Syed v Minister for Immigration and Citizenship [2025] FedCFamC2G 1508

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. In this matter the applicants challenge a migration decision under s 476 of the Migration Act 1958 (Cth) (Act). The applicants seeks constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 22 December 2021 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicants Temporary Skills Shortage (Class GK) visas (Temporary Skills Shortage visa) under s 65 of the Act.

1. In February 2008, the first applicant, a citizen of India, first arrived in Australia as the holder of a student visa.
2. On 5 June 2018, the applicants lodged an application for Temporary Skills Shortage visas (Short Term Stream). The First applicant was the primary first applicant. The second to fifth first applicants were included in the visa application as members of the first applicant's family unit.
3. On 25 October 2018, a delegate of the first respondent refused to grant the visa on the basis that the first applicant did not satisfy the criteria for a genuine applicant for entry and stay as a short time visa holder as required by cl 482.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). It followed that the delegate also refused to grant the second to fifth applicants the visas on the basis it was not satisfied that the first applicants met the secondary criteria in cl 482.312 of Schedule 2 to the Regulations.
4. On 13 November 2018, the applicants lodged an application for review of the delegate's decision with the Tribunal.
5. On 22 September 2021, the Tribunal invited the applicants to appear at a hearing on 12 October 2021.
6. On 12 October 2021, the applicants appeared before the Tribunal to give evidence and present arguments.
7. On 22 December 2021, the Tribunal affirmed the decision under review not to grant the applicants Temporary Skills Shortage visas.

1. The Tribunal set out the procedural background of the matter, including the delegate's decision, and the proceeding before the Tribunal. The Tribunal then set out the criteria for the grant of the visa in this particular, case, namely, the Temporary Skill Shortage visa. While there were three possible streams for this visa class, the first applicant had applied for 'Short-term' stream to work in his nominated occupation of Cook (ANZSCO 351411).
2. The Tribunal then summarised the delegate's decision and identified the evidence and submissions before it.
3. The Tribunal addressed the main issue it had identified in the review, whether the first applicant genuinely intended to remain in Australia temporarily in accordance with cl 482.222(a) of the Regulations, having regard to the first applicant's circumstances and immigration history, and any other relevant matter.
4. In addressing this issue, the Tribunal firstly referred to the first applicant's immigration history. The Tribunal noted that the first applicant had been residing in Australia for over 13 years as the holder of various temporary or associated bridging visas and had made various departures from Australia during this time. The Tribunal recorded at paragraph [21] that he asked the first applicant if he intended to remain permanently in Australia and first applicant replied, yes, he did, if possible. When asked whether, if granted the visa, it was the first applicant's intention to return to India, the applicant replied that it was up to the Tribunal to decide if he deserved to stay in Australia. If he was given the opportunity, the first applicant said that he would stay in Australia.
5. The Tribunal noted it had considerable difficulty reconciling the actual evidence of the first applicant with the submissions of his representative that he genuinely intended to stay temporarily in Australia, that he had been motivated to obtain work experience when seeking the visa, and that he desired to establish his own business in his home country. The Tribunal did not accept that this was reflective of the first applicant's actual intentions or that reliance could be placed upon them.
6. The Tribunal noted the applicants' representative's submissions it was the intention of the applicant to make an application for permanent residence in Australia. In relation to what he meant by this the applicant's representative made the submission that:

...the Tribunal should have regard to the provisions cl 482.222(c), any other relevant matter, and that this provision would override cl 482.222(a) of Schedule 2. It was claimed that the applicant had met relevant grandfathering provisions relating to his previous Subclass 457 visa to apply for a permanent visa. However, his situation was that he could not have applied for a permanent visa earlier because he was subject to a bar pursuant to s 48 of the Act due to his prior visa refusal and because the application under review was refused by the Department. The submission was to the effect that the Department had left open a pathway for certain Subclass 457 visa holders and had also promoted the possibility of a Subclass 482 visa holder being able to apply for permanent residence. Even though the applicant's occupation was in the Short-term stream, he was still eligible for permanent residency due to the grandfathering provisions for Subclass 457 visa holders. It was claimed that in the applicant's circumstances it was an error for the Tribunal to look at whether the applicant would return, as this visa in his circumstances could lead to permanent residency. The representative further claimed that the Department had a policy of not looking at the requirements of cl 482.222(a) in relation to any applicants eligible for permanent residency, and that it would be a jurisdictional error in the sense that it would be irrational, illogical and unintelligible for the Tribunal to come to any other conclusion. The representative labelled it 'embarrassing' for the Tribunal to ask the applicant to address the requirements in cl 482.222(a), and said his immigration history was only relevant to the enquiry as to whether the applicant genuinely intended to undertake the nominated position. The applicant had entertained the Tribunal by answering its questions, but if the visa was rejected, this would go against the grandfathering provisions available to Subclass 457 visa holders, and for the Tribunal to consider whether the applicant would return to his home country was absurd.

1. At paragraphs [24]-[28] the Tribunal gave detailed consideration to this submission, and rejected it. Specifically, at [26] the Tribunal found as follows:

The Tribunal has also considered the grandfathering provisions for the Subclass 457 visa, raised by the representative for the applicant. To address those who may be adversely affected by the changes, specifically persons who applied for, or held, a Subclass 457 visa at the time of the legislative reform, there are a number of transitional provisions to ameliorate the impact for some who are disadvantaged by the various new requirements. However, these transitional provisions are relevant to the permanent residency pathway (i.e. reg 5.19 nomination in the Temporary Residence Transition stream and corresponding Subclass 186/187 visa). Relevant to the applicant there are no applicable transitional provisions for existing Subclass 457 visa holders in respect of their eligibility to apply for a Subclass 482 visa or meeting the Subclass 482 requirements.

1. At paragraph [28] the Tribunal found that did not accept that the Temporary Skills Shortage visa is intended to be a direct pathway for permanent residency for all former 457 visa holders or transitional cohorts in the Short-term stream. It found that just because a temporary visa leads to access to a linked permanent pathway does not mean that all applicants will follow or be eligible to meet the requirements of the pathway. This was because each individual visa application is assessed on its merits and whether the applicant satisfies the relevant visa requirements depending on their circumstances.
2. At paragraph [29] the Tribunal found that it was an express relevant visa requirement for the visa under review as contained in cl 482.222(a) that the applicant must genuinely intend to stay in Australia temporarily. It found that it was unable to locate any policy or legislative intention for this criterion not to apply to the former Subclass 457 transitional cohorts. It then set out the policy considerations relevant to the criteria in the Procedures Advice Manual at paragraph 4.6.2.1 at paragraph [30] of its decision.
3. At paragraph [31] the Tribunal made detailed findings in relation to relevant factors identified in the policy guidelines. It had regard, amongst other things, to the first applicant's family residing in Australia including his wife and four children, and the evidence that his brother is a permanent resident of Australia and has resided with the first applicant since his arrival. It found there was no evidence of migration fraud, nor was there evidence before the Tribunal of economic or political circumstances that would present a significant incentive for the applicant not to return. The Tribunal considered the first applicant's immigration history was of concern, with the applicant previously applying for permanent residence, which it considered was arguably indicative of a long-term intention to remain in Australia.
4. At paragraph [32] the Tribunal had regard to the provisions of cl 482.222(a)(ii) and cl 482.222(c) and considered, as another relevant matter, whether there was a permanent visa pathway available to the first applicant as a transitional cohort, and whether it could be argued that the first applicant intended to only hold the Temporary Skills Shortage visa temporarily, while he transitioned onto another visa, for example, a Subclass 186 visa. However, the Tribunal concluded that:

...it does not accept that these considerations can override the express consideration of cl 482.222(a) that the applicant genuinely intend to stay in Australia temporarily. In circumstances where an applicant has openly conceded that it is not his intention to remain temporarily in Australia, the Tribunal is not persuaded that it is illogical or irrational to go against the express criterion of the Regulation

1. The Tribunal affirmed the decision not to grant the first applicant a Temporary Skill Shortage visa. It followed that the Tribunal refused to grant the second to fifth first applicant's the visa as they did not satisfy the secondary visa criterion under cl 482.312 of the Regulations.

1. On 14 January 2022, the applicants filed an application in this Court seeking judicial review of the Tribunal's decision. The application contains three (3) grounds of review. They are (as written):
   1. The Tribunal does not have probative evidence that my intention is not genuine to comply with the visa I applied for therefore the Tribunal wrongly assessed and concluded that I genuinely intend to stay in Australia permanently. Regardless of my immigration history and the many trips to India as well as my previous unsuccessful application for permanent residence should not lead the Tribunal to a conclusion not favourable concerning my application.
   2. The Tribunal Member was unable to reconcile between my evidence and my representative's submission. I continue to believe that the Tribunal's mind was negative and failed to grant me the visa in spite of having no evidence of migration fraud nor evidence before the Tribunal of economic or political circumstances that would present a significant incentive not to return to India.
   3. The Tribunal decision is not reasonable nor fair.
2. On 20 April 2022, a Registrar of this Court made an Order for both the applicants and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The first applicants did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.
3. On 24 July 2025, the proceedings were docketed to me and set down before me for final hearing on 2 September 2025.

1. At the hearing of this matter on 2 September 2025, the first applicant appeared unrepresented and was assisted by an Urdu interpreter. Ms Ziesel of Mills Oakley appeared for the first respondent.
2. I consider, in cases such as the present where the first applicants are unrepresented, the appropriate procedure, for the purpose of ensuring a fair trial, is to give applicants an opportunity to explain orally at the hearing before me what was meant by each of the grounds of review as they appear in the application to this Court and why the applicant considers the Tribunal was wrong: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (SZRUR) at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing) and BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943 Hill J.
3. Accordingly, I took the first applicants through each of the three grounds of review and asked what was meant by each ground. He made brief submissions about his grounds of review. The applicant essentially repeated the submissions that his representative made in the Tribunal about his understanding of the availability of a pathway to permanent residency for visa holders such as himself. He submitted that the Tribunal made an error when it found that he did not genuinely intend to stay in Australia temporarily. I asked him what that error was. He repeated his submission that he understood he was entitled to a pathway to permanent residency under his visa, or that he would be able to transition to another visa class in the future which had a permanent residency pathway.
4. Ms Ziesel made brief oral submissions summarising the first respondent's written submissions on the grounds. In relation to the matters which the first applicant submitted orally at the hearing Ms Ziesel submitted that the applicant had misunderstood the requirements for the visa he had applied for, and that under cl 482.222(a), the applicant had to satisfy the temporary entrant requirement for the particular visa which was the subject of the Tribunal review, namely, the short term stream class of the Temporary Skills Shortage visa.

1. 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).
2. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the first applicants 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.
3. The Court does not have the power to consider the merits of the decision; nor does it have the power to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
4. 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.

1. In this ground the applicant submits that the Tribunal did not have probative evidence before it that the applicant intended to stay in Australia permanently. As the first respondent submitted, this argument fails at the factual level. The Tribunal had before it:

(a) the Applicant's immigration history demonstrating he had been in Australia for more than 13 years at the time of the decision;

(b) the Applicant's own oral evidence that he had previously sought mechanisms to extend his time onshore and he had pursued permanent residence;

(c) the Applicant's own evidence regarding his siblings in Australia, and his brother and father in India, as well as the Applicant's lack of assets in Australia or in India; and

(d) the Applicant's own oral evidence to the Tribunal at hearing that he intended to remain permanently in Australia.

1. Critically, at paragraph [21] the Tribunal records the following evidence given by the applicant at the Tribunal hearing:

The Tribunal asked the applicant if he intended to remain permanently in Australia and he replied, yes, he did, if possible. He had been working for his employer for a long time and if he was eligible, he would definitely like to do that. He further said he would like to provide his children with 'the best opportunity in Australia'. When asked whether, if granted the visa, it was his intention to return to India, the applicant replied that it was up to the Tribunal to decide if he deserved to stay in Australia. If he was given the opportunity, the applicant said that he would stay in Australia

1. It was therefore reasonably open on this evidence (and other evidence) for the Tribunal to find as it did at paragraph [33] that:

...the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant does not meet cl 482.222(a).

1. There was ample evidence on which the Tribunal could reach its conclusion that the applicant was not genuine temporary entrant for the purpose of cl 482.222(a), including the applicant's own concession in paragraph [21].
2. I also agree with the first respondent's submissions that the Tribunal correctly identified the relevant legislative requirements that needed to be satisfied by the applicant under cl 484.222(a), when assessing whether the applicant intended genuinely to stay in Australia temporarily. The correct criteria was outlined in paragraph [29] of the Tribunal decision. No error was committed by the Tribunal in this regard.
3. Ground 1 does not establish the Tribunal committed jurisdictional error.

1. Gound 2 in this matter appears to be asserting that the Tribunal Member misunderstood the applicant's representative's submissions made to the Tribunal. The first respondent submits it also may raise an allegation of bias. As the applicant is unrepresented, I will consider this ground on these two bases.
2. As to the first argument, this appears to be a challenge to paragraph [29] of the Tribunal decision, which addresses the submissions made by the applicant's representative about the relevant visa criteria in this matter. The relevant part of paragraph [29] is as follows:

An express relevant visa requirement for the visa under review as contained in cl 482.222(a) is that the applicant must genuinely intend to stay in Australia temporarily. The Tribunal has been unable to locate any policy or legislative intention for this criterion not to apply to the former Subclass 457 transitional cohorts. Indeed, the fact that this visa was refused by the Department due to the applicant's failure to satisfy the genuine temporary entry criteria, even when his transitional status was pointed out by his representative, suggests otherwise. The Explanatory Statement expressly acknowledges that the Short-term stream may produce a result that differentiates between applicants on the basis of their occupation, and this differentiation is a reasonable and proportionate response to the objective of promoting Australia's economic needs and helping Australian citizens and permanent residents retain access to the employment market. The Tribunal considers that had there been an aim of the legislature to adopt such an intention, it would have been reflected in the legislation itself given that other transitional provisions specific to the Subclass 457 cohort have been expressly legislated. Furthermore, these provisions were introduced in 2018; had they been unintentionally omitted or if the legislature intended to address any omission there has been time for further amendments, and some amendments have since been made to the relevant transitional instrument.

1. I find the Tribunal was correct in its conclusion in this paragraph about the criteria that must be satisfied under the relevant visa requirement for the visa under review as contained in cl 482.222(a). It expressly rejected the submissions made that another criteria or policy existed for former subclass 457 "transitional cohorts", which, it was submitted, exempted these visa holders from meeting the genuine temporary entrant criterion. There was no other legislative instrument in force at the relevant time that would have resulted in the applicant not needing to meet the requirement in cl 482.222(a) of Schedule 2 to the Regulations.
2. I consider the Tribunal also correctly concluded in paragraph [32] that whether it may be argued, under cl 482.222(c), that the applicant intended to only hold the Temporary Skills Shortage visa temporarily while he transitioned onto another visa, perhaps a Subclass 186, these considerations did not override the express consideration in cl 482.222(a). Namely, that the Tribunal had to be satisfied, regardless, that the applicant genuinely intend to stay in Australia temporarily.
3. As to the second argument in ground 2 that the Tribunal was somehow bias, this argument must be rejected.
4. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons for a decision by a Tribunal.
5. No evidence of bias has been adduced by the applicant in this case. No transcript of the Tribunal hearing has been tendered.
6. A fair reading of the Tribunal decision does not reveal any bias by Tribunal in the sense discussed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia) at 531 or in Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ or in NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed.
7. For example, there is no evidence of any prejudgment in the sense that the Tribunal was "so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented**"**: see Jia at 531_._
8. Further, there is no evidence of apprehended bias. I consider there is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review: see Re Refugee Review Tribunal, Ex parte H at [27]-[32].
9. Ground 2 is rejected.

1. This ground does not contain an arguable ground of jurisdictional error. The applicant was not able to articulate what he meant by this ground at the hearing before me. I dismiss this ground of review.

1. The applicants have not established that the Tribunal's decision is affected by jurisdictional error.
2. As the applicants are 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]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
3. The application is dismissed.

1. The first respondent seeks costs fixed in the sum of $6,100. 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 first applicant.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.