Mohammed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1456

1. By an application filed in this Court on 11 December 2019 (Application), the Applicants seek judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. On the 29 November 2019 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Student Visa) (Tribunal's Decision).

1. The First Applicant is a citizen of India. The First Applicant arrived in Australia on 22 March 2013 as a holder of a student visa.
2. The First Applicant applied for the Student Visa on 29 September 2017 (Visa Application). The Second Applicant is the spouse of the First Applicant and was included in the Visa Application as a secondary applicant.
3. To be granted the Student Visa the Applicants were required to satisfy primary criteria and secondary criteria at the time of decision. Clause 500.212 of the Migration Regulations 1994 (Cth) (the Regulations) relevantly provided:

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 he 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. When considering whether the Applicants satisfied the criteria in clause 500.212(a) (GTE Criterion) the Tribunal was required to take into account Ministerial Direction No. 69 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act (Direction No. 69). Relevantly for the purpose of this matter those factors in Direction No. 69 to be taken were conveniently summarised by the Tribunal at paragraph [8] of the Tribunal's Decision as follows:
   • the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
   • the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
   • if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
   • any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

1. On 13 December 2017, the Delegate decided to refuse the Student Visa. The Delegate was not satisfied that the First Applicant met the GTE Criterion and cl 500.212. Consequently, the Second Applicant could not satisfy the secondary criteria.

1. The Applicants lodged an application for review with the Tribunal on 21 December 2017. The Tribunal sent an acknowledgment of application on 22 December 2017.
2. On 26 September 2019 the Tribunal sent the Applicants' representative an invitation to provide information. The Tribunal requested that the Applicants complete a student visa information form by 10 October 2019. The Tribunal noted that the First Applicant was required to be enrolled in a registered course of study and be a genuine applicant for entry and stay as student to be granted the Visa. The Tribunal annexed a copy of Direction No. 69 to the invitation to provide information. The Applicants provided a response on 10 October 2019.
3. On 30 October 2019 the Tribunal invited to the Applicants to a hearing on 14 November 2019. The Tribunal requested that the Applicants provide a response form, current confirmation of enrolment in a course, other supporting documents and a written GTE Criterion Statement in support of him being a genuine applicant for entry and stay as a student. The Tribunal noted cl 500.212. The Applicants provided a response form stating that they and their migration agent would attend the hearing on 8 November 2019.
4. The hearing proceeded on 14 November 2019 (Tribunal Hearing). The Applicants attended with their migration agent.

1. On 20 November 2019 the Tribunal affirmed the Delegate's Decision. The Applicants were notified of the Tribunal's Decision on 22 November 2019.
2. The Tribunal referred to the First Applicant's visa history being that he arrived in Australia on 22 March 2013 on a TU 573 student visa which was valid until 30 September 2017. On 29 September 2017 the First Applicant applied for a further student visa which was subsequently refused by the Delegate. The Tribunal identified the primary criteria for the grant of a Subclass 500 student visa, namely the criteria in cl 500.211 to cl 500.218 and GTE Criterion with Direction No 69.
3. The Tribunal considered the primary criteria in the context of the evidence including documents provided to it and the department and oral evidence. The Applicants were assisted by a migration agent who made submissions on the Applicant's behalf.
4. In assessing the evidence before it the Tribunal made findings that the First Applicant's: expected study timeframe means that he would complete his studies in 2023 and that the extensive stay in Australia was difficult to reconcile with temporary residency; academic achievements at a VET level were not commensurate with the time he spent in Australia; earning capacity and circumstances in Australia are an incentive not to return to India; personal ties in India had been managed remotely and were not an incentive to return and his lack of travel since December 2017 to India weighed against a conclusion that the he was not using the student visa programme to maintain his residence in Australia.
5. Ultimately the Tribunal was not satisfied that the First Applicant intends to genuinely stay in Australia temporarily and did not meet the requirements of cl 500.212(a). Because the Applicant did not meet the GTE requirements the Second Applicant did not meet the requirements of cl 500.31 of the Regulations in that she was not a member of the family unit who satisfies the primary criteria in cl 500.211.

1. The Application was filed in this Court on 11 December 2019, within 35 days of the date of the Tribunal's Decision pursuant to s 477 of the Migration Act.
2. On 24 March 2025 Orders were made for the Applicants to file material prior to a final hearing. The Applicants have not filed any material in accordance with Orders.
3. This matter was heard on 27 August 2025 and proceeded in person (Hearing). The First Applicant appeared in person and a Solicitor appeared for the Minister. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
4. The Applicants relied upon the following documents:

(a) The Application; and

(b) The Affidavit of the First Applicant filed 11 December 2019, including some submissions and annexing the Tribunal's Decision.

