Nayeem v Minister for Immigration and Citizenship [2025] FedCFamC2G 1525

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 I am obliged to dismiss the application before the Court.

1. The applicant applied for the student visa that is the subject of this review on 5 September 2019. On 10 December 2019, the Delegate refused to grant the applicant's student visa application.
2. On 20 December 2019, the applicant applied to the Tribunal for review of the Delegate's decision. On 16 August 2021, the applicant attended a hearing before the Tribunal.
3. On 23 September 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 the background to the matter, the criterion in issue and evidence before it (including evidence given at hearing) at [1]-[40] of its decision.
2. The Tribunal gave the following reasons for affirming the Delegate's decision at [41]-[56]:
   1. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant's circumstances as a whole in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
   2. 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 direct family ties to his home country which act as an incentive to return. The Tribunal 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 actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
   3. The Tribunal has considered the applicant's potential circumstances in Australia. The applicant first arrived in Australia on 11 July 2016 as a holder of student visa. He was subsequently granted another student visa after the expiry of the first. The proposed study would extend the applicant's stay until at least September 2022. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal's view this is not the conduct of a genuine temporary student. On balance, it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.
   4. The Tribunal does not place substantial weight on the value of the course to the applicant's future, including remuneration and career prospects in the applicant's home country. There are several reasons for this. First, the applicant gave evidence of extremely vague career plans. Second, he has only recently expressed an interest in project management despite undertaking several different courses previously.
   5. The Tribunal has considered the applicant's study history since arrival and notes that he has enrolled in but not successfully completed two higher education courses, with periods of significant study gaps, and has completed one vocational course in business during his more than five years in Australia. He has only recently decided to enrol in a project management course after a long period of not studying. The recent interest in the project management course seems to coincide with the notification of hearing of the applicant's application for review.
   6. The Tribunal observes that the current course is inconsistent with the applicant's qualifications obtained in India, and is inconsistent with his plans when he entered Australia.
   7. The applicant relies on an undated statement in which he addresses the various genuine temporary entry criterion. As discussed above, it has been taken into account and given appropriate weight.
   8. On balance, the Tribunal is not satisfied that the applicant has established that his study will provide him with significant benefits in his proposed career plan, considering the cost of the study. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.
   9. The Tribunal has considered the applicant's economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country, which diminishes his incentive to return to India.
   10. 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 his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
   11. The Tribunal does give weight to the evidence that since the applicant's arrival in Australia on 11 July 2016 the applicant has spent more than five years in Australia and returned to his home country on one occasion for 40 days, he has no assets in India, he has no employment history in India, his brother resides in Australia, if allowed he intends to reside in Australia until at least September 2022 and he has stable employment in Australia, all of which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant's incentive to return to India to be minimal.
   12. 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 to student visa specifically to enable him to achieve that goal. On balance, it 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.
   13. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant's circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
   14. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is 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.
   15. 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.
   16. 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).
3. Based upon the above, the Tribunal found that the applicant was unable to meet the criteria for the grant of the student visa. Accordingly, the Tribunal affirmed the Delegate's decision (at [57]-[58]).

1. The applicant sought judicial review of the Tribunal's decision through an application filed on 26 October 2021. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing. The following grounds of review were stated in the application:
   1. The Tribunal placed weight on my studies without taking into consideration the compelling circumstances and the fact that since I came to Australia I worked hard towards my study. I had reasons to abandon the Masters of Management for Engineers and I was excluded from the Masters of Professional Accounting course.
   2. The Tribunal's conclusion that I have no genuine intention to return to India is not based on probative evidence and the Tribunal failed to accept my economic circumstances in my home country as well as my ties to India and the purpose of studying. The Tribunal had evidence about my work in Australia which is minimum income which should not lead to support the tribunal's finding that I have no genuine intention to return back home.
   3. I provided confirmation of enrolment and contrary to the finding of the Tribunal I am not using the student visa program as a means of maintaining ongoing residence in Australia.
   4. The decision of the Tribunal is not reasonable.

1. Ground 1 contended that the Tribunal placed weight upon the applicant's studies without taking into consideration his "compelling circumstances" and work towards his study. The ground suggested that the applicant had reasons for abandoning his Master of Management for Engineers course and that he was excluded from the Master of Professional Accounting course. Ground 4 contended that the Tribunal's decision was unreasonable.
2. The Tribunal appears to have considered the applicant's evidence regarding his study history in some detail in its decision, including the challenges he claimed to have faced in relation to his studies. In relation to the applicant's non-completion of a Master of Management for Engineers, the Tribunal considered his explanation that he had difficulties with the Masters level and with understanding the course (at [28]).The Tribunal considered at [19], [30], [34] and [38] the applicant's evidence that he had completed 12 out of 16 subjects of his Master of Professional Accounting course, but that his Confirmation of Enrolment had been cancelled due to late enrolment. The Tribunal also considered the applicant's explanations for subsequent gaps in his studies, including that education providers would not offer him a place and that his mother had contracted COVID-19. The Tribunal was unwilling to place weight upon these "assertions", in the absence of corroborative evidence.
3. Ultimately, the Tribunal considered that the applicant had not adequately explained why he changed the direction and level of his studies, why he abandoned his Master of Management for Engineers course, why he was excluded from his Master of Professional Accounting course, why he did not reapply, why he had significant gaps in his studies and why he had only returned to India once since 2016 (at [40]). Considered together with the Tribunal's lack of satisfaction regarding the value of the course to the applicant's future, length of stay in Australia and the other issues it had identified in his evidence, the Tribunal concluded that it was not satisfied that the applicant met the genuine temporary entrant criterion (at [41]-[56]).
4. It has not been demonstrated that the Tribunal's reasoning regarding the applicant's studies was relevantly closed to the Tribunal. The Tribunal was not obliged to accept the applicant's account, in the absence of corroborative evidence, particularly in circumstances where it had found significant parts of his evidence to be vague or otherwise problematic (at [35]-[51]). It was open to the Tribunal to weigh its concerns regarding the length of the applicant's stay in Australia, together with its concerns regarding the applicant's study history, the value of the course and his circumstances in India and Australia before finding that it was not persuaded, on balance, that the applicant genuinely intended to remain in Australia temporarily.
5. It has not been demonstrated that this reasoning was illogical, irrational, lacking in "an evident and intelligible justification", or plainly unjust, arbitrary, capricious or lacking in common-sense: see for example Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [10] per Kiefel CJ and [82] per Nettle and Gordon JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour then was) and Bell J; and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] per Allsop CJ. Mere disagreement, even when understandably or emphatically felt, is not sufficient to demonstrate legal unreasonableness.
6. Having regard to the above, I have not been persuaded that relevant error has been demonstrated under ground 1 or, to the extent that it is relevant to ground 1, ground 4.

