Mohammed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1988

FedCFamC2G|2025-12-03

The applicant has not established that the Tribunal's decision is affected by jurisdictional error.
As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
The application is dismissed.

The first respondent seeks costs fixed in the sum of $6,500. I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025

The issue before this Court is whether the Tribunal's decision contained a jurisdictional error; that is, a serious legal error that results in an administrative decision lacking any legal force: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (LPDT).
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32] and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.
The Court does not consider the merits of the decision; nor does it remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
Below the Court sets out its consideration of the grounds of judicial review in this matter. For the reasons given below, neither of the grounds identify the Tribunal committed jurisdictional error.

Ground 1 contains a statement of fact that the applicant's wife and daughter are in India. At the hearing the applicant re-iterated this statement and told the Court it was evidence of an incentive to return to India.
Despite what the applicant said about this ground, it does no more than seek to challenge the merits of the Tribunal decision that the applicant was not a genuine temporary entrant. Merits review, as I told the applicant, is not permissible in this Court on judicial review applications under the Act.
The Court has no jurisdiction to engage in merits review, and the Tribunal's fact-finding is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at [272] and [281]-[282] per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, mere disagreement with the Tribunal Decision does not amount to jurisdictional error as they are no more than a request for impermissible merits review Re Minister for Immigration & Multicultural Affairs; ex parte s20/2002 [2003] HCA 30.
For these reasons I dismiss Ground 1.

This ground is a challenge to the findings in paragraph [62] regarding the extent of the applicant's personal ties to his home country (for example family community and employment) and whether those circumstances would serve as a significant incentive to return to the applicant's home country (namely the factor in cl 9(b) of Direction 69); and a challenge to the findings in paragraph [64] regarding whether the applicant was seeking to undertake a course that was consistent with his current level of education and whether the course would assist the applicant to obtain employment or improve employment prospects in his home country (namely the factor in cl 12(a) of Direction 69).
Both those paragraphs contained the Tribunal's evaluation of the applicant's evidence assessed against the two factors identified by the Tribunal as relevant to the applicant's claims, namely clauses 9(b) and 12(a) of Direction 69. The Tribunal is entitled to make its own evaluative judgment of these factors based on the evidence.
At paragraph [9] of its decision, the Tribunal stated that in considering whether the applicant satisfied cl 500.212(a) it had regard to Direction 69, then set out and considered the factors it determined where relevant to the applicant's case. It correctly observed at paragraph [10] that the Direction indicated that the factors specified should not be used as a checklist, but rather, were 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: see Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 (Kaur) at [13]-[15] per Middleton J.
To the extent the applicant is challenging the factual findings in those paragraphs, such a challenge is impermissible: see Djokovic.
In undertaking its task applying Direction 69, in my view, no jurisdictional error was committed. It complied with what Middelton J in Kaur specified about the proper approach to Direction 69. The factors considered were relevant to the claims made. Further, I can see no basis for any allegation that the Tribunal findings in these paragraphs were illogical or unreasonable, as discussed in Djokovic at [29]-[35], amongst other cases. In my view the Tribunal's findings in in paragraph [62] and [64] were not sufficiently lacking in rational foundation that they could not be said to be within the range of possible lawful outcomes.

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