(a) The Response filed 7 January 2020;

(b) The Outline of Submissions filed 14 April 2025.

1. The Minister also filed a Court Book on 27 March 2020 and tendered it at the Hearing.
2. The Applicant's grounds of review (Grounds of Review) as set out in the Application are:
   1. Applicants Student (Temporary) (class TU) Student (subclass 500) visa was refused and a review application was made with the relevant appeals tribunal.
   2. The appeal at the Administrative Appeals tribunal was also refused.
   3. Applicant now appealing further at the Federal Courts for justice
   4. There has been an error in the decision making in the visa application.
   5. Applicant is a genuine student who wishes to complete his studies.
   6. The decision is affected by jurisdictional error as the matter is wrongly decided as applicant meet the requirements of the 500 visa and specifically 500.212 as the applicant has a genuine need to be in Ausralia in order to complete his studies.
   7. Furthermore the tribunal has made an error in deciding the application hence why a review is made further at the Federal Courts to attend to the jurisdictional error which has occurred.
   8. Now the applicant wishes to have this decision reviewed as he believes that his case is strong as he is genuine and that the wrong decision should be corrected.
   9. Applicant wishes for a fair chance and requests the Judicial courts to kindly review the matter and provide him with justice as he has been denied justice.

1. At the Hearing I raised the 'Final orders sought by the applicant/s' in the Application. I confirmed with the Applicant that he sought that the matter be remitted to the Tribunal. For clarity the Application includes as a final order sought a writ of mandamus directed to the Tribunal requiring them to determine the Application according to law.
2. I further explained to the First Applicant that my task is confined to determining whether a jurisdictional error has occurred and I cannot grant interlocutory orders adding his child to these proceedings. The First Applicant said he understood and that was okay.
3. I informed the Applicant that I did not have the power to grant a visa nor could I deal with the merits of his case. I asked the First Applicant to explain what he said the serious mistake or big error was that the Tribunal had made and if he could show me the paragraphs in the Tribunal's Decision where that mistake or error occurred.

1. I now turn to the Applicants' Grounds of Review

1. The Minister described these grounds as narrative. The First Applicant agreed that these grounds are narrative and consequently they were not pressed.
2. The Minister made global submissions in writing which were relied upon regarding the remaining Grounds, 4, 5, 6, and 7 that they were not particularised and that the Tribunal's Decision was free from jurisdictional error as:

(a) The First Applicant was on notice that the dispositive issue before the Tribunal was whether he met the GTE Criterion.

(b) The Tribunal correctly acknowledged the various factors that it was required to consider as set out in Direction No. 69 not as a checklist but as a guide when considering the First Applicant's circumstances as a whole.

(c) Procedural fairness had been accorded to the Applicants. They were invited to appear, give evidence, make submissions and accepted the invitation including providing additional documents and appearing with a representative.

(d) The Tribunal identified and took into account the Applicants' evidence.

(e) The Tribunal gave comprehensive consideration to the material before it regarding whether the First Applicant intended to genuinely stay in Australia temporarily and was not satisfied on the evidence before it that the First Applicant was a genuine temporary entrant.

(f) The finding that the First Applicant was not a genuine temporary entrant was open to it and the weight attributed to each factor was a matter for the Tribunal.

(g) There was nothing in the Tribunal's Decision that was illogical or unreasonable.

1. The First Applicant pressed Grounds 4, 5, 6 and 7 and made oral submissions with respect to each of them.

1. The First Applicant submitted that he had recently completed an advance diploma and that when he came from India he had a planned course of study that would lead to a bachelor degree. He said that the recently completed advanced diploma was part of that course of study. The First Applicant submitted that when his mother became sick he discontinued his studies. It was further submitted by the First Applicant that he provided documentary evidence to the Tribunal but it found that he was not performing his studies.
2. The Minister submitted that the evidence post decision, that is, the completion of the advance diploma by the First Applicant, was not admissible and irrelevant. I accept that submission. The Minister further submitted that paragraph [17] of the Tribunal's Decision evidences a consideration of the matters referred to by the First Applicant in his submissions. It was submitted that there was no jurisdiction error with respect to this ground.
3. I agree with the Minister's submission that the Applicants are unable to establish a jurisdictional error with respect to this ground. It was observed by the Tribunal in paragraph [17] of its decision that at the time of the hearing that the First Applicant had completed two vocational education training courses since his arrival in the country in 2013 and that the combined length of successful study completed by the First Applicant was 26 months. The Tribunal opined that there was some explanation for the interruption to the First Applicant's study plans. This included the First Applicant's mother falling sick in 2016 resulting in the First Applicant returning to India on three (3) or four (4) occasions as well as not being enrolled for five (5) months as his certificate of enrolment was cancelled because of the Delegate's Decision and it then then took him over four (4) months to re-enrol in a course. The Tribunal found that the First Applicant's academic achievements at a VET level were not commensurate with the time he had spent in Australia as a student. The Tribunal considered that matters referred to in the Applicant's submissions and its findings were open to it.
4. Ground 4 of the Application must be dismissed.

