Khan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 657

Please find the attached GTE form along with supporting documents. His current transcript will be issued by the applicant in a couple of days. Also the applicant is in Pakistan and due to the current flood crisis he has limited access to the internet. Therefore he was not able to submit the GTE form earlier...

1. No hearing was held in the matter. On 14 October 2022, the Tribunal affirmed the Department's decision not to grant the applicant a visa (CB 148) and notified the applicant's migration agent (CB 142-144).

1. The Tribunal Decision dated 14 October 2022 is 6 pages long.
2. The Tribunal began by summarising the procedural history of the matter ([1- 6] of the Tribunal Decision).
3. The Tribunal recognised that as an applicant's personal circumstances may change since making an application, the Tribunal had, on 6 September 2022, provided the applicant with an opportunity to provide updated and further information, in accordance with s 359(2) of the Act ([5] of the Tribunal Decision). The Tribunal noted that the applicant's response to the letter dated 6 September 2022, was not within the prescribed timeframe ([6] of the Tribunal Decision). The Tribunal stated that it proceeded on the following basis ([6-7] of the Tribunal Decision):

(a) pursuant to s 359C(1) of the Act, if an applicant fails to provide further information within the prescribed period, the Tribunal may make a decision on the review without taking further action;

(b) pursuant to s 360(3) of the Act, the applicant was not entitled to appear before the Tribunal; and

(c) pursuant to s 363A of the Act, given the applicant had no entitlement to appear before the Tribunal, the Tribunal had no power to permit him to appear before it.

1. The Tribunal noted in the decision that it had considered the following:

(a) whether further information evidencing that the applicant satisfied the requirements of the Acts and Regulations was likely to be forthcoming and whether the applicant had already had a fair opportunity to provide the relevant information ([8] of the Tribunal Decision); and

(b) whether the review should be adjourned pursuant to s 363(1)(b) of the Act to afford the applicant additional time for the provision of further evidence in support of his review application ([9] of the Tribunal Decision).

1. The Tribunal found that the applicant had been provided with a fair opportunity to provide relevant information in support of the review application. Accordingly, the Tribunal elected not to exercise its discretion to adjourn the review. The Tribunal proceeded to make its decision based on the evidence and information before it, being such evidence previously provided to the Department and the Tribunal ([10] of the Tribunal Decision).
2. The Tribunal noted that the issue before it was whether the applicant was a genuine temporary entrant pursuant to cl 500.212 of Schedule 2 to the Regulations. The Tribunal explained that it was required to have regard to Direction No. 69, noting that it was a guide only ([13 - 15] of the Tribunal Decision).
3. The Tribunal summarised and considered the evidence before it ([17- 29] of the Tribunal Decision).
4. In considering the applicant's 'study history' ([18-20], [25] and [28] of the Tribunal Decision), the Tribunal:

(a) outlined that the applicant provided the following course history in the questionnaire:

(i) a Diploma of Leadership and Management from November 2016-February 2018;

(ii) an Advanced Diploma of Accounting from November 2017-February 2019; and

(iii) a Diploma of Leadership and Management from January 2021- January 2022.

(b) queried why the applicant wished to undertake a Diploma and Advanced Diploma of Leadership and Management given that he had already 'engaged with' a Diploma of Leadership and Management;

(c) queried why he had not provided corroborating evidence from course providers with one exception;

(d) noted that it was concerned that he had not made academic progress that would be expected of a genuine student onshore for seven years;

(e) acknowledged that he was in Pakistan and due to the flood crisis had limited internet access, also noted that he had lived in Australia for seven years which raised concerns about whether it was his intention to be a genuine temporary entrant;

(f) acknowledged that he provided reasonable reasons for studying in Australia rather than Pakistan; and

(g) noted that a Provider Registration and International Student Management System (PRISMS) search had been conducted which confirmed that the applicant was enrolled and noted that the Tribunal had not placed any weight against the applicant in relation to the search.

1. In considering the applicant's 'future career plans' ([21-22] of the Tribunal Decision), the Tribunal:

(a) found his plans, as articulated in the questionnaire and submissions, to be 'vague and difficult to follow';

(b) noted that he did not file a genuine temporary entrant statement with the Department; and

(c) noted that he did not provide detail about what business he planned to run and his role.

1. In considering his ties to Australia ([23] and [26] of the Tribunal Decision), the Tribunal:

(a) noted that the applicant said that he had 'nil' ties to Australia;

(b) found that it was reasonable to conclude that after living in Australia for seven years, he would have established strong ties to the Australian community which would act as a strong incentive for him to remain onshore; and

(c) noted that his financial circumstances in Australia may be acting as a significant incentive for him to remain.

1. In considering the applicant's ties to Pakistan ([24] of the Tribunal Decision), the Tribunal:

(a) noted that he had returned to Pakistan four times since his arrival;

(b) noted that his parents, wife, three brothers and sister live in Pakistan and he spoke to them regularly;

(c) noted that he said he had 'nil' ties to Pakistan; and

(d) accepted that he has personal ties to Pakistan acting as an incentive for him to return, but did not accept that the evidence established significant incentives.

