Safdar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 448

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 22 December 2023, the Applicant filed an Application for Judicial Review of a decision of the Administrative Appeals Tribunal ('the Tribunal'), as it then was, made on 1 December 2023.
2. By that decision the Tribunal affirmed the decision of a delegate of the Minister for Home Affairs ('the Delegate'), as the Minister was then called, to refuse to grant the Applicant a Student (Temporary) (Class TU) (subclass 500) visa under s 65 of the Migration Act 1958 (Cth) ('the Act').

1. The Applicant is a citizen of Pakistan. He arrived in Australia in October 2010 on a Student (Temporary) (Class TU) (subclass 500) visa.
2. The Applicant has previously held Student visas and a Temporary Graduate (subclass 485) visa in April 2016, which was granted for 18 months.
3. On 16 July 2020, the Applicant applied for the visa, which is the subject of this judicial review application, being a Student (Temporary) (Class TU) (subclass 500) visa ('the visa') to undertake a Diploma of Human Resources Management and Advanced Diploma of Management (Human Resources).
4. On 27 January 2022, the Delegate refused to grant the Applicant the visa on the basis that the delegate was not satisfied the Applicant met the genuine temporary entrant criterion in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) ('the Regulations').
5. On 15 February 2022, the Applicant filed an application for review of the decision of the Delegate in the Tribunal.
6. The hearing in the Tribunal took place on 1 August 2023 by telephone.
7. The hearing was adjourned until 16 August 2023 in order to give the Applicant further time to comment or respond to information raised by the Tribunal at the hearing.
8. On 16 August 2023, the Applicant appeared before the Tribunal again by telephone and provided further evidence and submissions.
9. The Applicant had a representative with him for both days of the hearing.
10. At the conclusion of the hearing, the Applicant was given a further fourteen days to provide any further evidence or submissions.
11. The Applicant provided further evidence and submissions on 25 August 2023.
12. On 1 December 2023, the Tribunal affirmed the Delegate's decision.
13. On 4 December 2023, the Tribunal notified the Applicant of its decision.

1. The Tribunal identified that the issue on review was whether the Applicant met the requirements of cl 500.212 of Schedule 2 of the Regulations, which required that the Applicant is a genuine temporary applicant for entry and stay in Australia as a student.
2. Clause 500.212 is 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) 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. The Tribunal correctly stated that in considering whether the Applicant satisfies the genuine temporary entrant criterion in cl 500.212, it is to have regard to Direction Number 69 under s 499 of the Act ('Direction No. 69').
2. Direction No. 69 applies to delegates of the Minister and members of the Tribunal who review decisions in relation to a Student visa or Student Guardian visa application. Thus, the Tribunal was required to consider a number of factors including the Applicant's circumstances in their home country, circumstances in Australia, the value of the course to the Applicant's future, the Applicant's immigration history, and any other relevant matter.
3. The factors are not a checklist but rather a guide to decision-makers in considering the Applicant's circumstances as a whole and reaching a finding as to whether the Applicant satisfies the genuine temporary entrant criterion.
4. The Tribunal listed at [9] to [15] of its decision at Court Book ('CB') 231-233 the documents it took into account in reaching its decision. This included the application form, a copy of the Delegate's reasons for decision and notification of the decision from the Department, the Applicant's Pakistani passport and national identity card and Confirmations of Enrolment ('CoE') issued by Canberra Business and Technology College for the Diploma of Human Resources Management starting on 21 July 2020 and ending on 19 July 2021 and the Advanced Diploma of Management (Human Resources) starting on 10 August 2021 and ending on 8 August 2022.
5. The Tribunal also took into account the following information provided by the Applicant on 31 May 2023 following a s 359(2) request for information:

(a) Submission from the Applicant's agent, dated 31 May 2023;