1. It was the First Applicant's submission that he now holds an advance diploma and his evidence was that he was a genuine student who wanted to complete his studies. The Minister submitted that evidence post the Tribunal's Decision was inadmissible. As already noted, I accept this submission. Evidence of the completed Advanced Diploma was not before the Tribunal. Further a merits review of the Applicants' claim is impermissible.
2. The Applicants have not identified a jurisdictional error. Gound 5 of the Application must be dismissed.

1. The Applicant did not further advance this ground beyond making a submission that he held a "500 Visa". The Minister submitted that the First Applicant was unable to identify why the Tribunal wrongly decided the Applicants' matter.
2. I accept the Minister's global submission as it pertains to Ground 6. The Applicants were unable to particularise this ground either in writing or orally. Further the Tribunal correctly acknowledged the various factors that it was required to consider as set out in Direction No. 69, not as a checklist but as a guide when considering the First Applicant's circumstances as a whole. The Tribunal gave comprehensive consideration to the material before it regarding whether the First Applicant intended to genuinely stay in Australia temporarily. It was not satisfied on the evidence before it that the First Applicant was a genuine temporary entrant. The finding that the First Applicant was not a genuine temporary entrant was open to it. The weight attributed to each factor was a matter for the Tribunal.
3. The Applicants have been unable to establish a jurisdictional error with respect to Ground 6. Ground 6 must be dismissed.

1. It was the First Applicant's submission that the Tribunal did not consider that he had completed courses. The Minister submitted that the Tribunal did indeed consider the courses completed by the First Applicant and that it had also considered the cumulative nature of the study proposed by the First Applicant in paragraph [23] of its decision.
2. Paragraph [15] of the Tribunal's Decision expressly considered the course of study that had been undertaken by the First Applicant at the time of the hearing. The Tribunal at paragraph [16] considered the First Applicant's proposed course of study in Australia and the timeframe it would take to complete such studies. The Tribunal found that the extensive proposed stay by the First Applicant was difficult to reconcile with a claim that the First Applicant was a genuine temporary resident in Australia. Such a finding was open to the Tribunal on the material before it.
3. Further at paragraph [23] of its decision the Tribunal considered the evidence of the First Applicant that he would receive exemptions in a degree course in Australia because of his prior learning whereas he would have to "start from scratch" if he were to undertake a degree course in India. The Tribunal also considered the submission of the Applicants' representative that unless the First Applicant completes a Bachelor's degree in Australia any completed diplomas or advanced diplomas will not assist in the Applicant obtaining work in India. The Tribunal observed that there was no corroborative evidence to support the Applicants' claims or submission and that in these circumstances the Tribunal determined that it could not meaningfully weigh this factor.
4. The Applicants have been unable to establish a jurisdictional error with respect to Ground 7. Ground 7 must be dismissed.

1. I asked the First Applicant whether he advanced any additional grounds of jurisdictional error at the Hearing. The First Applicant submitted again that he was a genuine student and relied upon paragraph [7] and [8] of his Affidavit and that he provided the documents at Court Book 31 to 53 to the Tribunal. The Minister submitted that the Tribunal considered those documents at paragraphs [11] and [12] of the Tribunal's Decision.
2. The Applicants provided documents to both the Department and the Tribunal. The Tribunal listed the documents provided at paragraphs [11] and [12] of its Decision and noted that these documents including the documents provided to the Department had been read and considered by it.
3. The Applicants have been unable to establish a jurisdictional error with respect to this additional ground. The additional ground must be dismissed.

1. The Applicants have not established jurisdictional error. The Application must be dismissed.
2. The Minister sought costs fixed in the amount of $5,500.00. This is less than the amount in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicants are to pay the Minister's costs in the sum of $5,500.00.
3. The Minister sought administrative orders changing the names of the First and Second Respondents.
4. Orders will be made accordingly.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.