Saha v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1034
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saha v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1034
File number(s): SYG 1810 of 2021 Judgment of: JUDGE MCCABE Date of judgment: 3 July 2025 Catchwords: MIGRATION – Application for judicial review of decision made by the Administrative Appeals Tribunal – student visa – whether the Tribunal erred in affording procedural fairness – whether the Tribunal’s decision was unreasonable – no jurisdictional error established – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth).
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Singh v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 640
SZQGC v Minister for Immigration and Citizenship [2012] FCA 598
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 19 June 2025 Place: Sydney Applicant: The applicant appeared in person Solicitor for the first respondent: Mr J Elliott (Clayton Utz) for the first respondent ORDERS
SYG 1810 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TAMALIKA SAHA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MCCABE:
Ms Tamalika Saha arrived in Australia in 2010 on a student visa. She has remained in Australia (save for a few short visits to her home in Bangladesh) ever since. During her stay in Australia, she has successfully completed:
·an Advanced Diploma of Information Technology in 2012;
·a Bachelor of Information Technology in 2014;
·a Master of Information Technology in 2017; and
·a Master of Business Administration in 2019.
In 2019, Ms Saha decided to enrol in yet another course: an Advanced Diploma of Leadership and Management. She proposed enrolling in that course even though she already possessed postgraduate qualifications in information technology and business. She applied for another student visa so she could remain in Australia to complete the advanced diploma. She said in her application for the visa that she wanted to enrol in that course because it would deepen her knowledge of leadership and management. She said the training would be helpful when she returned to Bangladesh.
The minister's delegate refused the application for a Student (Temporary) (class TU) Student (subclass 500) visa on 11 December 2019. A copy of the delegate's decision and statement of reasons is reproduced in exhibit one (the court book) at pp 47ff. The delegate pointed out the applicant would have lived in Australia for a decade by the time she finished the course. The delegate also questioned the decision to enrol in a diploma course when the applicant already had postgraduate qualifications in management. The delegate explained (at p 53):
The length of time spent in Australia and the regression in the level of study, raises significant concerns that, the applicant's primary motivation in applying for a Student visa is to secure ongoing residence in Australia rather than due to a genuine interest in the subject matter of her proposed study and academic progression.
After considering all the relevant factors, the delegate concluded the applicant was unable to satisfy the so-called 'genuine temporary entrant' requirement found in cl 500.212(a) in Schedule 2 to the Migration Regulations 1994 (Cth). The Administrative Appeals Tribunal affirmed the delegate's decision on 26 August 2021. The applicant points out she completed the diploma course by the time the Tribunal's review was completed. She then enrolled in a Graduate Certificate in Management (Learning) and a Graduate Diploma in Management (Learning) which she expected she would complete by 2023.
Ms Saha sought judicial review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth). The grounds of review articulate a range of criticisms of the Tribunal's decision, but most of those grounds were effectively abandoned at the hearing. It turns out the applicant simply wants the opportunity to continue with her studies. With that end in mind, she has identified yet another course she would like to complete - a Graduate Diploma of Early Childhood Education - that she says "will significantly enhance my employability and open opportunities in a sector with strong job prospects and meaningful impact in my country."
The Tribunal's decision is not affected by material jurisdictional error. The application for judicial review must be dismissed. I explain my reasons for that conclusion below.
THE TRIBUNAL'S REVIEW
Ms Saha's application to the Tribunal was lodged on 19 December 2019. She provided some additional information in support of her claim including a document described as a 'statement of purpose'. On 9 August 2021, the Tribunal invited the applicant to attend a hearing because it was unable to make a favourable decision on the basis of material already provided. That hearing was held by telephone on 25 August 2021. The applicant was assisted at the hearing by a migration agent.
The Tribunal's decision to affirm the delegate's decision is dated 26 August 2021. The Tribunal's decision is reproduced in the court book at pp 162. The Tribunal noted at the outset of its statement of reasons that approximately 20 months had elapsed since the delegate's decision was made. Acknowledging that delay, the Tribunal noted (at [5]) it wrote to the applicant on 8 July 2021 pursuant to s 359(2) of the Act inviting her to supply updated information about her studies and her circumstances. The applicant's migration agent responded with further information on 20 July 2021 (reproduced at pp 71ff of the court book). The agent also provided information on 23 August 2021 (reproduced at pp 111ff).
In an explicit nod to the volume of material that had been provided, the Tribunal observed in its reasons for decision that it would only refer to information that was "found to be fundamental or materially significant to the determination of the issues in the case."