(b) Letters of completion for the Certificate IV in Business Administration starting on 1 October 2010 and ending on 13 March 2011 and the Diploma of Management starting on 6 May 2011 and ending on 30 November 2011, issued by Excel International Academy, together with statements of attainment and confirmation of completion of these courses, dated 16 October 2011;

(c) Award of the Diploma of Information Technology (Networking) issued by the Gurkhas Institute of Technology on 9 December 2012, together with certificate of congratulations and statement of results;

(d) Evidence of completion of CCNP Route: Implementing IP Routing, issued by the CISCO Networking Academy and Box Hill Institute, dated 19 May 2014;

(e) Award of the Master of Information Technology (Cloud Computing/Network Security) issued by Charles Sturt University, starting on 13 November 2017 and ending on 12 November 2021, together with academic transcript and letter of completion;

(f) Letter of appreciation and letter of employment from New Delta TeleCommunications ('New Delta'), dated 30 September 2019;

(g) Letter of employment from ZAP IT Solutions;

(h) Marriage certificate;

(i) Certificate of completion of Cloud Infrastructure and Services issued by the EMC Academic Alliance and Box Hill Institute;

(j) Letter of completion for the Bachelor of Computer Systems starting on14 February 2014 and ending on 20 November 2015, issued by Box Hill Institute, together with statements of results and transcript;

(k) Completion letter for the Advanced Diploma of Business from 21 July 2020 to 19 July 2021, issued by Canberra Business & Technology College, dated 19 July 2021;

(l) Award of the Diploma of Human Resources Management on 19 July 2021, by the Canberra Institute of Education and Technology ('CIET'), together with record of results;

(m) CoE for the Advanced Diploma of Information Technology starting on 21 February 2023 and ending on 20 August 2024; and

(n) Sale Deed for land in Pakistan, together with an English translation and a land valuation report.

1. The Tribunal had regard to the following further documents provided by the Applicant on 24 and 26 July 2023:

(a) A response to the hearing invitation, together with certificate of attainment for completion of ACS Professional Year Program, issued by Performance Education on 18 August 2017, together with statement of achievement and letter of congratulations; and

(b) An attendance progress report from CIET for the Advanced Diploma of IT (Cybersecurity).

1. A further submission was received on 16 August 2023, in response to issues raised by the Tribunal at the first hearing, together with copies of awards and transcripts of courses previously provided, and CoE for the Diploma of Information Technology (Networking) at Gurkhas Institute of Hospitality & Management from 3 October 2011 to 14 April 2023.
2. On 25 August 2023, in response to issues raised by the Tribunal at the hearings, the Applicant provided a letter from CIET, dated 25 August 2023, together with a copy of a Letter of Offer and Acceptance Agreement for the Advanced Diploma of Information (Cybersecurity) dated 28 November 2022.
3. In addition, the Tribunal had regard to the full file from the Department of Home Affairs, the contents of which were described at [15] of its decision.
4. The Tribunal considered the Applicant's evidence including his oral evidence given at the hearing. The Applicant's oral evidence included the following:

(a) The Applicant arrived in Australia in October 2010 holding a Student visa;

(b) The Applicant has held three Student visas and a Temporary Graduate (subclass 485) visa in April 2016 which was granted for 18 months;

(c) The Applicant has completed the following courses:

(i) Certificate IV in Business Management;

(ii) Diploma of Business Management;

(iii) Diploma of Information Technology;

(iv) Bachelor of Computer Science;

(v) Master of Information Technology; and

(vi) Diploma of Human Resources.

