Mohammed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1102

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
2. For the following reasons, I consider that I am obliged to dismiss the application before the Court.

1. The applicant is a citizen of India who first arrived in Australia on 2 June 2009. On 15 September 2017, the applicant applied for the student visa that is the subject of this review.
2. On 3 April 2018, the Delegate refused the application.
3. On 23 April 2018, the applicant applied to the Tribunal for review of the Delegate's decision.
4. On 29 January 2020, the applicant attended a hearing before the Tribunal.
5. On 31 January 2020, the Tribunal affirmed the Delegate's decision.

1. The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided:

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 satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:

(a) the applicant's circumstances in his home country, potential circumstances in Australia and the value of the course to his future;

(b) the applicant's immigration history; and

(c) any other relevant information.

1. Direction No. 69 indicated that it was not to be used as a checklist, but stated that 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".

1. The Tribunal summarised the background to the matter and the evidence before it, as well as the criterion in issue and the effect of Direction No. 69, at [1]-[20] of its decision. At [21], the Tribunal accepted that the applicant had suffered injuries as a result of a motor vehicle accident in 2013.
2. At [24]-[28], the Tribunal considered the applicant's circumstances in his home country and in Australia, as well as the value of the proposed course and the applicant's study history, as follows:
   1. The Tribunal has considered the applicant's circumstances in his home country. The applicant is unmarried and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. When considering the applicant's circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to India, however, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
   2. The Tribunal has considered the applicant's potential circumstances in Australia. The applicant first arrived in Australia on 2 June 2009 as a holder of a "student" visa. The proposed study would extend the applicant's stay until at least August 2021. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the student visa programme.
   3. The Tribunal does not place weight on the value of the course to the applicant's future, including remuneration and career prospects in the applicant's home country. The applicant gave extremely vague evidence in that regard.
   4. The Tribunal has considered the applicant's study history since arrival and notes that he commenced study in Australia in 2009. Since that time the applicant has completed two vocational courses in business management, two vocational courses in information technology, a bachelor of business (accounting), a bachelor of professional accounting and is currently studying a master of professional accounting. He wishes to continue studying in Australia until at least August 2021. This is not the conduct of a genuine temporary entrant.
   5. The Tribunal notes that this course plan is inconsistent with the plans when he initially entered Australia. He arrived in Australia in 2009 with the intention of studying a diploma of business management. He completed this course as well as an advanced diploma of business management in September 2011. The applicant now wishes to pursue a master's degree in professional accounting in Australia which will require him to stay in Australia until at least August 2021, over 10 years after he arrived in Australia. The course is asserted to have relevance to very vague future plans. This is not the conduct of a genuine temporary entrant.
3. At [30]-[35], the Tribunal reasoned:
   1. The Tribunal notes that the applicant worked as a physiotherapist in India. The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has extensive qualifications in physiotherapy, business management, information technology and accounting. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
   2. The Tribunal has given regard as to whether there is any other relevant matter. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
   3. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
   4. The Tribunal has considered the evidence and has taken into account the applicant's economic circumstances in the applicant's home country relative to the applicant's potential circumstances in Australia. Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in the applicant's home country which diminishes the applicant's incentive to return to India.
   5. The Tribunal is concerned that the applicant's intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from the applicant's proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant's proposed course to the applicant's future.
   6. The Tribunal does give weight to the evidence that since the applicant's arrival in Australia on 2 June 2009 the applicant has spent nearly 11 years in Australia. Notwithstanding the occasions when the applicant has been outside of Australia the length of time which the applicant has been in Australia indicates that the applicant does not appear to have strong personal ties to India. Based on this evidence the Tribunal assesses the applicant's incentive to return to India to be poor.
4. Having regard to the above, the Tribunal drew the following conclusions at [36]-[40]:
   1. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted several visas specifically to enable the applicant to achieve that goal. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also given regard as to whether there is any other relevant matter, and finds there to be no other relevant matter to the assessment of the applicant's intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of the applicant's application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant's circumstances in the applicant's home country, potential circumstances in Australia, the value of the proposed course to the applicant's future, the applicant's immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
   2. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
   3. Other than as stated above there is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant's circumstances in India relative to others in that country.
   4. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
   5. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
5. On the basis of the above, the Tribunal found that the applicant was unable to meet the criteria for the visa and affirmed the Delegate's decision ([41]-[43]).

