Syed (Migration)

The applicant, Syed, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a Student (Temporary) (Class TU) visa, subclass 500. The Administrative Appeals Tribunal had affirmed the delegate's decision. The matter came before Creedon J of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of whether the applicant was a genuine applicant for entry and stay in Australia as a student. Specifically, the Court considered whether the Tribunal had failed to give the applicant the benefit of the doubt, as required by the *Migration Act 1958* (Cth) and relevant regulations, in its consideration of the applicant's proximity to completion of his course, his study record, and the reasons for his current and future study.

Creedon J found that the Tribunal had failed to properly apply the benefit of the doubt. The Tribunal's reasoning indicated that it had not adequately considered the applicant's positive study record and his current enrolment in assessing his genuine intention to study. The Court held that the Tribunal's conclusion that the applicant was not a genuine student was not open to it on the evidence before it, particularly when the benefit of the doubt was afforded.

The Court ordered that the decision of the Administrative Appeals Tribunal be remitted to the Tribunal for redetermination according to law.