Sumair v Minister for Immigration and Citizenship [2025] FedCFamC2G 1995

1. The applicant, a citizen of Pakistan, seeks judicial review of a decision of the Administrative Review Tribunal (Tribunal) dated 14 March 2025. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
2. The applicant sought to challenge the Tribunal's reasons and findings on the grounds set out at [14] of this judgment. For the reasons that follow, I find the applicant has not demonstrated jurisdictional error and I dismiss the application.

1. On 14 June 2023, the applicant first arrived in Australia as the holder of a Visitor (Subclass 600) visa (visitor visa) (Court Book (CB) 81).
2. On 21 August 2023, the applicant applied for the student visa (CB 5 to 24). At that time, the applicant was represented by a registered migration agent, Mrs Nazia Saqib (Mrs Saqib) from Fast Track Consultancy (CB 27 to 30). The applicant's application for a student visa was supported by an undated genuine temporary entrant statement (GTE statement) (CB 36 to 39).
3. On 18 October 2023, the delegate refused the applicant's application for a student visa (CB 47 to 50).

1. On 30 October 2023, the applicant applied to the Administrative Appeals Tribunal for review of the delegate's decision dated 18 October 2023 (CB 51 to 58).
2. On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal.
3. By email dated 20 January 2025, the Tribunal wrote to Mrs Saqib in relation to the applicant's student visa application (CB 71 and 72). The email stated that it was a requirement of the student visa that the applicant be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student.
4. On 29 January 2025, the applicant completed the "Request for Student Visa Information Form" (Pre-Hearing Information Form) (CB 77 to 88). At that time, the applicant was studying a Certificate III in Wall and Floor Tiling at NorthWest College, which course was due to be completed in September 2025 (Certificate III Course). The applicant stated that he planned to commence a Diploma of Leadership and Management at NorthWest College in September 2025, which course was due to be completed in March 2027 (Diploma Course) (CB 82).
5. By letter dated 13 February 2025, the Tribunal invited the applicant to attend a hearing (CB 91 to 96).
6. On 3 March 2025, the applicant appeared before the Tribunal to give evidence and present arguments (CB 114). At the Tribunal hearing, the applicant was assisted by Mrs Saqib and an interpreter in the Urdu and English languages.

1. On 14 March 2025, the Tribunal affirmed the delegate's decision not to grant the applicant the student visa on the basis that the Tribunal was not satisfied the applicant was a genuine applicant for entry and stay as a student as he did not satisfy cl 500.212(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) ([29] and [30] of the Tribunal's reasons).
2. The Tribunal noted at [11] of its reasons that in considering whether the applicant satisfied cl 500.212(a) of the Regulations, the Tribunal must have regard to Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 108) made under s 499 of the Act. The applicant's complaint is that the Tribunal in applying the factors in Direction No. 108 failed to consider the reasons and circumstances put forward by the applicant. Given this ground for judicial review, I will analyse the reasons of the Tribunal at [25] to [38] of this judgment, when considering the applicant's grounds for judicial review.

1. The applicant's application accepted for filing on 16 April 2025 contained the following grounds for judicial review (as per original):
   1. My student visa was refused by the delegate. The delegate did not find me as a genuine applicant as a student.
   2. The department failed to consider the compelling reasons and circumstances prsented (sic) to them.
   3. I applied to the AAT for the merit review of my case
   4. The tribunal did not consider my compelling arguments without considering them properly, its decision is affected by the jurisdictional error and was not determined according to the law as the circumstances at the time of application were not considered and were overlooked.

1. The applicant appeared at the hearing before me as a litigant in person, assisted by an interpreter in the English and Urdu languages. The Minister was represented by Ms L Liu, solicitor from Hicksons | Hunt & Hunt (Ms Liu). Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant affirmed on 8 April 2025 (applicant's affidavit) and the Minister's written submissions dated 22 September 2025. The applicant did not provide any written submissions.
2. At the hearing, I accepted as submissions, without objection, the applicant's affidavit affirmed on 8 April 2025, which repeated the grounds referred to in the application for judicial review and annexed the Tribunal's decision record. The applicant also made oral submissions. The Minister relied on his written submissions dated 22 September 2025, and I also had the benefit of oral submissions from Ms Liu.
3. The Minister's evidence before the Court comprised of the Court Book, which was marked "Exhibit R1", the affidavit of service of Kristopher Koutzoumis sworn on 15 August 2025 and the affidavit of service of Anoosha Mohanaraj sworn on 22 September 2025.

1. Clause 500.212 in Schedule 2 to the Regulations provided the criteria for assessing whether the applicant is a genuine applicant for entry and stay as a student. Relevantly, at the time of the Tribunal's decision, cl 500.212 was in the following terms (with effect from 23 March 2024):

500.212

The applicant is a genuine applicant for entry and stay as a student:

(a) 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

(b) because 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 in sch 2 of the Regulations, the Tribunal was required to have regard to Direction No. 108. Direction No. 108 revoked Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications, and applied to student visa applications made before 23 March 2024 but not finally determined by the Tribunal on that date. I note the applicant's student visa application was made on 21 August 2023 and had not yet been finally determined by 23 March 2024.
2. The "Genuine temporary entrant criterion" is defined in Direction No. 108 as relevantly referring to cl 500.212(a) in sch 2 to the Regulations.
3. Part 2 of Direction No. 108 stated that the factors specified in the Direction were not to be used as a checklist, but rather "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. Grounds 1 and 3 repeat the factual background to the application for judicial review and do not disclose any jurisdictional error.

1. By ground 2, the applicant alleges jurisdictional error on the part of the delegate. This Court does not have jurisdiction to review the delegate's decision as it is a primary decision: ss 476(2)(a) and 476(4)(a) of the Act. Accordingly, no jurisdictional error is disclosed by ground 2.

1. In support of ground 4, the applicant at the hearing before me made the following submissions:

(Tp6.46-7.11)

As I said earlier, tribunal understood that I will not go back to Pakistan. That's not true. Apart - the second point, there are a lot of buildings and construction going on in the Pakistan. If I have Australian degree, I will get a better job opportunity there.

...

..And another point, I have my wife and my children in Pakistan, why would I stay here if my family is in Pakistan?

...

I have enough property in Pakistan, why would I stay here?

...

(Tp10.32-36)

I said at the time that I have completed so many subjects in my study. I have completed my course. I receive my degree within 15, 20 days, and after that degree, I will go for my Diploma in Leadership course. When I was in Pakistan, I was running business. So, once I will finish this Diploma in Business and Management, then I will go back.

...

(Tp11.15-22)

There was one point raised that I could not explain my study which I did in Pakistan. I, I come from the village, and you know that in village, kids start education a bit late. So, I only completed year 5 study, and after year 5 study, our financial condition, my parents' financial condition was not good, so I couldn't continue my further study there. So, when my, our financial condition improved, I continued my study in Pakistan. And then, again, I went to the Dubai, worked there, came back to Pakistan, and once I returned from Dubai, then I completed my study in Pakistan.

1. I will now turn to the Tribunal's decision to ascertain whether the Tribunal in considering the factors in Direction No. 108 properly considered the evidence provided by the applicant.
2. First, I find the Tribunal correctly identified at [11] of its reasons that in considering whether the applicant satisfied cl 500.212(a) of the Regulations, it had to have regard to the factors in Direction No. 108. The Tribunal attached to its decision a copy of the said Direction.
3. The Tribunal then at [12] of its reasons correctly stated that the factors in Direction No. 108 were not to be used as a checklist but were intended to guide the decision-maker when considering the applicant's circumstances as a whole.
4. On a fair reading of the Tribunal's reasons, I find that the Tribunal did consider the applicant's evidence provided in his GTE statement (CB 36 to 39) and the Pre-Hearing Information Form (CB 77 to 88), as well as evidence the applicant gave at the hearing before the Tribunal. My reasons for so finding are as follows.

The applicant's circumstances in his home country

1. The Tribunal was required to consider the factors stipulated in [9] of Direction No. 108, being the applicant's circumstances in Pakistan. I find that the Tribunal did have regard to the factors identified in [9] of Direction No. 108 and the evidence provided by the applicant that went to those factors as the Tribunal's reasons disclose as follows:

(a) The Tribunal considered whether the applicant had reasonable reasons for not undertaking the study in Pakistan if a similar course was available there as stipulated by [9(a)] of Direction No. 108, and noted the applicant's evidence given in response to question 13 in his Pre-Hearing Information Form (CB 84) that although "there are similar courses available in Pakistan", he elected to study in Australia because of the "quality of education", state-of-the-art technology taught in the courses and "Australia's construction industry is highly developed". The Tribunal then considered the applicant's evidence given at the hearing, that although there was construction in Pakistan, he could not "find much awareness and not many courses or training opportunities available in Pakistan" ([16] of the Tribunal's reasons).

(b) The Tribunal considered the applicant's ties to Pakistan, as required by [9(b)] of Direction No. 108. At [17] of the Tribunal's reasons, the Tribunal noted the applicant's evidence given at the hearing and in his student visa application (CB 5 to 24) that his wife, young son, parents and brother live in Pakistan. The Tribunal then noted that the student visa application also referred to a sister and step-parent in Pakistan (CB 14 and 15). The applicant's evidence provided in his Pre-Hearing Information Form that he communicated with his family via video calls (CB 86, question 19) and was involved in local charity events in Pakistan (CB 86, question 20) was acknowledged by the Tribunal. The Tribunal then at [17] turned to consider the evidence given with respect to the applicant's travel to Australia, being that he travelled with his father in August 2023, and his wife remained in India having recently given birth and had been instructed to rest. The Tribunal was troubled by this evidence and noted that the applicant's student visa application recorded his son's date of birth as 23 September 2021 (CB 21), almost two years prior to his travel to Australia, and no other children had been declared by the applicant. The Tribunal at [17] found that it did not consider the applicant's family ties in Pakistan to be a significant incentive for him to return home because of his action of leaving his wife and young son in Pakistan in August 2023 and making arrangements to stay in Australia until March 2027 without them (being for a period of three and a half years) despite accepting the applicant's evidence that he continued to contact his family by video calls.

(c) At [18] of its reasons, the Tribunal considered the applicant's economic circumstances and whether they would present as a significant incentive not to return to Pakistan, the factor stipulated by [9(c)] of Direction No. 108. The Tribunal noted the applicant's evidence that his father had significant assets such as rental properties and thus appeared to come from a well-off family, in addition to the fact that the applicant stated he was not working in Australia (CB 85). Based on that information, the Tribunal considered that these factors were a significant incentive for the applicant to return to Pakistan and weighted in favour of the applicant.

(d) The Tribunal at [19] of its reasons noted the evidence given by the applicant in response to question 25 of the Pre-Hearing Information Form (CB 88) that he did not declare "any specific concerns" regarding "military service commitments" and "there is no mandatory conscription in Pakistan". Further, the applicant's evidence that although Pakistan had experienced periods of instability and civil unrest, the applicant did "not view these as significant concerns that would impede" his return to Pakistan and wanted "to contribute to the country's economic development", which were considered by the Tribunal (CB 88). In doing so, the Tribunal was having regard to the military service commitments and political and civil unrest factors in Pakistan as required by [9(d)] and [9(e)] of Direction No. 108.

1. I find that the Tribunal turned its attention to the various factors it was required to consider in accordance with Direction No. 108 as to the applicant's circumstances in Pakistan, and the applicant's evidence that went to each of those factors as identified above.

1. The Tribunal was required to consider the applicant's potential circumstances in Australia, having regard to the factors specified in [11] of Direction No. 108. I find that the Tribunal did have regard to those factors and the applicant's evidence that went to those factors for the following reasons:

(a) At [20] of its reasons, the Tribunal had regard, for the purposes of [11(a)] of Direction No. 108, to the applicant's ties with Australia which would present as a strong incentive to remain in Australia, and noted the applicant's evidence that he did not have any family in Australia and no work history (CB 11 to 15, CB 85 and CB 87). In light of that evidence, the Tribunal found the applicant did not have ties that would present as a strong incentive for him to remain. The Tribunal also had regard for the purposes of [11(e)] of Direction No. 108 to the applicant's knowledge of his intended course of study, finding that the applicant had general knowledge of his course, could recall how many units he had completed and learned to "put on wall tiles and do resizing", but otherwise provided an undetailed description of his course.

(b) The Tribunal at [21] considered the applicant's statements that he spent his time in Australia by studying for two days a week, and otherwise searched for jobs, researched where there was work and video-called his family. The Tribunal noted the applicant's evidence at the hearing that by searching for jobs he was referring to searching for how jobs were done in Australia.

1. Considering the matters identified above, I find the Tribunal properly considered the applicant's evidence that went to his circumstances in Australia and considered that evidence in accordance with the factors in Direction No. 108 as was required.

1. The value of the course to the applicant was a factor that needed to be considered as stipulated by [12] of Direction No. 108. I find that the Tribunal did have regard to those factors and the applicant's evidence that went to those factors for the following reasons:

(a) At [13] of its reasons, the Tribunal noted the applicant's evidence in his Pre-Hearing Information Form as to his "Enrolment and study in Australia" (CB 82) and identified the applicant's current Certificate III Course with an expected completion date of September 2025, and the applicant's proposed study of the Diploma Course commencing in September 2025 with an expected completion date in March 2027. The Tribunal noted that the applicant provided evidence of satisfactory course completion for his Certificate III to the Tribunal (CB 89).

(b) The Tribunal at [22] of its reasons considered the applicant's evidence provided in response to question 23 of the Pre-Hearing Information Form (CB 87) that he had a clear and well-structured plan for his career in Pakistan's growing construction industry, the courses of study aligned directly with his goal of establishing his own business in Pakistan and he planned to first gain experience in the industry before starting his own construction business. Further, the Tribunal took into consideration the applicant's evidence given at the hearing in relation to his reasons for shifting from a ladies clothing business to construction, being that he saw construction work in Pakistan and thought he could go into the field, and that this desire increased during his visit to Australia after seeing the extensive construction and development which prompted him to commence studies in Australia.

(c) The Tribunal continued at [23] to find that the Certificate III Course and Diploma Course were consistent with the applicant's level of education, being the factor specified in [12(a)] of Direction No. 108. The applicant provided evidence of his level of education in his Pre-Hearing Information Form (CB 79) and this was then discussed at the hearing, which the Tribunal detailed at [15] of its reasons. The Tribunal referred to the applicant's oral evidence and explanation as to his study history and late commencement and completion of high school. At [23] of its reasons, the Tribunal then considered the applicant's evidence that there were not many opportunities in building construction in Pakistan, however noted this contrasted with the evidence submitted by the applicant in his GTE statement (CB 37 and 38) and Pre-Hearing Information Form (CB 88) that the construction sector in Pakistan was booming. The Tribunal also took note of the applicant's plans to start his own business, but considered this a general statement.

(d) The Tribunal at [24] of its reasons took into account the applicant's expected remuneration in Pakistan with the qualifications to be gained, as stipulated by [12(c)] of Direction No. 108. The Tribunal first referred to the applicant's evidence given at the hearing that he would expect to make up to 600,000 rupees a month working in the construction sector based on research he had undertaken, but the Tribunal found this to be vague and indicated the applicant had not considered remuneration in much detail. The Tribunal also noted Mrs Saqib's evidence that there was a significant margin in the construction sector in Pakistan. The Tribunal then turned to consider the more detailed and differing evidence in the applicant's response to question 24 of the Pre-Hearing Information Form (CB 88), being the figures given for the potential salary of a qualified tiler and project manager or site supervisor.

1. In light of the matters identified above, I find the Tribunal did consider the applicant's evidence in relation to the value of the course, including the evidence provided in his GTE statement, Pre-Hearing Information Form and at the hearing.
2. The Tribunal at [27] of its reasons expressed concern with "some of the applicant's evidence in respect of the value of the course to his future and his vague responses about his potential business plans". Further, the Tribunal was unconvinced by the applicant's evidence about the profit margin in his own business, or that he had undertaken research on this, and was confused by the applicant's responses about his education history in Pakistan, motivations for studying the course and changing answers as to whether Pakistan's construction sector had opportunities for work.

1. The applicant's immigration history was a factor the Tribunal was required to consider, as stipulated by [13] of Direction No. 108. I find that the Tribunal had regard to the factors identified in [14] of Direction No. 108 when considering the applicant's immigration history and the applicant's evidence that went to those factors for the following reason:

(a) The Tribunal at [13] of the its reasons looked at the fact that the applicant had entered Australia on a visitor visa on 6 August 2023, and then applied for a student visa on 21 August 2023, being the information provided by the applicant in response to the questions in the "Travel" and "Visa history" sections of the Pre-Hearing Information Form (CB 80 and 81).

(b) At [25] of its reasons, the Tribunal identified that the applicant first arrived in Australia on a visitor visa when travelling with his father, and once onshore applied for a student visa. The Tribunal noted that since the applicant's arrival as a visitor in August 2023, the applicant had remained in Australia and enrolled in courses of study until March 2027. In doing so, the Tribunal was directly considering [14(a)(vi)] of Direction No. 108.

(c) At [26] of its reasons, the Tribunal then considered the applicant's immigration and travel history outside Australia as stipulated by [14(a)(iii)] of Direction No. 108, and noted the applicant's statement to the Tribunal that he liked travelling. The Tribunal then considered the applicant's evidence in his Pre-Hearing Information Form, which identified that he had travelled to Oman in 2015 for a period of six months (CB 80) and his differing oral evidence given at the hearing that he had travelled to Dubai for six months to visit his uncle and travelled to Oman during the said trip to Dubai.

(d) At [28] of its reasons, the Tribunal indicated that it had regard to the applicant's immigration history.

1. Given the above matters, I find the Tribunal considered the evidence provided by the applicant with respect to his immigration history.
2. In light of the Tribunal's reasons set out at [25] to [36] of this judgment, the Tribunal's reasons disclose that it had regard to all of the evidence and material before it, being the applicant's GTE statement (CB 36 to 39), the information provided in his Pre-Hearing Information Form (CB 77 to 88) and the applicant's oral evidence given at the hearing, and had regard to the factors stipulated by Direction No. 108 when assessing whether the applicant met the genuine temporary entrant criterion for student visa applications pursuant to cl 500.212 of the Regulations. Although the Tribunal found there were some matters in the applicant's favour, it had concerns as to the applicant's evidence as to the value of the course to his future and accordingly found that it was not satisfied the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 ([27] to [32] of its reasons). I find that the Tribunal's lack of satisfaction was open and reasonable for the Tribunal to so find on the evidence before it.
3. Therefore, given the reasons at [25] to [38] of this judgment, I reject the applicant's argument that the Tribunal failed to properly consider his "compelling arguments", circumstances and evidence properly. Accordingly, I find no jurisdictional error is raised by ground 4.

1. Given the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. I have not identified any such jurisdictional error.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.