1. Ground 2 contended that the Tribunal's conclusion that the applicant had "no genuine intention to return to India" was not based upon probative evidence. However, the Tribunal's non-acceptance that the applicant met the genuine temporary entrant criterion was based upon the concerns that it identified in the evidence before it. Those concerns are set out above. They included reference to the length of the applicant's stay in Australia, issues with his study history (including gaps and non-completion of courses), as well as limitations in the evidence regarding the value of the course to his future and consideration of the applicant's circumstances in Australia and India. The Tribunal was not required to possess other, rebutting, evidence in order not to accept the applicant's claims: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at [7] (Heerey J).
2. Ground 2 also contended that the Tribunal "failed to accept" the applicant's economic circumstances in his home country, as well as his ties to India and the purpose of his studying. I have considered this in relation to ground 4, which contended that the Tribunal's decision was unreasonable.
3. In relation to the applicant's economic circumstances, the Tribunal considered the applicant's statement that he "owned" assets in India comprising a "house and land" (at CB 96 [22]). However, this appears to have been clarified by the applicant in other parts of his completed information form, where the applicant stated that his parents had a house and land that he would "inherit in future" (at CB 96). At the hearing before the Tribunal, the applicant appears to have given evidence that he did not have any assets in India "in his name" (at CB 134 [31]). I accept the Minister's submission that this evidence provided a logical and rational basis for the Tribunal's finding (at [38]) that the applicant had no assets in India. I also accept the Minister's submission that the Tribunal's finding (at [38]) that the applicant had "no employment ties to India" was open, given the applicant's evidence that he did not work anywhere before arriving in Australia (at CB 118).
4. The Tribunal otherwise considered the applicant's ties to India at [42]. Although the Tribunal accepted that the applicant had provided evidence of family ties, the Tribunal was not satisfied that they provided significant incentive for return having regard to the time the applicant had spent in Australia and his intended period of future stay. It has not been demonstrated that this reasoning was closed to the Tribunal. The applicant's willingness to be separated from those ties geographically for significant periods of time was, at least potentially, logically probative of their influence over his intentions towards return.
5. In relation to the applicant's work in Australia, the Tribunal considered at [51] that the applicant had "stable employment in Australia". This finding was open based upon the applicant's evidence (at CB 95), in 2021, that he had been employed in a customer service role with Ampol Petrol since October 2017. Although the applicant submitted that the role derived "minimum income", it has not been demonstrated that it was closed to the Tribunal to have regarded the employment as "stable" or to have regarded it as a tie to Australia. Nor has it been demonstrated that it was closed to the Tribunal to have considered (at [49]) that there was a "disparity in economic circumstances between India and Australia" that may bear upon the applicant's incentive to return.
6. Having regard to the above, I am not persuaded that ground 2 provides a basis for setting aside the Tribunal's decision.

1. Ground 3 referred to the Confirmation of Enrolment that had been provided by the applicant to the Tribunal. At [37] of its decision, the Tribunal observed that the applicant had enrolled in a Diploma of Project Management shortly before his hearing before the Tribunal. It is therefore apparent that the Tribunal considered this evidence. The Tribunal was concerned, however, by the timing and lack of evidence as to why the applicant had enrolled in this course.
2. The Tribunal made no finding that the applicant was unable to meet cl 500.211 of Schedule 2 to the Regulations, which required the applicant to have been enrolled. Rather, for the reasons summarised above, the Tribunal was not persuaded that the applicant met the genuine temporary entrant criterion in cl 500.212. The latter criterion was not able to be met by the fact of enrolment alone. Rather, it required the Tribunal to be satisfied that the applicant intended genuinely to stay in Australia temporarily.
3. Ground 3, as well as the balance of the matters raised in the applicant's written submissions, appeared directed towards disagreeing with the Tribunal's decision and seeking to persuade the Court that an alternative conclusion ought to be reached. However, as was explained at the hearing of this matter, this Court has no power to set aside the Tribunal's decision based upon disagreement alone. The role of this Court is limited to assessing whether or not the Tribunal's decision was relevantly affected by some kind of legally relevant error. What may be legally relevant was discussed with the applicant, within the context of the grounds that he had raised. For the reasons given above, I am not persuaded that the Tribunal's decision was relevantly affected by such an error.

1. 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-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.