Ahmed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1754

1. The applicant, a citizen of Bangladesh, applied to this Court on 4 April 2022 (the originating application) for judicial review of a decision of the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal (the Tribunal)), made on 18 March 2022. The Tribunal affirmed an earlier decision of a delegate (the delegate) of the Department of Home Affairs (the Department) on 10 February 2020, to refuse the applicant's application for a Student (Subclass 500) visa (the visa).
2. The Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) (the Regulations).
3. The application to this Court for judicial review of the Tribunal's decision was made pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) within the time stipulated in s 477(1) of the Act.
4. For the Court to grant the relief sought by the applicant, it must be satisfied that the Tribunal's review is attended by jurisdictional error.
5. For reasons that follow, the Tribunal's review was not affected by jurisdictional error and the application must be dismissed with costs.

1. At the hearing on 8 July 2025, the following documents were received into evidence:

(a) a court book filed with the Court on 15 July 2022 and received without objection, comprised of relevant documents from the Department's file concerning the visa application and from the Tribunal;

(b) The applicant's affidavit dated 5 April 2022. Paragraphs [3] to [5], which contained the applicant's averment that the Tribunal appeared to have denied him procedural fairness, his view that the Tribunal had breached its duty, and his belief that the Tribunal was preoccupied, were treated as a submission; and

(c) The applicant's affidavit dated 27 June 2025, which contained a further averment that the Tribunal appeared to have denied him procedural fairness and appeared to have been preoccupied. Those paragraphs were taken as submissions.

1. At the hearing on 8 July 2025, the applicant was given leave to file and serve any further written submission by 8 August 2025. The applicant attempted to do so, and at the same time also sought to lodge with the Court a medical certificate in respect of 8 July 2025. After some engagement with registry staff about the form of the documents he had provided, on 20 August 2025, the applicant provided to the registry an affidavit affirmed on 15 August 2025, a medical certificate dated 8 July 2025, and an outline of submissions.
2. The matter was listed for directions on 28 August 2025. On that date, the following were received into evidence without objection on the originating application:

(a) The applicant's affidavit dated 15 August 2025 (which referred to an attached medical certificate); and

(b) A medical certificate dated 8 July 2025 which certified that the applicant was suffering from a medical illness and would be unfit for meeting/work/study.

1. The applicant also provided a further written submission to the Court, and was given an opportunity to make further oral submissions. On 28 August 2025, the Court gave the first respondent the opportunity to file any submission in response in writing by 11 September 2025.
2. The respondent did so.
3. On 11 September, the applicant, without seeking the leave of the Court, also filed a further written submission, which submission was substantially, if not entirely, identical to the applicant's earlier submissions.

1. At the hearing on 8 July 2025, the applicant appeared without a representative.
2. At the outset I endeavoured to provide the applicant with an explanation of how the matter would proceed, namely, the first step would be for the Court to identify all of the evidence and documents before it, and then the parties would have a chance to make submissions.
3. The applicant indicated his understanding during the course of that explanation and was invited to ask any questions about how the matter would proceed. He had no questions at that stage, but then advised that he was nervous as he had never been to court before, but that he had something to say about the matter and the Court's judgment.
4. I then explained that the Court's role is not like that of the delegate or Tribunal, that the Court's role is not to decide whether the applicant should receive the visa he was seeking, rather it was to review the Tribunal's decision to see if it had made jurisdictional error. I gave the applicant some examples of such error, and invited him to let the Court know if he had any questions, and advised he would also have an opportunity to raise any questions later.
5. The applicant did not have any question at that stage.
6. The applicant was directed to his originating application and the grounds therein, and was informed that the Court would hear his submissions in respect of the grounds in the application or that he could otherwise tell the Court what was wrong about the Tribunal's decision.
7. When he was invited to ask any questions he had about the originating application, the applicant responded:

Lucky that I've done submission, and there's something I want to say about this, and so on and so forth.

1. The Court asked whether Mr Ahmed relied on the affidavit he filed in support of his originating application. The applicant then replied:

Sorry? Sorry, I don't understand. I'm just, because I was sick for last few days, and now I'm just like, you know, I should feel like, you know, I'm just very nervous, and with this ‑ ‑ ‑

1. The Court asked if Mr Ahmed wished to rely on the submission that he had lodged the previous day. He responded:

I am not, but now like, is it possible to give like another day, like I think, like I'm just like I was sick, and now I'm just like, no...

1. The applicant was advised that it had taken a long time for the matter to get to court and a party wishing to adjourn a hearing would usually need to provide some medical evidence to support such an application. I informed the applicant that I would give him as much time as possible to say whatever he needed to say.
2. The applicant then said that he had been sick for the last two or three days and:

...my voice is down and like unfortunately everything comes up, and like, you know, just now -

1. Nothing about the applicant's presentation at the hearing, either before or after the above exchange, gave the impression that he was unwell or constrained in any way. He did not display any symptoms of a cold, his voice did not appear to be hoarse or strained, and he later spoke at some length without any hesitation. The applicant did not provide any medical evidence to support his claim that he was unwell. Although it was obvious that the applicant was nervous, the applicant gave the impression he may have been trying to avoid or delay the hearing, perhaps due to nerves.
2. I advised the applicant that I would give him an opportunity after the hearing to put anything further he wished to say into writing, but also reminded him that he had been on notice of the hearing for some time.
3. Subsequent to the hearing the applicant provided a medical certificate, dated 8 July 2025, in which the doctor who provided it certified that the applicant:

is suffering from a medical illness and will be unfit for work/meeting/study from 8/7/2025 to 8/7/2025 inclusive.

1. Had the applicant provided the medical certificate when he appeared before me, I would not have adjourned the hearing on the strength of it, without hearing further from the doctor. The medical certificate is even more unsatisfactory than those considered by Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [5] - [8] to be unpersuasive. It does not identify the nature of the applicant's alleged condition, nor does it explain why any such condition would prevent him from participating effectively in the hearing. It provided an insufficient basis to adjourn the hearing of an application that had been lodged in 2022.
2. Shortly after the applicant asked whether the hearing could be delayed, and I rejected that request, the applicant asked whether it was possible to get an interpreter.
3. I regarded the enquiry with scepticism as it followed not long after the applicant's request for an adjournment, and I had doubted the applicant's claim that he was too unwell to proceed. The applicant had not displayed any difficulty comprehending what was said to him, or expressing himself in English to that point.
4. The applicant had not requested an interpreter for the hearing. In his originating application filed in April 2022, the applicant had responded to a question on the application he lodged by indicating that he did not require an interpreter. The applicant had also indicated to the Tribunal in his 'Response to hearing invitation' form in October 2021 that he did not require an interpreter and had appeared at the Tribunal hearing without an interpreter. The applicant appeared at the directions hearing in this Court on 12 March 2025 without an interpreter after having been sent an email from the Court registry on 26 February 2025 advising that if he needed an interpreter, one could be arranged by emailing the migration team in the Court's registry. Following notice of the listing the applicant had engaged with the Court's registry to seek a waiver of the Court's setting down fee but had not raised any need for an interpreter.
5. I raised with the applicant that the Court had asked him whether he wanted an interpreter, in response to which he suggested that his need for an interpreter was related to his illness and his voice, saying:

Yes. Actually, to be honest I was preparing everything. Unfortunately, like I got sick and now just like, and my English is not that bad, but like, because of my sickness and my voice I'm just so much like, you know...

1. I expressed doubt that an interpreter would help the applicant with his voice. He then said that he did not want to miss anything important.
2. I got the impression that the applicant may have been attempting, by his request for an interpreter, to avoid the hearing proceeding that day. There are not interpreters generally on hand at the Court as they are required to be booked in advance. I indicated to the applicant that the reason I would not think an interpreter would be appropriate was because of the extensive study he had undertaken in Australia since 2008 and asked him about that study, with the intention of exploring the genuineness of his request.
3. The applicant then commenced to speak, at some length, about the reasons he wished to stay in Australia. During the course of that address, the applicant did not show any signs of illness, loss of voice, difficulty with speaking, or any hesitation in expressing himself in English. His expression and grammar were not perfect but his facility with English was generally in keeping with that of a non-legally trained person of about the same age and work experience.
4. In the event, the applicant spoke for some length and did not return to the request for an interpreter. It appeared that he was not pressing the request, and I proceeded with the hearing, affording him an opportunity to send in further submissions following the hearing.

1. The critical matter at issue in the application for review before the Tribunal was whether the applicant satisfied the requirements of cl 500.212 of sch 2 of the Regulations. That clause provides as follows:

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

1. The relevant parts of other provisions of the Act that arise in the determination of the present application are set out below:

358 Documents to be given to the Tribunal

(1) An applicant for review by the Tribunal may give the Tribunal:

(a) a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

(b) written arguments relating to the issues arising in relation to the decision under review.

(2) The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.

359AA Information and invitation given orally by Tribunal while applicant appearing

(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) if the Tribunal does so - the Tribunal must:

(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

...

359B Requirements for written invitation etc.

(1) If a person is:

(a) invited in writing under section 359 to give information; or

(b) invited under section 359A to comment on or respond to information;

the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:

(a) at the place specified in the invitation; and

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a) a later time within that period; or

(b) a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.

1. As the Court's role is to review the Tribunal's exercise of power for jurisdictional error, the question that arises for consideration is whether the Tribunal's review was affected by such error.
2. Jurisdictional error describes a failure, by a person or body given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of a statutory power, where that failure is of such a character as to warrant the conclusion that the purported decision or purported exercise of power lacks the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; fails to observe some applicable requirement of procedural fairness; and in some cases, makes an erroneous finding or reaches a mistaken conclusion: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [2]- [3] (LPDT).
3. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: LPDT at [7].
4. The applicant's originating application, filed 7 April 2022, set out, under the heading "Grounds of application", a series of items numbered one through to three as follows (reproduced as per original):
   1. The Administrative Appeal Tribunal (Migration division) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicants' student visa rejection by the Minister's delegate.
   2. The second respondent (the Tribunal) has exercised its power in error pursuant to s358(1)(a), s358(1)(b), s359AA(l)(b)(ii)(iii), s359B(2) and s359B(3) of the Migration Act 1958 and have denied the applicant's natural justice and procedural fairness.
   3. The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicants whose interest has adversely affected by the decision as it did not given the opportunity to present his case.
5. The applicant's written and oral submissions were not strictly confined within the scope of the grounds above. Accordingly, I have considered whether, in any of the ways described in the applicant's submissions, there is any jurisdictional error affecting the Tribunal's review. That consideration appears below following a recitation of the relevant history of the matter.

1. The applicant, born 1 January 1986, is a citizen of Bangladesh.
2. The applicant first arrived in Australia on 29 June 2008 as the holder of a Student (Subclass 575) visa.
3. On 27 November 2019, the applicant lodged the application for the Student (Subclass 500) visa which is the subject of the present application.

1. On 10 February 2020, the applicant was notified of the Department's refusal of his visa application by way of letter which attached a record of the delegate's reasons for decision (primary decision).
2. In considering the application, the delegate had reference to both cl 500.212 of sch 2 of the Regulations and to Ministerial Direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Direction) which sets out the factors that must be taken into account when assessing the criterion in cl 500.212 of sch 2 of the Regulations for student visa applications.
3. The decision record attached to the letter contained the criterion in cl 500.212 of sch 2 of the Regulations and provided a hyperlink to the Direction.
4. The delegate noted that the Direction was made in accordance with s 499 of the Act. The delegate then set out a summary of the factors to be considered arising from the Direction, which included, inter alia:

(a) the applicant's circumstances in their home country;

(b) the applicant's potential circumstances in Australia;

(c) the value of the course to the applicant's future; and

(d) the applicant's immigration history.

1. The delegate also noted that the applicant advised that his proposed courses of study were the Advanced Diploma of Marketing and Communication, and the Diploma of Marketing and Communication.
2. The delegate considered that the applicant's circumstances in Bangladesh, being his ties to his wife, parent, and sibling who still resided there, did not provide a strong incentive for him to return in light of there being no evidence to demonstrate the applicant had any previous employment in Bangladesh or any significant financial ties.
3. The delegate then recounted relevant information provided in connection with the (subclass 575) visa the applicant held at the time of making the current application for a student (subclass 500) visa. The courses of study undertaken by the applicant whilst in Australia were listed as follows:

(1) General English language course from 28 July 2008 until 12 December 2008;

(2) Certificate III in Printing and Graphic Arts from 6 April 2009 until 16 May 2010;

(3) Diploma of Printing and Graphic Arts from 05 July 2010 until 12 June 2011;

(4) Diploma of Management from 19 March 2012 until 16 September 2012;

(5) Advanced Diploma of Management obtained on 25 March 2013; and

(6) Certificate IV in Marketing and Communication from 01 December 2017 until 24 August 2018

1. The delegate found it difficult to reconcile the applicant's claim, that he wished to genuinely remain as a temporary entrant for study, with his extensive time spent in Australia which would accrue to approximately 13 years if the applicant was to undertake his proposed course of study in connection with the current visa application. The delegate formed the view that the significant period of time since the applicant's arrival in 2008 suggested that any incentive to depart would be outweighed by the applicant's potential circumstances in Australia.
2. The delegate found the applicant's on-going employment as a cook may act as a financial incentive for the applicant to continue residing in Australia after completion of his proposed study.
3. In considering the value of the course the applicant proposed to undertake to his future, the delegate referred to the applicant's failure to provide evidence in support of the claim made in his "GTE Statement", that is, the statement he provided in support of his visa application to demonstrate his satisfaction of the criterion in cl 500.212 of sch 2 of the Regulations, that his family owned a business in Bangladesh, and gave the applicant's claims of an intention to return to Bangladesh little weight.
4. The delegate expressed concern that the applicant's extensive period of study in Australia and frequent changes to his courses of study were reflective of an intent to extend his stay in the country as opposed to a genuine interest in a course of study.
5. The delegate, having given consideration to the applicant's immigration history and duration of residence in Australia, found that the applicant had not provided strong enough reasons for undertaking study and the visa application was likely an attempt by the applicant to seek to extend his stay in Australia for reasons other than study.
6. The delegate found there to be no other matters relevant to the assessment and was ultimately not satisfied that the applicant met the criteria for the grant of the visa, as he was not a genuine temporary entrant for entry and stay as a student for the purposes of cl 500.212 of sch 2 of the Regulations.

1. The applicant lodged his application for review with the Tribunal on 12 February 2020.
2. On 30 August 2021, the Tribunal wrote to the applicant with an invitation to provide a 'Request for Student Information' form (Request form) which was to be answered by 13 September 2021.
3. The Request form was contained in an attached letter which stated that it was a requirement of the student visa sought by the applicant that he be both:

(a) enrolled in a registered course of study; and

(b) a genuine applicant for entry and stay as a student.

1. The letter also attached a copy of the Direction.
2. The applicant returned the completed Request form on 13 September 2021. In that form, the applicant indicated that he did not require an interpreter for the hearing.
3. The applicant disclosed in the form that he first arrived in Australia in 2008 and had held a number of visas in the intervening period.
4. The applicant also disclosed his employment as a cook at five different venues between July 2011 and January 2020, and his prior study in Australia, including his current courses, being the Diploma in Marketing and Communication and the Advanced Diploma of Hospitality Management which was to conclude in August 2022.
5. The applicant attached with the Request form, among other things, the following materials:

(a) Confirmation of Enrolment in several courses, including an Advanced Diploma of Hospitality Management at Sydney School of Business and Technology Pty Ltd, and the Diploma of Marketing and Communication at Pacific College Pty Ltd;

(b) Several screenshots of phone call records with his family in Bangladesh;

(c) A number of statements of attainment and certificates showing completion of courses and attainment of qualifications;

(d) Pay Slips / UBER Statement 2016 to 2020; and

(e) Personal bank statements.

1. The applicant in his Request form indicated that he did not consent to the Tribunal deciding the review without a hearing.
2. On 29 September 2021, the Tribunal sent the applicant an invitation to attend a hearing to occur by telephone.
3. On 5 October 2021, the applicant sent the Tribunal a completed 'Response to hearing invitation' form and a 'Change of Contact Details - MR Division'. The applicant indicated that he was no longer being represented by a migration agent, and that he did not require an interpreter.
4. The Tribunal proceeded to conduct a hearing via telephone on 24 January 2022. The applicant was self-represented. No interpreter was requested or provided for the purpose of that hearing.
5. The telephone hearing concluded at 3:45pm, after approximately two hours, and the applicant was given until 7 February 2022 to provide further information in writing. The applicant provided further material following the conclusion of the hearing, including the following:

(a) a summary of deed, showing the applicant as one of the owners of a property in Dhaka that was sold in 2016;

(b) three positive COVID-19 test results from Bangladesh;

(c) two medical certificates showing the applicant was treated for general anxiety in November 2020 and for stress and anger management in June 2021; and

(d) a pathology report for the applicant for September 2021.

1. On 18 March 2022, the Tribunal decided to affirm the primary decision of the delegate to refuse to grant the visa sought by the applicant (Tribunal's decision).
2. The applicant was provided a copy of the Tribunal's decision under cover of a letter dated 21 March 2022. The Tribunal's decision record was attached to the cover letter.
3. The decision record set out (at [1] - [7]) a brief chronological background of the application for review.
4. The Tribunal (at [10] - [15] of its reasons) identified the various documents provided by the applicant in connection with the review both prior to the hearing (on 13 September 2021, 21 October 2021, and 21 January 2022) and after the hearing (on 2 February 2022), observing at [16] that it had regard to the documents as well as the documents on the Departmental file.
5. In its reasons, the Tribunal (at [17]) set out cl 500.212 of sch 2 of the Regulations, under a heading "Genuine applicant for entry and stay as a student (cl.500.212)" and noted at [18] and [19] that the Tribunal was required to have regard to the Direction.
6. The Tribunal set out (at [22]) the applicant's oral evidence explaining why he had not completed enrolments in 2012 and 2013 in Certificate IV in Business, a Diploma of Management and Advanced Diploma, a Bachelor of Business, and a Diploma of Business. The applicant explained that his enrolment in the Bachelor of Business was disrupted when his father died by suicide in 2013. He recounted that his father's death had caused him a great deal of disturbance. Those problems continued during his next enrolment.
7. The Tribunal recorded that the applicant considered his marriage in 2016 as a turning point. He thereafter completed a Certificate IV in Marketing, and wanted a career in that field, but from the beginning had always worked in a kitchen.
8. The Tribunal recorded that the applicant commenced the Advanced Diploma of Hospitality Management in October 2021, and his goal now was to be a chef. The applicant stated that the acquisition of that qualification in Australia would improve his employment opportunities in Bangladesh, and that Australian qualifications are highly valued in Bangladesh.
9. The Tribunal then noted the applicant's personal and financial ties to Bangladesh which included not having previously worked in his home country, his current and historical employment as a cook in Australia since 2011, and the absence of any political or civil issues which would prevent the applicant returning to Bangladesh.
10. The Tribunal next put to the applicant a copy of his enrolment records from the 'PRISMS' database. The Tribunal noted that the applicant's evidence was generally consistent with the information in the PRISMS records.
11. The inferences the Tribunal drew from the information relevantly included, at [37]:

(1) the applicant, since arriving 13 years ago, had successfully completed short English language programs, a Certificate III in Printing and Graphic Arts, and a Certificate IV and Diploma in Marketing;

(2) apart from two years of enrolment in a Bachelor level course (which he did not complete), he had been enrolled in courses at the vocational level and not progressed beyond the level of Advanced Diploma;

(3) the applicant had studied a range of vocational courses in entirely different fields: English, Printing and Graphic Arts, Business, Management, Marketing and Communication, Hospitality Management. The courses were relatively short and inexpensive, which may indicate that the applicant enrolled in order to maintain ongoing residence in Australia, rather than because of a genuine interest in the courses of study or in progressing academically;

(4) the applicant's enrolment in 2017 in a Certificate IV in Marketing and Communication was cancelled for unsatisfactory attendance; and

(5) there was a gap of over 15 months after the applicant completed his Diploma and Advanced Diploma of Marketing and Communication before he enrolled in his current course of study in hospitality management, which raised the concern that he may have enrolled to meet the enrolment requirement for the visa.

1. The Tribunal then asked the applicant whether he wished to comment on his PRISMS enrolment records, and listed his responses at [39].
2. The Tribunal provided an opportunity for the applicant to make any further comments or provide further information. The applicant stated he had a lot of tragedy in his life, including his father's death, and could provide the Tribunal with documents to explain the gap in his enrolment. The Tribunal gave the applicant 14 days to do so.
3. The Tribunal (at [42]) recorded that it had raised a number of potential concerns with the applicant, including:

(1) the length of time he had remained in Australia and the range of courses he had enrolled in;

(2) the length of time he had been working as a cook;

(3) his claim that it had taken him some nine years to realise that cooking was his passion; and

(4) the vague and general statements he made about his family business in Bangladesh.

1. The Tribunal indicated that it incorporated the applicant's responses in respect of those matters in its analysis and findings in its reasons which followed.
2. The Tribunal (at [44]) accepted the fact that the applicant had immediate and extended family in Bangladesh with whom he maintained regular contact, which may serve as an incentive for the applicant to return. The Tribunal also found his stated reasons for wishing to undertake the Advanced Diploma in Hospitality Management in Australia, the variation in cuisines taught, the focus on hygiene, and ability to work part time during the course, to be reasonable (at [45]).
3. The Tribunal (at [46]) expressed its concern that economic circumstances in Australia would present a significant incentive for the applicant to remain, when considering the length of time he had spent working as a cook in Australia (being over ten years), the absence of any evidence of the applicant's work history or assets in his own name in Bangladesh, and his vague and unconvincing claims of plans to work as a chef in Bangladesh or open his own restaurant.
4. At [47], the Tribunal concluded that on the evidence before it, the applicant's economic circumstances presented as an incentive for him not to return to Bangladesh.
5. The Tribunal then turned to the applicant's potential circumstances in Australia. The Tribunal noted that the applicant had been in Australia for over 14 years on student and associated visas.
6. The Tribunal was concerned with the length of time the applicant had spent in Australia undertaking a range of courses and his lack of greater academic progress over that period. The Tribunal considered the applicant's explanation for that lack of progress, which included the death of his father and the closure of one of his education providers, but was not satisfied they provided a sufficient explanation for all the concerns the Tribunal had raised.
7. The Tribunal was also concerned by the 15-month gap in study between his last completed course (the Diploma of Marketing and Communication) and the commencement of his current course (the Advanced Diploma of Hospitality Management). The Tribunal noted that his enrolment occurred on 11 September 2021 after the Tribunal had written to the applicant on 30 August 2021 requesting details of his enrolment. The Tribunal concluded, having considered the evidence as a whole, that the applicant has enrolled in his current course of study primarily to meet the enrolment requirement for the student visa and to maintain ongoing residence.
8. The Tribunal at [54] gave little weight to the applicant's medical report of Dr Luo, dated 26 January 2022, that he had been suffering "general anxiety" and was unable to study as the report was produced approximately 14 months after the applicant saw Dr Luo, contained no details of further treatment, and no date of when the applicant became fit for studies. The Tribunal also noted that the applicant provided a GST activity statement indicating that he was working during the period in which Dr Luo certified him as being unfit to study. The Tribunal accepted that the applicant may suffer from depression and anxiety, however, found there was insufficient medical evidence that he was unfit for study for 15 months (presumably a reference to the period between enrolments), particularly considering his ability to work during this time.
9. The Tribunal was not satisfied that the applicant met the criteria within cl 500.212(a) of sch 2 of the Regulations due to its concerns that he was enrolled in his current course of study primarily to maintain ongoing residence. Consequently, the Tribunal was not satisfied that the applicant was a genuine temporary entrant pursuant to cl 500.212 of sch 2 of the Regulations and affirmed the delegate's decision to refuse to grant the applicant the visa.

1. The applicant's written submissions to this Court dated 29 June 2025 commenced by identifying the sub-class of visa for which he applied (being subclass 500) and identified how the nature of a student's enrolment governs the subclass of visa for which the student is eligible.
2. The applicant then recited the evidence he had given the Tribunal. His submission at this point appeared to follow closely the Tribunal's recounting of the applicant's evidence at [21] to [28] of its reasons, covering his arrival in Australia, the courses he had completed, his explanations for why he had been unable to complete courses, and his wish to study the Advanced Diploma of Hospitality.
3. The applicant then proceeded to refer to the Direction, setting out its first four paragraphs.
4. The applicant claimed that the Tribunal ignored the Direction and did not have regard to it. He claimed that the Tribunal was preoccupied, which preoccupation was said to be clearly authenticated in the decision.
5. The applicant also contended that the Tribunal exercised its power in error pursuant to ss 358(1)(a), 358(1)(b), 359AA(l)(b)(ii)-(iii), 359B(2) and 359B(3) of the Act and had denied the applicant natural justice and procedural fairness.
6. The applicant submitted that the Tribunal did not bring an impartial mind to the resolution of the matter, it was preoccupied, and did not have a fresh look. He submitted that the Tribunal's job was not just to review the delegate's decision but to review the matter with a "fresh-look" into the applicant's claim.
7. The applicant's further written submission dated 8 August 2025 repeated the content of the 29 June 2025 submission. The applicant also added the following submissions:

(1) It was unreasonable for the Tribunal to fail to investigate the applicant's medical evidence further when it expressed concerns about the evidence the applicant had submitted;

(2) The Tribunal failed to afford natural justice and procedural fairness when it failed to further investigate the applicant's medical evidence. The Tribunal's lack of medical qualifications rendered it more important that the Tribunal seek clarification about the evidence;

(3) The Tribunal Member failed to further investigate, scrutinise, or place significant weight on how the death of the applicant's father by suicide impacted his ability to choose the correct study pathway; and

(4) The applicant pursued the proceeding to clear his name.

1. Both the grounds contained in the application and those advanced by the applicant otherwise are dealt with below.

1. Ground one is as follows (as per original):
   1. The Administrative Appeal Tribunal (Migration division) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicants' student visa rejection by the Minister's delegate.
2. The above ground does not identify any error as it does not specify the nature of the alleged error of law or the procedure the Tribunal failed to exercise.
3. This ground was not expressly addressed by the applicant. The applicant did not identify any error of law or procedural error of the Tribunal in either his written or oral submissions, save the Tribunal's failure to make enquiries about his medical evidence. That allegation is dealt with below. In the absence of any particulars, or any written or oral submission substantiating this ground, it must be dismissed: NWWJ v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [52].
4. The ground does not disclose jurisdictional error.

1. Ground two is as follows (as per original):
   1. The second respondent (the Tribunal) has exercised its power in error pursuant to s358(1)(a), s358(1)(b), s359AA(1)(b)(ii)(iii), s359B(2) and s359B(3) of the Migration Act 1958 and have denied the applicant's natural justice and procedural fairness.
2. The above ground does not identify how the Tribunal exercised its power in error.
3. The subsections to which the applicant refers are addressed in turn below.

1. Section 358 of the Act permits an applicant to give the Tribunal a written statement in relation to any matter of fact it wishes the Tribunal to consider: s 358(1)(a); and any written argument relating to the issues arising in relation to the decision under review: s 358(1)(b) of the Act. The Tribunal wrote to the applicant on 29 September 2021 advising the applicant of the hearing date of 28 October 2021. That hearing date was later changed, but in the letter the Tribunal invited the applicant to provide it with all the documents he intended to rely upon by 21 October 2021. That part of the letter referred to the provision of "any documents or written arguments". The applicant provided a written statement to the Tribunal under cover of his email of 21 October 2021. In the statement, the applicant sought to provide his explanation about his situation. It was part factual narrative, part an argument addressing the question posed by cl 500.212 of Schedule 2 of the Regulations. The Tribunal refers to the statement at [13(f)] of its reasons. The Tribunal did not prevent the applicant from exercising his right pursuant to ss 358(1)(a) or (b).

Sections 359AA(1)(b)(ii) and (iii) of the Act

1. Second, s 359AA operates together with s 359A. The latter section obliges the Tribunal to give an applicant clear particulars of any information the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review (adverse information) and prescribes the method by which the information may be given in writing. The Tribunal is not obliged to proceed in accordance with s 359A (that is, to give the applicant notice of the information in writing) if the Tribunal gives the applicant particulars of the adverse information and invites the applicant to comment or respond pursuant to s 359AA, that is, to comment orally.
2. Subsections 359AA(1)(b)(ii) and (iii) require the Tribunal where it gives the particulars of the adverse information to:

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

1. The Tribunal proceeded, purportedly in accordance with s 359AA. At [35], the Tribunal stated that it was adopting the procedure in s 359AA of the Act. The Tribunal then recorded that it put to the applicant that it had his PRISMS enrolment records, and set out at [36], the information it had noted from the records.
2. At [37], the Tribunal recorded that it indicated that the information from the PRISMS records may suggest a number of conclusions, which it set out at [37(a)] to [37(e)].
3. At [38], the Tribunal stated:

The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

1. The Tribunal records at [39] that the applicant requested two minutes to consider the information and then responded as set out at [39(a) to (j)].
2. The Tribunal complied with the requirements of s 359AA(1)(b)(ii) and (iii) of the Act in relation to the applicant's PRISMS enrolment records. After putting the information to the applicant, the Tribunal invited the applicant to respond (satisfying the requirement in s 359AA(ii) of the Act and advised the applicant that he may be granted time if needed (satisfying the requirement in s 359AA(iii) of the Act). The applicant obviously understood the latter advice, as he asked the Tribunal for two minutes to respond, and then responded. The applicant then provided a detailed response as recorded at [39(a) to (j)] of the Tribunal's reasons.
3. The applicant has not identified any other information in respect of which the Tribunal had obligations pursuant to ss 359A or 359AA of the Act. The applicant's allegation that the Tribunal failed to comply with its obligations under ss 359AA(1)(b)(ii) and/or (iii) of the Act has not been substantiated, and the Court is not satisfied that the Tribunal erred in the manner alleged.

1. Section 359B of the Act operates when the Tribunal invites a person in writing under s 359 of the Act to give information or invites the person under s 359A of the Act to comment on or respond to information.
2. Subsection 359B(2) of the Act operates where the information, comments, or response are to be given other than at an interview. In that event the information, comments, or response are to be given within the period specified in the invitation, being the prescribed period, or where there is no such period, a reasonable period.
3. Where the information, comments, or response are to be given at an interview, s 359B(3) of the Act requires the interview to take place at the place and time specified in the invitation, being a time within the prescribed period, or where there is no such period, a reasonable period.
4. On 30 August 2021, the Tribunal wrote to the applicant (by email) and asked the applicant to provide information to it in writing (being information to complete the Request form) and required that information to be provided by 13 September 2021. As the letter was sent by email, it was taken by s 379C of the Act to have been received by the applicant at the end of the day it was transmitted, that is, 30 August 2021. The period then prescribed for the purposes of s 359B(2) of the Act by reg 4.17(4) of the Regulations was the period commencing when the person received the invitation and ending at the end of 14 days after the day the person received the information (or such shorter period as was agreed). There is no evidence in the present matter of any agreement to abbreviate the period. The period ending 14 days after the date of the applicant's deemed receipt of the request ended on 13 September 2021.
5. The Tribunal also invited the applicant in writing to give information by its letters dated 29 September 2021 and 22 December 2021. Both letters were invitations to the applicant to attend a hearing, with the initial date in October rescheduled. Both letters asked the applicant to provide his Certificate of Enrolment (or equivalent document) and documents showing the applicant's past studies in Australia by "at least 7 days before the hearing date". In the former case, the hearing date advised was 28 October 2021. In the latter date, the hearing date advised was 24 January 2022. Both letters were sent by email and taken to be received at the end of their day of transmission. The former letter permitted the applicant to provide the information up to 21 September 2021 (or a period of 22 days after the request). The latter letter permitted the applicant to provide the information up to 16 January 2022 (or a period of 25 days after the request).
6. Although in each case the Tribunal afforded the applicant greater time than that prescribed by reg 4.17(4) of the Regulations, the consequence of the Tribunal's failure to set a time in accordance with s 359B(2) of the Act was not jurisdictional error. Rather, the consequence was that any failure by the applicant to provide the requested information would not be a failure to which s 359C(1) of the Act had application: SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452; [2008] FCA 1406. Accordingly, such failure would not have the result that the applicant would not be entitled to appear at a hearing of the Tribunal by operation of s 360(2) of the Act.
7. This ground does not disclose jurisdictional error.

1. Ground three is as follows (as per original):
   1. The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicants whose interest has adversely affected by the decision as it did not given the opportunity to present his case.
2. This ground must fail on the facts.
3. The applicant was invited to provide information to the Tribunal by the Tribunal's letter dated 30 August 2021. He completed the Request form and returned it to the Tribunal, along with a substantial number of documents . He provided the Tribunal a written statement on 21 October 2021. He later provided the Tribunal a payslip, a summary of deed showing ownership of property in Bangladesh, and medical evidence.
4. The applicant also attended a hearing on 24 January 2022 which lasted for over two hours. That hearing gave the applicant an opportunity to both give evidence, and present arguments in support of his application.
5. The voluminous evidence provided by the applicant in support of his application is set out in the Tribunal's decision at [10] to [15]. It included material provided by the applicant following the hearing. The volume of the evidence provided, and the fact that the applicant provided evidence following the hearing indicates that he had not been constrained in any manner by the Tribunal. To the contrary, he had been afforded, and availed himself of, ample opportunity to submit material in support of his application for review. The applicant has not identified any document that he sought to provide the Tribunal that he was preventing from putting before it, any argument he sought to advance to the Tribunal which it refused to entertain, or any other evidence or argument that he would have advanced to the Tribunal.
6. The applicant has not demonstrated any jurisdictional error by this ground.

1. The applicant complained (in his written submission dated 8 August 2025) that the Tribunal had erred by failing to request further information and evidence from his doctor in circumstances where the Tribunal had concerns about that evidence.
2. The applicant's argument refers to medical evidence he provided following the Tribunal's hearing on 24 January 2022.
3. That evidence is listed in [15] of the Tribunal's reasons, and includes:

(a) Medical certificate issued by Dr Liman Luo of Canterbury Afterhours Clinic, dated 26 January 2022, indicating that the applicant had been suffering general anxiety from 11/2020 and received general anxiety treatment with antidepressant (sic), and stating that the applicant was unable to study; and

(b) Referral letter from ISRA Medical Services to Dr Wei Lu, dated 3 June 2021, for an opinion and management for 'stress, anger management'.

1. The Tribunal considered that evidence at [54] and [55] of its reasons as follows:

The Tribunal has considered all of the medical evidence provided by the applicant, including the report of Dr Luo of the Canterbury Afterhours Clinic, dated 26 January 2022. The Tribunal notes that this report is brief and was obtained following the hearing in response to the concern raised by the Tribunal that the applicant had not provided sufficient evidence of his claims that he was medically unfit to study. The report of Dr Luo states that the applicant 'had been suffering from general anxiety from 11/2020, received general anxiety treatment with antidepressant and was unable to study.' The Tribunal however gives this report only little weight, given it was produced approximately 14 months after the applicant first saw Dr Luo and contains no details of dates when the applicant sought further treatment and no end date has been provided as to when the applicant became fit for studies again, noting that the applicant recommenced his studies in November 2021. The Tribunal notes that the applicant also gave evidence at the hearing that he continues to work for Pinnacle People and that he has always worked in a kitchen since June 2011. The applicant has also provided a GST activity statement for the period April 2021 to June 2021 and an income tax assessment for the financial year from 1 July 2020 to 30 June 2021, indicating that the applicant was working during the period in which Dr Luo has certified the applicant as being unfit to study.

The Tribunal also notes a referral letter from a Dr Sohair Ali of ESRA Medical Services to a Dr Wei Lu on 3 June 2021 for an opinion and management for 'stress, anger management', but no additional documents containing diagnoses, treatments or management plans, other than a pathology report from September 2021, which in brief clinical notes refers to 'Depression/anxiety'. While the Tribunal accepts that the applicant may suffer from depression and anxiety, it finds the applicant has not provided sufficient medical evidence to indicate that he was unfit to continue with his studies for a period of 15 months, particularly in light of his continued ability to work during this period.

1. The applicant submitted that by failing to request additional information and or further evidence from him and Dr Luo in order to scrutinize the impact of the applicant's father's suicide and subsequent health issues on his choices and study history, the Tribunal had failed to consider "all matters" that were relevant to the question of the genuineness of his application to continue study, contrary to the requirements of the Direction. The applicant submitted that Tribunal's failure to do so meant the Tribunal failed to provide the applicant with procedural fairness.
2. The applicant's submission does not identify any jurisdictional error. As set out above, the applicant was given an opportunity to provide evidence and arguments in support of his application for review in writing in advance of the Tribunal hearing, in person at the hearing, and then in writing again following the hearing.
3. The Tribunal was not obliged, when the applicant submitted medical evidence that was limited in nature, to assume that the applicant's doctors would be likely to give much more persuasive evidence in support of the arguments the applicant was advancing, and to commence inquiries of them to establish the matters the applicant contended. The Tribunal was entitled to assume, in the absence of any indication from the applicant that there was some better evidence to be had, that the applicant had provided the Tribunal the best evidence that was available to him, or at least the evidence he chose to rely upon. There was nothing before the Tribunal and nothing before this Court to indicate that a further enquiry by the Tribunal of Dr Luo would have yielded a more useful result: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Rather, as the Tribunal observed in its reasons, the material the applicant provided was extremely limited and did not support the applicant's contentions about his incapacity over the period during which he had not been studying.
4. The Tribunal did not err in the manner for which the applicant contends.

1. The application should be dismissed and the applicant ordered to pay the first respondent's costs.
2. I will hear from the parties as to the quantum of such costs.

I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.