Uddin v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1324
•18 August 2025
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 dismissedLegislation: 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
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.
The applicant responded on 1 March 2022 by completing the ‘Request for Student Visa Information’ form, to which he attached an updated Confirmation of Enrolment (CoE) for the Graduate Diploma of Management (Learning) due to be completed by 18 February 2024.
On 16 March 2022, the applicant was invited to a hearing before the Tribunal on 19 April 2022.
On 19 April 2022, the applicant appeared before the Tribunal to give evidence and present arguments. On the same day, the Tribunal made an oral decision affirming the delegate’s decision not to grant the visa. The applicant was notified of the outcome of the review on 20 April 2022. The applicant was advised that he may request a copy of the written reasons within 14 days of the date of the oral decision.
On 9 May 2022, the applicant wrote to the Tribunal and requested ‘a full decision of my review’. On 10 May 2022, the Tribunal informed the applicant that as it had received the request after the prescribed period of 14 days from the date of the oral decision, written reasons would not be provided. Tribunal case notes indicated on the same day, the applicant telephoned the Tribunal Registry claiming he had requested written reasons from the Member which was why he was late in asking for them. Following that phone call, the applicant requested an audio recording of the oral decision and on 11 May 2022, the Tribunal sent a copy of the recording of the hearing which included the oral 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.
In relation to the considerations in paragraph 11(a), the Tribunal had regard to the period the applicant had been in Australia and his current and ongoing ties with Australia. The Tribunal was satisfied that these ties would present as a strong incentive for the applicant to remain in Australia. The Tribunal assessed this factor weighed against the applicant.
The Tribunal documented the applicant’s study history in Australia, noting the applicant had undertaken several diploma courses since 28 June 2018. The only course the applicant had completed was a General English course.
During the hearing, the Tribunal discussed with the applicant his poor study history in Australia and expressed concerns about the length of the applicant’s stay in Australia, his previous grant of a student visa and the fact that he had only completed one course despite coming to Australia for the purpose of study. The Tribunal found that the applicant was using the student visa program to circumvent the intentions of the migration program and the student visa that had been granted to the applicant had been used to maintain ongoing residence and was not being used for the genuine purpose of study. The Tribunal considered the applicant’s explanation for not continuing his study, namely homesickness, but was not satisfied with the explanation: [31]–[33].
The Tribunal assessed the factors specified in paragraph 11(e) of the Direction to weigh in the applicant’s favour overall. The Tribunal was satisfied the applicant had established living arrangements and had been living in Australia since 6 July 2018.
When considering paragraph 12(a) of the Direction, the Tribunal considered the utility of the proposed course of study in Australia. It noted his prior bachelor’s degree qualification and his role as an information technology assistant with Memento Technology PVT from August 2016 to March 2018. It noted that the applicant had, therefore, been able to obtain work in his home country without the qualification to be attained from his current course. The Tribunal was not satisfied on the evidence that the applicant's current course of study would assist him to obtain employment or improve his employment prospects in his home country and assessed this factor against the applicant.
In relation to paragraph 12(b) of the Direction, the Tribunal noted the applicant’s future plans for employment (at [39]–[40]). The Tribunal noted the evidence did not identify, except in the most general terms, the proposed future employment in the applicant's home country or a third country. The Tribunal found the evidence before it did not enable the Tribunal to assess on an informed basis the relevance of the applicant's current course of study to proposed future employment. The Tribunal found this factor weighed against the applicant.
The Tribunal noted the disparity of income between the applicant’s roles in India and Australia respectively, but assessed the factors in paragraph 12(c) of the Direction as neutral.
The Tribunal considered the applicant’s employment history to be neutral in relation to paragraph 14(a)(i) and 14(a)(ii). While the applicant breached condition 8202 of the student visa, the Tribunal overall assessed the factor in paragraph 14(b)(ii) of the Direction neutrally. However, the Tribunal found that if the student visa was granted to the applicant, it may be used primarily for maintaining ongoing residence. It assessed this factor (paragraph 14(b)(iii) of the Direction) against the applicant.
The Tribunal considered the applicant’s prior travel to Saudi Arabia and assessed the factor in paragraph 14(b)(iv) to be neutral.
Ultimately, the Tribunal considered that on the balance, the factors it assessed against the applicant outweighed the factors assessed in favour of the applicant. The Tribunal was not satisfied that the applicant intends genuinely to stay temporarily in Australia in accordance with clause 500.212.
For these reasons, the Tribunal affirmed the decision under the review.
APPLICATION TO THIS COURT
The applicant filed an application for judicial review, with an accompanying affidavit, on 17 May 2022. It was not necessary for the Court to take this affidavit into evidence as the Tribunal’s decision and reasons were included in the Court Book (filed by the Minister on 18 August 2022), which was tendered at the hearing and marked as Exhibit CB.
