Maroki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1165

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. By his Amended Application filed on 4 June 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 12 May 2021 (Decision) concerning his application for a Student (Temporary) (Class TU) visa (Student Visa).
2. The applicant seeks an order that the decision of the Tribunal be quashed, and a writ of mandamus directed to the Tribunal requiring it to determine the Student Visa application according to law. The Minister seeks that the application be dismissed with costs.
3. The applicant was assisted at the final hearing by an interpreter in the Arabic language.

1. The applicant relies on his application and affidavit, both of which were filed on 4 June 2021. The Minister relies on his response filed 15 June 2021, Court Book filed on 16 January 2025 and written submissions filed on 25 June 2025. The Court Book has been marked as Exhibit 1.
2. In these Reasons, references to the Court Book are styled CB followed by the page number.

1. Section 476(1) of the Migration Act 1958 (Cth) (Act) confers power on this Court to undertake judicial review of migration decisions where a writ of mandamus or prohibition, or an injunction is sought against a Commonwealth officer, subject to the limitations imposed by s 476(2). This Court's power to review the Tribunal's decision is limited to review for judicial error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. The Court is not permitted to undertake a review of the merits of the application for a visa: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
2. Clause 500 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) sets out the criteria for the grant of subclass 500 student visas.

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 the applicant satisfies clause 500.212(a), i.e. that he "intends genuinely to stay in Australia temporarily", the Tribunal is to apply Ministerial Direction No. 69 "Assessing the genuine temporary entrant criterion for Student visa and Student Guardian applications" (Direction). The Direction addresses various factors which guide the decision-making process relating to the genuine temporary entrant requirement.

1. It is convenient to address Ground 5 of the application at this point. That Ground reads as:

I will provide further grounds after I receive copy of my documents and interview hearing.

1. This matter was called over by me on 5 May 2025 for the purpose of allocating a final hearing date and ensuring that the matter was otherwise ready to proceed. Directions that had been made on 16 January 2025 concerning the filing of documents, including any amended application, were confirmed on that occasion. No impediment to the matter proceeding was raised by either party for which reason the hearing date of 8 July 2025 was allocated.
2. That said, in circumstances where the applicant is self-represented and English is not his first language, I approached Ground 5 with some caution, lest it should be that the matter could not fairly proceed on 8 July 2025.
3. At the start of the final hearing, the applicant identified to me to that the "documents" to which he was referring in Ground 5 comprised the Death Certificates of his parents and a document which demonstrated he had completed study in the Netherlands.
4. As to the "interview hearing", it was somewhat difficult to appreciate exactly what the applicant meant by those words, however I inferred that he may have meant the audio recording of the proceedings before the Tribunal. The Minister's legal representative informed the Court that such a recording had not been provided to the applicant. I asked the applicant whether he required a copy of the audio recording and whether there was an impediment to the matter proceeding to final hearing at the time. He confirmed that the matter could proceed as listed. The final hearing thus proceeded.

1. The applicant was born in Iraq on 20 December 1965. He is a citizen of the Netherlands and Iraq.

1. Between 2012 and 2014, the applicant travelled to Australia and New Zealand for holidays, and to Germany, Iraq and Sweden to visit family members. The applicant also travelled to the Netherlands, which he described as "home" between 30 October 2012 and 19 May 2013 and then again from 10 August 2013 to 5 April 2014.

1. The applicant was granted a student visa by the Australian Government in November 2014.
2. The applicant's study history since being in Australia comprised:

Not completed: withdrew after the Delegate's decision

1. On 5 August 2019, the applicant filed an Application for a Student Visa with the Department of Home Affairs (as it was then known) (Visa Application). At that time, the applicant was enrolled in an Advanced Diploma of Management (Human Resources), such course to take place between 16 September 2019 and 13 September 2020.
2. In the Student Visa Application, the applicant stated that:

(a) his usual country of residence was Germany;

(b) one of his brothers and two of his sisters resided in Australia. The applicant also had a brother who lived in Germany, a sister in Sweden and two brothers who lived in the United States of America;

(c) he was self-employed in a business known as "Golden Star Auto Glass" in Sydney; and

(d) he had been offered employment at the completion of the course of study with a business in Germany known as "Hairstyling Paradiso" in the position of "Manager of the Business".

