Mohammed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1973

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (as it was) (Tribunal). 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 the Tribunal's decision was affected by jurisdictional error. Writs will therefore issue, quashing the decision and requiring that the matter be redetermined according to law.

1. The applicant applied for the student visa in question on 20 September 2019.
2. On 19 November 2019, the Delegate refused to grant the applicant's student visa application.
3. On 6 December 2019, the applicant applied for review of the Delegate's decision by the Tribunal. The applicant attended a hearing before the Tribunal on 10 September 2021.
4. On 25 November 2021, 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 considered that the applicant's proposed course of study would only marginally improve his employment prospects and remuneration, having regard to the qualifications that he had already obtained (at [25]). The Tribunal was not persuaded that the applicant had a reasonable motive for undertaking the studies in Australia (at [26]).
2. The Tribunal accepted that the proposed and previous courses in their totality would allow the applicant to obtain employment in a banking services management role (at [27]). The Tribunal accepted that the applicant had a substantial degree of knowledge about his proposed course and education provider (at [29]).
3. However, the Tribunal found that the applicant's proposed course was inconsistent with the level of education that he had already obtained (at [28]). The Tribunal considered that the level of wages and economic conditions in Australia provided a substantial economic incentive for the applicant remaining (at [30]-[33]).
4. The Tribunal made no adverse findings against the applicant regarding the extent of his visits home, considering travel restrictions associated with the COVID-19 pandemic (at [34]). The Tribunal further reasoned regarding the applicant's incentive to remain in Australia, rather than returning to his home country, at [35]-[40] of its decision, as follows:
   1. The applicant gave evidence that he owns the family home back in India which is worth approximately A$200,000 and he claims it is in his name notwithstanding no financial documents were provided to support such evidence. If he owns the family house it would provide a substantive incentive to return home, however, that incentive is reduced as a consequence of the high levels of income he can earn in Australia compared to India.
   2. The applicant both in evidence and in the Response did not have any concerns returning home to India and he had no concerns about military service commitments or political and civil unrest in his home country.
   3. The Tribunal finds that based on the applicant's evidence and circumstances in his home country including his assets, education and support from his family, that relative to others in that country he is in a good position and it would not provide a significant incentive for him not to return home.
   4. The Tribunal accepts the applicant's evidence that he is not in a relationship at this time and accordingly he is not in a relationship of concern.
   5. The applicant gave evidence that his parents, brother and sister all reside in India and that would ordinarily provide him with an incentive to return home. However, he has not seen them since 2019 when he returned home but claims he remains in contact with them daily by telephone. However, his ties to India must be considered in the context that he has been in Australia for the last 3 years and 9 months and intends staying here for at least a further 15 months to complete his qualifications. Further his circumstances in Australia reveal that he has been working in various roles earning a high level of income with the consequences that the Tribunal finds that his ties home would not provide a significant incentive to return home to India.
   6. The applicant has substantial ties to Australia. He has friends with whom he has formed ties and relationships with since coming to Australia together with working in high paid roles and being in stable living arrangements with friends. The Tribunal considers that the applicant's circumstances demonstrate strong ties to Australia and the fact that he wishes to remain here for at least a further 15 months and that he has stayed here for a period demonstrate that he has strong ties to Australia which provide him with a substantial incentive to remain here rather than to return home.
5. The Tribunal accepted that there was nothing in the material before it indicating that the applicant had experienced any other visa refusals or any immigration issues inside or outside of Australia (at [41]).
6. At [42], the Tribunal considered that the primary objective of the applicant's visa application was for him to maintain ongoing residence in Australia and to remain in Australia permanently. As such, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily and found that he did not meet cl 500.212 of Schedule 2 to the Regulations (at [43]-[44]). Accordingly, the Tribunal affirmed the Delegate's decision (at [46]).

1. The applicant sought judicial review of the Tribunal's decision through an application filed on 16 December 2021. The matter remained in the central migration docket for some time before being allocated to my docket more recently and listed for hearing. The following grounds of review were stated in the application:
   1. Denial of Natural Justice- Failed to consider my evidence of course completion.

I have completed my course in Diploma Leadership from Sandhurst Institute in March 2021. Evidence of this qualification has been provided. The AAT Member acknowledged the qualification but did not consider the genuine reason for completing this course.

Clause 500.212 requires as follows:

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) (ii) the applicant 's immigration history; and

(iii) (iii) if the applicant is a minor- the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) (iv) any other relevant matter; and

(v) (b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(vi) (i) the applicant 's record of compliance with any condition of a visa previously held by the applicant (if any); and

(vii) (ii) the applicant 's stated intention to comply with any conditions to which the visa may be subject; and

(viii) (c) of any other relevant matter

I am concerned about the lack of consideration from Member about my genuine intention to study. As an applicant I came to Australia on a student visa, Till date I have not applied for any permanent visa or work sponsorship. My intention is to study, I have completed my recent study in March 2021. The Diploma course that I have completed gives the evidence of me being a genuine student. The GTE Criteria mentioned above does not state that I cannot study a Lower level education course. As per the paragraph above My circumstances can change like every body else, my reason to study can change as its been a nearly 2 years since I lodged the visa. The career advise that I get from my family can change depending on the career trends and qualifications. I was only focussing on building my leadership qualifications which I have achieved from my qualification. I have not been in Australia for more than 3 years, Did not breach any visa conditions. Consideration from AAT should have been given to the qualification that I have completed and my Future Coe that I have enrolled in and studying. As per the transcript from the Hearing, the AAT Member did not give me the chance to provide me the explanation as he was only asking me to Answer in YES or NO questions, most of them are closed questions leading to the CONCLUSION that he wanted to achieve.

1. Judicial Error: The Member has not given me the opportunity to explain my self, as was only funnelling down my answers to the conclusion he was expecting. Had I not been a genuine student

Why did I complete my recent Diploma leadership qualification?

I have enrolled Into my course- provided my COE and my genuine intention statement to complete my courses- The statement has not been considered?

The member as mentioned in the paragraph 21 of the Decision record acknowledged the reason behind selecting the Banking services course but did not consider my GTE statement or the Course outcome as mentioned in the IBMA Advance Diploma of Banking services Management. In my GTE statement, which is attached here, I have mentioned the skills that a Business Development Manager requires and the skills that I currently have, also mentioned the need to complete this course to be able to achieve that knowledge in Business Development. I have mentioned in my GTE statement - attached that

"I need to have the Strong Analytical skills, financial Product development and growth strategies along with sales and teamwork and Management skills. I also need to be able to develop workplace policies to develop the work around the teams and organization. I have learnt the skills relating to Team Management and Leadership from my Leadership course, but I do not have the Financial, product and growth knowledge or skills or business development skills which is what is needed to be able to succeed into a Business development Manager role.

From my Leadership course I have gained knowledge on Managing and influencing my teams, learnt how to apply the Planning needed to succeed while improving the team performances but this itself is not enough as there is still, I need to learn as show in the diagram above, especially the financial management, workplace development policies and strategies, lead and management organization and build relationships to succeed"

"Especially if I want to succeed into future Banking and Financial services Industry, A Relevant Management course in Banking services is essential as it will help me into Multiple pathways, also lead me to my career plan of becoming Business Development Manager''

If I were to find my career into a Banking service Industry leading to a Business Development Manager role, why is that this Advance Diploma of Banking services Management is not needed to succeed?

A Management positions needs a qualification in Management- MBA?

A Information technology position needs a qualification in IT-Computers?

Why not a Business Banking qualification for a Banking services role?

I do not have a Banking services qualification, The only close qualification that I have is the Leadership diploma qualification which will only give me the Management skills but not the skills needed to be able to develop the Business. Why has the AAT Member not considered this? AAT member mentioned this in paragraph 25 of the decision record having regard to my Bachelor and master's degree in IT and Leadership Diploma but he did not consider that they are only technical degrees in IT, and Management qualification which will not be considered to succeed in to a business Development Manager role in Banking as the Employers require a Relevant qualification which will give the skills to become a Business Development Manager.

Overall AAT member made the following errors while making his decision.

Page 4 of 7 in Direction 69 -

Part 2 of Direction No. 69 - Directions

"Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

1. considering the applicant against all factors specified in this Direction; and

2. considering any other relevant information provided by the applicant (or information otherwise available to the decision maker)."

The applicant's circumstances 6. Decision makers should have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia. -

AAT Member did not consider that I am being married to Minhaj- mentioned in my GTE statement, which gives me the strong Incentive to return back to India as she lives in Hyderabad, My entire family lives in Hyderabad.

He did not consider my Recent qualification and all the points mentioned in my GTE statement.

Value of the course to the applicant's future

The course is of absolute value to me as Any Business Banking business Development Manager needs a relevant qualification in Business and Banking services Management course leading to Business Development Manager skills. Why has the AAT Member not consider this relevancy to my career goal?

1. I have not been persuaded that most of the grounds raised by the applicant ought to succeed. This is, essentially, for the reasons given by the Minster through detailed submissions that have been provided. The Minister is to be commended for the careful approach taken in submissions to identifying and responding to each of the numerous grounds that have been raised by the applicant that are identifiable from the above.
2. It is unnecessary to elaborate beyond this in relation to why many of the grounds raised by the applicant have not been accepted. This is because, for the reasons that follow, I accept that the applicant has demonstrated jurisdictional error in relation to one ground that he has raised. For the reasons that follow, I accept the applicant's contention that the Tribunal did not consider his evidence or claims in relation to a woman named Minhaj.
3. The applicant raised Minhaj in a statement located at page 109 of the Court Book (CB) that was said to be the applicant's "GTE" (or genuine temporary entrant) statement. In that statement, the applicant expressed:

... My situation during Covid 19, changed rapidly, recently my parents informed me in April 2021 that I am going to be Engaged in August 2021 with my long-time school Friend, Minhaj and hopefully get married next year when I visit India. This decision to get Married was made by my parents and Minhaj Parents and ever since we decided this, my parents and my self are planning for my Future as future wife and we have been thinking about my future plans...

1. In a further statement at CB 118, the applicant stated:

... All my family is in India, I am getting engaged soon, married next year, looking forward to visiting them next year once Covid is finished. My Parents, brother, sister is all in India. We are a small family compared to other Muslim families, have love and respect for each other, We enjoy helping each other out, especially between my Brother and my sister, they are looking forward to helping me settle down with Minhaj for my future in Hyderabad as a Joint family as we believe in Joint families.

I am living in NSW, do not have any friends here In Australia, looking forward to settling down with Minhaj soon.

1. The applicant therefore raised his intended marriage to Minhaj as a significant tie to his home country, incentivising his return home, which bore upon the question of whether he met the genuine temporary entrant criterion.
2. At the hearing before the Tribunal, the applicant relatedly gave evidence that he had "to go back, get married, settle down": page 12 of the transcript that is in evidence (Transcript). The applicant subsequently stated (page 15 of the Transcript):

... Well that said I wanted to say like I really don't intend to like prolong my stay over here, only plan I had was to complete this and look a future over there and as of now I'm planning my marriage over there so I will definitely leave for my marriage and all and I really don't have any assets over here, I have properties over there so I won't risk them.

1. The Minister accepted that the applicant's evidence regarding his intended marriage was not referenced, at least directly, in the Tribunal's decision. However, the Minister submitted that the Tribunal's reasoning was consistent with the applicant's evidence in this regard. The Minister observed that, at [38] of its decision, the Tribunal stated:
   1. The Tribunal accepts the applicant's evidence that he is not in a relationship at this time and accordingly he is not in a relationship of concern.
2. The Minister submitted that at the time of the Tribunal decision, the Tribunal had not been informed of "an actual relationship - marital or engagement, anything along those lines".
3. I am unable to accept the Minister's submission. If anything, [38] supports a finding that the situation regarding Minhaj was not considered by the Tribunal. As set out above, the applicant's consistent evidence was that his relationship with Minhaj (as his "long-time school friend" and intended wife) was an incentive for him to return to India. I am not persuaded by the Minister's suggestion that this would not have been regarded as "an actual relationship" simply because it had not yet been formalised. In any event, I was not taken to anywhere in the Transcript or otherwise where the applicant gave the asserted evidence that he was "not in a relationship".
4. The Minister suggested that it was significant that the applicant, when asked about his "family" at the hearing before the Tribunal, did not elaborate on the present status of any relationship with Minhaj (page 14 of the Transcript). However, I am not persuaded that a person would necessarily define the relationship described with Minhaj as "family", in circumstances where it was not claimed that the intended marriage had yet taken place. In any event, as set out above, the applicant clearly repeated his claims regarding his relationship with Minhaj at pages 12 and 15 of the Transcript.
5. I therefore accept the applicant's contention that the Tribunal did not consider his claims or evidence regarding his relationship with Minhaj representing an incentive for his return to India. What the applicant put forward in this regard was of central relevance to the question that the Tribunal had to decide. It is apparent that the applicant's ties to India and incentives for return were of significance within the context of the Tribunal's decision. The Tribunal relied upon a finding that the applicant's ties home would not provide a significant incentive for return to his home country. If the Tribunal had considered the applicant's claimed ties regarding Minhaj, then its decision may have been different.
6. Having regard to the above, I find that the Tribunal fell into the species of error considered in cases such as Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (Robertson J). Jurisdictional error has been demonstrated on this basis.

1. For the above reasons, the application before the Court succeeds.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.