The matter was listed for final hearing on 6 August 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 23 July 2025.
The Minister filed their written submissions on 16 April 2025.
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.
The evidence before the Court indicates that, on 11 May 2022, the Tribunal provided an audio recording of the oral decision and, on 28 June 2022, it provided a written record of the decision to the applicant. I remarked at the hearing that, in the intervening period, the applicant was able to lodge his application for judicial review to this Court within the prescribed timeframe and was not disadvantaged in any way by the fact that the Tribunal issued him with the written reasons on the date that it did. Additionally, orders were made by two Registrars of this Court, on 12 August 2022 and 12 March 2025, providing for the applicant to file any amended application, written submissions or additional affidavit evidence and he was afforded the applicant an opportunity to address any further concerns he may have had with the Tribunal’s written reasons.
I agree with the Minister’s submission that, contrary to the applicant’s assertion, the Tribunal’s initial refusal to provide written reasons is not a basis for jurisdictional error as the validity of a decision is not affected by a failure to comply with s 368D(4) of the Act: s 368D(7)(b) of the Act.
Accordingly, no error is established by ground one.
Ground two
By this ground, the applicant contends that the Tribunal failed to consider all the criteria set out in Part 500 of Schedule 2 to the Regulations including criteria in cll 500.211 to 500.218. This ground is misconceived.
The applicant was required to satisfy all the primary criterion under cll 500.212 to 500.218 at the time of decision. In this matter, the Tribunal considered the applicant was not a genuine temporary entrant under cl 500.212, which is a mandatory criterion for the grant of the visa. Therefore, as I explained to the applicant at the hearing, the Tribunal (having found that he did not satisfy at least one mandatory criterion for the grant of the student visa), was not required to further consider whether he satisfied other primary criteria for the visa.
Accordingly, no error is established by ground two.
Ground three
By Ground three, the applicant contends that the Tribunal wrongly considered his circumstances in Saudi Arabia and made a legal error. The applicant did not identify, in his written grounds or in oral submissions, what circumstances the Tribunal wrongly considered.
The Tribunal plainly considered the applicant’s circumstances and ties to Saudi Arabia. It understood that his family resided in Saudi Arabia (at [17]), that he travelled there to visit them ([43]), that he planned to become a ‘team leader’ as a pathway to becoming a manager upon return to Saudi Arabia and that his qualification in Australia would assist him in doing so ([39]).
As submitted by the Minister, having considered the applicant’s claims and evidence, it was open for the Tribunal to reject these claims and find that given the vagueness of the applicant’s claims regarding future employment it was unable to assess whether the course of study he was undertaking in Australia would enable him to gain such work ([40]). The Tribunal additionally considered the applicant’s travel to Saudi Arabia and attributed neutral weight to paragraphs 14(a)(ii) and 14(b)(iv) of Direction 69, having found that the applicant’s visa to Saudi Arabia was unrelated to study ([43], [49]).
I accept, as submitted by the Minister, that the matters raise by this ground rise no higher than an expression of disagreement with the merits of the Tribunal’s adverse findings and invites the Court to engage in impermissible merits review.
No error is established by ground three.
Ground four
By ground three, the applicant asserts that the Tribunal’s assessment of the genuine temporary entrant criterion was based on unreasonableness and the Tribunal ‘made a legal error’.
I explained to the applicant that there was a high threshold for establishing legal unreasonableness; and the decision (or findings and/or reason for that decision) must be so unreasonable that no reasonable person (in the place of the Tribunal) could have so decided: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [135]. I asked the applicant to provide me with examples (from the reasons) of why he considered the decision to be unreasonable. The applicant’s complaints were largely relevant to the Tribunal’s consideration of the merits of his case.
As submitted by the Minister, insofar as this allegation of unreasonableness is a statement of disagreement with the Tribunal’s conclusion; disagreement, even emphatic disagreement, with the Tribunal’s reasons or conclusions does not disclose jurisdictional error: SZMDS at [124]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [5].
I accept that there was nothing unreasonable, illogical or irrational in the Tribunal finding that the applicant did not satisfy cl 500.212.
The Minister summarised the factors considered adverse to the applicant by the Tribunal in making its finding including: the applicant’s ties to Australia, poor and ‘slack’ study history, his ability to obtain employment in India without further education, there being no apparent relevance of the current course to his proposed future employment, his previous breach of Condition 8202 by not being enrolled, and that he seemed to be using the student visa program to maintain ongoing evidence: [27], [34], [38], [40], [46], [48]. I accept the Minister’s submission that, on the same evidence, a reasonable and rational Tribunal could have reached the same state of non-satisfaction in relation to cl 500.212: SZMDS at [131], [135]; Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45].
Accordingly, ground four does not establish jurisdictional error.
CONCLUSION
As the applicant has not established jurisdictional error on the part of the Tribunal. It follows, that the application for judicial review must be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 18 August 2025
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