Talukdar v Minister for Immigration and Citizenship [2025] FedCFamC2G 1796

1. The application is dismissed.
2. The applicant is to pay the first respondent's costs, fixed in the amount of $6,000.00.

Note: The form of the order is subject to the entry in the Court's records.

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

1. Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal ("the Tribunal") by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection, (as the Minister was then called) ("the delegate"), to refuse to grant the applicant a Student (Temporary) (Class TU) visa.

Application for a visa and the delegate's decisions

1. The applicants are citizens of Bangladesh. The first applicant ("the applicant") arrived in Australia on 20 August 2009 as the holder of a student visa. The second applicant, the applicant's wife, arrived in Australia in November 2016 after they were married. On 3 June 2017, the applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa to undertake a Diploma of Leadership and Management commencing on 23 September 2019 and concluding on 21 September 2020 ("the visa") (Court Book ("CB") 1-37). The second applicant was included in the applicant's visa application as a member of the applicant's family unit (CB 3-5). Prior to applying for the visa, the applicant had completed an English Language Intensive Course for Overseas Students; a Master of Commerce; and a Master of Business Administration (CB 113). The applicant also held a Graduate Work (subclass 485) visa in November of 2015 and completed ten months in a professional course including work experience in an Australian accounting firm (CB 15 and CB 113).
2. On 24 July 2017, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant provided evidence that he would have access to funds requested per the criterion in clause 500.214 of Schedule 2 of the Migration Regulation 1994 (Cth) ("the Regulations") ("the delegate's first decision") (CB 44-53). The delegate refused to grant the second applicant the visa on the basis that she was not the member of the family unit of a person who held a student visa as required by clause 500.311.
   1. On 8 August 2017, the applicants applied to the Administrative Appeals Tribunal for review of the delegate's first decision (CB 54-55). On 25 October 2019, the Tribunal remitted the matter back to the delegate for reconsideration with a direction that the applicant satisfied clause 500.214 of Schedule 2 of the Regulations (CB 87-95).
3. On 15 November 2019, the delegate refused to grant the applicant the visa, this time, on the basis that the delegate was not satisfied that the applicant was a genuine temporary entrant as required by clause 500.212 of Schedule 2 of the Regulations (CB 111-114). As the applicant did not satisfy the primary criteria for the grant of the visa, the second applicant therefore did not satisfy clause 500.311 as she was not a member of the family unit of a person who is the holder of a subclass 500 visa ("the delegate's second decision") (CB 114-116).

Application for review to the Administrative Appeals Tribunal

1. On 28 November 2019, the applicants applied to the Tribunal for a review of the delegate's second decision (CB 117-118). The applicants appointed a registered migration agent to act as their representative (CB 118).
2. On 5 March 2021, the Tribunal wrote to the applicants advising them that they would need to provide sufficient information to satisfy the Tribunal that the applicant met the requirements for the visa: that he was enrolled in a registered course of study; and was a genuine applicant for entry and stay as a student. The Tribunal invited the applicant to provide, in writing, all relevant information about the course(s) of study he was undertaking and his entry and stay as a student (CB 136-142). The Tribunal said that specific details about the information requested are set out in the Request for Student Visa Information form ("RSVI form") and provided the applicant a link to that form. The Tribunal also told the applicant that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No. 69 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' ("Direction No. 69"). A copy of Direction No. 69 was attached.
3. On 30 March 2021, the applicant provided to the Tribunal a completed RSVI form (CB 149-162).
4. On 16 July 2021, the Tribunal invited the applicants to attend a hearing on 3 August 2021 to give evidence and present arguments relating to the issues arising in the case, stating that it was unable to make a favourable decision based on the information before it alone (CB 163-166).
5. Prior to the hearing the applicants' representative provided the following documents to the Tribunal:

(a) personal statements by the applicant (CB 181-184);

(b) current Certificates of Enrolment for a Graduate Diploma of Management (Learning) commencing on 28 March 2022 and concluding on 24 March 2023 and an Advanced Diploma of Deployment Logistics commencing on 29 March 2021 and concluding on 25 March 2022 (CB 185-186);

(c) a Certificate of completion for an Advanced Diploma of Leadership and Management issued on 19 March 2021 (CB 187), as well as a transcript of results and a letter of completion (CB 187-189);

(d) a formal enrolment and academic summary from the Australia Institute of Business Technology (CB 193-194); and

(e) the applicant's trade licences (CB 199-200).

1. On 3 August 2021, the applicant attended the hearing (CB 207-210). The applicant was assisted by his migration agent.
2. The Tribunal invited the applicants to comment in writing by 17 August 2021 about a recent check of the Provider Registration and International Student Management System ("PRISMS") that the applicant had cancelled the courses he was enrolled in and had not studied a registered course between 30 July 2012 to 20 May 2013; 7 June 2013 to 16 March 2015; and from 31 July 2015 to 2 April 2018 (CB 214-215).
3. On 17 August 2021 the applicants' representative provided a letter to the Tribunal addressing the Tribunal's concerns regarding gaps in the applicant's study (CB 237-238). The applicant attributed the study gaps to difficulties and delays with enrolment, course structure and unspecified physical and mental sickness.
4. On 1 December 2021, the Tribunal affirmed the delegate's second decision and gave written reasons for its decision ("Decision") (CB 249-267).

1. The Tribunal identified that the issue on review was whether the applicant was a genuine applicant for stay as a student pursuant to clause 500.212 of the Regulations ([16]-[17]).
2. After setting out clause 500.212, the Tribunal said that in considering whether the applicant satisfied clause 500.212(a), the Tribunal must have regard to the specified factors in Direction No. 69 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications ([18]).' The Tribunal stated that the factors specified should not be used as a checklist but rather, were intended only as a guide to decision makers when considering the applicant's circumstance as a whole in reaching a finding about whether the applicant satisfied the genuine temporary entrant criterion ([19]).
3. The Tribunal first outlined the applicant's academic history in his home country, his employment history in his home country and his work history in Australia ([22]).
4. The Tribunal said (at [23]) that given the disparity in economic circumstances between Bangladesh and Australia, it could not be satisfied that the applicant had a significant incentive to return to Bangladesh based on evidence which the Tribunal summarised as follows ([23]-[38]):

(a) The applicant returned to his home country on four occasions since his arrival in Australia. He returned in 2013 due to the death of his father. He went back in 2015 for 53 days as his mother was ill. He returned in 2016 to get married and then in 2019 due to the death of his mother;

(b) The applicant had a brother and sister who resided in Bangladesh; his brother was looking after the family assets after the death of his parents; his father-in-law was looking after their family business which was in transport and logistics;

(c) The applicant's wife came to Australia in 2016. She was presently working 15 hours a week in customer service at Caltex; the applicant said that his wife did not like living in Australia;

(d) The applicant worked 8 to 20 hours each week and was earning $450.00 per week whilst his wife was earning $350.00 per week;

(e) The applicant did not have any savings and that the only money that he had was from his brother who had given him $50,000.00 to study in Australia;

(f) The applicant's brother was running the company and making a lot of money but did not have any senior managers in the company so he had agreed to help him to study, so he could return to the family business with the right qualifications and knowledge;

(g) The applicant's statement as to why he had chosen his education provider to study logistics and management. The Tribunal observed that the statement was vague and generalised and said that it was surprising that the applicant mentioned that it was after inheriting the family business that he decided to study logistics and management as the evidence is that his father died in 2013 and he had ample time to study the course;

(h) He did not have friends in Australia and was not close to anyone save that he is close to some of his classmates in Australia. The Tribunal observed that the applicant had lived in Australia for nearly 12 years and it would be surprising if he has not formed relationships in the community. The Tribunal said that it did not have sufficient evidence regarding his community ties in Australia to make a finding in that regard;

(i) The applicant had not lived in his home country since 2009 and therefore the ties he had have no doubt diminished over time and that in any event the information supplied by the applicant was vague;

(j) The ownership of the father's business: his fathers will, which stated that the applicant and his older brother shall inherit the business equally;

(k) The trade licence for the businesses: the licence for the business known as Galaxy World Logistic Limited appeared to show the owner as Feroz Talukdar, who was the applicant's brother;

(l) The applicant had remained living in Australia to study and work, in excess of eight years following the death of his father.

1. The Tribunal said that it gave weight to the evidence that since the applicant's arrival in Australia in 2009, he had spent approximately 12 years in Australia, and returned to Bangladesh on four occasions which indicated that he did not appear to have strong personal ties to Bangladesh. Based on this evidence the Tribunal assessed the applicant's incentive to return to Bangladesh to be minimal ([39]).
2. The Tribunal referred to the applicant's statement as to his future plans upon the completion of his studies and intention to take over the family business ([40]).
3. The Tribunal stated that the applicant had already completed a Master of Commerce, Master of Business Administration and Finance, Master of Business Administration (Human Resource Management) Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management and had not provided specific details to the Tribunal that showed the difference between the courses and the specifics of this course that would have led him to be better informed about leading and managing a company [41].
4. The Tribunal said it was concerned that the applicant's intention to live in Australia may be motivated by factors other than study. The Tribunal stated that the applicant had not demonstrated any clear and substantial improvements arising from his proposed study which would outweigh the significant time and monetary commitment the course would require. Therefore, the Tribunal was not satisfied that the applicant had demonstrated the value of his proposed course to his future [43].
5. The Tribunal found that as the applicant's wife lived in Australia, he had his strongest family tie living in Australia [44].
6. The Tribunal referred to the applicant's employment in Australia since March 2021 and found that the applicant had a significant tie to Australia in the form of his employment whilst he had lived in Australia, and that this provided a significant incentive for him to remain in Australia. The Tribunal said it placed a lot of weight on those factors against the applicant's case [44].
7. The Tribunal accepted that the applicant had progressed satisfactorily in the registered courses whilst living in Australia and weighed those facts in favour of the applicant's case [48].
8. The Tribunal said that the applicant was now proposing to study an Advanced Diploma of Deployment Logistics which was scheduled to end in March 2022 and a graduate Diploma of Management (Learning) which was scheduled to end in March 2023 [49].
9. On balance, the Tribunal said it was not satisfied that the applicant was a genuine temporary entrant for further stay as a full-time student. The Tribunal said that whilst the applicant clearly wished to stay and continue to study in Australia, it noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted a student visa which would have facilitated the applicant studying his desired field. It appeared to the Tribunal that the applicant had 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 [50].
10. The Tribunal also had regard to whether there was any other relevant matter and found there to be no other relevant matter to the assessment of the applicant's intentions to stay in Australia temporarily. On balance the Tribunal said it was not satisfied that the information the applicant had provided regarding his circumstances in his home country, potential value of the proposed courses to his future, his immigration history and other relevant matters were sufficient to demonstrate that the applicant was a genuine temporary entrant [51].
11. The Tribunal said that on the contrary the factors indicated the applicant appeared to have enrolled in the present course for the purposes of securing a further student visa rather than due to a genuine interest in study and overall academic progress and appeared to be using the student visa program as a means of maintaining ongoing residence in Australia and did not have a genuine intention to stay in Australia temporarily [52].
12. The Tribunal concluded that it considered that an applicant who was a genuine temporary entrant would have circumstances which supported a genuine intention to remain in Australia temporarily recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the amount of time the applicant had now spent in Australia the Tribunal said it was concerned the student visa may be used primarily to maintain ongoing residence and concluded that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. Accordingly, the Tribunal found that the applicant did not meet clause 500.212(a) and affirmed the delegate's decision [55]-[60].

1. These proceedings were commenced pursuant to section 476(1) of the Migration Act 1958 (Cth) ("the Act") by an application filed on 24 December 2021. The applicant also filed an affidavit on 24 December 2021. The affidavit annexes a copy of the Tribunal's decision.
2. Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which the applicants seek to rely and requiring them to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
3. The applicant appeared in person on his own behalf and on behalf of the second applicant. The applicant had the assistance of an interpreter in the Bengali and English languages. At the commencement of the proceedings, the applicant told the Court that he wanted speak in English and participate in the hearing without the assistance of the interpreter. The Court told the applicant that if at any time the applicant did not understand anything that was being said in Court, he should indicate as such, and the services of the interpreter would be called upon. The interpreter remained present throughout the hearing.
4. The material before the Court was the application, the applicant's affidavit, the first respondent's response, the first respondent's written submissions and the Court Book. Before the hearing commenced, the Court asked the applicant if he had these documents in Court with him. The applicant confirmed that he had these documents in Court with him except the first respondent's written submissions. The first respondent's representative told the Court that the first respondent's written submissions had been filed on 2 May 2025. This is reflected on the Court's online portal. The first respondent's representative told the Court that he had sent the applicant an email on 2 May 2025 at 6:02pm which annexed a copy of the written submissions. The applicant indicated to the Court that he may have missed that email. The Court temporarily adjourned to enable the applicant an opportunity to read the first respondent's written submissions.

1. For the applicant to be successful the Court must be satisfied that the Tribunal's decision is affected by material jurisdictional error.
2. The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
3. Despite the procedural order permitting them to do so, the applicants did not file an amended application. The grounds of review set out in the application are (without alteration):
   1. The Tribunal has been committed jurisdictional error.

Particulars:

1. The Tribunal has been unreasonable in comparing the applicant's economic circumstances in his country in 2006-2009 to the present day. [23-24]
2. The Tribunal has failed to take into account of relevant fact in assessing the applicant's economic circumstances in his home country, name his share in the family business and potential earnings from the business after he returns.
3. The Tribunal has been illogical in drawing link between the Trade License and the length of his stay in Australia [37]
4. The Tribunal has been illogical in not accepting the material difference between the business and management courses compared to the course logistics.

   1. The Tribunal has denied the applicant procedure fairness.

Particulars:

1. The Tribunal has failed to provide the applicant the opportunity to comments on the information it relied on for the reasons of its decision.
2. The Tribunal has relied in information from the department and it has failed to provide the applicant the opportunity to comments.

1. Despite the procedural order requiring them to do so, the applicants did not file any written submissions. The applicant was given the opportunity to make oral submissions in support of the application for judicial review and in reply to the first respondent's submissions.
2. The applicant told the Court that he was working as an accountant in Australia; that he wanted to finish his current studies and go back to his home country.
3. The applicant said that in his opinion, he had met all the criteria to be a Genuine Temporary Entrant ("GTE") and had provided all the requested documents to the Tribunal.
4. The applicant then indicated that he did not know what else to say because he did not have legal representation and needed a lawyer to show the Tribunal's error to the Court as he did not understand the Act and the Regulations.
5. The Court did not understand the applicant to be requesting an adjournment of the final hearing in order to obtain legal representation. In any event, the Court told the applicant that he did not have a right to legal representation. Further, the Court observed that the lawyer he had appointed (and who certified the application for judicial review pursuant to section 486I of the Act), had withdrawn on 3 April 2025, and that since then, he had had sufficient opportunity to find new legal representation if that is what he wished to do, noting that the Court had previously granted an adjournment of the hearing date on 13 May 2025 at the request of the applicant on the basis that he wanted an opportunity to obtain legal representation.
6. The applicant did not have any further submissions to make in support of the grounds of judicial review.
7. Otherwise, the applicant's oral submission was that he had the intention of completing his current course and going back to his home country, and that he had met all the criteria as a GTE for stay and study as a student did no more than invite the Court to engage in impermissible merits review.
8. In submissions in reply, the applicant indicated that he wanted an opportunity to make some written submissions by email to the Court. The Court declined to give the applicant that opportunity given that a procedural order had been made on 4 April 2022 requiring the applicants to file and serve written submissions at least 28 days before the hearing. No submissions were filed.
9. The Court now turns to consider each of the grounds in the application for judicial review.

Ground One: Unreasonableness, illogicality and failure to consider

1. In ground one, the applicant contends that the Tribunal committed jurisdictional error and sets out four particulars in support of that contention.
2. In particular (a), the applicant contends that it was unreasonable for the Tribunal (at [23]-[24]) to compare his economic circumstances in Bangladesh in 2009 (before he left for Australia) to his present circumstances in Australia. It appears that the applicant takes issue with the Tribunal's summary of his education and employment history (at [22]) and finding that given the disparity in economic circumstances between Bangladesh and Australia it was not satisfied that the applicant had a significant incentive to return to Bangladesh based on the Tribunal's summary of the evidence that followed.
3. The first respondent correctly observes that, where there is an allegation of 'unreasonableness', it is necessary to identify the point in the decision-making process at which the alleged unreasonableness occurred and to distinguish between alleged unreasonableness in the exercise of discretion and illogical or irrational reasoning in the course of reaching a state of satisfaction (first respondent's submissions ("FRS") [40] referring to EFH17 v Minister for Immigration and Border Protection (2019) 272 FCR 409; [2019] FCA 1681 at [37]). The first respondent submits that the applicant's contention ought to be understood as the latter.
4. The Court agrees that the Tribunal did not act illogically or irrationally in comparing the applicants' economic circumstances in Bangladesh and Australia particularly given that paragraph 9(c) of Direction No. 69 relevantly required consideration of economic circumstances that would present as a significant incentive to the applicants not to return to their home country, including their circumstances relative to the home country and Australia.
5. The Tribunal was accordingly entitled to take the economic disparity between the two countries into account when weighing up the applicants' circumstances as a whole and to give it whatever weight it considered appropriate in the circumstances.
6. In particular (b), the applicant contends that the Tribunal failed to consider the applicant's share in his family business and potential earnings from the business in assessing his economic circumstances in Bangladesh.
7. This contention is not borne out on the facts. The Tribunal expressly considered the applicant's claims that 'his brother is running the company and making a lot of money' (at [29]).
8. In particular (c), the applicant contends that the Tribunal was illogical in drawing a link between his Trade Licence and the length of his stay in Australia. At [37] the Tribunal found that the Trade Licence for Elonga TVS motors was issued on the 14 June 2017 and appeared to still be in the applicant's parents' name and observed that it was surprising that the applicant had remained living in Australia to study and work, in excess of eight years following the death of his father.
9. The Court agrees with the first respondent's submission that it was logically and rationally open for the Tribunal to be 'surprised' by the fact that the applicant remained in Australia for over eight years after his father's death and that business documents remained in his deceased father's name having regard to the applicant's claim that he intended to return to Bangladesh to run the family business (FRS [48]).
10. In particular (d), the applicant contends that the Tribunal was 'illogical' in 'failing to accept' the material difference between business and management courses and a logistics course.
11. What the Tribunal concluded was that it was not satisfied that the applicant had demonstrated 'any clear and substantial improvements' arising from his proposed course which would outweigh the significant time and monetary commitment the course would require ([43]). In so concluding, the Tribunal had regard to the fact that the applicant had spent approximately 12 years in Australia and completed a Master of Business Administration, Master of Commerce (Professional Accounting), a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management and had been employed in the transport and logistics industry.
12. The court agrees that The Tribunal's conclusion that the applicant's further study was for the purposes of securing a further stay in Australia was logically and rationally open on the evidence before it and for the reasons it gave ([50]).
13. No jurisdictional error is established on ground one.

1. In ground two, the applicant contends that the Tribunal denied him procedural fairness because it failed to provide him with an opportunity to comment on the information relied upon by the Tribunal, including information 'from the Department'.
2. The applicant has not particularised the information he says the Tribunal did not give him an opportunity to comment on.
3. The Court is of the view that there was no denial of procedural fairness because:

(a) When the Tribunal invited the applicants to a hearing, it notified them that the dispositive issue was whether the applicant met the GTE criterion and invited the applicant to provide information to the Tribunal to provide sufficient information to satisfy the Tribunal that he was enrolled in a registered course of study; and was a genuine applicant for entry and stay as a student. The invitation further stated in considering these requirements, that the Tribunal would have regard to Direction No 69.

(b) The applicant availed himself of the opportunity to provide the information requested by the Tribunal by providing a completed RSVI form and further documents prior to the hearing (CB 181-200).

(c) The information relied upon by the Tribunal comprised evidence supplied by the applicant himself which the Tribunal was not required to put to the applicant for comment or response pursuant to the then subsections 359A(4)(b)-(ba) of the Act. The Court agrees with the first respondent's submission in that regard (FRS [56] citing Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 and Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; [2012] FCAFC 30 at [74] per North, Greenwood and Besanko JJ).

(d) The Tribunal invited the applicant, pursuant to the then subsection 359A(1) of the Act, to comment on or to respond to information from the applicant's PRISMS records setting out various gaps in his study and enrolment (CB 241-215). The applicant availed himself the opportunity to respond to the Tribunal's inquiry (CB 237-238). The Tribunal ultimately made no adverse finding about the gaps in his study and enrolment (at [12]-[13]).

(e) The Tribunal was not required to provide the applicant with the opportunity to comment on its proposed findings and reasons or to give the applicant a running commentary upon what it thought about the evidence that was given (FRS [58] citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

1. No jurisdictional error is established on ground two.

1. Accordingly, for the reasons given above, the application is dismissed.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.

Associate: Jasmine Avery

Dated: 31 October 2025