Shehzad v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 257
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shehzad v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 257
File number(s): MLG 2814 of 2020 Judgment of: JUDGE COULTHARD Date of judgment: 27 February 2025 Catchwords: MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 368, s 476(1)
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 143
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 14 February 2025 Date of hearing: 14 February 2025 Place: Brisbane Counsel for the Applicants: Mr Sharify Solicitor for the Applicants: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr Cunynghame Solicitor for the Respondents: Sparke Helmore. The Second Respondent filed a submitting appearance save as to costs. ORDERS
MLG 2814 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAISAL SHEHZAD
First Applicant
ANAM SHAHZADI
Second Applicant
MUHAMMAD HASSAN SHAHZAD
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be changed to “Administrative Review Tribunal”.
3.The amended application is dismissed.
4.The first and second applicants are to pay the first respondent’s costs fixed in the amount of $5,000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicants are citizens of Pakistan. The first applicant (“the applicant”) arrived in Australia on 31 January 2012 on a Student (subclass 573) visa to undertake tertiary studies. After that visa expired in March 2016, the applicant held a Temporary Graduate (subclass 485) (Post Study Work Stream) visa from 6 May 2016 to 6 May 2018. On 4 May 2018, the applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa to undertake a Master of Global Project Management (Advanced) at Torrens University (“the visa”) (Court Book (“CB”) 1-60). The second and third applicants (the applicant’s wife and child respectively) were included in the application as members of the applicant’s family unit.
On 15 November 2018, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant met the genuine temporary entrant requirement criterion in cl 500.212 of Schedule 2 of the Migration Regulation 1994 (Cth) (“the Regulations”).
Application for review to the Administrative Appeals Tribunal
On 2 December 2018, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 87-89). The application attached a Confirmation of Enrolment (“COE”) for a Master of Global Project Management (Advanced) at Torrens University with a course start date of 25 February 2019 and course end date of 30 August 2020 (CB 90).
On 3 December 2018, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments for consideration that he should do so as soon as possible (CB 94-95).
On 7 April 2020, the Tribunal wrote to the applicant advising him that he would need to provide sufficient information to satisfy the Tribunal that he met the requirements for the visa, that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The Tribunal invited the applicant to provide, in writing, all relevant information about the course(s) of study he was undertaking and his entry and stay as a student (CB 99-100). The Tribunal said that specific details about the information requested are set out in the Request for Student Visa Information form (“RSVI form”) and provided the applicant a link to that form. The Tribunal also told the applicant that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (“Direction No. 69”). A copy of Direction No. 69 was attached. The Tribunal required that the information requested be received by 21 April 2020. This was later extended to 5 May 2020.
On 21 April 2020, the applicant appointed a registered migration agent to act as his representative and authorised recipient (CB 109-110).
On 5 May 2020, the applicant’s migration agent provided the Tribunal with the completed RSVI form and documents in support of the application for review (CB 116-156). Those documents included a COE for a Diploma of Project Management at Australia Academy International with a course start date of 13 April 2020 and a course end date of April 2021 and a COE for a Graduate Diploma of Management (Learning) at Australia Academy International with a course start date of April 2021 and a course end date of April 2022; evidence about the applicant’s studies in Australia; evidence about completion of a professional year at Performance Education; statement of purpose previously submitted to the Tribunal; a statement for Genuine Temporary Entrant submitted with the visa application; and the itinerary of the applicant’s family departing Australia (CB 116-156). In the answers provided in the RSVI form, the applicant stated that he had not completed the Master of Global Project Management (Advanced) and was now studying a Diploma of Project Management at Australia Academy International and intended to study a Graduate Diploma of Management, also at Australia Academy International.
On 29 May 2020, the Tribunal invited the applicant to attend a hearing on 16 June 2020 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 159-166). The invitation requested the applicant to provide before the hearing a copy of the applicant’s current COE and documents evidencing the applicant’s past studies in Australia.
On 12 June 2020, the applicant’s migration agent wrote to the Tribunal with evidence of the itinerary of the applicant’s family members departing Australia “for good” (CB 169). This itinerary does not appear in the Court Book.
On 16 June 2020, the applicant attended the hearing (CB 175-177). The applicant was assisted by his migration agent and an interpreter in the English and Pashto languages.