1. The applicant included a letter to the Department in which he said, inter alia:

Dear Officer,

I would like to extend my student visa to enhance my skills and gain higher qualification of Advanced diploma in Management (Human Resources).

I have lived more than 15 years in Netherlands and also Germany And I'm planning to go back after I finish my study to start my career with a big Company in Germany Hairstyling Paradiso Gmbh in Munich branch Job offer attached https://www.hairstyling-paradiso.de/, it's a big company with many branches around Germany that also have a chain of restaurants as well with the same name Paradiso.

I have been in contact with the company HR and they finally offered me a job in the HR department after finishing my course in Australia, job offer attached. And the job offer is indefinite period as they always have a place for new HR in their department...

1. The applicant's letter set out his submissions as to why the course will be of value to him, that he had about $25,000 in an Australian bank account (evidenced by the document at CB49), and an assertion as to the German economy.
2. The abovementioned job offer reads:

Confirmation of Employment

We hereby certify that we are prepared to give Mr MAROKI Farid Habib Azo, born on the 20th of December 1965, any time a position as skilled office employee in the personnel department.

The working relationship is for an indefinite period of time. The monthly salary is 2,300.00 Euro.

1. On 14 October 2019, the Department refused the Student Visa Application on the basis that he did not satisfy the genuine temporary entrant requirement pursuant to clause 500.212(a) of the Regulations.
2. After the Delegate refused the Visa Application, the applicant withdrew from the Advanced Diploma of Human Resources. He told the Tribunal that he did not know that he could continue to study despite the refusal, for which reason he withdrew.

1. On 22 October 2019, the applicant applied to the Tribunal to review the Delegate's decision.
2. On 25 October 2019, the Tribunal wrote to the applicant acknowledging receipt of his application. In that letter, the Tribunal stated, inter alia:

If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.

1. On 3 February 2021, the Tribunal wrote to the applicant and invited him to provide information in support of his visa application by 17 February 2021. In that letter, the Tribunal stated, inter alia:

As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa that you be:

• Enrolled in a course of study; and

• A genuine applicant for entry and stay as a student.

Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student.

[...]

In considering whether an applicant is a genuine applicant for entry and stay as a student, the AAT must have regard to Ministerial Direction No. 69 'Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications'. A copy of this is attached for your reference.

[...]

(emphasis in the original)

1. On 8 February 2021, the applicant enrolled in an Advanced Diploma of Leadership and Management. That is, between about October 2019 and February 2021, the applicant was not enrolled in any course of study.
2. On 15 February 2021, the applicant sought an extension of time to submit the Request for Information. On 16 February 2021, such extension was granted to 21 February 2021.

1. On 15 February 2021, the applicant submitted a "Request for Student Visa Information". In that document, the applicant stated that he had been the Business Owner/Manager of Golden Star Auto Glass since March 2015. The applicant left blank the fields in the form under the heading "Information about family" and "Information about assets" found at CB96 and CB97 respectively. The applicant answered "No" in response to whether he had any concerns about military service commitments or political or civil unrest in his home country.
2. As to the details of how the applicant maintains contact with family in his home country, community ties in his home country and Australia, future employment plans and expected remuneration, the applicant referred to his attached statement. The applicant said:

My name is Farid Habib Azo Maroki, I am single with no kids and I was born in Iraq back on 20 Dec 1965 and I currently held dual citizenship from Iraq and Netherlands. Currently residing at 59 Hackett Road Abbotsbury NSW 2176.

I came to Australia on 06 June 2014 on tourist visa and I lodged later a student visa and I successfully completed General English course between 12/1/2015 and 27/5/2016. After completing the English course, I started certificate in Marketing between 4/07/2016 to 2/7/2017. However, the college cancelled the marketing course and did not give us a completion certificate nor a transcript. After they cancelled the course, I had a meeting with the academic manager at the college and we discussed my future plans, I was convinced to study Human resource management. I did not have any Human resource knowledge background, so I enrolled at the certificate IV level and I successfully completed Certificate IV in Human resource management and diploma of Human resource management between 14/8/2017 and 04/08/2019 at Queen Anne college.

I was enrolled at Advanced diploma of HR starting 16 Sep 2019 until 13 Sep 2020. I started studying the first term at this course and I stopped when I got the student visa refused on 14 Oct 2019, I lodged AAT and I did not know I can study while waiting for the AAT decision.