1. The Applicant gave evidence that he was enrolled in the Advanced Diploma of Cybersecurity at CIET. When asked twice what the official name of the course was, he stated it was an Advanced Diploma of Information Technology with the 'sub-category' of Cybersecurity, and that the course has specialised subjects in Cybersecurity.
2. The Applicant gave evidence as to his qualifications obtained in Pakistan and his work experience in Pakistan which is referred to at [23] to [25] of the Tribunal's decision.
3. The Tribunal noted at [29] the Applicant's stated reasons for wishing to undertake the proposed course of study in Australia being that there are no similar courses running in Pakistan and that the skills he will gain will enhance his opportunities in the field.
4. At [31] of its decision, the Tribunal noted that at the first hearing it adopted the procedure in s 359AA of the Act, which required it to put to the Applicant clear particulars of adverse information which may be the reason or part of the reason which could lead the Tribunal to affirm the Delegate's decision.
5. At [31] and [32], the Tribunal noted that it put to the Applicant information it had obtained from his enrolment records in the Provider Registration and International Student Management System ('PRISMS') database, as well as course information for the Advanced Diploma of Information Technology from the website for CIET, including the course brochure. The Tribunal explained to the Applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. It also explained that the CIET website indicated that the Advanced Diploma of Information Technology did not involve a Cybersecurity specialisation as claimed by the Applicant, which may mean it did not differ in any meaningful way from the Applicant's Masters degree in the same field.
6. The Tribunal explained to the Applicant as noted at [32] and [34] that this information may mean that he was enrolling in inexpensive vocational and lower-level courses to extend his stay in Australia and that this may demonstrate he is not a genuine temporary entrant.
7. The Applicant confirmed that he understood the nature of the information and requested further time to comment or respond to the information. The Tribunal granted the Applicant 14 days to respond and adjourned the hearing to 16 August 2023.
8. The second hearing took place on 16 August 2023, and it is noted in the decision at [36] to [39] that the Tribunal questioned the Applicant further about the four Cybersecurity units in the Advanced Diploma and that he may have completed similar subjects in his previous IT studies. The Applicant gave an explanation as to why the course was different. The Applicant was also questioned about why he was undertaking a Diploma course rather than a Graduate Diploma course offered by various universities and whether he had looked into such courses.
9. The decision notes at [38] that the Applicant stated that a Masters course takes a while and a Diploma or Advanced Diploma course would provide him with more practice, rather than theory.
10. It is noted at [39] of its decision that the Tribunal put to the Applicant that prior to his current enrolment, he was enrolled in Diploma and Advanced Diploma courses in Human Resources and raised concern as to his reasons for having enrolled in those courses. The Applicant responded that one of his friends suggested that if you want to do business in Pakistan, it is better to have Human Resources qualifications beforehand. He stated that people are lacking skills in this field. He stated that he chose to skill himself in this area so he could be more approachable to his team.
11. It is noted in the decision at [40] that the Tribunal heard additional oral submissions from the Applicant's representative as to his ties to Pakistan and why he wants to complete the proposed qualification in Cybersecurity. The Applicant's representative also requested time to provide further information about the Applicant's course.
12. Following this, the Applicant provided the further information and submissions about the Advanced Diploma of Information Technology at CIET and the Tribunal noted at [45] that it accepted the Advanced Diploma Course did in fact include specialisations in cybersecurity and telecommunications network engineering.
13. The Tribunal then went on to consider the Applicant's evidence against the factors in Direction No. 69 to assess whether the Applicant met the genuine temporary entrant criterion. The Tribunal outlined in significant detail at [48] to [70] of its decision the information it took into account in assessing whether the Applicant satisfied the criterion.
14. In particular, the Tribunal made the following findings:

(a) It placed little weight on the letters from the Applicant's previous employer, New Delta in Pakistan dated 30 September 2019 and the claim from the Applicant that they constituted a letter of offer noting that the alleged letter of offer was four years old, and the Applicant had not taken up this offer in the interim period. Further, it found that the Applicant had provided no information to indicate whether the company's role of Chief Information Officer had been filled or why the company would wait over four years to fill such a role.

(b) The length of time the Applicant had been in Australia (12 years) raised concerns that the Applicant may have been using the student visa programme to maintain ongoing residence in Australia and circumvent the intentions of the migration programme.