1. The Tribunal was not satisfied on the evidence that the applicant genuinely intended to stay in Australia temporarily. The Tribunal found that when considering the information provided by the applicant, it raised concerns regarding the applicant's true intentions in residing in Australia. The Tribunal noted specific concerns in relation to the length of time that the applicant had remained in Australia and the limited corroborating evidence of academic progression during that period. Given these circumstances, the Tribunal considered that the primary reason as to why the visa was sought by the applicant was to maintain residence in Australia ([29] of the Tribunal Decision).
2. Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student and did not satisfy cl 500.212 of Schedule 2 to the Regulations ([30] of the Tribunal Decision). Having found the applicant did not satisfy cl 500.212 of Schedule 2 to the Regulations, the Tribunal found the applicant did not meet the criteria for a Subclass 500 (Student) visa ([31] of the Tribunal Decision). The Tribunal affirmed the decision not to grant the applicant a visa ([32] of the Tribunal Decision).

1. The applicant's grounds for judicial review are set out in his application filed on 18 November 2022.
2. On 19 March 2025, a Registrar of the Court made procedural orders. These included an order for the applicant to file an amended application, additional evidence and submissions by 8 April 2025. The applicant did not file any further documents.
3. The following documents were before the Court - the application for judicial review, the supporting affidavit of the applicant filed on 23 November 2022 (taken as read and in evidence at the hearing), a Court Book (numbering 161 pages and marked as Exhibit 1R) filed 3 April 2023, and written submissions of the First Respondent (the Minister) filed on 15 April 2025.
4. On 17 April 2025, the applicant appeared before this Court via video link (at his request). He confirmed that he was able to see and hear well. He was unrepresented. He confirmed that he had received copies of the Court Book and the Minister's written submissions.
5. As the applicant was unrepresented, the Court provided an overview of the background to the matter and the court processes.
6. The Court also explained that the issue for the Court was whether the Tribunal had fallen into material jurisdictional error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272. The Court outlined some of the common categories of jurisdictional error (based on references to error in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic). The Court also noted that this list of categories was not exhaustive: Mazimbe v Minister for Immigration and Multicultural Affairs [2023] FedCFamC2G 1227.
7. The Court also noted that it could not review the merits of the Tribunal's decision: Wu Shan Liang at 272.
8. The applicant was provided at the hearing with an opportunity to tell the Court in his own words what errors he believed that the Tribunal had made. He said that he wanted to rely on the grounds enunciated in his application to the Court and did not wish to provide any oral submissions.
9. The Court referred to each of the grounds and to the particulars set out in the application for judicial review. The applicant was asked if he wished to provide more details or make further submissions. He said that he did not want to provide any further submissions and relied on the written particulars in his application.
10. The Court invited the applicant to respond in reply to the first respondent's submissions, which the Court asked the first respondent to explain orally at the hearing for the applicant's benefit. The applicant confirmed that he did not wish to respond to the first respondent and wished to rely on the grounds and particulars in his written application dated 18 November 2022.
11. The applicant's grounds for review and particulars included in his application are considered below.

CONSIDERATION - WAS THERE JURISDICTIONAL ERROR IN THE TRIBUNAL DECISION?

1. The Tribunal was required to consider whether the applicant met the legislative criteria for a Student (Temporary) (Class TU) (Subclass 500) visa.
2. Section 29(1) of the Act gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. A non-citizen must apply for a visa of a particular class: s 45 of the Act. The Regulations prescribe the criteria for classes of visas: s 31(1) and s 31(3) of the Act.
3. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a) (ii) of the Act.
4. The criteria for the visa applied for by the applicant are set out in Clause 500.2 of the Schedule to the Regulations. Relevantly, Clause 500.212 requires that the applicant is a genuine applicant for entry and stay as a student, having regard to various factors.
5. The applicant has claimed that there is jurisdictional error in the Tribunal Decision. The function of this Court is to review the Tribunal Decision and determine whether there is jurisdictional error in the Tribunal Decision.
6. Jurisdictional error can arise in various ways and the categories are not clearly defined. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152, the plurality of the High Court commented on some of the forms of jurisdictional error. The Court stated that jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of authority [2] and [3] (footnotes omitted):

Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. The Court must review the Tribunal decision by reference to the applicant's complaints about the decision: Djokovic at [17]. In cases such as this, however, where the applicant is unrepresented, the Court should consider the applicant's complaints and also be astute and alert to legal error: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB) per Mortimer J at [100].
2. However, it is well-established that the Court cannot review the merits of the Tribunal decision. In Wu Shan Liang, the High Court said at 272:

.. any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

1. Although Wu Shan Liang was a case which considered a decision to refuse a refugee visa, the same principles apply in relation to judicial review of decisions to refuse student visas. It follows that disagreement with the merits of a decision, if any, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (Eshetu) at [40].

Consideration of the grounds of jurisdictional error alleged by the applicant

1. The applicant has specified three grounds of jurisdictional error in his application. It is common for unrepresented applicants to be less familiar with legal principles and methods of legal drafting than legal practitioners. Accordingly, the Court has considered each of the applicant's grounds as broadly as possible, in accordance with the principles set out in the decision in MZAIB at [100].