On 2 July 2020, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 181-197).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicant met the requirements of cl 500.212(a) of Schedule 2 of the Regulations which required that the applicant is a genuine temporary entrant and stated that in considering whether the applicant satisfies cl 500.212(a) the Tribunal must have regard to the specified factors in Direction No. 69 ([7]-[9]). The Tribunal went on to state that those factors should not be used as a checklist but as a guide to 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 ([10]).
The Tribunal first set out in full the text of the applicant’s written responses in the RSVI form as to how and why the applicant chose the education provider for the course that he was currently studying; why, if there were similar courses available in the applicant’s home country his reasons for not undertaking those courses; his employment plans at the completion of the courses of study; and, his expected remuneration ([18]; [19]; [23]; [24]).
The Tribunal then summarised the applicant’s responses to the member’s questions at the hearing arising from the applicant’s written response to the Tribunal’s request for information as to:
(a)Why the applicant had not completed the Master of Global Project Management at Torrens University. The applicant told the Tribunal that due to the medical circumstances of his wife he proposed to start [the course] in February 2019 but that he “received a refusal from immigration, this was devastating and affected by mental health and he could not focus”. The Tribunal noted that the applicant said that he had not produced any evidence about [his] health issues ([25]);
(b)What the applicant had done between February 2019 and April 2020. The applicant told the Tribunal that he did not study and said that “it is with the university, they asked me about health requirements of the time because my father died, it also affected financial conditions and mental health. I plan to study.” The Tribunal noted that the applicant said that he did not rely on any medical opinion evidence as to his mental health ([26]);
(c)What his employment intentions were when he returned to Pakistan. The applicant told the Tribunal that “my previous employer look for me to go back, I’m planning to start my own consultancy”. The Tribunal noted that the applicant did not elaborate ([27]);
(d)Whether the applicant could study his current and proposed courses in Pakistan to which the applicant replied “No”. The Tribunal noted that the applicant did not elaborate ([28]);
(e)The applicant’s current employment in Australia. The applicant told the Tribunal that he was employed as an online delivery driver for Coles and stated his weekly remuneration ([29]);
(f)That his immediate family in Pakistan is his four brothers, a sister and his mother ([30]);
(g)That his wife and children are in Australia but that “they intend to return to Pakistan” ([30]);
(h)His assets in Pakistan comprising two residential plots and their value ([31]);
(i)His estimated income when he returns to Pakistan in respect of which the applicant gave estimates if he “joins a company” or if he “starts my own business” ([31]).
The Tribunal then stated that the applicant declined an opportunity to add anything further and that the applicant’s migration agent declined an opportunity to make any submissions ([32]-[33]).
The Tribunal then went on to identify the various documents the applicant had provided to the Tribunal in support of his application ([34]). In doing so, the Tribunal referred to what it described as two undated narrative statements the applicant had made in support of his application ([34]). The first undated narrative sets out why the applicant “disagrees” with the delegate’s decision. The second undated narrative sets out the applicant’s “objective in choosing to study Master of Global Project Management (Advanced) from Torrens University”. The Tribunal set out the text of those statements in full at [35] and [36] of its Decision respectively. The Tribunal observed that neither the applicant nor the applicant’s migration agent directly referred to these statements but said that the Tribunal had had regard to them ([38]).
The Tribunal then went on to consider whether the applicant met the genuine temporary entrant criterion by reference to the factors in Direction No. 69 ([41]-[56]) concluding that it was not satisfied that the applicant genuinely intends to stay in Australia temporarily ([57]).
As to the applicant’s circumstances in his home country, the Tribunal accepted that the applicant may have family ties in Pakistan or other economic incentives to return, however, concluded that given the time the applicant has spent in Australia and the intended period of future stay in Australia, it was not satisfied that there is a significant incentive for the applicant to return to Pakistan after completion of the proposed study ([41]; [50]) and that given the time already spent in Australia and the intended period of future stay the applicant’s incentive to return to Pakistan is poor ([52]).
As to the applicant’s potential circumstances in Australia, the Tribunal considered when the applicant first arrived in Australia, the periods for which he had returned to Pakistan, the applicant’s visa history and that the proposed study would extend the applicant’s stay until at least 10 April 2022. The Tribunal found that the length of the proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. The Tribunal said that whilst it accepts that plans can change, the applicant’s conduct was not that of a genuine temporary student but rather suggests that the applicant has decided to extend his stay in Australia by utilising the student visa programme ([42]).
As to the value of the course to the applicant’s future, including remuneration and career prospects, the Tribunal stated that the applicant had given “extremely vague evidence” in that regard ([43]).
As to the applicant’s study history since arrival, the Tribunal said that the applicant had an extensive study history in Australia having completed a Bachelor of IT between February 2012 and November 2015 and undertook a “professional year” between February 2016 and March 2017. He then enrolled in a Master of Global Project Management (Advanced). This had been deferred to due to issues arising from his wife’s pregnancy but when asked why he did not return to it, his answers were “vague and unconvincing”. The Tribunal stated that the applicant is currently studying a diploma of project management due to be completed in April 2021 and thereafter is enrolled in a graduate diploma of management due to be competed in April 2022 ([44]).
The Tribunal considered the applicant’s course plan [the diploma and graduate diploma in project management] to be inconsistent with the applicant’s work history as an accounts manager and inconsistent with his extensive qualifications in information technology obtained in Pakistan and Australia. The Tribunal stated that the courses in project management, which the applicant wishes to pursue, are asserted to have relevance to very vague future plans ([45]).
At [46], the Tribunal said:
The applicant has provided several narrative statements in which he attempts to address the genuine temporary entry criterion. They have been taken into account however the Tribunal observes that the divergent nature of his study is not addressed in any or any significant detail.
The Tribunal then went on to say the following about the proposed study:
(a)It was not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has extensive qualification in information technology obtained both in Pakistan and in Australia ([47]);
(b)The applicant has not explained in convincing detail the utility of project management qualifications having regard to his existing qualifications and experience ([47]);
(c)It was not therefore satisfied that the applicant has demonstrated the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds ([47]);
(d)The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment the course will require and so is not satisfied that the applicant demonstrated the value of his proposed course to his future ([51]).
The Tribunal said that it had regard to whether there were any other relevant matters to consider that may be beneficial or adverse to the applicant and said that there were not ([48]). The Tribunal also said that there was no evidence regarding the other factors in Direction No. 69 as to economic circumstances of the applicant; potential military service in Pakistan; political or civil unrest circumstances in Pakistan; remuneration the applicant could expect to receive in Pakistan compared with Australia; circumstances in Pakistan relative to Australia or any other country; and the applicant’s circumstances in Pakistan relative to others in that country ([56]).
The Tribunal said that on balance it was not satisfied the applicant is a genuine temporary entrant for further stay as a full-time student and said ([53]):
(a)The applicant was previously granted a visa to enable him to study in his desired field and then was granted a 485 visa valid for two years to give him an opportunity to gain experience in his chosen field. The applicant had not given evidence of his attempts to obtain employment and did not assert that he had obtained any relevant employment for remuneration;
(b)The applicant had applied for the visa only two days prior to the expiration of the 485 visa;
(c)It appeared to the Tribunal that the applicant had 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 and that the applicant appeared to be using the visa programme as a means of maintaining ongoing residence in Australia.
The Tribunal said that it had considered all information provided by the applicant in support of his application and on balance said it was not satisfied that the information the applicant had 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 ([53]). The Tribunal said that on the contrary the factors indicate that the applicant appears to have enrolled in the present course for the purpose of securing a further student visa rather than due to a genuine interest in study and overall academic progress but was 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 ([54]).
Accordingly, the Tribunal affirmed the decision of the delegate to not grant the visa ([61]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 31 July 2020. The applicant also filed an affidavit affirmed on 31 July 2020. The affidavit annexes the Tribunal’s decision.
Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which they seek to rely and requiring the applicants to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the amended application filed on 24 January 2025, the applicant’s affidavit, the first respondent’s response, the applicant’s written submissions, the first respondent’s written submissions and the Court Book.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The grounds of review set out in the amended application are (without alteration but excluding underlining and bold type):
Ground One:
1. The Second Respondent fell into error by failing to consider the explanation given by the First Applicant for why he was choosing to study project management.
Particulars
a) The Tribunal stated at [46] that the applicant had failed to explain the divergent nature of his study in any detail.
b) The First Applicant had made an extensive submission on that subject be [sic] produced at [36] of the Tribunal's decision.
Clause 500.212 of Schedule 2 of the Regulations, which is known as the genuine temporary entrant criterion, provided as follows:
500.212 The applicant is a genuine applicant for entry and stay as a student:
(a) 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
(b) because 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) because of any other relevant matter.
Pursuant to s 499(1) of the Act, the Minister has given a written direction to provide guidance to decision makers on what factors require consideration when assessing the factors in
cl 500.212 of the Regulations to determine whether an applicant genuinely intends to stay in Australia temporarily. At the time of the Tribunal’s decision, this was Direction No. 69.
Direction No. 69 provides that decision makers should not use the factors specified in the Direction as a checklist and 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 Direction further provides that decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied by considering all factors specified in the Direction and considering any other relevant information provided by the applicant or information otherwise available to the decision maker. The Direction further provides that an application for a student visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The Direction provides, relevantly, that the factors the decision maker (including the Tribunal) are to consider are the applicant’s circumstances; the applicant’s circumstances in their home country; the applicant’s potential circumstances in Australia; the value of the course to the applicant’s future; the applicant’s immigration history; any other relevant matters.
As to the applicant’s circumstances, the Direction provides that decision makers should:
i. have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
ii. have regard to the value of the course to the applicant’s future.
iii. place weight on an applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.
As to the applicant’s circumstances in their home country, the Direction provides that decision makers should have regard to the following factors:
i.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there and that decision makers should allow for any reasonable motives established by the applicant;
ii.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
iii.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
iv.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
v.political and civil unrest in the applicant’s home country.
As to the applicant’s potential circumstances in Australia, the Direction provides that decision makers should have regard to (relevantly) the following factors:
i.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
ii.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
iii.whether the Student visa is being used to maintain ongoing residence; and
iv.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study qualification, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
As to the value of the course to the applicant’s future, the Direction provides that decision makers should have regard to the following factors:
i.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
ii.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
iii.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualification to be gained from the proposed course of study.
As to the applicant’s immigration history, the Direction provides that decision makers should have regard to the applicant’s visa and travel history having regard to (relevantly) the following factors:
i.If the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
As to any other relevant matters, clause 16 of the Direction provides that decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia and that this includes information that may be either beneficial or unfavourable to the applicant.
Ground one: failure to consider the applicant’s explanation regarding choosing to study project management
The applicant’s single ground of review contends that the Tribunal fell into error by failing to consider the explanation provided by the applicant as to why he chose to study project management. In the particulars pleaded in support of that ground of review the applicant says that the Tribunal stated at [46] that the applicant had failed to explain the divergent nature of his study in “any detail” when the applicant had made an extensive submission on the subject which submission is reproduced at [36] of the Tribunal’s reasons for Decision.
It can first be observed that the Tribunal at [46] did not state that the applicant had failed to explain the divergent nature of his study in “any detail” as particularised in the amended application. The Tribunal said at [46] - referring to the applicant’s several narrative statements - that the divergent nature of his study was not addressed in “any or any significant detail”.
The Tribunal had set out at [36] the text of the applicant’s second undated narrative statement as to his objective of choosing to study a Master of Global Project Management (Advanced) at Torrens University. In that statement – which the Tribunal set out in full – as to “Why Global Project Management Studies” the applicant stated:
As an IT graduate I have gained enough core knowledge and skills that would open the doors to a wide variety of career options in a number of areas in the business, industries including roles in across different sectors. However, technical studies are not just important to thrive amidst the current job market back in Pakistan. I am confident with my IT skills but when I think of project management, I am yet to explore on its subjects. Being an IT professional, I am typically well versed in the technical aspects of networking: router and switch configuration, server deployment and management, and so on. However, being an expert with networking, I was rarely trained on how to manage projects. I consider this as unfortunate, because many of the problems that networkers face in projects can be mitigated with just a few project management skills and techniques which I am lacking enough. It would be a great breakthrough, if I could combine my existing competencies with some project management skills to support wider project operations. This course would help me to radically improve my ability to define and manage projects, while maximizing productivity. The project management coursework would thoroughly equip me with enough knowledge to use project tools and methodologies selectively to support organizational or business activities. By studying this course, I would also gain skills to initiate, plan, execute and evaluate the work plan of projects.
My goal is to get placed in a managerial role, for which the core of IT is not just vital but it also requires project management studies to support my managerial role play towards the organization's project needs. It is with my Global Project Management studies, I would be able to effectively manage goals related to time, scope and cost I would also be able to manage numerous issues and goals and be able to lead the people performing them. Through this study, I would develop my leadership skills to one such extent and I can use them to encourage, motivate, and relate to the members on my team, I can expect to see the emergence of a more positive environment. Not only will such an environment improve my job satisfaction and make the overall functioning of the team easier to handle, studies have also shown evidence of improved job performance and productivity, as well as a decline in the undesirable qualities that are known to occur on a project. With Pakistan showcasing its alluring need of IT workforce to serve across different industry sectors, my studies in both networking and project management would definitely be apt to fit the demanding IT opportunities back home. I would be responsible for installing and maintaining the company's computer networks, and also to train staff to provide first rate technical support. If there are problems with the system, it would be directed to me to have a recovery plan to minimize any disruption to the business. As most organizations are becoming increasingly reliant on technology, this makes my role particularly vital to the smooth running of the business. Depending on the size of the organization I might have more than one type of networks to manage. As well as existing systems, I might also need to help develop new systems to assist with the continued growth of the company. However, having said all this, I quite an ambitious person and I look forward to take up a managerial role as a project manager through which I can get my hands on in managing the projects of a networking team. This needs complete hands on training in project management core techniques and skills. The primary responsibility as a project manager would be to focus on meeting project commitments, including communications with sponsors, stakeholders, etc. Most importantly, I would be destined to spend significant time on project management responsibilities. As assigned, I would be liable to lead or assist in the planning, implementation and introduction of projects for new systems and technologies. Hence completing my Project management studies would do well for me to get to understand the insights of the subjects and to get placed in renowned companies like Cisco, IBM, HP, etc. where I can expect a rewarding salary close to PKR 120000 per month. and I am sure that my project management studies would do great for my future career prospects back in Pakistan.
The applicant submitted that the Tribunal must consider every claim made by an applicant and that failure to do so constitutes jurisdictional error (applicant’s written submissions (“AS”) [10] relying upon Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 143 at [25] per Ladhams J (“Naidu”). In Naidu, this Court held that the Tribunal is required to consider the claims and submissions expressly advanced by an applicant as well as claims that emerge clearly on the material before the Tribunal (at [25] relying upon AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55], [68]).
The Court accepts the first respondent’s submission that an inference that a claim made by an applicant has been overlooked should not be readily drawn if the document in which the claim is made was identified by the Tribunal in its reasons (first respondent’s written submissions (“FRS”) [18] relying upon Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ).
The Tribunal set out in full the text of the applicant’s statement as to why he chose to study global project management (at [36]). The Tribunal also identified and set out in its reasons the text of the statements the applicant had made in response to the Tribunal’s request for information as to why he needed to complete a course in project management ([18]); why he was undertaking the course in Australia rather than in Pakistan ([29]); and, the relevance of the courses in project management to his employment plans in Pakistan ([23]).
The Tribunal specifically identified and set out in full the text of the applicant’s statement as to why he chose to study global project management. The Tribunal in its decision at [38] stated that it had regard to the statement. The Court agrees with the first respondent’s submission that, in those circumstances, it cannot be said that the Tribunal overlooked the applicant’s statement in this regard (FRS [18]).
However, the issue is whether the Tribunal “considered” the applicant’s statement in undertaking the task of deciding whether it was satisfied that applicant intends genuinely to stay in Australia temporarily, having regard to the matters in cl 500.212 of the Regulations assessed by reference the factors set out in Direction No. 69 and which guide the Tribunal in reaching the required state of satisfaction. This requires an examination of the Tribunal’s Decision which, pursuant to s 368 of the Act, is required to set out the reasons for the decision, the findings on any material questions of fact and refer to the evidence or any other material on which the findings of fact were based. It is well understood that the Tribunal’s Decision is to be read fairly and not with an eye keenly attuned to the detection of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The applicant’s counsel took the Court to the decision of the full court of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (“Omar”) in which the Court at [35]-[36] discussed what is meant by the obligation of a decision maker to “consider” a matter in a judicial review context. The Court accepts that when a decision maker is required to “consider” a matter it is required to engage in an active intellectual process with reference to the representations or submissions that are being made to the decision maker. Having said that, it is important to bear in mind that this is not a matter in which a decision maker is explicitly required by legislation to “consider” a specific matter. Here, the decision maker is required to reach a state of satisfaction about whether the applicant intends genuinely to stay in Australia temporarily having regard to the matters identified in cl 500.212 of the Regulations. In reaching that state of satisfaction, Direction No. 69 provides guidance to decision maker on what factors require consideration when assessing the matters in cl 500.212. The factors are not to be used as a checklist and decision makers are required to take a reasonable and balanced approach. Further, it is important to also bear in mind that in using expressions such as “proper, genuine and realistic consideration” – in determining whether a decision maker has considered a representation or submission – the Court is not to slide into impermissible merits review (Omar at [36](a) citing Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
The applicant’s submission is that the Tribunal gave no genuine consideration to the explanation offered by the applicant which was set out in the applicant’s narrative reproduced in [36] of the Decision as to why the applicant had chosen to study project management (AS [11]). The Court asked the applicant’s counsel to identify what part of that narrative (set out at [36]) it was contended the Tribunal failed to genuinely consider. The applicant’s counsel drew the Court’s attention to that part of the narrative in which the applicant explained that:
Being an IT professional, I am typically well versed in the technical aspects of networking: router and switch configuration, server deployment and management, and so on. However, being an expert with networking, I was rarely trained on how to manage projects. I consider this as unfortunate, because many of the problems that networkers face in projects can be mitigated with just a few project management skills and techniques which I am lacking enough. It would be a great breakthrough, if I could combine my existing competencies with some project management skills to support wider project operations. This course would help me to radically improve my ability to define and manage projects, while maximizing productivity. The project management coursework would thoroughly equip me with enough knowledge to use project tools and methodologies selectively to support organizational or business activities. By studying this course, I would also gain skills to initiate, plan, execute and evaluate the work plan of projects.
My goal is to get placed in a managerial role, for which the core of IT is not just vital but it also requires project management studies to support my managerial role play towards the organization's project needs.
The applicant’s counsel said that it “it’s a pretty obvious argument that if you want to do some management side, you should have some formal qualifications”. The applicant’s contention is that the Tribunal did not give genuine consideration to the applicant’s explanation as to why it was necessary for him to study project management. To support that submission the application relies upon what the Tribunal said at [46] of its decision which was:
“The applicant has provided several narrative statements in which he attempts to address the genuine temporary entry criterion. They have been taken into account however the Tribunal observes that the divergent nature of his study is not addressed in any or any significant detail.”
This does not take account of the other matters the Tribunal said in assessing whether the applicant was a genuine applicant for entry and stay as a student having regard to the applicant’s proposed course of study and its relevance to his future employment plans. The Tribunal set out what it described as the applicant’s extensive study history since his arrival in Australia ([17]; [25]; [26]) and his employment plans upon return to Pakistan ([27]) which the Tribunal described as ‘extremely vague’ ([43]) and said that:
(a)the proposed course plan was inconsistent with the applicant’s work history as an accounts manager and with his extensive qualifications in information technology obtained both in Pakistan and in Australia ([45]);
(b)the courses were asserted to have relevance to very vague future plans ([45]);
(c)it was not satisfied that the applicant has established that the study would provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has extensive qualifications in information technology obtained both in Pakistan and in Australia ([47]);
(d)the applicant had not explained in convincing detail the utility of project management qualifications having regard to his existing qualifications and experience ([47]);
(e)it was not satisfied that the applicant had demonstrated the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds ([47]).
This demonstrates that the Tribunal did have regard to and gave genuine consideration to the applicant’s statement as to why he chose to study project management set out in [36] (and the applicant’s other statements identified by the Tribunal in its reasons) but was not convinced by the applicant’s explanation having regard to the applicant’s qualifications obtained in Pakistan and his study history in Australia of having studying a Bachelor of IT between 2012 and November 2015, undertaking a professional year between February 2016 and March 2017, enrolling in but not completing a Master of Global Project Management (Advanced) and then enrolling in a Diploma of Project Management.
The Tribunal’s statement at [46] that the applicant’s statements did not provide any or any significant detail with respect to his divergent study history are to be read in the context of the Tribunal’s reasons as a whole and which includes the reasons identified above.
To the extent that the applicant disagrees with the Tribunal’s view that it was not convinced by the utility of the proposed courses in project management this invites the Court to engage in impermissible merits review.
Accordingly, the Court finds that the Tribunal did not fall into jurisdictional error.
CONCLUSION
Accordingly, for the reasons given above, no jurisdictional error is established and the application is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 27 February 2025
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