(c) The fact that the Applicant had studied various vocational courses unrelated to his studies in Information Technology and that he had not taken up his stated plans to return to Pakistan and work as a data analyst or software designer raised concerns that the Applicant was using the student visa programme to maintain ongoing residence and to circumvent the intentions of the migration programme.

(d) The presence of the Applicant's sister in Australia who was a permanent resident and his employment, may represent an incentive to remain in Australia.

(e) The vocational nature of the Advanced Diploma Course did not add any more than incremental value to the Applicant's future employment or remuneration prospects.

(f) The length of time the Applicant has spent in Australia and that since October 2021 he has enrolled in relatively short and vocational courses of little value to his future indicated that the Applicant was attempting to obtain a Student visa primarily to maintain ongoing residence in Australia.

1. The Tribunal was accordingly not satisfied that the Applicant intends genuinely to stay in Australia temporarily and was not satisfied that the Applicant was a genuine applicant for entry and stay as a student as required by cl 500.212.
2. The Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa were not met and affirmed the Delegate's decision.

1. The proceedings in this Court were commenced by application filed on 22 December 2023, pursuant to s 476 of the Act. On the same date, the Applicant filed an affidavit annexing the Tribunal's decision.
2. On 17 December 2024, procedural orders were made permitting the Applicant to file any submissions, amended application, and any additional evidence upon which he sought to rely 28 days prior to the hearing.
3. The filing timetable was amended by Orders made on 21 February 2025 so that the Applicant had until 19 March 2025 to file such documents. The Applicant filed submissions but no amended application or further evidence.
4. The proceedings were listed for final hearing on 26 March 2025.

1. At the final hearing the material set out below was before the Court.
2. The Applicant relied upon the following:

(a) The Court Book which was tendered and marked as Exhibit CB-1;

(b) The Application for Judicial Review filed on 22 December 2023;

(c) The affidavit of the Applicant filed on 22 December 2023; and

(d) The Outline of submissions filed on 19 March 2025 excluding pages 18-57, 59-60, 63-64 which were in the Court Book and pages 58, 61-62, 66 to 71 which were excluded as they were not before the Tribunal.

1. The First Respondent relied upon the following:

(a) The Court Book which was tendered and marked as Exhibit CB-1;

(b) The Submitting Notice filed on 5 January 2024;

(c) The Response filed on 8 February 2024;

(d) The affidavit of Service filed on 24 March 2025; and

(e) The Outline of Submissions filed on 21 March 2025.

1. The Applicant was also given the opportunity to make oral submissions in support of his application and in reply to the submissions made by the First Respondent.
2. At the end of his reply submissions, the Applicant raised that he had had difficulty with the electronic Court Book and that it had had a number of blank pages and therefore it impacted his ability to prepare for the case and file material. When I asked the Applicant which Court Book he was referring to he confirmed it was the first Court Book filed on 23 December 2024. After further inquiry by me, he confirmed he had received both an electronic and paper copy of the Court Book filed on 14 February 2025 and sent to him on that date and had no issue with being able to see all of the pages. The Applicant also confirmed he was aware of the Orders I made on 21 February 2025, extending the time for him to file any updated application and evidence to 19 March 2025.
3. I have had regard to the material relied upon by both parties in determining this matter and the further oral submissions made at the hearing.

1. The Court may set aside the Tribunal's decision upon judicial review if it is affected by jurisdictional error: see Migration Act 1958 (Cth) ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.
2. The High Court explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 at [2] as:

...breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all" and is in that sense "void".

1. The Applicant's grounds of review are set out in the Application filed on 22 December 2023 ('the Application'). There are two grounds of review.

1. The decision of the Tribunal not to grant a protection visa under s 65 of the Act.

1. The visa arrived without considering information relevant to the Applicant's case, and thereby, the Second Respondent affirmed, that the delegation's decision was unjust and unreasonable and was decided without the Applicant being provided with due process of law.