1. The first ground of jurisdictional error set out in the application was that:

the Tribunal erred by not complying with section 353(1) (b) of the Migration Act..

1. The applicant provided particulars of this ground as follows:

1.the Tribunal has failed to comply with section 353(l)(b) of the Act by not acting fairly and justly and denying the applicant sufficient time to organise a chance to provide written submission for the hearing. 2.The Tribunal did not grant a fair opportunity for presenting the case. However, the Tribunal should have acted according to the principle of substantial justice and the case's merits. Hence, Tribunal and department committed a jurisdictional error.

1. The applicant was invited by the Court to provide further submissions in relation to this ground but did not avail himself of this opportunity.
2. The first respondent in submissions dated 15 April 2025 argued that no jurisdictional error was established as the Tribunal was precluded by law from holding a hearing, that the decision not to adjourn was reasonable, and that the Tribunal conducted itself in accordance with procedural fairness obligations, including providing the applicant with an opportunity to comment on relevant issues pursuant to s 359(2) of the Act. The Court is persuaded by these arguments for the reasons set out below.
3. The applicant referenced jurisdictional error purportedly committed by the Department, (as delegate for the first respondent), as well as the Tribunal. This Court does not have jurisdiction to review the Department's decision: ss 476(2) and (4) of the Act. The Court has therefore confined consideration of potential jurisdictional error to the Tribunal Decision.
4. The applicant claimed in the particular for this ground that there was 'non-compliance' by the Tribunal with s 353(1) (b) of the Act, which provides:

(1) The Tribunal, in reviewing a Part 5‑reviewable decision:

...

(b) shall act according to substantial justice and the merits of the case.

1. The applicant claimed in the particulars for this ground that the Tribunal did not comply with s 353(1)(b) by 'not acting fairly and justly' and 'denying the applicant sufficient time to organise a chance to provide written submission for the hearing'. Further the applicant stated that 'the Tribunal did not grant a fair opportunity for presenting the case', and did not act 'according to the principle of substantial justice and the case's merits'.
2. In Eshetu at [49] the plurality of the High Court commented on then s 420 of the Act, which required the Refugee Review Tribunal (the RRT) to act according to substantial justice and the merits of the case, equivalent wording to s 353(1)(b) of the Act. Their Honours found that the equivalent provisions described the general nature of RRT proceedings and were intended to free the RRT from constraints of courts. The High Court found that the RRT decision in that case was not reviewable on the ground that the Tribunal failed to observe procedures required by the equivalent provisions. Although Eshetu is proposition for the view that s 353(1)(b) is a facultative provision, rather than a restrictive one [49], in the matter before this Court, it can be inferred from the particulars, read as a whole, that the applicant alleges that he was denied procedural fairness by the Tribunal (given his references to the Tribunal not acting fairly and justly and not granting him a fair opportunity for presenting his case).
3. The Court has considered this ground in reference to failure to provide an opportunity to attend a hearing, and failure to adjourn to provide further written evidence, as these were issues raised in the particulars. While not specifically raised by the applicant, as the applicant referred to fairness generally, the Court has also considered whether the dispositive issues were raised with the applicant in accordance with natural justice requirements.
4. Section 357A of the Act provides that Division 5 of Part 5 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters that it deals with, and that the Tribunal must act in a way that is fair and just in applying the Division. Division 5 comprises various provisions, including relevantly to these proceedings, ss 359, 360 and 363A, discussed further below.
5. The first respondent has submitted, in relation to Ground 1, that the Tribunal conducted itself in a legally reasonable manner and consistent with the procedural obligations under Division 5 of Part 5 of the Act, which it also noted was an exhaustive statement of the natural justice hearing rules, referring to 375A of the Act and Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [66] per Heerey, Conti and Jacobson JJ.

Failure to provide an opportunity to attend a hearing

1. Section 360(1) of the Act required the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. There were exceptions to this requirement, discussed later in this decision.
2. Section 359 of the Act provided:

(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

1. On 6 September 2022, the Tribunal invited the applicant to provide information pursuant to s 359 (2) of the Act (CB 115). The Tribunal noted in the invitation that it was a requirement of the visa that the applicant be enrolled in a registered course of study and that he be a genuine applicant for entry and stay as a student. The applicant was invited to provide relevant information to satisfy the Tribunal that he met these requirements. An attached questionnaire, entitled 'Request for Student Visa Information' requested specific details about the information requested (CB 115 -121). The applicant was notified that the Tribunal was required to have regard to the Ministerial Direction No. 69 'Assessing the genuine temporary entrant criteria for Student Visa and Student Guardian visa applications' (Direction No 69), and a copy was provided.
2. The applicant was required to provide information in response to the s 359(2) letter by 20 September 2022 or seek an adjournment by that date. In the letter dated 6 September 2022, the Tribunal notified the applicant that if the Tribunal did not receive the information requested within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The applicant was also notified that he would lose the entitlement to a hearing (CB 116).
3. The letter dated 6 September 2022 was sent to the applicant's migration agent as required by s 379G of the Act by email, which was a method permitted by s 379A(5)(b) of the Act. As argued by the first respondent, it was sent to the last notified address provided in connection with the review (CB 27 and 114-115), and provided the applicant with 14 days to respond, which was the prescribed period in sub regulation 4.17(4) of the Regulations: s 359B(2) of the Act.
4. The invitation sent pursuant to s 359(2) on 6 September 2022 complied with the requirements in s 359 and s 359 B of the Act.
5. The applicant did not provide the information to the Tribunal in accordance with the prescribed period which was notified to him in the correspondence dated 6 September 2022. Instead, he provided the information on 21 September 2022. Consequently, s 359 C (1) of the Act was enlivened.
6. Section 359C of the Act provides:

s 359C Failure to give information, comments or response in response to written invitation

(1) If a person:

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

(b) does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

1. As s 359C (1) applied to the applicant, the Tribunal was entitled to make a decision on the review without taking any further action to obtain the information. Furthermore, the requirement to invite an applicant to a hearing set out in s 360(1) no longer applied because of the operation of s 360 (2)(c) and s 360(3) of the Act, which provide:

s 360 Tribunal must invite applicant to appear

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

1. As subsection 359C(1)(b) applied to the applicant, the applicant was not entitled to appear before the Tribunal because of the 'cascading operation' of the provisions: s 360 (2)(c) and s 360(3) of the Act: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (Hasran).
2. Section 363A of the Act provides that if a provision states that a person is not entitled to do something, then unless a provision expressly provides otherwise, the Tribunal does not have the power to permit the person to do that thing. In Hasran, the full Federal Court stated that the provision operates to remove any discretion which a tribunal may have had: [25] to [31]. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 67; [2017] 251 FCR 110 per North, Bromberg and Bromwich JJ, the court found the decision in Hasran to be compelling and correct [52].
3. In line with these authorities, the Tribunal did not have the power to invite the applicant to a hearing because of the operation of s 360 (2)(c) and s 360 (3) of the Act.
4. The Court notes further that in the s 359(2) letter, the applicant was put on notice by the Tribunal that if he did not provide the information or seek an extension within the prescribed time, he would lose the right to a hearing.
5. The Tribunal had no power to invite the applicant to a hearing. Furthermore, the Tribunal notified the applicant of the consequences of failing to provide the relevant information in response to the s 359(2) letter, such that procedural fairness was accorded.
6. This particular does not disclose jurisdictional error.

Failure to adjourn to provide further time to provide written evidence

1. The applicant has also claimed that the Tribunal fell into jurisdictional error by refraining from granting the applicant further time to provide written evidence.
2. The first respondent contended that the decision not to adjourn was reasonable, citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) per Kiefel CJ and at [82] per Nettle and Gordon JJ.
3. Section 363(1)(b) of the Act provides that the Tribunal may adjourn a matter:

s 363 Powers of the Tribunal etc

(1) 'for the purpose of the review of a decision, the Tribunal may:

...

(b) adjourn the review from time to time...

1. The language of s 363 indicates that the power to adjourn is discretionary. The question for this Court is whether the discretion not to grant an adjournment was exercised in a legally reasonable manner: Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li); at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ and at [120] per Gageler J.
2. In Li, the High Court held at [65] that the exercise of the discretionary powers should be 'legal and regular, not arbitrary, vague and fanciful'. The court considered that an unreasonable decision is where a decision-maker has reached a conclusion so unreasonable that no reasonable decision-maker could have come to it: at [28], or where it lacks 'evident and intelligible justification': at [76].
3. Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR [1] at [11] that an unreasonable decision cannot be said to be 'within the range of possible lawful outcomes', after consideration of the terms, scope and purpose of the statutory source of power.
4. In Djokovic at [17] the task of a Court conducting judicial review was described in this manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the considerations of matters or the evaluative judgments made by the decision-maker: Li at [30]. The Court emphasised that the court's jurisdiction is strictly supervisory, and as explained by the Full Federal Court in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [59]:

It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting it's own view as to how the decision should be exercised for that of the decision-maker:...nor does it involve the Court remaking the decision according to its own view of reasonableness.

1. The Court is persuaded that the exercise by the Tribunal of the discretion not to adjourn was reasonable, for the following reasons.
2. Firstly, as pointed out by the first respondent, in the letter from the Tribunal to the applicant dated 6 September 2022, the applicant was invited to seek an extension of time in which to provide information to the Tribunal (CB 116). He was invited to seek this extension by 20 September 2022. No extension of time was sought. The applicant was also advised by the Tribunal of the repercussions of not providing information within the prescribed time period or seeking an extension within that time period (CB 116). As stated earlier, the section 359(2) letter dated 6 September 2022 which provided this information, complied with statutory requirements. As contended by the first respondent, as the applicant failed to respond to the invitation to provide information by 20 September 2022, the Tribunal was correct to conclude that it could make a decision on the review without taking any further action: ss 359C, 360(2) and 360(3) of the Act.
3. Secondly, the Tribunal did of its own accord expressly consider whether to grant an adjournment in order that the applicant be able to provide further information. In considering whether to adjourn, the Tribunal had regard to the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 which they claimed were authority for the proposition that a decision-maker is not required to indefinitely defer its decision-making processes. The Tribunal also noted that it had regard to the issue of reasonableness, as referred to in Li, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 and Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393.
4. The Tribunal considered whether further information was likely to be forthcoming and whether the applicant had had a fair opportunity to provide relevant information ([9] and [10] of the Tribunal Decision).
5. The Tribunal concluded that the applicant had had a fair opportunity to provide relevant information ([10] of the Tribunal Decision). The Tribunal referred to having considered information provided to the Department, as well as to the Tribunal ([12] of the Tribunal Decision). The Tribunal also noted that it was for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations had been met: ([11] of the Tribunal Decision). The Tribunal referred to the invitation to the applicant to provide updated information in support of the case ([5] of the Tribunal Decision) and the fact that this information was provided ([6] of the Tribunal Decision).
6. The Court is persuaded that the exercise of the discretion not to adjourn by the Tribunal was 'legal and regular' (Li at [65]) given the detailed consideration given to it. The decision not to adjourn was based on a consideration of the opportunities to provide information already granted to the applicant, whether further information was likely to be forthcoming, relevant case law and efficiency objectives. Further, for the same reasons the conclusion was not so unreasonable that no reasonable decision-maker could have come to it (Li at [28]) and it did not lack 'evident and intelligible justification' (Li at [76]). The exercise of the discretion was reasonable. Kiefel CJ in SZVFW at [14], distinguished the facts in Li, stating that in Li it was not obvious how the Tribunal had reached its decision not to exercise its discretionary power to adjourn the hearing, but it was to be inferred that some error in reasoning had led to what was plainly an unjustifiable and unreasonable decision. Kiefel CJ said that in SZVFW the basis for the Tribunal's decision was apparent and the decision was plainly justified by reference to it [14]. Similarly, in this case, the basis for the Tribunal's decision was clear.
7. No jurisdictional error is disclosed by Ground 1 as detailed in this particular.

1. The applicant has not provided particulars suggesting that the Tribunal did not act fairly and justly, other than referring to the failure to hold a hearing and to adjourn. To the extent that the applicant is claiming lack of procedural fairness generally, the Court has considered whether the Tribunal met its obligation to put the applicant on notice of the dispositive issues under Division 5 of Part 5 of the Act.
2. The first respondent has submitted that the Tribunal conducted itself in a legally reasonable manner consistent with its procedural fairness obligations under Division 5 of Part 5, which is an exhaustive statement of the natural justice rule: s357A of the Act. The Court accepts that this is the case. The applicant was on notice of the dispositive issues as these issues were raised in the Department's decision. The Tribunal also ensured that the applicant was aware of the dispositive issues by sending the section 359(2) letter which outlined that in reaching a decision as to whether the applicant satisfied cl 500.212 of Schedule 2 to the Regulations, the Tribunal was required to consider the factors in Direction No 69. A copy of Direction No 69 was provided to the applicant. The applicant was provided with an opportunity to make submissions and adduce evidence.
3. In respect of the PRISMS record, the Tribunal noted that it did not place any weight against the applicant in relation to the search ([28] of the Tribunal Decision).
4. The Tribunal was not otherwise obliged to give advance notice of its thought processes, including 'the existence of doubts, inconsistencies, or the absence of evidence': SZBYR and Minister for Immigration and Citizenship (2007) 235 ALR 609 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [18].
5. No jurisdictional error arises through failure to comply with procedural fairness obligations.
6. Ground 1 does not establish any jurisdictional error in the Tribunal Decision.

1. Ground 2, taken without alteration from the application, stated:

'The decision of the Tribunal is affected by Jurisdictional error as it failed to consider the relevant considerations and focussed on Irrelevant considerations.

Particular

1. According to the Tribunal, it failed to examine the applicant's claim that he has always been enrolled in the study and that he is currently continuing his studies so that he may stay in Australia.
2. There was a consideration by the Tribunal about the irrelevant fact that I would be staying in Australia after my studies.
3. There was a jurisdictional error committed by the tribunal because they did not take into consideration the fact that I was enrolled in a course and that I had completed my English test while irrelevant factors were taken into consideration.'

1. The applicant was invited at the hearing of this Court to provide further submissions in relation to this ground but did not avail himself of the opportunity.
2. The first respondent contended in submissions dated 15 April 2025 that the ground partially failed on a factual level, as the Tribunal did consider the applicant's study history, found that the applicant was currently enrolled and did not expressly find that the applicant would stay in Australia after study. At the hearing, the first respondent submitted that the Tribunal was not satisfied on the evidence that the applicant intended to stay temporarily, but did not expressly find that the applicant would stay in Australia after study. The first respondent also submitted that the completion of the applicant's English test, which it presumed to be his 'PTE test', was irrelevant to the statutory task.
3. It is useful to outline the relevant legislative criteria for this visa in order to identify the mandatory considerations. The primary criteria for the Subclass 500 visa are set out at cl 500.2, and the relevant clause for these proceedings is cl 500.211 of Schedule 2 to the Regulations:

500.2 - Primary criteria

Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

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. In considering whether an applicant satisfies cl 500.212(a) of the Regulations, the Tribunal is required to have regard to Direction 69: s.499 of the Act; Kaur v Minister for Home Affairs [2019] FCA 2026 at [29]- [30].
2. Direction 69 is found at CB 159 to CB 161. It provides that in considering the genuine temporary entrant criterion, the Tribunal must have regard to a wide range of factors including circumstances in Australia and the applicant's home country, future plans, study history and other relevant information.
3. Part 2 of Direction 69 specifies that the factors in the Direction are not to be used as a checklist:
   1. ...The listed factors are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion
4. The applicant's contention that the Tribunal failed to take into consideration his claim that he has always been enrolled in study, has no merit. Firstly, taking a literal interpretation of the particulars, the applicant did not state in his application that he had always been enrolled in study. The applicant arrived in Australia in 2015 (CB 127). In response to a question in the application form for the visa on 26 July 2021 'give details of all past studies at secondary level or above' he said that he had studied from 13 November 2017 to 14 February 2019 for an Advanced Diploma of Accounting (CB 31) and he said that 'I am an outstanding student, I have been associated with studies since my arrival in Australia' (CB 30). In the questionnaire provided in response to the s 359(2) letter, he provided further details of study, commencing November 2016. However, the applicant first arrived in Australia in 2015 (CB 127). Therefore, the Tribunal could not have taken into consideration a claim that he had always been enrolled in study as this claim was not made by him.
5. If, alternatively, the applicant is claiming in particulars 1 and 3 that the Tribunal did not consider his study history or current enrolment generally, the first respondent is correct to argue that this claim fails on a factual level.
6. The Tribunal considered both the applicant's study history as well as current enrolment and study. The Tribunal noted in reaching a decision it took into consideration the information before it including information provided to the Department and Tribunal ([10] of the Tribunal Decision). At [12] of the Tribunal Decision, the Tribunal referred to having had regard to all written material filed by or on behalf of the applicant and other relevant documents on the Department and Tribunal files. Information before the Tribunal included the application which included the details of study from 2017 to 2019 (CB 31). It also included a statement that 'I am an outstanding student. I have been associated with studies since my arrival in Australia' (CB 30). Also before the Tribunal was the applicant's response to the request for information under s 359 (2) of the Act (CB 125 to 136), which the Tribunal refers to in its decision as the 'questionnaire'. At paragraph 13 the applicant confirmed that he was currently enrolled. At paragraph 14, the applicant provided a detailed study history including information that the applicant was 'studying now' (CB 131).
7. The Tribunal considered the applicant's claims about his study history and the fact that he was currently studying ([18-19] and [28] of the Tribunal Decision). At [18] to [19] of the Tribunal Decision, the Tribunal referred to courses the applicant had studied and the fact that the applicant had not provided corroborating evidence from his course providers for most of his courses from the time he had been in Australia. At [28], the Tribunal referred to a PRISMS search which was conducted in 2022 and specifically referred to the fact that the applicant was currently enrolled (CB 154).
8. Although the Tribunal did not specifically reference each of the courses commenced by the applicant, it did refer generally to the applicant's study patterns based on the information provided (which included information about non-completion of courses) ([18-19] and [28] of the Tribunal Decision). The Tribunal noted in the reasons that it had reference to information that it had found to be fundamental or materially significant to the determination of the issues before it ([12] of the Tribunal Decision). A decision-maker is not required to reference every piece of evidence before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46].
9. The applicant also claimed in particular 3 that the Tribunal did not take into consideration his English test results, which the applicant claimed was a relevant consideration. The first respondent has contended that the completion of the English test was not a relevant consideration for the Tribunal's assessment of whether the applicant genuinely intended to stay in Australia temporarily. English test results are not a factor described in Direction 69 as a consideration. It could be argued that passing an English test indicates that the applicant had been genuine about applying himself to study, and that previous study was relevant. However, even if this were the case, there was no obligation for the Tribunal to consider it, given that the exercise of the discretion was a matter for the Tribunal and the Tribunal did consider the issue of previous study in Australia ([19] of the Tribunal Decision). When considering the factors in Direction 69 when reaching a state of satisfaction in relation to cl 500.212(a), the Tribunal is not required to refer to every submission and piece of evidentiary material put forward by the applicant. The Court is satisfied that the Tribunal Decision set out the reasons and the findings on material questions of fact and referred to evidence on which the findings were made: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [93]- [96].
10. The applicant also claimed in particular 2 that the Tribunal took into consideration the 'irrelevant fact that I would be staying in Australia after my studies'. As argued by the first respondent, the Tribunal did not state that the applicant would remain in Australia after his study. The Tribunal found that the evidence did not satisfy it that the applicant genuinely intended to stay temporarily in Australia ([29] of the Tribunal Decision).
11. The Tribunal's finding that the evidence did not establish that the applicant genuinely intended to stay temporarily in Australia was not a 'consideration', rather it was a conclusion based on the evidence. To the extent that the applicant is claiming that the applicant's future intentions in general were an irrelevant consideration, the Court notes that the relevant provision, cl 502.212 of Schedule 2 to the Regulations, provides it is a criterion for the visa that the applicant is a genuine applicant for entry and stay having regard to the applicant's circumstances. Direction 69 requires consideration of current and future intentions.
12. The applicant stated in his application that irrelevant factors were taken into consideration. These factors were not particularised. The applicant was invited to make submissions on this point however, declined to do so. The Court has been unable to identify any irrelevant matters that were considered by the Tribunal. The Tribunal considered matters relevant to cl 500.212 and Direction 69 ([21 -27] of the Tribunal Decision).
13. Ground 2 does not disclose jurisdictional error.

1. In the application, Ground 3 is stated as follows (reproduced below without alteration):

'The decision of the Tribunal is affected by a jurisdictional error on the basis that the Tribunal misconstructed or misapplied Cl 500.212.

Particular

1. The Tribunal looked at Cl 500.212 very narrowly from a legal perspective. As the tribunal was evaluating the situation regarding the applicant's submissions regarding the future business plan for the applicant in Pakistan, the tribunal overlooked the submissions submitted by the applicant in its assessment of the situation.
2. There was a misperception and disregard by the Tribunal of the substantial ties that the applicant had with Pakistan.
3. Although the tribunal overlooked the financial support provided by the applicant's parents in order to remain in Australia, they did find that the applicant's small jobs offered significant incentives to stay in Australia.
4. There was no consideration by the Tribunal of the evidence or the personal circumstances of the applicant.
5. As far as immigration history is concerned, the Tribunal did not take it into account. The applicant has always followed the rules of the Australian government as far as he is concerned.'

1. In particular 1, the applicant claimed that the Tribunal applied cl 500.212 of Schedule 2 to the Regulations narrowly and 'from a legal perspective'. The applicant has not particularised how the Tribunal interpreted cl 500.212 'narrowly' and 'from a legal perspective' other than to state that the Tribunal evaluated the applicant's business plans in Pakistan but 'overlooked' submissions submitted by the applicant.
2. The first respondent submitted that the Tribunal considered the applicant's business plans (CB 153) and considered the applicant's submissions (CB 135).
3. The applicant has not specified what submissions he claims that the Tribunal overlooked. He was provided with an opportunity to further explain this at the Court hearing but declined to make further submissions. The Court is persuaded by the first respondent's submission that the Tribunal considered the applicant's submissions about his future plans. The Tribunal referred to the applicant's evidence generally ([18- 27] of the Tribunal Decision). Reference is also made specifically to the applicant's submissions regarding his future plans ([22] of the Tribunal Decision). Without further particulars, the Court is not satisfied that the Tribunal fell into jurisdictional error by 'overlooking' the applicant's submissions.
4. The Tribunal was required by cl 500.212 of Schedule 2 to the Regulations to consider whether the applicant was a genuine applicant for entry and stay as a student because he genuinely intended to stay in Australia temporarily having regard to the applicant's circumstances. In considering cl 500.212 the Tribunal was obliged to have regard to Direction 69, which included the value of the course to the applicant's future and other relevant information. The Tribunal did consider the value of the course to his future and his business plans [22 of the Tribunal Decision].
5. To the extent that the applicant is disputing the weight given to the submissions of the applicant, by suggesting the interpretation was 'narrow' or 'legal', such a claim comprises an invitation for the Court to engage in impermissible merits review: AHV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 6 (AHV19) at [21] per Markovic, Thomas and Banks-Smith JJ. Weight to be given to the various factors considered by the Tribunal is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11].
6. The applicant claimed in particular 2 that the Tribunal had a 'misperception and disregard of the substantial ties that the applicant had with Pakistan'. The applicant did not elaborate on how the Tribunal misperceived or disregarded evidence of ties in Pakistan, despite having been afforded an opportunity to provide oral submissions at the hearing.
7. The first respondent submitted that the Tribunal had regard to the applicant's evidence about ties to Pakistan and the findings it made were open to it.
8. The Court is satisfied that the Tribunal considered the applicant's ties with Pakistan. Although the applicant said he had 'nil' ties to Pakistan in his response to the s 359(2) letter (CB 134), the Tribunal acknowledged that he did have ties to Pakistan ([24] of the Tribunal Decision), which was a finding in the applicant's favour. The Tribunal accepted that the applicant 'may have personal ties to Pakistan acting as an incentive for him to return to his home country' but went on to say, 'but I do not consider the evidence supports a finding that those ties are acting as a significant incentive for him to return' ([24] of the Tribunal Decision). To the extent that in Ground 3 the applicant is complaining of the way in which the Tribunal assessed the evidence of ties, or that the Tribunal gave more weight to the applicant's jobs in Australia than ties to Pakistan, this again amounts to an invitation for the Court to engage in impermissible merits review: AHV19. As argued by the first respondent, it was open to the Tribunal to make the findings that it did about these ties, as the evaluation of the evidence was a matter for the Tribunal: NAHI at [11].
9. The applicant claimed in particular 3 that the Tribunal 'overlooked the financial support provided by the applicant's parents in order to remain in Australia', while finding that the 'applicant's small jobs offered significant incentives to stay in Australia'.
10. The Court accepts the first respondent's submissions that the Tribunal considered the fact that the applicant's family supported him in Australia ([26] of the Tribunal Decision). As pointed out by the applicant, the Tribunal also considered the applicant's financial circumstances in Australia ([26] of the Tribunal Decision). It was open to the Tribunal to weigh up this evidence and make findings that the applicant's jobs in Australia may have been an incentive to remain in Australia. To the extent that the applicant is contending that too much weight was given to the jobs in Australia as he claims these jobs were 'small', this Court cannot engage in merits review as weight to be given to evidence is a matter for the Tribunal: NAHI at [11].
11. The applicant claimed in particular 4 that there was 'no consideration by the Tribunal of the evidence or the personal circumstances of the applicant'. The applicant has not specified what evidence or personal circumstances were not considered by the Tribunal. The Court accepts that the Tribunal did consider evidence provided by the applicant and that this evidence included details of 'personal circumstances.' The Tribunal has indicated that it considered all the evidence provided by the applicant and it specifically referred to his evidence ([17-27] of the Tribunal Decision). Personal information was referenced in respect of background ([17] of the Tribunal Decision), acknowledgment of the impact of the floods in Pakistan ([20] of the Tribunal Decision) and family information ([24] of the Tribunal Decision).
12. The applicant claimed in particular 5 that the Tribunal did not take the immigration history into account and the applicant had always 'followed the rules of the Australian government'.
13. The Tribunal accepts the first respondent's submission that the Tribunal took the applicant's immigration history into account. The Tribunal stated that 'there is no evidence that the applicant has had any travel, visa or immigration issues in the past', an express indication that it took the applicant's immigration history into account ([27] of the Tribunal Decision).
14. Read as a whole, it appears that in Ground 3, the applicant is suggesting that the Tribunal did not apply clause 500.212 of Schedule 2 to the Regulations correctly.
15. The particulars fail to establish any jurisdictional error for reasons set out above. To the extent that the applicant claims that the decision is legally unreasonable generally, the Court notes that the test of unreasonableness must be 'necessarily stringent': SZVFW at [11]. In Li at [76], the High Court observed 'unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification'.
16. In this matter, the Tribunal referred to the relevant legislative provisions ([13-16] of the Tribunal Decision), Direction 69, and what it needed to consider. The Tribunal then referenced the relevant evidence it had considered ([12] of the Tribunal Decision), recording that it had regard to all written material filed by or on behalf of the applicant and other relevant documents on the Department and Tribunal files in reaching its decision. There is no reason to doubt that it did not do so. Reference is made in the Tribunal decision to consideration of the applicant's circumstances, immigration history, compliance, intentions and other relevant matters ([17-28] of the Tribunal Decision). The references broadly correspond with Direction No 69, although not every aspect of the Direction is considered. The Tribunal noted that some of the factors may not be relevant where they do not raise facts which engage particular matters identified by the guidelines, as referred to in Tshering v Minister for Home Affairs [2019] FCCA 2667.
17. The Court is satisfied that the Tribunal engaged with the relevant legislative provisions, Direction 69 and considered how the principles applied to the applicant, referring where relevant to the evidence ([21-27] of the Tribunal Decision). The Tribunal considered the evidence advanced by the applicant and made findings which were open to it on the evidence before it. The Court is satisfied that the Tribunal considered the applicant's 'submissions', which in this case comprised information provided to the Department and the Tribunal ([18- 27] of the Tribunal Decision).
18. While not every part of the evidence was referred to in the Tribunal decision, there was no need to do so. The Tribunal pointed out that it had only referred to those aspects which were 'fundamental or materially significant to the determination of the issues before it' ([12] of the Tribunal Decision). The Tribunal has some latitude in deciding what weight to give the various factors.
19. A Court cannot review the merits of a Tribunal decision, or reconsider the weight given by the Tribunal to the evidence produced by the applicant before and at the Tribunal hearings: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 per RD Nicholson J (Tran) at [5]. It cannot be said that the Tribunal's consideration of the evidence and its findings lacked an evident and intelligible justification: Li at [76].
20. Ground 3 does not establish jurisdictional error.

1. The Act was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (ART) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Consequential Act).
2. This judgment relates to a decision of the Tribunal which predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal's decision (or as at the date of any relevant matter referenced in this judgment).
3. The Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party in pending proceedings. Item 25 of the Consequential Act relates to any proceeding in a court that is not finalised before the transition time and provides that proceedings continue in accordance with the new law.
4. In the circumstances, this Court will make an order substituting the ART as the second respondent in this proceeding.
5. On 13 May 2025 by Administrative Arrangements Order the Act is to be administered by the Department of Home Affairs. The newly named portfolio of Department of Immigration and Citizenship forms part of the Department of Home Affairs.
6. In these circumstances the Court will make an order substituting the Minister of Immigration and Citizenship as the first respondent in this proceeding.

1. As none of the grounds raised by the applicant establish jurisdictional error, it follows that the application for judicial review is dismissed.
2. The Court will hear the parties as to costs.

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