters the applicant says the Tribunal failed to take into account in considering the elements of cl 500.212 of Schedule 2 to the Regulations.
The applicant said he had been undertaking higher studies, specifically a master's degree and that’s where he “got stuck”. The applicant said he could not afford a particular trimester and that, on 19 September 2019, he was running around from one place to another seeking to obtain a visa. He said he otherwise could not identify what relevant matters ought to have been taken into account by the Tribunal which were not.
The first respondent submitted that it understood ground one to allege that the Tribunal failed to adequately engage with the elements of cl 500.212 by:
(a)failing to give proper, genuine, and realistic consideration to the merits of the case; and
(b)“not adequately considering” cl 500.212(a)(iv) of Schedule 2 to the Regulations “any other relevant matter when the Applicants circumstances demanded that the clause be used in his favour”.
The first respondent interpreted ground one as contending that Direction No. 69 ought to be used as a checklist, rather than a guide. The first respondent submitted that this contention is misconceived where the factors contained within Direction No. 69 are intended as a guide. Specifically, Part 2 of Direction No. 69 states (CB 127):
1.Decision makers should not use the factors specified in this Direction as a checklist. 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 first respondent says that, while the Tribunal did not specifically refer to any particular matter as an “other relevant matter” (CB 123 at [26]), its reasons make clear that it did consider the applicant's overall circumstances, including his immigration and study history, his circumstances abroad and in Australia, and “other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above”. The first respondent submits that the applicant has not indicated what “other relevant matter” the Tribunal ought to have taken into consideration, and on the available material, the Minister contends the Tribunal considered all of the evidence before it and the factors in Direction No. 69 that were the subject of clearly articulated claims: CfKaur v Minister for Home Affairs [2019] FCA 2026 at [31] per Steward J.
As to the contention that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the case, the Minister contends that in substance, this is a request for the Court to undertake impermissible merits review, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh, Gummow.
The first respondent says that in summarising the material provided by the applicant (CB 117 to 120 at [4] to [6], [11] to [12]), the Tribunal correctly interpreted and applied the requirements of cl 500.212 of Schedule 2 to the Regulations and considered the applicant's evidence and circumstances, as well as the relevant factors in Direction No. 69. The Tribunal came to a conclusion after weighing the factors both for, and against, affirming the decision under review. Accordingly, the Minister submits that the weight to be attributed to evidence is a matter for the Tribunal, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at [41] per Mason J (as his Honour then was).
The first respondent says that ground 1 goes no higher than to express disagreement with the findings of the Tribunal and that, contrary to what is alleged, the Tribunal did not fail to engage with the elements of cl 500.212 of the Regulations, and the weight given to evidence was a matter for the Tribunal.
I agree with the reasons articulated by the first respondent that there is no basis to conclude that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the applicant's case, nor that there was any other relevant matter beyond the factors which were set out as a guideline in Direction No. 69 to which the Tribunal failed to have regard. Nor has the applicant been able to identify any from the bar table today, despite being given the express opportunity to do so and having engaged with the Court through the interpreter in respect of that issue.
Accordingly, I am not satisfied that there is any error in the manner alleged by ground 1.
Ground 2
In respect of ground 2, the applicant contends that the Tribunal took into account an irrelevant consideration in finding that he was not a genuine temporary entrant because it was said to have put significant weight on the applicant's lack of course completion and the level of education he did complete. The ground also alleges that the Tribunal failed to place sufficient weight on the applicant's studies which he completed, his circumstances in Australia and the value of the course the applicant was studying to him by reference to [22] and [23] of the Tribunal's decision. When invited to make submissions as to what he wished to say in respect of this ground, the applicant said he had nothing to say.
The first respondent submits that the applicant has not identified any irrelevant considerations the Tribunal took into account and that insofar as this expresses disagreement with the weight given to evidence, that was a matter exclusively for the Tribunal, citing Peko-Wallsend (supra) at [41].
The first respondent notes that the Tribunal recorded the applicant's evidence that he had completed a Bachelor of Business Administration in Jordan, and a Certificate IV and Diploma in Marketing and Communication in Australia (CB 117 at [5] and [6], 119 at [11], [12] and 123 [25]) and accepted this evidence (CB 121 to 122 at [19]). The Tribunal found that the applicant’s successful completion of registered courses weighed in favour of the applicant being a genuine student. Contrary to what is alleged, the first respondent contends that the decision of the Tribunal demonstrates that it specifically gave weight to the applicant having completed courses (CB 121 to 123 at [19] and [25]). Similarly, the Tribunal gave weight to the applicant's circumstances in Australia that it found to be in favour of the applicant, including his strong family ties (CB 121 to 123 at [18] and [25]).
As to the value of the course of study to the applicant, the first respondent says the Tribunal considered the applicant's evidence in this regard but was ultimately not satisfied on the basis of the material before it that there was any value in the applicant studying the courses to his future (CB 122 at [21]).
The first respondent submits that findings in this regard were open to the Tribunal on the evidence before it and that those findings were neither illogical, irrational, nor unreasonable, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ.
I accept the first respondent’s submissions and am not satisfied that there is any error in the manner alleged by ground 2.
CONCLUSION
There being no ground which has been made out under the application, and noting the applicant has had several opportunities to amend that application, I am satisfied that the decision is free from jurisdictional error. In the absence of a jurisdictional error, the decision is a privative clause decision, and the application must be dismissed. I will so order.
COSTS
Consequent upon my dismissal of the application, the solicitor for the first respondent seeks an order that the applicant pay the first respondent's costs in a fixed amount of $5,900. When asked whether or not costs should follow the event and if so in what amount, the applicant queried how it was that he would pay that sum. I explained to him that he would receive correspondence in due course which would explain to him to whom at the Department he could direct that inquiry, including relation to time to pay, potentially an instalment arrangement and/or a reduction of those fees. When asked if he had anything else to say, the applicant said:
No. All good.
In this matter, I am satisfied that costs should follow the event. I am also satisfied that the amount sought, namely $5,900, is reasonable. The solicitor for the Minister indicates to me that that represents 75% of the first respondent's solicitor client costs. In all of the circumstances of this case, that is a reasonable amount. I will so order.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 2 July 2025
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