1. Ground One incorrectly refers to a Protection visa and does not identify any alleged jurisdictional error.
2. Ground Two is difficult to understand but suggests that relevant information was not considered and therefore the Tribunal affirmed that the Delegate's decision was unjust, unreasonable and without due process of law.
3. While the Tribunal affirmed the Delegate's decision, its determination was made after a hearing and based on the evidence and submissions put before it. It was a hearing de novo on the merits rather than a review process.
4. It is unclear, if the Applicant by this ground seeks a review of the Delegate's decision, but if it does, it is impermissible as this Court does not have jurisdiction to review the primary decision of the Delegate: see s 476(2)(a) of the Act.
5. The Applicant's written submissions provide further allegations as to errors he says the Tribunal made in reaching its decision. In the introduction to the submissions, the Applicant summarises the errors he says were made by the Tribunal in its decision as follows:

The AAT's decision contains several significant errors, including legal misinterpretations of relevant migration legislation, improper evaluation of critical factual evidence relating to my education and employment history, and procedural fairness violations. Specifically, the Tribunal incorrectly weighed factors set forth in Ministerial Direction No. 69, misinterpreted the application of Clause 500.212, and improperly dismissed compelling evidence demonstrating my genuine temporary intentions and strong economic and familial ties to Pakistan.

1. The Applicant provided particulars of the errors of law he alleged at [3] and [4] of his submissions.
2. At [3.1] of the submissions, the Applicant alleges that the Tribunal placed excessive weight on his long stay in Australia while ignoring strong countervailing factors such as his property ownership, employment ties, and family responsibilities in Pakistan.
3. It is a matter for the Tribunal as to the weight to be given to the evidence as part of its fact-finding function: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
4. At [48] to [52] of its decision, the Tribunal set out its consideration of the Applicant's property ownership in Pakistan, personal and family ties including the presence of his wife, father, three sisters and brother, his employment history in Pakistan and his movement record which showed he had returned to Pakistan eight times since his initial departure and for extended periods of time.
5. At [50] and [51] the Tribunal also considered the offer of employment from a company in Pakistan called New Delta however placed little weight on this offer which was four years old and had not been taken up by the Applicant.
6. The Tribunal found at [51] of its decision that:

...the applicant has strong personal ties to Pakistan, as well as some recent employment ties to Pakistan. I find that his family ties in particular would serve as a significant incentive to return to his home country, and I take this into account in assessing his circumstances as a whole.

1. The Tribunal had regard to those factors and made no adverse findings as to the Applicant's economic circumstances.
2. The references to the Tribunal's reasons above demonstrate that the Tribunal did not ignore, overlook or misunderstand relevant facts or materials or a substantial and clearly articulated argument, misunderstand the applicable law or misunderstand the case being made, and hence no jurisdictional error can be established by the Applicant's complaint: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [27].
3. At [3.2] of the submissions, the Applicant alleges that the Tribunal disregarded crucial evidence demonstrating his compliance with past visas and financial stability.
4. The Tribunal's decision at [66] to [69] sets out the Tribunal's consideration of the Applicant's immigration history and stated at [69] that there was nothing to indicate the Applicant had not complied with the conditions of his visas in Australia or that he had an adverse visa or migration history in any other country.
5. At [60] of its decision the Tribunal had regard to the Applicant's employment history and financial circumstances in Australia and noted that he had been employed with ZAP IT Solutions since October 2021and is employed on a permanent part-time basis. At [23] of its decision the Tribunal noted that the Applicant was earning $30 per hour and working 24 hours per week.
6. This demonstrates that the Tribunal did have regard to the Applicant's migration history and financial situation in Australia.
7. At [3.3] of the submissions, the Applicant alleges that the Tribunal mischaracterised his chosen course in Cybersecurity as redundant and overlooked its distinct vocational relevance and expert evidence provided by CIET.
8. The Tribunal considered the proposed course and expressed concerns at [63] that the Applicant was seeking to undertake a course which was significantly below his current level of education, and in the same field as his Masters of Information Technology. The Tribunal stated that it had considered the further information provided by the Applicant about the Diploma course which indicated it has specialisations in Cybersecurity and Telecommunications and network engineering. It also considered the Applicant's transcript from his Masters course and found that there was significant overlap in subjects relating to network security and management, as well as overlap in other units such as risk management and ethics.
9. The Tribunal accepted the Applicant may gain some additional skills and knowledge in Cybersecurity from the four units of the Advanced Diploma of Leadership and Management which are targeted towards this specialisation, but was not satisfied that the proposed course added any more than incremental value to the Applicant's future employment or remuneration prospects over and above the existing qualification he has at the Masters level and the experience he has working in the IT field in both Australia and Pakistan.
10. At [64] and [65] of its decision the Tribunal noted it had raised with the Applicant its concerns regarding the vocational level of the Diploma course he was enrolled in and that the Applicant had stated that post-graduate courses are hard to get into. The Tribunal placed little weight on this claim given the Applicant's Masters qualification.
11. The Tribunal noted at [64] that based on its experience with hearing Student visa applications that:

