Siddiqui v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1506
•12 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Siddiqui v Minister for Immigration and Citizenship [2025] FedCFamC2G 1506
File number(s): SYG 1524 of 2023 Judgment of: JUDGE SKAROS Date of judgment: 12 September 2025 Catchwords: MIGRATION – whether the Tribunal erred in finding the applicant was not a genuine temporary entrant – where applicant contends that the Tribunal denied him procedural fairness and failed to consider his evidence and submissions – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 359, 359AA, 360
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 28 August 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Pieri, Minter Ellison Solicitor for the Second Respondent: Submitting appearance, save as to cots ORDERS
SYG 1524 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TAFFAZ UL UDDIN AHMED SIDDIQUI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
12 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application filed on 26 September 2023 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $5,900.
3.The name of the First Respondent is amended to ‘Minister of Immigration and Citizenship.’
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS
By application filed on 26 September 2023, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 25 August 2023. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Student (Temporary)(Class TU) visa (the visa) under s 65 of the Migration Act 1958 (Cth)(the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The applicant is a citizen of India. He first arrived in Australia on 9 July 2018 as the holder of a student visa. He was granted the initial student visa on 27 June 2018, which was valid until 30 September 2025, on the basis of his enrolment in a Master of Professional Accounting at Federation University Australia. The applicant did not complete this course. He enrolled in several courses relating to hospitality. He completed a Certificate III in Security Operations from 12 April 2019 to 31 May 2019.
On 30 September 2020, the applicant applied for a student visa onshore. On 10 March 2022, the delegate refused to grant the applicant a student visa as they were not satisfied the applicant was a genuine temporary entrant. Accordingly, the delegate found the applicant did not satisfy clause 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
On 18 March 2022, the applicant applied to the Tribunal for review of the delegate's decision.
On 3 May 2023, the Tribunal sent a letter to the applicant's authorised recipient, pursuant to s 359 of the Act, inviting him to provide information, as requested, in the "Request for Student Visa Information" form, for which a link was provided in the invitation letter. The applicant responded to this request and provided further information to the Tribunal.
On 26 July 2023, the Tribunal invited the applicant to appear before it to give evidence and present arguments on 24 August 2023. The applicant attended the hearing and was assisted by an interpreter in the Hindi and English languages.
On 25 August 2023, the Tribunal affirmed the delegate’s decision not to grant the student visa.
THE TRIBUNAL’S DECISION
The issue before the Tribunal was whether the applicant satisfied cl 500.212(a) of the Regulations and was a genuine temporary applicant for entry and stay as a student.
The Tribunal extracted cl 500.212 of the Regulations and noted that it was required to have regard to the specified factors in Ministerial Direction No. 69.
The Tribunal recorded that it put to the applicant information from his Provider Registration International Student Management System (PRISMS) database pursuant to s 359AA of the Act: at [20]. The Tribunal put to the applicant the relevance of the information and its concerns: at [21]. Relevantly, the Tribunal put to the applicant its concerns: the applicant only completed one course which related to his work as a security guard in Australia; his other CoE’s were cancelled due to unsatisfactory attendance and non-payment of fees; there were discrepancies between the applicant’s oral evidence and PRISMS records regarding his enrolment history; he had a gap of seventeen months between his cancelled enrolments and his eventual enrolment in the Diploma of Project Management.
The Tribunal also put to the applicant its concern regarding the timing of his enrolment in the Diploma of Project Management as it considered the applicant had done so primarily to meet the enrolment condition and obtain a successful student visa outcome, rather than because of a genuine interest in this course of study: at [22]. The Tribunal noted the applicant’s response that he understood the information put to him and summarised his explanation regarding the issues raised: at [23]–[25].
The Tribunal recorded the applicant’s evidence regarding his personal ties to India, his current work in Australia, and his immigration history: at [26]–[29].
The Tribunal put additional concerns to the applicant, including concerns about his possession of a higher qualification (a bachelor’s degree) from India, whether his employment in Australia may act as an incentive to remain in Australia and concern regarding the length of his stay. The Tribunal noted it gave the applicant an opportunity to respond to each of these concerns: at [30].