The Tribunal said the issue was whether it was satisfied the applicant intended genuinely to stay in Australia temporarily. That question was derived from the terms of cl 500.212(a). The Tribunal pointed out (at [12]) it was required to have regard to the matters referred to in Direction No 69 while answering the statutory question. (A copy of Direction No 69 was annexed to the Tribunal's reasons for decision.) The Tribunal uncontroversially observed those matters included at least the following:
·the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
·the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·…
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
After setting out the applicant's academic history and the explanation she gave for wanting to enrol in further certificate and graduate level courses, the Tribunal noted its concern (at [16]):
… that the applicant may be using the student visa migration programme to maintain residence, particularly in light of her extensive and already impressive study history.
The Tribunal went on to say (at [17]) the applicant's "study history is problematic as it is difficult to see any further study offering the applicant more than marginal benefit". The Tribunal developed those concerns at [18]) when it said:
The applicant gave evidence that she wishes to start her own business and 'work about any technological things and also open a restaurant'. The Tribunal is perplexed by this goal, which is not consistent with her previous submissions which stated she would like to be a Chief Executive Officer or General Manager. She has filed many, many submissions, including more than one Statement of Purpose, to the Tribunal which have all been carefully considered but will not be set out ad verbatim in this decision as the Tribunal is conscious of its duty to provide efficient and economical access to justice. The applicant's submissions make general, broad statements about her goal of running a business and the importance of leadership and management skills however the level of detail in relation to her actual goal is notably lacking. At hearing, when the Tribunal enquired about how much the applicant could expect to earn running her proposed business, the applicant said 'it depends. I don't have any experience about this'. The Tribunal allows for reasonable changes to study and career pathways but does not find the applicant's evidence or submissions in relation to her future career plans persuasive. The Tribunal considers a greater level of detail is required in order for the Tribunal to find that these courses are relevant and likely to assist and improve the applicant's future career, particularly in the context of her extensive existing qualifications.
The Tribunal expressed its concern (at [19]) about the applicant's diploma-level studies although it acknowledged her plans to enrol in a graduate certificate course might make more sense. The Tribunal also noted the applicant's brother and his wife and children lived in Australia, and it remarked on the duration of her own presence in this country. The Tribunal said (at [20]):
…The length of the applicant's stay in Australia, now in excess of eleven years, indicates that the applicant has a preference to remain onshore. It is reasonable to conclude that after eleven years onshore - which has included a considerable period working and studying onshore - the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for her to remain onshore. As each day passes, those ties strengthen.
The Tribunal went on to find (at [21]) the applicant's family ties in Bangladesh did not provide a significant incentive to return to that country, although it accepted (at [22]) she had acceptable reasons for preferring to study in Australia. The Tribunal appeared to place weight on the applicant's economic circumstances in Australia relative to the circumstances in Bangladesh. The Tribunal observed (at [23]):
…Taking the evidence as a whole the Tribunal considers that, given the applicant is earning - in Australian dollars - thousands in excess of their expenses onshore, the exchange rate between Australia and Bangladesh and the fact that the applicant holds qualifications which enable her to secure comparatively highly paid employment onshore, the applicant's economic circumstances onshore are likely to be acting as a significant incentive for them to remain onshore.
The Tribunal concluded at [26] it was not satisfied the applicant genuinely intended to stay temporarily in Australia. It made clear (at [25]) it was particularly concerned by the amount of time the applicant had already been 'onshore'. It said it was difficult to see how a stay of that duration could be regarded as 'temporary' for the purposes of the legislation.
THE APPLICATION FOR JUDICIAL REVIEW
Ms Saha filed her application for judicial review on 28 September 2021. The application identifies four grounds of review. I will deal with each of them below.
The applicant said a friend assisted her in the drafting of the grounds of review. On their face, the grounds contend the Tribunal's decision was affected by several shortcomings that may amount to material jurisdictional errors. I make that observation because the drafting of the grounds suggests a reasonable grasp of the concept of jurisdictional error. The applicant's written submissions filed in advance of the hearing suggest a more confused understanding of the role of the Court. The submissions focus on the reasons why the applicant should be given a student visa. They are an impermissible invitation to engage in merits review.