Until I received a request from the AAT to provide a GTE and an evidence of enrolment. I checked with the migration lawyer and he informed me that I can study while waiting on the tribunal. I enrolled at advanced diploma of leadership and management and I will be leaving Australia after finishing this course. The job offer is attached to this letter.

Knowing I can go back to study and reach the advanced diploma level the first thing I thought about is the advanced diploma of Human resource management. However, taking the same course at higher level will limit my work option to HR manager only. Instead of enrolling in Advanced Diploma in HR I enrolled in an Advanced diploma in Leadership and management started today 15/2/2021 until 19/2/2023 at infinite learning institute. Advanced Diploma of Leadership and management will give me the option to work at a managerial position covering different managerial aspects rather than focusing on one management area such as Human resources. The course is 72 weeks of training and the core subjects varies as per the followings:

Manage finance

Lead and manage organisation change

Provide leadership across the organisation

Develop and implement a business plan

Manage knowledge and information

Manage innovation and continuous improvement

Develop, implement, and maintain WHS management system

I was a soldier in the Iraqi Army before I left Iraq back in 1991 to Romania for a year and a half before I moved permanently to Netherlands for around 20 years until 2014 (I use to move back and forth between Netherlands and Germany during that period) I also visited Australia many times before 2014. I completed diploma in hairdressing in Netherlands before coming to Australia.

I have 8 siblings 3 living in USA (Farouk - Ahlam - Fouad) and 3 living in Australia (Emanuel -Leila and Aysar), one living in Sweden (Feryal) and the last one who is my close friend too not only a brother and we are very close in age (one year apart) Salem who is currently living in Germany. We also look alike in everything including the looks. My siblings in Australia are all aged above 65 years old and they are too busy with their families and I do not get to see them much.

I will be moving back to Germany to live next to my brother Salem and to manage a hair dressing business. The business owner of the hair dressing salon knows I have a diploma in hair dressing and knows I speak Germany and knows I studied in Australia and currently finishing advanced diploma of leadership and management. (attached job offer)

The advanced diploma of leadership and management course is not available in Netherlands nor in German. I have the financial means to cover my education while in Australia. I have around $40,000 AUD in my bank account, which is enough to cover my tuition fees, travel expenses and living expenses.

[...]

1. The applicant attached a copy of his Certificate of Enrolment in an Advanced Diploma of Leadership and Management with a course start date of 15 February 2021 and concluding on 19 February 2023.
2. The applicant also submitted a job offer from Hairstyle Paradiso in Germany dated 17 February 2021, which stated:

Job Offer

We hereby confirm that we are offering Mr Maroki Farid Habib Azo, born on the 20th of December 1965, a managerial position at our company.

Duties will include and not limited to interviewing new staff and hiring right people to work at our company and to manage the daily operation of the business.

We are offering monthly salary 2,600 Euro and we are expecting you to start your duties end of Feb 2023 after you complete your advanced diploma in leadership and management in Australia.

1. On 26 March 2021, the Tribunal wrote to the applicant and invited him to attend a telephone hearing to give evidence and present arguments in support of his application. The letter invited the applicant to provide all documents on which he intended to rely at least seven days prior to the hearing, including a Certificate of Enrolment, and reiterated that the Tribunal may assess whether the applicant satisfies the genuine temporary entrant requirement by reference to the Direction.
2. The applicant completed a "Response to hearing invitation" identifying that he required the assistance of an interpreter in the Arabic language.
3. On 12 April 2021, the Tribunal conducted a telephone hearing at which the applicant was present with the assistance of an interpreter in the Arabic language. The Migration Hearing Record located at CB118 to CB120 demonstrates that the hearing commenced at 10:31am and concluded at 11:04am. However, the applicant was given leave to provide copies of his tax returns to the Tribunal by 23 April 2021.
4. On 13 April 2021, the applicant provided to the Tribunal copies of his personal income tax Notices of Assessment for the financial years ending 30 June 2016 to 30 June 2019 inclusive. Such Notices recorded taxable incomes of $7,789, $17,325, $15,031 and $22,759 for each financial year respectively.

