Wasim v Minister for Immigration and Citizenship - [2025] FedCFamC2G 1052

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wasim v Minister for Immigration and Citizenship

Details

AGLC: Wasim v Minister for Immigration and Citizenship [2025] FedCFamC2G 1052
Case: [2025] FedCFamC2G 1052
Decision Date: 10 July 2025

CaseChat Overview and Summary

The case of Wasim v Minister for Immigration and Citizenship involved an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) not to grant the Applicant a student visa. The Applicant, Wasim, sought to challenge the AAT’s decision on the basis of alleged procedural unfairness and errors in the consideration of the genuine temporary entrant criterion. The court was tasked with determining whether the AAT had erred in its decision-making process and whether the Tribunal had properly considered the evidence before it.

The primary legal issue before the court was whether the AAT had committed a jurisdictional error by failing to afford the Applicant procedural fairness or by not fully considering the evidence of the Applicant’s academic history. Specifically, the Applicant argued that the AAT did not genuinely consider the evidence, particularly the recovery in his academic performance, and focused unduly on his early difficulties. The court also needed to determine whether the AAT’s conclusion that the Applicant did not satisfy the genuine temporary entrant criterion was legally sound.

The court found that the AAT had adequately considered the Applicant's entire academic record and had provided sufficient procedural fairness by inviting the Applicant to submit evidence and attend a hearing. The court held that the AAT's decision was not legally flawed and that it had properly evaluated the evidence in accordance with the Migration Act. The Applicant's argument that the AAT did not consider the full context of his academic performance was rejected as the court found that the Tribunal had indeed considered all relevant evidence, including the Applicant's recovery in his academic progress. The court also noted that the Tribunal is not required to refer to every piece of evidence explicitly but rather to consider it in its entirety. The application for judicial review was dismissed with costs awarded to the Minister.

The final orders of the court were that the application for judicial review was dismissed and that the Applicant was to pay the Minister’s costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONGround 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].

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

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