I discussed the concept of jurisdictional error at the start of the hearing. I urged the applicant to focus on identifying any errors in the Tribunal's decision or in its decision-making process that were such that there was no choice but to remit the matter so the process could be done over. I then heard from the minister in relation to the grounds of review. The minister's solicitor, Mr Elliott, spoke to his written submissions. I thereafter heard from the applicant. While that discussion focused on the grounds of review contained in the application, I gave the applicant an opportunity to identify in her own words any errors in (or criticisms of) the Tribunal's decision.
The first ground contended the Tribunal failed to actively engage with the applicant's evidence. The particulars accompanying that ground referred to the Tribunal's remark at [9] that it only proposed referring to evidence that was relevant to the decision it was required to make.
There are many authorities which grapple with the extent to which a decision-maker must engage in an "active intellectual process" and give "proper, genuine and realistic consideration" to evidence or submissions. As Griffiths J observed in SZQGC v Minister for Immigration and Citizenship [2012] FCA 598 at [32], there is a danger these analyses stray into impermissible merits review. But that danger does not arise here. The applicant was unable to identify what the Tribunal missed in its reasons. While she disagreed with the conclusions, she was unable to identify a failure to engage. It follows this ground is misconceived.
The second ground contends the applicant was denied procedural fairness as a consequence of the lengthy delay between when she filed the application for review and when the matter was heard and decided. She said the outcome would have been different if it had acted more expeditiously.
This ground is also misconceived. The Tribunal asked the applicant to provide updated material prior to the hearing. The applicant had the opportunity to tell the Tribunal she had completed the course of study in which she had enrolled, and she described her plans for future study. When I asked the applicant what disadvantage she had experienced as a consequence of the delay, she was unable to say.
This is not a case where there was unusual delay between the hearing and the date on which the decision was delivered. It is not as if the presiding member's recollection of the evidence was degraded by tardiness. Once the matter was heard, it was decided very quickly. The applicant complained the delays in completing the Tribunal's review did not comport with the objective referred to in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth). That is beside the point, at least for present purposes. I am unable to identify any denial of procedural fairness.
The third ground contends the Tribunal's decision is infected with legal error on account of a failure to provide natural justice. The particulars accompanying that ground suggest the claim can be broken into two parts. In the first, the applicant contends the Tribunal erred because it failed to invite comment from the applicant during the hearing about its concern the applicant might be using the student visa to maintain residence. (The application for review contends that observation was found at [17] of the Tribunal's reasons, but it is actually found in [16]).
The minister's written submissions point out allegations of this nature must be measured against the Tribunal's procedural fairness obligations. They are set out in Division 5 of Part 5 of the Act: see s 357A. The minister says the applicant was plainly on notice following the delegate's decision that there was a question over whether the applicant was motivated by a desire to stay in Australia. The Tribunal's hearing invitation also called attention to the question of whether she was "a genuine applicant for entry and stay as a student". There is no suggestion the Tribunal conducted the hearing in a way that foreclosed the applicant's opportunity to address the issue. There was no need for the Tribunal to go further at the hearing and disclose its preliminary reactions on this issue: see, for example, Singh v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 640 at 645-646 per Tamberlin J. .
The other part of this ground of review refers to the supposedly tentative nature of the Tribunal's findings. The applicant's point appears to be that the Tribunal should not have made adverse findings about the applicant's credit without a proper basis for doing so. The applicant pointed to an example of language in [16] of the reasons which indicated equivocation. In that paragraph, the Tribunal noted the applicant had provided an evolving explanation of her proposed course of study before observing:
… The Tribunal has reservations about this explanation and is concerned that the applicant may be using the student visa migration programme to maintain residence, particularly in light of her extensive and already impressive study history.
While the Tribunal's language in this paragraph was circumspect, the Court must have regard to the Tribunal's reasons as a whole. The Tribunal considered the evidence in paragraphs [15]-[24] and described its concerns in relation to some matters while accepting other evidence or submissions. The Tribunal then engaged in a weighing process in [25] which the Tribunal articulates as follows:
In this case, the factors falling against the applicant in relation to whether she is a genuine student and whether she is a genuine temporary entrant have outweighed those falling in her favour. The Tribunal is particularly concerned by the length of time the applicant has now been onshore for - it is difficult to reconcile a period of eleven years, let alone thirteen years (which would be the total time taken to complete her new proposed Graduate study), with the meaning of 'temporary' as required by the Act and Regulations in relation to student visas.