1. On 12 May 2021, the Tribunal affirmed the decision of the Delegate. The dispositive issue before the Tribunal was whether the applicant satisfied the genuine temporary entrant requirement. The Tribunal's decision to affirm the Delegate's decision and its reasons for doing so were summarised in the Minister's submissions which I adopt:

16. The Tribunal reached its decision because:

(a) it found the Applicant did not meet clause 500.212(a) of the Regulations (at [33]), because:

(i) the Applicant did not have sound reasons for choosing not studying in either the Netherlands and Germany (at [14]);

(ii) the Applicant did not have any real sense of connection to any country (at [15]);

(iii) the Applicant did not appear to have economic ties to any country other than Australia (at [16]);

(iv) the Applicant's economic circumstances would not have been an incentive for him to leave Australia (at [18]);

(v) the Applicant had significant ties to Australia (at [22]);

(vi) the Applicant demonstrated a lack of interest in study (at [24]);

(vii) in the Tribunal's view, the Applicant was using the Student Visa program to maintain ongoing residence in Australia (at [25]);

(viii) the proposed course was not going to add a great deal to the Applicant's employment prospects (at [29]); and

(ix) the Applicant's immigration history in coming to Australia demonstrated that he did not intend to stay in Australia on a temporary basis (at [31]).

(b) It ultimately found the Applicant was not a genuine applicant for entry and stay in Australia as a student (at [34]).

1. On 4 June 2021, the applicant filed an application for judicial review in this Court. That application includes six clauses, which I will address in turn.

1. The Tribunal decision is not based on probative evidence.

1. The applicant submitted that the decision did not seem right that he is not a genuine temporary entrant. He said "I have been coming to Australia since 2003. All the time, come to visit Australia. During this period, if I want to stay in Australia, I can stay in Australia." When asked why it was the decision was "not based on probative evidence", the applicant said: "The decision only to reject evidence. I tried to explain as much as I could".
2. The Minister submitted that:

The review ground is not particularised. However, on review of the Tribunal's decision, there is no readily identifiable basis to support the proposition that the Tribunal's decision and its findings were not supported by evidence before it.

