Wasim v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1052
•10 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wasim v Minister for Immigration and Citizenship [2025] FedCFamC2G 1052
File number(s): MLG 2163 of 2019 Judgment of: JUDGE BINGHAM Date of judgment: 10 July 2025 Catchwords: MIGRATION LAW – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a student visa – no error in the Tribunal’s consideration of the genuine temporary entrant criterion – application dismissed with costs Legislation: Migration Act 1958 (Cth) s 359(2)
Migration Regulations 1994 (Cth) clause 500.212
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46]
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 12 June 2025 Date of hearing: 12 June 2025 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2163 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED ALI WASIM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
10 JULY 2025
THE COURT ORDERS THAT:
1.The Application filed 8 July 2019 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $4,000.00.
3.The name of the First Respondent be amended to “Minister for 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 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 BINGHAM:
On 5 June 2019 the Administrative Appeals Tribunal (Tribunal) affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Student (Temporary) (class TU) (subclass 500) visa (Visa) because the Applicant did not satisfy the genuine temporary entrant criterion (Tribunal’s Decision).
By an application filed in this Court on 8 July 2019 (Application), the Applicant seeks judicial review of the Tribunal’s Decision, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
BACKGROUND
The Applicant arrived in Australia on 16 March 2014 as a holder of a Student (Class TU) (Subclass 573) visa. The Applicant’s visa was granted for the purposes of him undertaking and completing three courses starting with a Certificate IV in Frontline Management then a Diploma of Management at Cambridge International College and ending with a Bachelors in Business (Accounting).
The Applicant changed courses. The Applicant commenced but did not complete the Certificate IV in Frontline Management. The Applicant commenced and completed a Diploma of Information Technology at the National Training Centre Australia from 13 July 2015 to 10 July 2016.
On 20 July 2017 the Applicant applied for the Visa (Visa Application). The Visa Application nominated enrolment in a Bachelor of Information Technology at Melbourne Polytechnic.
The genuine temporary entrant requirements
The genuine temporary entrant criterion (GTE Criterion) was contained in clause 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations):
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, 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
(iv) any other relevant matter; and
(b)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) of any other relevant matter.
The matters to be considered when assessing the GTE Criterion are set out in Ministerial Direction No. 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction No. 69).
Delegate’s Decision
On 4 September 2017 the Delegate found that the Applicant was not a genuine temporary entrant as required by cl 500.212.
Consequently the Delegate refused to grant the Visa (Delegate’s Decision).
Application for review to the Tribunal
The Applicant sought review before the Tribunal on 21 September 2017. The Applicant appointed a migration agent as his representative before the Tribunal.
An invitation to provide further information to the Tribunal was sent to the Applicant’s representative on 19 February 2019. On 4 March 2019 a completed request for Student Visa Information Form with a genuine temporary entrant statement (GTE Statement) was submitted to the Tribunal by the Applicant.
On 12 March 2019 the Applicant was invited to attend a scheduled hearing before the Tribunal. On 18 March 2019 the Applicant submitted to the Tribunal a completed Response to Hearing form indicating that the Applicant would attend the hearing with his representative and that he did not require an interpreter. Annexed to the Response to Hearing form was a confirmation of enrolment in a Bachelor of Information Technology from 17 July 2017 to 30 June 2019, results for an English course and a statement of results.
A hearing was held before the Tribunal on 27 March 2019 (Tribunal Hearing). The Applicant appeared at the Tribunal Hearing to give evidence and to present arguments. The Applicant’s representative attended the Tribunal Hearing.
THE TRIBUNAL’S DECISION
On 5 June 2019 the Tribunal affirmed the Delegate’s Decision. The Applicant was notified of the Tribunal’s Decision on 6 June 2019.
The Applicant’s initial student visa was granted for the purpose of studying a package of three courses, a Certificate IV in Frontline Management, a diploma of Management and a Bachelor of Business (Accounting).
