Ullah v Minister for Immigration and Citizenship [2026] FCA 215

1. By notice of appeal filed on 26 October 2023, the appellant appeals from the judgment and orders of the primary judge in Ullah v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 935. For reasons that escape me, the matter was not referred to my docket until December 2025, a delay of over two years.
2. The primary judge dismissed an application for judicial review of a decision of the second respondent (the Tribunal) dated 20 November 2018. The Tribunal affirmed a decision of the first respondent (the Minister) to refuse to grant the appellant a Student (Temporary) (Class TU) (subclass 500) Visa (the Visa).
3. On 30 September 2016, the appellant lodged an application for the Visa to study a Diploma of Hospitality. The appellant subsequently provided a Confirmation of Enrolment (CoE) in a Bachelor of Accounting course, commencing on 28 August 2017 and concluding on 14 August 2020. On 15 February 2017, a delegate refused to grant the appellant the Visa. On 6 March 2017, the appellant sought review with the Tribunal.
4. On 19 March 2018, the Tribunal invited the appellant to a hearing on 17 April 2018, in accordance with s 360 of the Migration Act 1958 (Cth) (the Act). The Tribunal's invitation letter also requested that the appellant provide information, including a current CoE, a document showing his past studies in Australia, and a statement addressing Direction No. 69 - Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction 69).
5. Around 14 April 2018, the appellant's then representatives submitted to the Tribunal supporting documents, including:

(a) submissions dated 14 April 2018;

(b) a letter of offer dated 13 February 2018, and a CoE for an Advanced Diploma of Leadership and Management at Australian International Academy;

(c) a certificate of completion for an Advanced Diploma of Business dated 8 August 2014, an academic transcript for the same, and a Certificate III in English for Further Study, dated 31 December 2010;

(d) a psychological counselling report dated 7 April 2018 in relation to the appellant; and

(e) medical certificates in relation to the appellant's mother in Pakistan.

1. On 17 April 2018, the appellant appeared before the Tribunal at a hearing, assisted by his representative. On 20 November 2018, the Tribunal affirmed the decision under review. The appellant was notified of the decision by email to the appellant's representative.
2. The Tribunal summarised the appellant's educational history and evidence, noting that:

(a) since arriving in Australia, the appellant had completed a general English course, a Certificate IV in Business, a Diploma in Business Administration, an Advanced Diploma of Business, a Certificate IV in Marketing, and Certificate III in Commercial Cookery; and

(b) the appellant's proposed course of study at the time of the Visa application was a Bachelor of Accounting. By the date of the Tribunal hearing, the appellant's proposed course of study had changed to an Advanced Diploma in Leadership and Marketing.

1. The Tribunal placed some weight on the appellant's evidence of ongoing ties to his home country, including that his wife and family reside in Pakistan and that he had returned three times since first arriving in Australia. The Tribunal had regard to the appellant's previous study and explanation for the multiple enrolments. The Tribunal accepted the appellant's claims about administrative difficulties in relation to his multiple enrolments. The Tribunal noted the appellant's evidence that, after his father's death in 2011, his mother suffered depression, anxiety and a stroke, and that the appellant was unable to concentrate on his studies after returning from a visit to Pakistan in 2012-2013. While accepting that the appellant may have suffered some difficulties due to his father's death in 2011, the Tribunal did not accept that this accounted for his lack of progress academically in later years.
2. The Tribunal had several concerns about the value of the appellant's courses to his future. It noted the appellant had claimed he intended to pursue a career in hospitality, but was enrolled in a Bachelor of Accounting, which was at the same level as the degree he already held (a Bachelor of Commerce). The Tribunal did not accept that the appellant had followed a logical course of study during his temporary residence in Australia from 29 May 2010 and considered that the appellant had retrospectively attempted to explain his various courses of study as fitting into a broad overall business plan. The Tribunal was not satisfied that the appellant continued to study for reasons of genuine interest or usefulness, and was not satisfied that the appellant was a genuine student.
3. The Tribunal also considered the appellant's length of time in Australia, and found he had not demonstrated how the addition of a further Advanced Diploma in Leadership and Management would be of benefit over and above the bachelor's degree and courses he had already completed.
4. For those reasons, the Tribunal was not satisfied that the appellant was a genuine applicant for entry and stay as a student, in accordance with cl 500.212 of Sch 2 to the Migration Regulations 1984 (Cth). The Tribunal affirmed the decision under review.
5. Before the Federal Circuit and Family Court, the appellant relied on an application dated 13 December 2018, containing a single ground of review alleging two errors, in substance being:

(a) the Tribunal failed to provide notice under section 359A or 359AA of the Act as to matters which might be the reason, or part of the reason, for affirming the decision under review; and

(b) the delay between the date of hearing and the date of decision breached principles of natural justice.

1. Concerning the first alleged error, the primary judge considered that for the purposes of ss 359A and 359AA, "information" concerned evidentiary material or documentation and not the Tribunal's "subjective appraisals". Her Honour also noted that the requirements of s 359A would not apply to information falling within the exceptions in s 359A(4) of the Act. Her Honour stated that these matters were discussed with the appellant during the hearing, and noted at [16] that the applicant accepted the Tribunal had possibly given him all necessary information, but he still wished to press his application before the Court, but did not seek to identify any "information" that may have engaged s 359A of the Act.
2. The material relied on by the Tribunal consisted of material provided by the appellant for the purposes of his review (as identified at [8] of the Tribunal decision) and for the delegate's decision, and fell within the exception in s 359A(4)(b) of the Act. It also consisted of the appellant's evidence submitted to the Department as part of his application for the Visa, and fell within s 359A(4)(ba) of the Act. It was also not apparent that any oral evidence capable of attracting the operation of section 359A of the Act was before the Tribunal: [17].
3. Concerning the second alleged error, the primary judge found that a delay of seven months by the Tribunal, following the appellant's hearing, did not create relevant unfairness or lead to a real and substantial risk that the Tribunal's capacity to make an assessment was impaired, and the delay in this matter did not rise to a level where it could result in an impaired capacity to assess evidence and render a decision procedurally unfair: at [19], citing NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470.
4. The appellant raises the following two grounds of appeal:

(1) My appeal has been rejected my Hon.Judge.They (sic) did not consider my application.

(2) I request to the Court to grant me justice.I (sic) am doing my studies.

1. By ground 1, the appellant contends that the primary judge failed to consider the errors alleged by the appellant in his application, dated 13 December 2019. Contrary to what is alleged, the primary judge did consider the appellant's alleged errors, and thus no error by the primary judge arises.
2. The primary judge identified the appellant's single ground in his application and the two errors alleged in it. Her Honour engaged with the appellant concerning the content of his allegation that the Tribunal did not comply with s 359A of the Act, and the appellant indicated that he wished to press his application, despite accepting that the Tribunal had possibly given him all the necessary information. Her Honour was correct to find that the ground was not made out.
3. The primary judge correctly found that there was no information relied upon by the Tribunal which engaged any of the obligations under s 359A of the Act. Further, the Tribunal's reasons were based on material to which s 359A does not apply, as it was information which is made exempt under s 359A(4) of the Act. That is, it was information the appellant gave for the purpose of the application for review (s 369A(4)(b)) or was submitted to the Minister for the purpose of the decision that was under review before the Tribunal (s 359A(4)(ba)), and the Tribunal's findings were based on the materials submitted by the applicant.
4. For completeness, as no obligation to invite the appellant to comment arises under s 359A, there could be no duty to follow the procedures in s 359AA. Nor does any error arise from the period between the hearing and the Tribunal's decision, as correctly found by the primary judge at [15]-[19].
5. Accordingly, there is no basis for the appellant to contend that the primary judge did not consider the appellant's application, and this ground should be rejected.
6. By ground 2, the appellant seeks justice from this Court, and states that he is doing his studies.
7. To the extent that ground 2 alleges error, it rises no higher than impermissible merits review. The appellant does not allege any jurisdictional error by the primary judge.
8. Accordingly, the appeal should be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.