At [32]–[36], the Tribunal considered the evidence before it in respect of the applicant’s circumstances in his home country. It accepted that the applicant had personal ties to India, including the presence of his parents, two brothers and fiancé. The Tribunal accepted that the applicant's father has a catering business which may provide employment or business opportunities for the applicant in the future. The Tribunal considered the applicant’s personal, family, community and potential employment ties served as a significant incentive to return to his home country.
Having regard to his employment history in Australia and potential earnings in his father’s business in India, the Tribunal expressed concern that the applicant's economic circumstances in Australia may serve as an incentive for him not to return to India.
At [37]–[41], the Tribunal considered the applicant’s potential circumstances in Australia. The Tribunal had regard to the applicant’s study history. It expressed concern at the applicant's failure to complete any of the courses in which he was enrolled, apart from the short course in security, which related to his employment as a security guard in Australia. The Tribunal did not accept the applicant's explanations for failing to complete the various hospitality courses and found there were strong concerns that the applicant was using the student visa program to maintain ongoing residence in Australia. The Tribunal noted that the applicant did not have family or community ties in Australia, but it was nevertheless concerned that the applicant was focused on building a career in Australia.
The Tribunal also considered the value of the course to the applicant's future. It accepted that the applicant had changed his studies from accounting to hospitality and further accepted that the Certificate IV in Kitchen Management would be relevant to the applicant's stated future employment opportunities in his father's catering business.
The Tribunal considered the applicant’s immigration history. It also considered the applicant’s enrolment history and expressed concern that the applicant was not enrolled for a period of some 17 months. Given the length of time the applicant had been in Australia and the limited academic progress he had made, the Tribunal was concerned that the applicant was using the student visa to maintain residence in Australia.
In considering the relevant factors set out in Ministerial Direction No. 69 and weighing up the applicant’s circumstances as a whole, the Tribunal concluded at [48] that it was not satisfied that the applicant intends genuinely to stay in Australia temporarily.
APPLICATION TO THIS COURT
The originating application advanced three grounds of review.
The applicant also filed an affidavit annexing the Tribunal’s decision. It was not necessary for the Court to take this affidavit into evidence as the document was included in the Court Book filed by the Minister on 30 March 2024, which was tendered at the hearing (Exhibit CB) and is in evidence.
The matter was listed for hearing on 28 August 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 23 July 2025.
At the hearing, on 28 August 2025, the applicant appeared in person and was assisted by an interpreter in the Gujurati and English languages. The Minister was represented by Ms Pieri, a solicitor with Minter Ellison.
Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
The applicant was guided through his application and was invited to make oral submissions in support of the grounds of review raised in the application, which he did.
CONSIDERATION
As explained to the applicant at the hearing, the Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32].
Further, as explained to the applicant, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
GROUNDS OF REVIEW
The grounds of review advanced in the application (without alteration) are:
1. While I appreciate the lengthy decision by the Tribunal I continue to believe that the Member failed to accord me natural justice and fairness and failed to accept that I have a genuine intention to remain temporarily in Australia and failed to consider my compelling and compassionate circumstances and failed to allow me to study as per the confirmation of enrolment provided.
2. The Tribunal had before it my economic circumstances, my desire to join my father's business yet failed to consider that I intend genuinely to stay in Australia temporarily.
3. The documentation provided should lead the Tribunal to accept my genuine intention and allow me to study.
In oral submissions, the applicant said he submitted documents to the Tribunal which demonstrated he was a genuine temporary entrant. He informed the Tribunal that he got engaged and that his fiancé was waiting for him in India. His intention was to complete his studies so he could return to India and take over his father’s business. The applicant said the Tribunal had completely failed to look at the documents he provided and did not consider the evidence.
Ground one
By ground one, the applicant contends that the Tribunal had denied him procedural fairness. He also contends that the Tribunal failed to consider his circumstances, his enrolment in a course and that he only intended to remain in Australia temporarily.
The Minister contends that the Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Act, which is an exhaustive statement of the natural justice hearing rule.
It was submitted that the Tribunal complied with s 360 of the Act, as the applicant was afforded sufficient opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review at the hearing: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The Minister contended that the applicant was afforded a 'real and meaningful' opportunity to participate in the hearing and give evidence in support of his application: cf.Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [37] per Gray, Cooper and Selway JJ. In support of this contention, the Minister relied on the summary of the oral evidence given at the hearing (at [16]–[30]), which the Minister contended demonstrates that the Tribunal discussed with the applicant the relevant matters and put to him its key concerns.
The Minister further contended that the Tribunal correctly followed the procedure specified in s 359AA of the Act in that it particularised the information before it that it considered would be a reason for affirming the decision under review, namely the applicant's repeated failure to complete the courses in which he was enrolled: at [20]. It was submitted that the Tribunal also recorded that it confirmed with the applicant that he understood the particulars of the information and that the applicant indicated he wished to comment orally at the hearing: [23].
It was also submitted that the Tribunal, consistently with s 359 of the Act, invited the applicant to provide evidence in writing that he was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The applicant provided a response to this invitation, which the Tribunal considered: at [21].
The applicant has not explained which process or procedure the Tribunal failed to follow and in what way he had been denied procedural fairness. I accept the Minister’s submissions that the Tribunal complied with all its procedural fairness obligations. The evidence before the Court indicates that the applicant was given the opportunity to provide evidence in writing in support of his application for review. He was also given the opportunity to give evidence and present arguments at a hearing before the Tribunal relating to the issue of whether he was a genuine temporary entrant. There is no evidence before me to suggest that the Tribunal denied the applicant a meaningful opportunity to give evidence or to respond to the concerns raised with him at the hearing, including those put to him under s 359AA of the Act.
The applicant has not demonstrated that he was denied procedural fairness or natural justice by the Tribunal.
As to his contention that the Tribunal failed to consider his circumstances and the evidence provided demonstrating he is a genuine temporary entrant, this is addressed below as part of the consideration of grounds two and three.
Grounds two and three
By grounds two and three, part of ground one, as well as his oral submissions, the applicant contends that the Tribunal failed to consider submissions and evidence as to his circumstances which, he contends, demonstrate he is a genuine temporary entrant.
The Tribunal’s decision discloses that it had regard to the written material and oral evidence before it when considering whether the applicant intended genuinely to stay in Australia temporarily. The Tribunal considered the evidence before it pertaining to the applicant’s economic circumstances. It accepted that his father had a business in India which may provide the applicant with employment or business opportunities. It considered and accepted that the applicant had family ties in India, including his parents and fiancé, which served as a strong incentive to return to his home country. The Tribunal, however, balanced these factors against other matters it was required to consider, as guided by Ministerial Direction No. 69, including the history of his enrolment in various courses and study in Australia. It was concerned that he had failed to complete any of the courses he was enrolled in, apart from a short course in security, which related to his employment in the security industry in Australia. It was also concerned about the applicant’s employment in Australia, which it considered provided a strong incentive for the applicant not to return to India.
The reasons for the decision disclose that the Tribunal meaningfully engaged with the evidence before it. I accept the Minister’s submission that the Tribunal considered the evidence before it and that it properly addressed and balanced the considerations in Ministerial Direction No. 69. The weight given to evidence was a matter for the Tribunal. No unreasonableness or irrationality is identified in the Tribunal’s consideration of the evidence and weighing of the different considerations. The Tribunal’s reasons were cogent and detailed, and its findings were open to it on the evidence before it.
The applicant has not established jurisdictional error on the part of the Tribunal.
CONCLUSION
As none of the grounds raised establish error on the part of the Tribunal, the application for judicial review must be dismissed.
COSTS
The Minister sought an order that the applicant pay their costs fixed in the sum of $5,900. The applicant made no submissions on the issue of costs. I am satisfied that costs should follow the event. Further, having regard to the work undertaken and the scale costs for a standard migration matter, I am satisfied that the costs sought in this matter are reasonable and will so order.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 12 September 2025
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