The Tribunal considered the Applicant’s study history, which included enrolling in the Certificate IV course in May 2014 but not completing it and never starting the remaining two (2) courses in the visa study package. The Tribunal accepted that the Applicant was enrolled in courses of study between October 2014 and July 2015 but did not start any of those courses. The Tribunal found that the Applicant had breached condition 8202 of the Applicant’s initial student visa as he had failed to achieve satisfactory course attendance or make reasonable academic process.
The Tribunal went on to consider the Applicant’s study history from July 2015. In July 2015 the Applicant commenced a Diploma of Information Technology which was completed in July 2016. The Applicant then enrolled in a Bachelor of Information Technology and Systems which was to commence in November 2016 and concluded in 2019. The Applicant did not complete this course. Between May 2017 and July 2017 the Applicant was enrolled in and completed a general English course. The Tribunal found after consideration of the Applicant’s study history including the breach of condition 8202, that the Applicant’s study history as a whole was inconsistent with the behaviour of a genuine student whose primary reason for living in Australia is to study and progress academically.
The Tribunal rejected the Applicant’s explanation for his patchy academic performance namely: that he struggled to understand business and accounting, he was not interested in the field of commerce, he did not complete the courses of study because he was young and not sure what would attract him. The Tribunal described the explanations as not satisfactorily reliable and weighing against the Applicant’s claims that he was a genuine student and a temporary entrant. The Tribunal concluded that its consideration and conclusions with respect to the Applicant’s study history weigh in favour of a finding that the Applicant used the student visa program to circumvent the intentions of the migration programme and that the student visa was being used by the Applicant to maintain ongoing residence in Australia.
The Tribunal did not consider the Applicant to be credible due to the contradictory accounts as to why he did not complete the Bachelor of Information Technology Systems in which he was enrolled in 2016 as a result the Tribunal doubted the truthfulness of the Applicant’s genuine temporary entrant claim for further study in Australia as a fulltime student.
The Tribunal turned to the issue of the relevance of the course in which he had enrolled, namely the Bachelor of Information Technology at Melbourne Polytechnic to the Applicant’s future on the basis that the evidence before the Tribunal was that there were equivalent courses available in Pakistan that were less expensive than those in Australia and had led to success for those of the Applicant’s friends who had undertaken them. The Tribunal accepted that the course enrolled in was consistent with the Applicant’s level of education, however the Tribunal found that the Applicant had not demonstrated any clear and substantial improvement that would accrue from the course in which he had enrolled at the Melbourne Polytechnic.
In assessing the Applicant’s incentives to return to Pakistan or remain in Australia the Tribunal considered a numbers of matters: the Applicant had lived in Australia for five (5) years where he financially supported himself and worked and had a sound knowledge of living in Australia; the Applicant’s immediate family resided in Pakistan and that he had visited Pakistan twice since arriving in Australia in 2014; the Applicant had not demonstrated that he had economic ties or personal assets in Pakistan; and the disparity of the living standards between Australia and Pakistan. The Tribunal found that the Applicant’s personal ties did not serve as a significant incentive for him to return to Pakistan and further that the Applicant’s ties with Australia would present a strong incentive to remain.
Ultimately the Tribunal was not satisfied that the Applicant met the GTE Criterion and affirmed the Delegate’s Decision to not grant the Visa.
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 8 July 2019, within 35 days of the date of the Tribunal’s Decision, pursuant to s 477 of the Migration Act.
Orders were made on 18 February 2025 for the Applicant to file any amended application, written submissions and any additional sought to be relied upon at least 28 days prior to hearing. The Applicant did not file any material in accordance with these Orders.
This matter was heard on 12 June 2025 (Hearing). The Applicant appeared in person. A Solicitor appeared for the Minister. The Applicant made oral submissions addressing each of his grounds of review. The Applicant withdrew Ground 4 of the Application at the Hearing.
The Applicants relied upon the following documents:
(a)The Application filed 8 July 2019;
(b)The Affidavit of the Applicant filed 8 July 2019, annexing the Tribunal’s Decision.
The Minister relied upon:
(a)The Response filed 19 July 2019;
(b)The Minister’s outline of submissions filed 29 May 2025.
The Court has before it a Court Book filed by the Minister on 4 March 2025.
The Applicant relied on the following grounds of review (Grounds of Review):
1.The First Respondent and the Second Respondent denied the Applicant a sufficient natural justice opportunity to present the Applicant's case and the decisions of the First Respondent and the Second Respondent were therefore devoid of plausible justification and were unreasonable. (Ground 1)
2.The First Respondent and the Second Respondent failed to take into account relevant considerations relating to the Applicant's circumstances and instead took into account irrelevant considerations relating to the Applicant's circumstances. (Ground 2)
3.The First Respondent and the Second Respondent failed to give genuine, proper and realistic consideration to the merits of the Applicant's case including but not limited to failing to make adequate inquiry as to the facts relating to the Applicant's case. (Ground 3)
4.[…]
In Bold added. Otherwise as written.
I agree with the general submission made on behalf of the Minister that the Court does not have jurisdiction to review the Delegate’s Decision as a primary decision maker under the Migration Act as such my considerations of the Grounds of Review are limited to identification of a jurisdictional error of the Tribunal.
CONSIDERATION
Ground 1
By Ground 1 the Applicant claims that he was denied procedural fairness by the Tribunal as it did not afford him a sufficient opportunity to present his case and it did not consider the full context of his academic performance. The Applicant submitted that it was legally unreasonable for the Tribunal to find he did not satisfy the GTE Criterion as he had complied with his Visa since 2017 and sought a relevant qualification for the Pakistan job market. The Applicant explained that the lack of opportunity arose from the Tribunal not genuinely considering the evidence before it and the Tribunal focusing on his early academic difficulties. The statement of results, it was submitted by the Applicant, showed a recovery of his academic progress. The Applicant was unable to point me to the paragraph in the Tribunal’s Decision which he relied upon that gave rise to the alleged jurisdictional error.
It was submitted by the Minister that the Applicant was on notice since at least the Delegate’s Decision that the GTE Criterion was the dispositive issue. The Applicant was given multiple opportunities to provide evidence in support of his case and he did so. The Minister contended that the Tribunal complied with its codified procedural fairness obligations. In this regard the Minister says that pursuant to s 359(2) of the Migration Act the Applicant was invited to provide the Tribunal with information about the courses of study he was undertaking and his entry and stay in Australia. The Applicant completed the online student visa information form and provided a genuine temporary entrant statement on 4 March 2019. The online student information statement included details that the Applicant was studying at the Melbourne Polytechnic as did the Applicant’s GTE statement. On 12 March 2019 the Applicant via his representative was invited to attend the hearing and to provide all documents he wished to rely upon. The Applicant exercised this right and provided among other documents his statement of results from the Melbourne Polytechnic. The Applicant attended and participated in the hearing before the Tribunal.
I agree with the submission of the Minister that procedural fairness was accorded to the Applicant and that it was sufficient to allow the Applicant to make his case
Reading the Tribunal’ Decision as a whole and in particular paragraphs [13], [14], [23], [24], [25] and [26] it is clear that Applicant’s complete academic record from arriving in Australia to the present time before the Tribunal was considered fully by the Tribunal before arriving at its determination. The Tribunal is not required to refer to every piece of evidence before it: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46].
No jurisdictional error has been identified by the Applicant. Ground 1 must be dismissed.
Ground 2
Ground 2 alleges that the Tribunal did not take into account relevant considerations and took into account irrelevant considerations. The Applicant submitted that the Tribunal gave disproportionate weight to the evidence relating to 2014 to 2015 and did not consider 2017 onwards. The Applicant submitted that the Tribunal failed to meaningfully assess his steady progress through the Melbourne Polytechnic bachelor’s degree and his stated intention to return to Pakistan with a valuable qualification.
The Applicant drew my attention to the Delegate’s Decision where his home country is referred to as India not Pakistan. The Applicant submitted that the Tribunal adopted the reasoning of the Delegate and that the reference to India creates doubt as to whether the Applicant’s personal ties to Pakistan including cultural and family connections were properly considered by the Tribunal. The Applicant relied upon Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 as authority for the fact that a failure to consider relevant personal circumstances or material facts may amount to jurisdictional error.
The Minister submitted that the Tribunal’s reasons addressed the factors listed in cl 500.212(a) and in Ministerial Direction 69 to the extent relevant to the Applicant’s circumstances. The Minister referred me to paragraphs [11] and [13] to [35] of the Tribunal’s Decision as evidence of the consideration of the Applicant’s circumstances in Australia, his circumstances in Pakistan, and the value of the Bachelor of Information Technology to his future. The Tribunal considered the Applicant’s immigration history at paragraphs [12], [35] and [36] of the Tribunal’s Decision. It was contended that the Tribunal found that the Applicant did not meet subclause (a) of clause 500.212 of Schedule 2 of the Regulations and was not required to make findings in relation to subclauses (b) or (c).
It is clear on the Tribunal’s Decision that the Tribunal took into account the enrolment and progression through the Melbourne Polytechnic Bachelor of Information Technology degree in which the Applicant was progressing and the value of that course at paragraphs [33] and [34] of the Tribunal’s Decision. No jurisdictional error has been identified by the Applicant.
The Minister further submitted that there is nothing in the Tribunal’s Decision that indicates that the Tribunal had regard to an ‘irrelevant consideration’ that is a consideration that the decision maker was bound by legislation to ignore.
It is clear that the Tribunal was not led astray by the erroneous reference by the Delegate to India being the Applicant’s home country. The Tribunal’s Decision at paragraph [11] refers to the Applicant’s home country as Pakistan and the Applicant’s familial connections in Pakistan At paragraph [12] of the Tribunal’s Decision the Tribunal refers to the Applicant returning twice to Pakistan since 2014. The allegation that the Tribunal adopted the reasoning of the Delegate that India was the Applicant’s home country is not made out.
The Applicant has not identified a jurisdictional error with respect to ground 2. Ground 2 must be dismissed.
Ground 3
The Applicant contends that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the Applicant’s case, including by failing to make adequate inquiries into the facts. The Applicant submitted that the Tribunal heavily relied on ‘older’ concerns without examining his recent study achievements. The Applicant accepted that the Tribunal has no duty to investigate and stated that the evidence on the record before the Tribunal and that the evidence was not missing it was just ignored.
The Applicant relied upon the SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 as authority for the proposition that the Tribunal was required to identify the real issue and give the Applicant a proper opportunity to respond. The Applicant was on notice since at least the Delegate’s Decision that the GTE Criterion was the dispositive issue. The Applicant was in fact given a proper opportunity to respond. I reiterate the chronology of opportunities give to the Applicant referred to under Ground 1.
The Minister submitted that there is nothing in the circumstances of this matter that might justify an argument that the Tribunal should have made an obvious inquiry into a critical fact, the existence of which could be easily ascertained. The Minister further submitted that the Tribunal provided detailed reasons addressing the Applicant’s evidence and its findings were open to it on the evidence.
The Tribunal is not obliged to investigate or conduct an inquiry to further an Applicant’s case.
To the extent that this ground disagrees with the Tribunal’s findings I agree with the Minister that this ground invites the Court to undertake impermissible merits review.
No jurisdictional has been identified with respect to Ground 3. This Ground must also be dismissed.
CONCLUSION
The Application must be dismissed. The grounds of review do not establish that the Tribunal’s Decision is affected by jurisdictional error.
The Minister sough sought costs against the Applicant in the amount of $4,000.00 which is less than the scale costs under Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Respondents costs fixed in the sum of $4,000.00.
Orders will be made accordingly.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 10 July 2025
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