1. In my duty to a self-represented litigant, I have remained astute and alert to any error by the Tribunal's decision: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158. It is appropriate that I traverse the Tribunal's reasons to satisfy myself as to whether the decision was open to it on the evidence, and that such evidence was "probative".
2. The evidence that was before the Tribunal was described at paragraph 10 of its Reasons as:
   1. The Tribunal has had regard to the oral evidence given by the applicant at the hearing, the documents he submitted to the Tribunal and also the contents of the Department's file.
3. It is obvious that the "documents [the applicant] submitted to the Tribunal" means his application for review (at CB67-77), Request for Student Visa Information form (at CB89-99), Certificate of Enrolment in an Advanced Diploma of Leadership and Management (at CB100), Statement by the applicant dated 15 February 2021 (at CB101-102), confirmation of health cover (at CB107), letter from Hairstyle Paradiso entitled "Job Offer" dated 17 February 2021 (at CB 108), and Notices of Assessment from the Australian Taxation Office for the financial years ending 30 June 2016 to 30 June 2019 inclusive (at CB123ff).
4. Having regard to the Index to the Court Book, the "Department's file" means File BCC2019/3865455 and comprises the documents at CB1 to 57 inclusive (noting that pages 21 to 40 duplicate pages 1 to 20). These documents include the applicant's Student Visa Application filed 5 August 2019 and the supporting evidence described at CB20 including the applicant's "Letter Statement for Genuine Temporary Entrant" (at CB44-45), bank statement (at CB49) and certified translation of a job offer from Hairstyling Paradiso dated 12 March 2019 (at CB50-51).
5. The applicant attended the hearing by telephone with the assistance of an interpreter in the Arabic language and gave evidence and presented arguments, as demonstrated by the hearing record at CB118-120.
6. I now turn to the Tribunal's reasons. I am satisfied that the Tribunal correctly identified the statutory criteria for a Subclass 500 student visa and application of the Direction as a guide to decision making, and not a checklist, as recorded at paragraphs 6 to 9 of its Reasons.
7. The Tribunal's account of the applicant's country of origin and constellation of family members accords with the information in the applicant's Student Visa Application. The applicant's study history, described at paragraphs 12 and 13 of the Reasons, accords with the history stated by the applicant in his Request for Information (at CB94). Paragraph 14 of the Reasons refers to the applicant's Statement to the Tribunal dated 15 February 2021 (at CB102). I am satisfied that it was open to the Tribunal to infer that Germany and the Netherlands may be able to provide comparable courses of study to that proposed by the applicant in Australia. In any event, the applicant's assertion that such courses are not available in the Netherlands or Germany was a bare assertion which the Tribunal was entitled to reject.
8. The evidence upon which the findings about the applicant's personal ties to Australia and other countries arose from the information contained in the Student Visa Application and the Request for Student Visa Information and the statements by the applicant which were attached to each (see paragraph 15 of the Tribunal's Reasons).
9. The evidence concerning the applicant's financial position arose from his oral evidence before the Tribunal and the bank statement he provided to the Department with his Student Visa Application (see paragraph 16 of the Tribunal's Reasons).
10. The Tribunal's findings at paragraph 17 of its Reasons about the two job offers from Hairstyling Paradiso were based on a comparison of the two offers adduced by the applicant. I am satisfied that the Tribunal's analysis and findings at paragraphs 26 to 30 of its Reasons were open to it, having regard to the applicant's explanation in his written statement to the Tribunal, the inconsistencies between the two job offers and the applicant's age, past work and study pathway over time.
11. I am satisfied that the finding at paragraph 18 of the Tribunal's Reasons was open to it on the evidence described in paragraphs 12 to 17 therein.
12. The evidence described at paragraph 20 of the Tribunal's Reasons appears to have been based on the applicant's oral evidence at the hearing as compared to the contents of his written statement.
13. The evidence described at paragraph 21 and 22 of the Tribunal's Reasons arise from the information contained in the Request for Student Visa Information and the applicant's Notices of Assessment. I am satisfied that the Tribunal's finding at paragraph 22 of the Reasons was open to it based on such evidence.
14. The fact that the applicant did not study between October 2019 and February 2021 is not controversial. I am satisfied that it was open to the Tribunal to draw the inferences and make the findings that are contained at paragraph 24 of its Reasons having regard to that period of non-study.
15. The applicant adduced a record of his immigration history in his own documents before the Delegate and the Tribunal. The findings at paragraph 31 of the Tribunal's Reasons arise from that history. I am satisfied that the inferences drawn from such history, as contained in that paragraph, were open to the Tribunal to so draw.
16. In turning to whether the evidence was "probative", I firstly note that s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides, inter alia, that the rules of evidence do not apply to the Tribunal's procedures and it may inform itself on any matter in such a manner as it thinks appropriate.
17. "Probative" means that the evidence tends to prove or substantiate a fact. In this case, the evidence upon which the Tribunal based its findings was adduced by the applicant both before the Delegate and the Tribunal, together with his oral evidence at the Tribunal hearing. It is curious that the applicant should now contend that the evidence was not probative in circumstances where he was its source.
18. I am satisfied in all the circumstances that the Tribunal based its decision on the evidence placed before it by the applicant in written and oral form and that the inferences and conclusions reached based on such evidence were logical, rational and reasonably open to it.
19. For these reasons, Ground One establishes no error of law and so fails.

*** Even though I have been in Australia since 2014 I did complete valuable studies until the Department refused my final request for student visa. Contrary to the findings of the Tribunal I intend genuinely [to] stay in Australia temporarily. I accept that it was an unintentional mistake to stop my studies when the Department refused my visa and that I failed to make enquiries but once alerted by the Tribunal I provided confirmation of enrolment CoE as I was enrolled in an Advanced Diploma in Leadership and Management started 15/2/2021 until 19/2/2023 and I am currently studying.**

1. In response to my enquiry as to whether this Ground was provided for context or whether it intended to identify a legal error should be inferred from it, the applicant submitted:

At the time, I make an application to study. When I did that application, I stopped my study. Later I have the refusal to my visa. That is why I stopped the study. When I asked a migration solicitor he said you can go back to study. That is why I did another application.

1. The Minister submitted that this ground does not seek to impugn the Tribunal's decision based on jurisdictional error but appears to express disagreement or dissatisfaction with the findings, which may be an appeal on the merits.

1. Ground Two sets out the reasons why the applicant withdrew from his course of study after the Delegate's decision and later re-enrolled in another course. This is consistent with the facts set out by the Tribunal at paragraph 13 of its Reasons, in which it said:
   1. At the time when he lodged this application for a student visa, the applicant was enrolled in an Advanced Diploma of Human Recourses, which commenced on 16 September 2019 and was due to end on 13 September 2020. The applicant advised that after the delegate refused his application on 14 October 2019, he did not continue with this course, telling the Tribunal that he did not know he could continue to study. On 8 February 2021, he obtained enrolment in an entirely new course, an Advanced Diploma of Leadership and Management, which commenced on 15 February 2021 and will end on 19 February 2023 ("the proposed course").
2. The Ground does not expressly or inferentially disclose a legal error. If anything, it confirms the correctness of the Tribunal's finding at paragraph 13 of its Reasons, being the factual matrix which provides a reasoned basis for the findings and analysis at paragraphs 23 to 25 of its Reasons, namely:
   1. There is also that fact that the applicant did not study, and was not enrolled in a course, from October 2019 until February 2021. He said that he did not know he was able to continue studying and it was not until he consulted a migration lawyer, after being asked by the Tribunal for confirmation of enrolment, that he discovered he could in fact study despite the delegate's refusal to grant him a student visa.
   2. The Tribunal considers that it is a simple and uncomplicated step for a motivated student who intends to acquire skills and knowledge in a temporary stay in Australia to clarify whether study rights are held; for example, by making a simple call to the Department, or consulting the Department's online visa entitlement service, VEVO3. The Tribunal considers that by not making simple enquiries, the applicant has demonstrated a lack of interest in study entitlements suggests a lack of interest in the study itself which casts doubt on the value of the courses proposed to the applicant's future.
   3. The Tribunal considers that the applicant's tie to Australia together with the lack of motivation to complete his studies suggests that the applicant is using the student visa in order to maintain ongoing residence in Australia and that in doing so, he is using the student visa to circumvent the intentions of the migration program.
3. For these reasons, I accept the Minister's submissions that Ground Two invites an impermissible merits review. As such, Ground Two establishes no error of law and so fails.

*** I completed English for General Purposes in May 2016, Certificate IV in Human Resources completed in August 2018, and Diploma of Human Resources completed in August 2019. That should lead to accept that I am a genuine student.**

1. Of Ground Three, I asked the applicant whether he was saying that, because he had completed various courses, the Tribunal should have found that he was a genuine temporary entrant, and how that may sit with the range of factors in the Direction.
2. The applicant submitted that:

The rejection of my application when I applied, I wanted to do study higher than I have done. I started from zero. When I come to Australia, I could not speak English. It was my wish to learn English. I started from zero and started to go higher and higher in English. When I reached to this level, I don't know why they complicated by rejecting my application. The course was for two years but they retarded me from doing the course, even psychologically, it affects me.

1. The Minister reiterated the submission set out at paragraph 62 of these Reasons in relation to Ground Three. His legal representative made oral submissions to the effect that the Direction requires consideration of a range of factors and that while there may be an element that the applicant's various enrolments is a consideration under the Direction, such consideration does not mandate a finding that the applicant satisfies the genuine temporary entrant criterion.

1. At paragraph 12 of its Reasons, the Tribunal accepted that the applicant had completed English for General Purpose in May 2016, Certificate IV in Human Resources in August 2018 and a Diploma of Human Resources in August 2019. At paragraph 13 and 14 of its Reasons, the Tribunal also considered the period of non-enrolment in a course of study between October 2019 and February 2021 and choice of an "entirely new course" and the applicant's evidence as to why he was not undertaking such study in his home country or region. These matters engaged clauses 4(c), 9(a)and 11(e) of the Direction which state:

Assessing the genuine temporary entrant criterion

1. Circumstances where further scrutiny may be appropriate include but are not limited to:

[...]

1. the applicant intends to study in a field unrelated to their previous studies or employment;

[...]

The applicant's circumstances in their home country

1. When considering the applicant's circumstances in their home country, decision makers should have regard to the following factors:
   1. whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

The applicant's potential circumstances in Australia

1. In considering the applicant's potential circumstances in Australia, decision makers should have regard to the following factors:

[...]

1. the applicant's knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

1. I am satisfied that the Tribunal approached the evidence concerning the applicant's past and current study correctly and that the findings about those circumstances were open to it. The fact that the applicant had completed three courses of study in Australia was not determinative of whether the visa ought to have been granted. To the extent Ground Three suggests to the contrary, it is misconceived. I agree with the Minister's submissions in this regard.
2. For these reasons, Ground Three establishes no error of law and so fails.

*** I agree that I travelled to Australia on numerous occasions over the years and this time I had the ambition to achieve academic studies where if I return to Germany I will have a good position and I am not young anymore to continue working physically rather my ambition is to hold a leadership and managerial position.**

1. Of Ground Four, and in answer to my question as to the legal error he wished to identify, the applicant submitted:

Not a legal wrong. But the law should have a humanitarian side. When the man does heavy work during his life, he should think when he is older to do some other work that is easy and simple. This point here is evidence and is related to humanity. Everything is evident almost.

1. The Minister reiterated the submission set out at paragraph 62 of these Reasons in relation to Ground Four.

1. I accept the Minister's submission. The applicant conceded that there was "not a legal wrong". The balance of the applicant's submissions and the text of the Ground itself, invite an impermissible merits review.
2. For these reasons, Ground Four establishes no error of law and so fails.

*** I will provide further grounds after I receive copy of my documents and interview hearing.**

1. Ground Five foreshadows that the application may be amended, rather than contending a jurisdictional error. I have addressed whether it was procedurally fair to proceed with the final hearing at paragraphs 9 to 13 above.

1. When asked about the relevance of this in his application for judicial review, the applicant said that the person who rejected his application (i.e. the Tribunal) "meant to give me this rejection because not possible that I mention some people who died more than thirty years ago". The applicant said that he informed the Tribunal of all his living family members.
2. The Minister's legal representative submitted that the Direction tests current family ties such that there is some difficulty in accepting the proposition that the Tribunal must consider individuals who had died.

1. I accept that the applicant informed the Tribunal of his living siblings in Australia, Germany, Sweden and the United States. This is clear from his Visa Application which was before the Tribunal and paragraph 15 of the Tribunal's Reasons. The Tribunal's Reasons do not refer to the applicant's parents or other deceased relatives.
2. It is apparent from paragraph 15 of the Tribunal's Reasons that the decision maker was concerned with the constellation and location of the applicant's family so far as they may represent personal ties to his home country and whether those circumstances would serve as a significant incentive (or "inducement") to return to the home county. Such consideration engages clause 9(b) of the Direction. There was no need for the Tribunal to concern itself with family members of the applicant who were deceased, as only a living person could serve as a significant incentive to the applicant.
3. For these reasons, Ground 5 establishes no error of law and so fails.

*** I am in shock to know that the Member of the Tribunal failed to grant me the student visa even though I provided the requested CoE and evidence of my financial ability to meet the financial responsibility.**

1. The applicant submitted that he wanted to explain that he can carry his responsibilities and expenses. The Minister reiterated the submission set out at paragraph 62 of these Reasons in relation to Ground Six.

1. I agree with the Minister's submission that Ground Six is a statement of the applicant's disagreement with the Tribunal's decision. To the extent that the applicant wishes to explain his financial circumstances to this Court, he is inviting an impermissible merits review.
2. Furthermore, there was no issue concerning the currency of the applicant's enrolment in a course of study. Rather, the dispositive issue before the Tribunal was whether the applicant satisfied the genuine temporary entrant criterion.
3. The applicant's financial circumstances were addressed by the Tribunal at paragraphs 18, 21 and 22 of its Reasons and were found to indicate direct financial ties to Australia, and no other country. The evidence included the applicant's tax returns for the financial years ending 30 June 2016 to 30 June 2019 and the information provided by the applicant in his Request for Information as to the operation of his windscreen repair business. These were matters that fell within the scope of clause 9(c) of the Direction as matters for consideration.
4. I am satisfied that the Tribunal approached the evidence concerning the applicant's financial circumstances correctly and that the findings about those circumstances were open to it. The fact that the applicant was enrolled in a course of study and could meet his financial responsibilities in Australia is not determinative of whether the visa ought to have been granted. To the extent Ground Six suggests to the contrary, it is misconceived.
5. For these reasons, Ground Six establishes no error of law and so fails.

1. For the reasons given, no jurisdictional error has been demonstrated. The Application filed on 4 June 2021 will be dismissed.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw.