Mand v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1637

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application for a constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) ("the Act") and it is a decision of the Administrative Review Tribunal, affirming a decision of the delegate not to grant the applicant a student temporary class 500 visa.
2. The applicant applied for the visa on 17 June 2020 and is a citizen of Pakistan. The applicant arrived in Australia as the holder of a visa to study a Master of Business Administration in November 2022. In December 2022, the applicant changed his course of study to a Diploma of Civil Construction Design with a completion date of April 2024, an Advanced Diploma of Civil Construction Design, complete date 2025, and a Graduate Diploma of Management Learning, completion date January 2027.
3. On 17 June 2023, the applicant applied for a further student subclass visa and proposed to continue the courses. On 28 July 2023, the delegate refused to grant the applicant a visa as the delegate was not satisfied that the applicant met the financial requirements under schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations"). On 12 October 2023, the applicant applied for a review. On 4 April 2024, the Tribunal remitted the matter for further consideration with a direction that the applicant met the criteria in respect of the financial requirements. On 21 May 2024, the delegate refused to grant the applicant a visa because it found because the delegate found the applicant failed to meet the genuine temporary entrant criteria.
4. On 8 June 2024, the applicant applied for review. On 30 September 2024, the Tribunal wrote to the applicant, inviting them to provide any evidence that he was enrolled in a registered course and that he was a genuine applicant for entry and stay as a student. On 14 October 2024, the applicant returned a completed request for student visa information, from 14 October 2024 the applicant's review is transferred to the Administrative Review Tribunal pursuant to consequential and transitional statutory provisions. On 7 January 2025, the Tribunal gave the applicant a notice of hearing date on 12 February 2025. On 26 January 2025, the applicant completed an Advanced Diploma of Civil Construction Design. On 3 February 2025, the applicant provided further evidence, including a statement and on 10 February 2025 the Tribunal undertook a provider registration international student management system search. On 12 February 2025, the applicant attended the hearing with the assistance of an earlier interpreter and his representative. Following the hearing, the applicant was given until 17 February 2025 to provide further evidence. The applicant provided a further statement and receipt of payment for his remaining course, a Graduate Diploma of Management. On 26 February 2025 the Tribunal affirmed the decision.
5. The Tribunal identified the background to the review application and provided the background in relation to the applicant in respect of his parent having a farm in Pakistan and that he had completed a four year bachelor's degree in statistics in Pakistan in July 2019. The Tribunal referred to the applicant not commencing the MBA and identified the two courses that the applicant has completed. The Tribunal identified the applicant being currently enrolled in a Graduate Diploma of Management and Learning at City College in Perth, which must be completed by January 2027 and that the applicant currently works as an Uber driver. The Tribunal accepted that the applicant has a valid current overseas student confirmation of enrolment for his current course.
6. The Tribunal noted that the applicant had not been back to Pakistan since his arrival in Australia and that his parents had not visited him and that he did not go to Pakistan to become engaged and that this was a ceremony done online. The Tribunal identified the criteria to be applied in relation to the subclass 500 student visa. The Tribunal identified the material that was before it prior to the hearing and summarised the applicant's evidence at the hearing, identifying that the Tribunal raised a number of issues with the applicant and asked him if he wished to comment. The Tribunal received at the hearing submissions from the applicant's cousin about him only having rough plans to date and that he would ultimately return to Pakistan. The Tribunal received a post-hearing submission as to the benefits of the course for the applicant's future career and a receipt of payment for fees.
7. The Tribunal noted that when the applicant arrived in Australia, he assessed that his English would not be good enough to study the MBA that he was enrolled in and that his degree was basic and that he was not equipped for the MBA course. The applicant said he decided that there would be more work in the future in Pakistan in the construction field and that he should switch course of study that facilitated a future in that industry. The applicant identified his plan to complete his construction courses in Australia and went to work in the Middle East. The applicant identified the benefit of obtaining his qualifications in Australia and that his plan was not formulated until after he arrived in Australia and identifying what he believes he can earn, including in the UAE, and identifying the benefit of the quality of education in Australia and learning English, increasing his ability to work and referring to his Middle East plan that he had work as a civil engineer and assist, as well as a designer, with an intention to work for some years in the Middle East and then go back to Pakistan. The Tribunal raised to the applicant concerns as to why it was his career plans were focused on qualifications targeting the Middle East and the applicant did not clarify that discrepancy and did not address it in post submissions. The Tribunal referred to the applicant's assertions of strong family and financial ties to return to Pakistan and that his fiancée would not join him while he worked in the Middle East and the cultural requirements required him to take over the family's property and business in Pakistan, being the only son.
8. In relation to his current course, the applicant stated that he attends two days per week and uses the remainder of the week for study and to work part time and for sport and recreation. The Tribunal asked the applicant to describe the course of study. The applicant described some elements of the course such as location, class size, basic sequence of core modules, although he did not know what electives he would take. The Tribunal found the applicant displayed a very limited knowledge of the assessment scheme for the course. The Tribunal found that on the material before it, that it did not indicate any strong personal ties to people or assets in Australia.
9. The Tribunal raised three issues with the applicant, as per section 359A of the Act, and asked the applicant for his comment. The applicant commented on two of the matters at the hearing and one in written submissions. The two matters in which the applicant commented were as follows:

(1) The applicant had not sought any work in the construction field in Australia and the applicant commented that he thinks he needs the Advanced Diploma to work in construction and is waiting to receive it that he needs to study and complete the homework burden so this makes looking for part time construction work difficult; and

(2) The second matter raised with the applicant was that the applicant could be seen to be using the study visa to extend his stay in Australia for other reasons and the applicant contended that this was not the case and that he wanted to go back to Pakistan at the end of the course.

1. The third matter raised by the Tribunal, which the applicant said he would respond in writing, was the utility of the graduate diploma in management and leadership for the applicant's stated career objective not being clear. In particular, the Tribunal drew the applicant's attention to the career opportunities listed for this course on the provider's website, all of which relate to training and career development roles. The applicant provided a post-written comment on this matter in which he indicated the course would deliver team leadership and management skills and, although focused on learning management, that the skills will be valuable and that the course increases his proficiency in English and that he will gain skills in professional development that are important to business but overlooked by the majority of businesses in Pakistan.
2. The Tribunal identified the criteria under clause 500.212 of the Regulations and in particular identified the content of the criteria as to whether the applicant intends generally to stay in Australia temporarily. The Tribunal identified the direction was not a check list but a guide. The Tribunal found that there are not especially strong incentives for the applicant to stay in Australia apart from earning capacity and that the incentives to return to Pakistan also did not appear to be particularly strong. The Tribunal expressly took into account that the applicant had not returned to Pakistan since arriving in Australia.
3. The Tribunal found the applicant provided no evidence that he was engaged, other than the assertion and the name of an alleged fiancée to which he referred not joining him in the Middle East. The Tribunal was prepared to accept that the applicant is engaged as claimed, however, following assessment of the material before it as a whole, the Tribunal did not accept that this factor or any other factors or combination of factors exerted any strong incentive upon the applicant to return to Pakistan.
4. The Tribunal noted the applicant has expressed a vague plan regarding work in the Middle East that could involve him staying there for anything from months to years. This would not occur until the applicant completed the course in January 2027. This possibility of staying in Australia until January 2027 then staying in the Middle East potentially for years does not indicate any strong incentive to return to Pakistan. The Tribunal found the applicant's incentive to return to take over the family farm was also not strong because the applicant had clearly identified he wanted to develop as a civil engineer assistant and designer and to work in the construction industry. The Tribunal found that there is also no strong incentive for the applicant to seek work in the Middle East upon completion of his current course of study.
5. The Tribunal found the applicant's plans to be very basic and appeared to vary between a few months and a few years in the Middle East. The Tribunal was not, therefore, satisfied the applicant has demonstrated personal and economic ties that will serve as a significant incentive to return home to Pakistan on completion of the current course of study.
6. The Tribunal turned to the value of the current course of the applicant's future and accepted that his qualifications may be well received in Pakistan and accepted that his language skills would be useful in the construction industry. The Tribunal did not accept that the current course of study will positively influence the applicant's future career prospects.
7. Firstly, because the current course is focused on learning management and is clearly targeted at such roles. The applicant had asserted he wanted to work as civil engineer assistant and designer. The Tribunal accepts that there may be some limited general management skill crossovers to be gained from the course of study but assesses that they are not significant in terms of the applicant's stated and quite basic future plans. The Tribunal was, therefore, not satisfied that the course of study will subsequently benefit the applicant's income level or future employment prospects in his chosen field, either civil engineer and assistant and designer or as a construction manager.
8. Secondly, the Tribunal has not identified that the applicant has provided evidence of a worked out future plan as to career and employment. The Tribunal had particular regard to the uncertainty attended as to how long he would stay in the Middle East. The Tribunal was of the view that this level of uncertainty as to future plans does not support the applicant's claim that his current course of study is targeted at helping gain employment in the Middle East.
9. The Tribunal also found that as the applicant is employed as an Uber driver and has been since after his arrival, he has provided no evidence relating to employment in any management role, either now or planned. In the absence of work experience in construction or engineering or design, either in Australia or previously in Pakistan, it is unlikely he will gain employment in management roles in the near future. The Tribunal found that studying the Graduate Diploma of Management focused on learning and might be very helpful to the applicant above the qualifications he already holds, it is on that basis the Tribunal was not satisfied the applicant intends genuinely to stay in Australia temporarily for the purpose of study and found the applicant failed to meet the criteria under clause 500.212(a) of the Regulations and affirmed the decision under review.
10. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood what was said by the Court. The three grounds in the applicant's application are as follows:

(1) Failure by the Tribunal to consider mandatory considerations, specifically regarding the availability of the course in the applicant's home country, his personal ties to Pakistan, and the relevance of the course to his intended pathway;

(2) The Tribunal considered irrelevant matters, such as placing weight on speculative assertions about the applicant's long-term migration intentions, which the applicant argues is contrary to the proper construction of the GTE criterion; and

(3) The Tribunal failed to engage in an active intellectual process with the evidence before it, thereby contravening the requirement established in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24].

1. The applicant's three grounds were expanded upon by the applicant's submissions to which the Court will return.
2. In oral submissions, the applicant contended that the decision was not reasonable or fair. When asked to expand on that submission, the applicant said that all the evidence was not taken into consideration. The applicant did not identify any material matter that the Tribunal failed to take into account. It was not necessary for the Tribunal to refer to every piece of information before it. The applicant's submissions as to the Tribunal's decision not being reasonable or fair, in substance, appears to be an invitation to merits review.
3. The Tribunal provided logical and rational reasons that provide an evident and justifiable justification for the adverse decision. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review and complied with its statutory obligations. The Court finds that there is no jurisdictional error as alleged by the applicant orally and finds that the Tribunal's decision is not unreasonable or is not unfair.
4. In relation to the applicant's first ground, in respect of a failure to consider the mandatory relevant considerations, it is patent on the face of the Tribunal's decision that it did take the same into account and identified that they were only a guide.
5. In these circumstances, there is no substance to ground 1 in the amended application and there was no mandatory consideration that the Tribunal was required to take into account and it failed to do. The applicant's expanded content under ground 1 in relation to alleged omissions were in substance, again, an invitation to engage in impermissible merits review. The Tribunal carefully gave consideration to the applicant's personal ties in his home country and the value and benefit of the course that he was undertaking and his future plans. No jurisdictional error was made out by ground 1.
6. In relation to ground 2, the applicant's written submissions asserted, as an irrelevant matter, the weight placed on what was said to be speculative assertions. The Tribunal was entitled to take into account the applicant's evidence as to what his future plans were and there is no irrelevant consideration that has been identified that the Tribunal impermissibly took into account in breach of some statutory obligation. On the face of the material before the Court, the Tribunal's reasons correctly addressed the applicant's claims and evidence and reflected a genuine intellectual engagement with the same. The applicant's long-term plans and their uncertain nature were a relevant and proper consideration for the Tribunal to take into account. No jurisdictional error is made up by ground 2.
7. In relation to ground 3, the applicant asserted a formulaic recitation of Direction No. 108 made under s 499 of the Act without substantive engagement with the applicant's evidence. That contention is completely undermined by the reasons of the Tribunal which the Court has identified. On the material before the Court, the Tribunal had a genuine intellectual engagement on the applicant's claims and evidence. No jurisdictional errors as alleged in ground 3 is made out.
8. It is for these reasons the Court makes the above orders.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.