The Tribunal provides its findings about the applicant's motivation in [26], and the necessary consequences of that finding for the outcome of the case at [27]. There is nothing speculative or tentative about that conclusion. It is a rational conclusion that proceeds logically from the Tribunal's observations about the applicant's evidence, and from the objective facts - most obviously the duration of the applicant's presence in Australia and the pattern of courses.
There is no substance to the third ground of review.
The fourth ground of review contends the Tribunal's decision was unreasonable. In particulars accompanying that ground, the applicant criticised the Tribunal's finding that the proposed course of study was only of marginal benefit. The applicant also criticised the Tribunal's reference to the exchange rate between the Australian and Bangladeshi currencies. I will deal with each of these claims in turn.
Clause 12 in Direction No 69 requires the Tribunal to consider the value of the proposed course of study to the applicant's future. The clause explains:
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.
In this case, the Tribunal found the proposed course of study - a certificate or diploma course - was a step backwards given the applicant's record in graduate and post-graduate study. As I understand the applicant's case, she says the Tribunal's finding was made with reference to the wrong question: it addressed itself to whether there was any marginal benefit to the study, when cl 12 of Direction No 69 requires it to consider whether the proposed course of study has any benefit in her home country.
It is critical that the Tribunal correctly identify the question it is required to answer. That question is derived in every case from the legislative scheme. The construction of the question in this case is necessarily informed by the text of cl 12 of Direction No 69. I acknowledge the Tribunal does not expressly say in its reasons that it is focused on marginal benefit of the proposed course of study in Bangladesh. But that is implicit in the reasons. The Tribunal was obviously aware of the contents of Directions No 69. It was also obviously aware the whole point of the student visa program was to allow students from overseas to come to Australia to obtain qualifications that will be of benefit when they return home. The Tribunal was not focused on whether the course had any marginal benefit for the applicant should she remain in Australia; the reasons, read as a whole, make clear the Tribunal understood its task. There is nothing unreasonable about the Tribunal's reasoning in this regard.
The applicant also claimed the Tribunal should not have referred to differences in the exchange rate when considering whether there was an economic incentive for her to remain in Australia. She was also concerned the Tribunal did not identify a factual basis for its findings in this regard.
The Tribunal's reference to the differences in the exchange rate must be read in context. The reference to the exchange rate differences in [23] come immediately after the Tribunal referred to the applicant's family's providing financial support. That support came in the form of deposits in Bangladeshi institutions. (Copies of the financial records are reproduced in the court book at pp 127.) The Tribunal then explained:
… Taking the evidence as a whole the Tribunal considers that, given the applicant is earning - in Australian dollars - thousands in excess of their expenses onshore, the exchange rate between Australia and Bangladesh and the fact that the applicant holds qualifications which enable her to secure comparatively highly paid employment onshore, the applicant's economic circumstances onshore are likely to be acting as a significant incentive for them to remain onshore.
The Tribunal's reference to exchange rates in that context is not illogical. But the applicant goes on to argue there is no evidence before the Tribunal as to what that exchange rate was at the relevant time. The Tribunal obviously assumed the exchange rate was unfavourable to the applicant, but it did not explain the basis for that assumption.
I am not aware of any evidence suggesting the Tribunal was wrong in its assumption, but the vagaries of exchange rates between different currencies are not matters of common knowledge. If the Tribunal was going to refer to differences in exchange rates, the Tribunal probably should have identified the source of its knowledge.
Having said that, I am not satisfied the Tribunal's failure to identify its means of knowledge is decisive. Even if I accepted the Tribunal's finding about the exchange rate was a jurisdictional error, it is clear from the passage I quoted that it was not a factor that was significant when measured against the outcome. In the circumstances, I am not satisfied "there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred": see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ at [7]. I am therefore not satisfied that any jurisdictional error arising out of the reference to the exchange rate was material. It follows the fourth ground of review must also fail.
CONCLUSION
The application for judicial review must be dismissed.
I discussed the question of costs with the parties at the end of the hearing. The minister asked for costs in the fixed amount of $8,371.30. Mr Elliott, who appeared for the minister, noted that was the amount indicated in the Court's scale. Mr Elliott pointed out the minister's representatives were required to engage with a large volume of material that had been submitted by the applicant in support of her case.
The applicant did not identify any reasons why costs should not follow the event in this case. I accept it is appropriate that an order be made: the minister has plainly incurred costs in defending the proceedings and those costs will need to be met out of public monies if the applicant does not meet them. I also accept the minister's submissions that a fixed cost award be made in the amount indicated by the Court's scale given the volume of work undertaken.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 3 July 2025
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