1. The applicant commenced the current proceeding through an application filed on 6 March 2020. The matter spent some time in the central migration docket and was previously docketed to another judge, before being docketed more recently to me and listed for hearing.
2. The applicant relied upon the following statement made under the heading "Grounds of application":

My review decision has been refused by AAT, I am a genuine temporary entrant who has successfully completed Bachelors of professional accounting and further enrolled myself in masters of professional accounting.

I have been denied a student visa by the Department of Home Affairs and hence, I am appealing to have my case reviewed so that I can continue my studies, which I am currently pursuing at Torrens University Australia.

(as per the original)

1. The grounds, as stated above, appeared to seek engagement of the Court in merits review. As discussed with the applicant at hearing, this Court has no jurisdiction to perform such a review. It is not open to me to set aside the Tribunal's decision on the basis of disagreement alone, even if I accepted that the applicant was a genuine temporary entrant. The role of this Court is limited to assessing whether the Tribunal's decision was affected by legally relevant error.
2. At the hearing, categories of error that may be legally relevant were discussed. Within this context, the applicant was invited to explain anything he felt was not properly done or unfair in how the Tribunal approached his matter.
3. The applicant raised that he considered that the documents provided regarding his injuries resulting from a hit-and-run motor vehicle accident had not been considered by the Tribunal. The applicant also raised that he had completed a bachelor's degree, suggesting this indicated that he was a genuine student.
4. I accept the Minister's submission that the evidence before the Court demonstrates that the Tribunal did consider evidence put forward by the applicant regarding the motor vehicle accident in which he was involved, as well as his resulting injuries. At [21] of the Tribunal's decision, the Tribunal considered medical evidence that had been provided in relation to the motor vehicle accident, as well as the injuries that had been sustained by the applicant. The Tribunal accepted that the applicant had suffered the injuries in question. However, it is apparent from the balance of the Tribunal's reasoning that the Tribunal did not find that this evidence outweighed the concerns that it had identified regarding whether the applicant was a genuine temporary entrant. Within this context, I am not persuaded that the Tribunal failed to consider the evidence in question.
5. The Tribunal considered the applicant's study history at [14] and [27] of its decision. That history included the applicant's completion of a bachelor's degree. The Tribunal did not doubt that the applicant had completed such courses and wished to remain in Australia and continue studying. However, the Tribunal was concerned that the applicant was undertaking study in order to maintain ongoing residence in Australia. Having regard to matters including (inter alia) the overall length of the applicant's stay in Australia and concerns regarding the incremental value of the proposed course, the Tribunal was not satisfied that the applicant was a genuine temporary entrant.
6. It has not been demonstrated that this reasoning was relevantly closed to the Tribunal. It was open to the Tribunal to find that it was not satisfied that the applicant was a genuine temporary entrant, notwithstanding his successful completion (inter alia) of a bachelor's degree. The matters the Tribunal identified as supporting its concerns (including the length of the applicant's stay in Australia and the limitations in the evidence regarding his personal ties to India and the incremental value of the course) were logically probative of the issue.
7. At the hearing of this matter, I observed that the Tribunal had expressed at [29] of its decision that it had taken into account "a statement" (in the singular) in which the applicant had attempted to address the genuine temporary entrant criterion. The Tribunal did not, however, refer to the detail of various statements that had been provided by the applicant seeking to address this criterion over the history of the matter. I invited submissions upon whether this gave rise to a concern that this evidence was not considered by the Tribunal.
8. On balance, however, I accept the Minster's submission that there is insufficient basis for finding that this material was not considered by the Tribunal. The Tribunal was not obliged to refer to every aspect of the evidence that was before it: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (per McHugh, Gummow and Hayne JJ).
9. Much of what had been said in the applicant's earlier statements was generally expressed and went towards explaining why the applicant claimed that he had pursued earlier studies (prior to his enrolment in the master's course). Although two statements appear to have been provided in relation to the Masters of Professional Accounting course at Torrens University, there is substantial overlap between them and one appears to have been a revised or updated version of the other. Within this context, it is unsurprising that the Tribunal's focus would have been upon the most recently articulated statement that had been provided by the applicant. Having regard to the content of the statements in question, within the context of the Tribunal's reasons for decision, I accept the Minister's submission that there is insufficient basis for finding that the statements were not considered.

1. Having regard to the above, I have not found that the Tribunal's decision was affected by any legally relevant error that would provide the Court with a basis for setting it aside. It follows that the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.