Cici v Minister for Immigration and Citizenship [2026] FedCFamC2G 533

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it then was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant Student (Temporary) (Class TU) (subclass 500) visas (student visa) under s 65 of the Migration Act 1958 (Cth) (Act).
2. For the following reasons, the application before the Court must be dismissed.

1. The first applicant is a citizen of Indonesia. The second applicant, a citizen of Bulgaria, is the first applicant's spouse and the third applicant is their child. The second and third applicants made a family unit claim under the Act.
2. The first applicant applied for a student visa on 2 November 2020. The second and third applicants were included in the student visa application as members of the family unit.
3. On 21 October 2021, the Delegate refused the application. The applicants sought merits review of Delegate's decision.
4. On 27 July 2023, the Tribunal affirmed the decision under review not to grant the first applicant a student visa.

1. The Tribunal considered whether the first applicant satisfied cl 500.212 to Schedule 2 of the Migration Regulations 1994 (Cth), having regard to the factors outlined in Direction No 69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications'. The Tribunal noted the first applicant applied for the student visa proposing to undertake a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. The Tribunal found the first applicant completed those courses but did not return to her home country.
2. The Tribunal noted the applicant decided to remain onshore to obtain a further qualification in Management at the Graduate Diploma Level. It accepted that the course would progress the applicant's level of education. The Tribunal was troubled, however, by the first applicant's enrolment in a variety of courses during her time in Australia which ranged from hospitality to management to business to marketing to early childhood education and care. The Tribunal was concerned she may be using the student visa migration programme to maintain residence.
3. The Tribunal was concerned about the length of time the applicant had spent onshore and found a period of over 10 years was difficult to reconcile with the meaning of temporary. The Tribunal found, given the evidence before it, that it was reasonable to conclude the first applicant had cultivated a satisfactory life and established strong ties to the Australian community which acted as a strong incentive for her to remain onshore.
4. The Tribunal was not satisfied that the first applicant was a genuine applicant for entry and stay as a student temporarily. Accordingly, it found that cl 500.212 was not met and affirmed the Delegate's decision.

1. The applicants seek judicial review of the Tribunal's decision by an application filed on 17 August 2023. The matter was allocated to my docket on 10 December 2025 and listed for hearing by me on 17 March 2026.
2. The following grounds of review were stated in the application:

Ground 1

The Tribunal's decision is infected by a legal error of unreasonableness due to AAT's refusal to wait for applicants' representative's submission.

The applicants' representative at the end of the hearing has advised the Tribunal that he intends to provide further submission after the hearing. It is respectfully submitted that the representative advised the Tribunal that he would get the hearing recording to listen to make further submissions and the Member seemed to agree with that indicating that the representative can get the hearing recording. In addition, the Member has indicated that she will not take decision for a month. When considering the above cumulatively, it is submitted that the Member has granted time to provide submission after receiving the hearing recording and indicated that she would not take decision for a month. Having indicated the above to the applicants and the representative, however, the Tribunal decided to proceed to make a negative decision.

Ground 2

The Tribunal failed to consider the following material when assessing Genuine Temporary Entrance Criteria.

Particulars

a) The Tribunal failed to consider information provided to the Tribunal. The applicants indicated that the secondary applicant would take over his father's business doing air-conditioning and heating system installation and maintenance as his father are waiting for him to take over, so the father could officially retire.

b) Their daughter Zoey will enrol in primary school in Bulgaria.

1. The applicants' intention to further expand the business in European Union

d) The primary applicant's intention to get Bulgarian PR.

e) Increase of rental market in Sydney which is a factor for them to consider returning to Bulgaria as soon as possible.

1. The Court will only grant the relief sought if it can be established that the Tribunal decision is affected by jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [3].

1. At the hearing of this matter on 17 March 2026, the first applicant was unrepresented. Ms C Warren of Sparke Helmore appeared for the first respondent.
2. The first applicant relied upon written submissions she had filed on 11 March 2026. She made some brief oral submissions on ground one only. As to ground two the first applicant said she relied upon her written submissions.
3. Ms Warren tendered the Court Book and made brief oral submissions summarising the first respondent's written submissions on the grounds of the application relied upon by the first applicant.

1. Below I set out my consideration of the two grounds of review.

1. In ground 1 the first applicant contends that the Tribunal's decision was legally unreasonable as it made its decision without waiting for post-hearing submissions to be provided by the applicants' representative. In written submissions on this ground, the first applicant alleged that her representative requested further time to obtain the hearing record and provide submissions following the hearing and the Tribunal had granted time to provide submissions.
2. The first applicant submitted there was an agreement made between her lawyer and the Tribunal Member at the conclusion of the Tribunal hearing that the Tribunal would provide a recording of the hearing and provide time for the applicants to file further written submissions. The first applicant took the Court to an email and letter from her lawyer dated 26 July 2023 in support of this ground.
3. Ms Warren submitted there was no evidence to support the ground or the agreement which the applicant referred to in her oral submissions.
4. I consider the ground is unmeritorious. As the first respondent submits, and I agree, there is nothing in the materials or evidence before this Court to indicate that the applicants requested more time to provide submissions, or that the Tribunal had agreed to such a request. The email and letter from the applicants' lawyer to the Tribunal, referred to by the first applicant, does not support the existence of any agreement reached at the hearing that the applicants would be provided with a recording of the hearing and provided time for the applicants to file further written submissions. The email merely makes a request of the Tribunal for a recording of the hearing. The letter attached a document which the Tribunal Member had asked the applicant to provide at the conclusion the hearing.
5. There is nothing in the Tribunal decision and there is no evidence adduced by the first applicant to support a claim of any agreement reached at the hearing that the applicants would be provided with a recording of the Tribunal hearing and would be provided time to file further written submissions. This is despite being directed by this Court to file any evidence in support of the application on 17 February 2026 (for example, annexing a copy of the transcript of the Tribunal hearing).
6. I asked the first applicant at the hearing before me if she had requested a copy of the transcript of the Tribunal hearing from the first respondent. She answered no she had not. The first respondent confirmed no request had been made.
7. Ground 1 has no merit and is dismissed.

1. As to ground 2, the first applicant alleges that the Tribunal failed to consider five aspects of the first applicant's evidence in relation to the genuine temporary entrant criterion. I consider each claim below. None of the allegations are made out.
2. Particular (a): it is alleged the Tribunal failed to consider the evidence that the second applicant would take over his father's business doing air-conditioning and heating system installation and maintenance as his father are waiting for him to take over, so the father could officially retire.
3. This particular must be rejected. At Tribunal Decision (TD) [27] and [29] the Tribunal expressly considered 'the business which the second applicant plans to take over from his father in Bulgaria'. This allegation fails at a factual level.
4. Particular (b): it is alleged the Tribunal failed to consider that the applicants' daughter will be enrolled in primary school in Bulgaria.
5. This allegation also fails at a factual level. While not expressly referred to in the Tribunal decision, the document in which the applicants made the submission that the third applicant would enrol in primary school in Bulgaria was raised by the applicants in response to the Tribunal's s 359(2) invitation and was considered by the Tribunal (at Court Book (CB) 271). The Tribunal referred to this document as the "completed questionnaire" that the applicants completed on 7 July 2023, provided in response to the s 359(2) invitation: see TD [7]-[8]. I would infer from TD [7]-[8] and [27] that the Tribunal considered the contents of the "completed questionnaire" dated 7 July 2023.
6. Further, on a fair reading of the Tribunal decision at TD [26]-[27], as the first respondent submitted correctly in my view, the Tribunal Member considered the applicant's submissions and oral evidence about their intention to return to Bulgaria and the benefits of the family support for their young family, practically, emotionally and financially (CB 392 at [27]). I consider therefore the Tribunal's consideration of the matter referred to in particular (b), while general in nature, was subsumed in findings of greater generality in TD [26]-[27]: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (WAEE).
7. Particular (c): it is alleged the Tribunal failed to consider the applicants' intention to further expand the business in the European Union.
8. In a statutory declaration dated 7 July 2023, referred to in the Tribunal's reasons, the first applicant stated that the applicants would be able to travel freely within the European Union and it would be easy to expand their future business across Europe (at CB 340). Again, while this statement is not expressly stated in the Tribunal's reasons, specifically, as the first respondent notes, the Tribunal noted that the applicant had filed submissions in relation to the applicant's plan to open a business in Bulgaria (TD [26]). It referred to, "evidence of exploring business options for the primary applicant's café/restaurant" (TD [27]).
9. The Tribunal's reasons indicate, and I consider it can be inferred, that it had considered the applicant's stated intentions for the business plans to expand this business into the European Union. The Court should not draw the inference in the circumstances that this part of the applicant's claim was not considered, given the reference to the statutory declaration and the submissions throughout the Tribunal's reasons.
10. Particular (d): it is alleged the Tribunal ignored the primary applicant's intention to get Bulgarian permanent residence.
11. This is also referred to in the applicant's statutory declaration dated 7 July 2023 (at CB 342). The Tribunal referred to her submissions setting out her plans to move back to Bulgaria and open a business (as outlined above) at TD [27]. In particular, the Tribunal expressly referred to the document in which she made this claim, namely the applicant's statutory declaration dated 7 July 2023 (see for example footnotes 28 and 33 of the TD).
12. Again, based on WAEE, the Court should not assume the Tribunal failed to consider the matter, and that reasonably read, I consider that such a matter was subsumed in findings of greater generality.
13. Particular (e): it is alleged the Tribunal failed to consider the increase of rental market in Sydney was a factor for the applicants to consider returning to Bulgaria as soon as possible
14. Again, this was raised by the applicant in her statutory declaration dated 7 July 2023 (see footnotes 28 and 33 of the TD). Again, as above, I accept the Minister's submission the Court should not assume the Tribunal failed to consider the matter, and that reasonably read, I consider that such a matter was subsumed in findings of greater generality made by the Tribunal in TD [26]-[27].
15. For the foregoing reasons, ground 2 is rejected.

1. None of the applicant's grounds of review have established that the Tribunal's decision is affected by jurisdictional error.
2. Further, I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
3. The application is dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.