...specialised postgraduate courses in Cybersecurity have been offered at a range of Australian universities and colleges for a number of years, including courses in Canberra, where the applicant lives. Enrolment in such a course may be more consistent with the applicant's current level of education than the vocational course he has chosen.

1. At [65] of its decision the Tribunal considered any potential financial benefits to the Applicant of undertaking the Diploma course and found that the Applicant's evidence regarding the remuneration he will receive by using the qualification to be gained from his current course of study to be vague and general in nature. It was not satisfied that holding this additional qualification would improve the Applicant's remuneration if he was to take up the employment opportunity he has been offered in Pakistan and therefore having considered the evidence as a whole was, not satisfied that the Advanced Diploma of Information Technology would be of value to the Applicant's future.
2. I find that it was open on the evidence before it for the Tribunal to reach the conclusion it did as to the limited benefit to the Applicant of the Advanced Diploma qualification.
3. At [3.4] of the Applicant's submissions, he alleges that the Tribunal reversed the burden of proof and rigidly applied Direction No. 69 as a checklist requiring unreasonable evidence from him beyond normal standards. There is no formal onus of proof in proceedings before the Tribunal. It is well-established that unless and until a decision-maker is satisfied, or persuaded, that the relevant requirements are met, an applicant is not likely to have a power exercise in their favour: see Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11 at [68].
4. The Applicant was given multiple opportunities to provide evidence in support of his application to the Tribunal. He took up each of those opportunities and provided substantial evidence. The Applicant conceded at the hearing in this Court that he had indeed provided a significant amount of information to the Tribunal. The Tribunal considered the evidence holistically and did not apply a checklist approach. This can be seen by the fact the Tribunal accepted much of the Applicant's evidence as to his ties to Pakistan, his work history, and noted his compliance with migration requirements.
5. It is a matter for the Applicant to satisfy the genuine temporary entrant criteria in cl 500.212 and as such, the Tribunal was entitled to take into account and form a view as to the length of time the Applicant had been in Australia on student visas and the relatively short and vocational courses he had undertaken since October 2021, which it considered to be of little value to his future, in circumstances where he already had a Masters Degree in Information Technology.
6. The evidence as a whole simply did not satisfy the Tribunal that the requirements of the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2, were met. As such, no error is found by this complaint.
7. At [3.5] of the submissions the Applicant alleges that the Tribunal misapplied s 116 of the Act. Section 116 relates to the Minister's powers to cancel a visa. The Tribunal did not, nor was it required to apply s 116 as there was no evidence the Applicant had previously had a visa cancelled or considered for cancellation. In particular, the Tribunal noted at [69] of its decision that there was nothing to indicate the Applicant had not complied with the conditions of his visas in Australia or that he had an adverse visa or migration history in any other country. No error is therefore found by this complaint.
8. At [3.6] of the submissions the Applicant alleges that the Delegate's mistake as to his previous employment history being Australian based, distorted the Tribunal's understanding of his genuine intention and negatively influenced the overall outcome.
9. At [48] of its decision the Tribunal accepted that the Applicant's employment with New Delta and Nadvi Traders was in Pakistan and noted it was not in Australia as suggested by the Delegate. It also noted other periods of employment in Pakistan. The Applicant conceded at the hearing in this Court that the Tribunal had correctly noted the employment was in Pakistan.
10. It is clear, the Tribunal understood the Delegate had made a mistake as to the location of the employment and therefore it had no bearing on its assessment of whether the Applicant met the genuine temporary entrant criterion. No error is therefore found by this complaint.
11. At [4] of the Applicant's submissions, he alleges that the Tribunal fell into procedural fairness error. The particulars of the Applicant's complaint in this regard are that the Tribunal failed to give him an opportunity to fully address its concerns regarding his course selection and employment history and therefore did not comply with s 359A of the Act. The Applicant makes a particular complaint that the Tribunal did not adequately disclose its concerns to him in advance and he was therefore deprived of a fair opportunity to respond effectively.
12. As was submitted by the solicitor for the First Respondent, s 357A of the Act provides that Division 5 of Part 5 is "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". It was submitted that the Tribunal complied with the requirements of Division 5 of Part 5 of the Act as set out below.
13. The Tribunal invited the Applicant to attend a hearing pursuant to s 360 of the Act. The Applicant attended the hearing by telephone on 1 and 16 August 2023 to give evidence and make submissions. The Applicant was assisted, and his representative attended the hearing.
14. At the first hearing on 1 August 2023, the Tribunal invited the Applicant pursuant to section 359AA of the Act, to respond to information that the Tribunal considered would be the reason, or part of the reason for affirming the decision on review.
15. The Tribunal's reasons indicate that it:

(a) ensured, as far as reasonably practicable that the Applicant understood why the information was relevant to the review: s 359AA(1)(b)(i) (at [32]-[35] of the Tribunal's decision);

(b) orally invited the Applicant to respond to the information: s 359AA(1)(b)(ii) (at [35] and [36] of the Tribunal's decision);

(c) advised the Applicant that he could seek more time to respond to the information: s 359AA(1)(b)(iii) (at [35] and [40]-[41] of the Tribunal's decision);

(d) upon request by the Applicant's representative, adjourned the hearing for 14 days (at [35]); and

(e) following the hearing provided the Applicant with an additional 14 days to provide a further response to the information: s 359AA(1)(b)(iv) ([41] of the Tribunal's decision). The Applicant took advantage of that further 14-day period to provide further evidence and submissions which the Tribunal took into account (at [42]-[46]).

1. In terms of the submission by the Applicant that the Tribunal failed to comply with its obligations under section 359A of the Act, it should be noted that s 359A is not enlivened where the Tribunal has complied with the requirements of section 359A as set out in s 359A(3) of the Act. It was submitted by the solicitor for the First Respondent that the Tribunal clearly complied with s 359AA and therefore no error is found in respect of this complaint.
2. At [4.2] of the Applicant's submissions, the Applicant alleges that "key financial, employment, and academic documents were dismissed without justification" and that "supporting documents related to your career progression and cybersecurity course relevance" were dismissed without the Applicant being able to clarify the Tribunal's concerns.
3. The Tribunal's reasons demonstrate that the Applicant was given several opportunities to provide information to the Tribunal and make oral submissions. The Tribunal's decision was detailed and demonstrated that it gave careful consideration to all of the evidence before it and then gave the Applicant a further opportunity to address any matters that had been raised following the hearing, which he did.
4. The Tribunal's role is based in statute and it is required to consider the evidence and make a finding as to whether the relevant criterion in Schedule 2 of the Regulations has been satisfied.
5. The Tribunal considered in detail the Applicant's employment history or career progression (at [49]-[50]) and the Applicant's Cybersecurity course relevance (at [62]-[65]).
6. The Applicant raised at the hearing in this Court that the Tribunal did not advise him it required a more up to date letter from New Delta regarding his employment offer in Pakistan.
7. The Tribunal is not under a general duty to make further inquiries, and it is only in rare or exceptional circumstances where the Tribunal may be found to have had an obligation to make an "obvious inquiry about a critical fact, the existence of which is easily ascertained": see Minister for Immigration and Citizenship v SZIAI and Another [2009] HCA 39; (2009) 111 ALD 15 at [25] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. It was therefore a matter for the Applicant to provide a more up to date letter from New Delta if he sought to rely upon it.
8. Apart from the letter from New Delta, the Applicant failed to further particularise which documents the Tribunal "dismissed" and as such, this complaint cannot succeed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
9. At [4.2] of the submissions and in his oral submissions, the Applicant submitted that he strongly disagreed with the Tribunal's decision and that it was not justified. He submitted that the decision was based on "a lot of speculation" about his intention to study and that the Tribunal wrongly referred to there being an incentive for him to remain in Australia due to his sister's permanent residence status.
10. There was a suggestion in the Applicant's submissions that the Tribunal was wrong in making adverse findings about the incentive for him to remain in Australia, the length of his stay, the short inexpensive, vocational courses he had undertaken and that he had not taken up the employment offer in Pakistan. He submitted he has studied for the entire time he has been in Australia to obtain a higher education and has not taken advantage of his sister's status.
11. It was submitted on behalf of the First Respondent that the Tribunal's reasons were detailed and that strong disagreement with them by the Applicant does not establish jurisdictional error or that the reasons were inadequate.
12. Having considered the Tribunal's decision, I find that they were detailed, logical and within the realms of reasonableness for the Tribunal to make the adverse findings it did in respect of the matters identified.
13. At [4.3] of the submissions, the Applicant alleges the Tribunal's decision was biased and it had prejudged his application by overly focusing on the duration of his stay in Australia and ignoring his supporting evidence.
14. Allegations of bias must be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [69]. Further, an allegation of apprehended bias is a serious one and must be "firmly established": see JRL, Re; Ex parte CJL; sub nom Renaud, Re; Ex parte CJL (ALJR) [1986] HCA 39; (1986) 161 CLR 342 at 352 per Mason J, 359-360 per Wilson J, and 371-372 per Dawson J.
15. Additionally, the legal test for apprehended bias as elucidated in Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227 at [23] is that:

... the lay observer might reasonably apprehend that the decision maker might have embarked on the case with a closed mind, that is to say, a mind not open to persuasion or, expressed another way, a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. But that is not to say that a decision maker must be free of a preliminary reaction or an inclination for or against an argument or conclusion.

1. As already mentioned, the Tribunal's decision indicated that it ensured the Applicant had multiple opportunities to address it on adverse information and provide additional supporting evidence to it before making its decision.
2. In this regard, while initially the Tribunal had a view that the Advanced Diploma in Information Technology did not have a Cybersecurity specialisation, it gave the Applicant the opportunity to provide further information about this and it acknowledged in its decision that it had changed its view and accepted there was some specialisation in the course.
3. Further, the Tribunal made a number of positive findings about the Applicant and indeed corrected the error made by the Delegate as to his employment history in Pakistan.
4. This demonstrates that the Tribunal had not committed itself to an outcome and in fact was open to being persuaded by the Applicant (which it was on some issues) and had not closed its mind so as to be incapable of alteration.
5. Accordingly, I find that the Tribunal's decision was not affected by bias and no error in this regard is established.

1. For the reasons given above, I find that no jurisdictional error is established and the application for judicial review is, accordingly, dismissed.

1. The First Respondent sought costs.
2. As the application has been dismissed, it is usual that costs should follow the event. Accordingly, I order costs in accordance with the scale in the amount of $8,371.30.

I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman.