Uddin v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 1324

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Uddin v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1324

File number(s): SYG 747 of 2022
Judgment of: JUDGE SKAROS
Date of judgment: 18 August 2025
Catchwords: MIGRATION – judicial review – Administrative Appeals Tribunal – whether the Tribunal wrongly considered the applicant’s circumstances – whether the Tribunal erred in finding the applicant was not a genuine temporary entrant –
No jurisdictional error – application dismissed
Legislation:

Migration Act 1958 (Cth) ss 109(1), 359(2), 368D

Migration Regulations 1994 (Cth) cl 500.212 of sch 2, reg 4.27B

Cases cited:

LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165

Division: Division 2 General Federal Law
Number of paragraphs: 66
Date of hearing: 6 August 2025
Place: Parramatta
Solicitor for the Applicant: Self-represented Litigant
Solicitor for the First Respondent: Ms Maker, Sparke Helmore
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 747 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MOHAMMED TAUSEEF UDDIN

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE SKAROS

DATE OF ORDER:

18 AUGUST 2025

THE COURT ORDERS THAT:

1.The application filed on 17 May 2022 is dismissed.

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 SKAROS

  1. By application filed on 17 May 2022 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 19 April 2022. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) not to grant the applicant a student visa (Subclass 500) (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…

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Uddin v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1324
Case
[2025] FedCFamC2G 1324
Decision Date

CaseChat Overview and Summary

The case of Uddin v Minister for Immigration and Multicultural Affairs involves the applicant, a citizen of India, seeking judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming the Minister’s refusal to grant him a student visa. The applicant’s initial student visa, granted on 28 June 2018, was based on his enrolment in a Master of Engineering course, which he did not undertake due to disciplinary reasons. He subsequently enrolled in English courses, completing two out of three. On 15 September 2020, the day his visa was due to expire, he applied for a new student visa based on his enrolment in an Advanced Diploma of Business and a Graduate Diploma of Management. The delegate refused the application on 6 October 2021, finding that the applicant did not satisfy the requirement of being a genuine temporary entrant under the Migration Regulations. The Tribunal affirmed the delegate’s decision on 19 April 2022, and the applicant now seeks judicial review of that decision.

The legal issues in this case revolve around whether the Tribunal made a jurisdictional error in its decision-making process. The applicant argued that the Tribunal failed to provide written reasons, wrongly considered his circumstances, and erred in its assessment of his genuine temporary entrant status. The court’s task was to determine if any of these arguments amounted to a jurisdictional error that could have deprived the applicant of a successful outcome.

In assessing the grounds of review, the court found that the Tribunal was permitted to make an oral decision under the Act, and the applicant’s request for written reasons was made outside the prescribed period. The court also determined that the Tribunal did not err in its consideration of the applicant’s circumstances or in its assessment of his genuine temporary entrant status. The court concluded that the Tribunal’s decision was not affected by a jurisdictional error and dismissed the application.

The court’s final order was that the application for judicial review be dismissed, with no orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

By application filed on 17 May 2022 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 19 April 2022. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) not to grant the applicant a student visa (Subclass 500) (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 following background is derived from information in the Court Book and the Minister’s submissions and is not in dispute. The applicant, a citizen of India, first arrived in Australia on 6 July 2018 as the holder of a student visa granted on 28 June 2018. That visa was granted based on the applicant’s confirmation of enrolment in a Master of Engineering course, due to be completed in September 2020. The applicant did not undertake any study in that course due to ‘disciplinary reasons’ and subsequently enrolled in a suite of English courses, one of which he did not commence and two of which he finished by 22 June 2022. On 15 September 2020, the day his visa was due to expire, the applicant applied for the visa, the subject of these proceedings. He applied for the visa on the basis of his enrolment in an Advanced Diploma of Business and a Graduate Diploma of Management, with a completion date of 8 January 2023. On 13 November 2020, the Department invited the applicant to comment on information that may be the reason or part of the reason for refusing the grant of the visa, namely:·his study and immigration history, which revealed he had not been enrolled in a registered course for a period under his previous visa, seemingly in breach of condition 8202; and,·his time in Australia, which may indicate he was not a genuine applicant for entry and stay as a student. On 25 November 2020, the applicant responded with a submission explaining that his ‘emotional and mental health’ prevented him from commencing his master’s degree and resulted in him not studying. On 6 October 2021, the delegate notified the applicant that the application was refused on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia. On 15 October 2021, the applicant applied to the Tribunal for review of the delegate’s decision. On 15 February 2022, the Tribunal invited the applicant pursuant to s 359(2) of the Act to provide information by 1 March 2020. The invitation explained that it was a requirement of the visa that the applicant be enrolled in a registered course of study and be a genuine applicant for entry and stay in Australia, and the applicant would need to provide sufficient information to demonstrate he met both criteria.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 28 June 2022, the Tribunal wrote to the applicant and attached a written record of the decision. THE TRIBUNAL’S DECISION The dispositive issue before the Tribunal was whether the applicant was a genuine temporary entrant under clause 500.212 of the Regulations. The Tribunal extracted clause 500.212 of the Regulations and Direction 69, which it considered in making its decision. The Tribunal noted the reasons for conducting the hearing by telephone during COVID-19, and was satisfied the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal summarised the evidence before it and made assessments against the factors set in the Direction. The Tribunal identified India as the applicant’s home country. The Tribunal noted the applicant commenced studying a Graduate Diploma of Management (Learning) in or about February 2022. The applicant accepted there are similar courses to his current course of study available in his home country. At [14] of its reasons, the Tribunal summarised the explanations given by the applicant for not undertaking study in India. Amongst other things, the applicant said graduate diploma courses were not delivered with proper dedication and tools in India as opposed to Australia where vocational level courses focus on practical skills and industry experience. At the hearing, the applicant said he had already obtained a bachelor's degree of Engineering in India and that a further diploma in Australia would assist the development of his administrative skills and procurement of a job upon his return to India. He also stated his friends who studied diploma courses in India had advised him that the quality of those courses was not good. The Tribunal was satisfied that the applicant was in a position to make an evaluative assessment of the level of education in Australia against the level of education in India and that he had established reasonable reasons for not undertaking this current course of study in his home country or region. The Tribunal weighed this in favour of the applicant. The Tribunal noted that the applicant’s ties to India comprised of friends, familiarity with Indian study system and working environments and mosque involvement. Considering the applicant had lived in Australia for four years, the Tribunal found that his ties to India did not provide any compelling need for the applicant to return to his home country and assessed that this factor weighed against the applicant. The Tribunal gave neutral weight to paragraph 9(c) and 10 of Direction 69 as it did not have enough evidence before it to make an assessment on those factors. In relation to paragraphs 9(d) and (e) of the Direction, the Tribunal noted that the applicant disclosed that he had no concerns about military service commitments or political and civil unrest in his home country. However, the Tribunal did not consider the absence of such concerns provided an incentive for the applicant to remain in Australia or disincentive to return to his home country. Accordingly, the Tribunal assessed these factors as neutral.

Ratio Decidendi

Legal Principle Established

At the hearing on 6 August 2025, the applicant appeared in person. The Minister was represented by Ms Maker of Sparke Helmore Lawyers. CONSIDERATION The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v 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 at the hearing, 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 application for judicial review contained the following grounds of review:1.The Administrative Appeals Tribunal failed to provide written reason even after making written request with reason for two days delay and made legal error.2.The Administrative Appeal Tribunal failed to consider the requirements that the criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations include primary criteria in cl 500.211 to cl 500.218.3.The Administrative Appeals Tribunal in its oral decision wrongly considers circumstance of applicant travelling to Saudi Arabia and made legal error.4.The Administrative Appeals Tribunal assessment of genuine temporary entrant criteria are based on unreasonableness and made legal error. At the hearing the applicant was provided with the opportunity to speak to the grounds raised in his application. In oral submissions, the applicant did not expound upon his written grounds, instead raising merits-based arguments which fall outside the remit of this court. I will address each of the grounds raised by the applicant in turn. Ground one By the first ground, the applicant contends that the Tribunal failed to provide him with written reasons after he made a ‘written request for reason for two days delay and made legal error.’ I agree with the Minister that this is factually incorrect. As indicated in the Minister’s submissions, the Tribunal was permitted to make a decision on review orally under s 368D of the Act. The Tribunal notified the applicant of the oral decision on 20 April 2022, and he was properly informed that he could request a written statement for the decision by making a request in writing within 14 days. The applicant requested a written statement on 9 May 2022, being a date outside the prescribed period of 14 days. Whilst the Tribunal initially indicated that it would not provide the written reasons as the request was made outside the period provided, it subsequently provided him with a copy of the written reasons.