Federal Court of Australia

Shah v Minister for Immigration and Citizenship [2026] FCA 1560

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal be dismissed.

2.    The appellant is to pay the first respondent’s costs of and incidental to the proceeding, fixed in the sum of $4,000.

3.    The name of the second respondent be amended to ‘Administrative Review Tribunal’.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The appellant is a male citizen of Pakistan who first arrived in Australia on a TU-572 student visa in December 2007. He was subsequently granted a Temporary Work (Skilled) (Subclass 457) Visa.

2    In November 2017 he applied for a Student (Temporary) (Class TU) visa (Student TU Visa). When the appellant applied for a Student TU Visa, it had two subclasses. The appellant applied for a Subclass 500 (Student) visa.

3    The appellant’s application for a Student TU Visa was declined by a delegate of the first respondent (Minister) on the basis that the appellant was not a genuine applicant for temporary entry and stay in Australia as a student. A subsequent application to the second respondent (Tribunal) for merits review of the delegate’s decision was unsuccessful. An application for judicial review of the Tribunal’s decision was dismissed by a judge of the Federal Circuit and Family Court of Australia (Division 2): Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 241 (Primary Judgment or PJ).

4    The central issue for determination in this appeal is whether the finding made by the Tribunal that the appellant was not a genuine applicant for temporary entry and stay in Australia as a student was affected by jurisdictional error.

5    I am satisfied for the following reasons that the primary judge was correct in concluding that the decision of the Tribunal was not affected by jurisdictional error and the appeal must be dismissed.

B.    Relevant principles

6    The primary criteria for a Subclass 500 (Student) visa that must be satisfied by at least one member of a family unit are contained in Pt 500.2 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). They relevantly include a requirement in cl 500.212 that the applicant is a genuine applicant for entry and stay in Australia as a student (genuine temporary entrant criterion).

7    Clause 500.212 at the relevant time provided:

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

(c)    of any other relevant matter.

8    The Tribunal is required to have regard to Direction No. 69 “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications”. The Direction was made under s 499 of the Migration Act 1958 (Cth).

9    Clause 1 of the Direction states that decision makers should not use the specific factors listed in the Direction as a checklist. Rather, the listed factors are intended only to guide decision makers when considering an applicant’s circumstances as a whole, in determining whether an applicant satisfies the genuine temporary entrant criterion. Relevantly for present purposes, the factors that the Direction requires decision makers to consider include:

(a)    the value of the course to the applicant’s future;

(b)    the applicant’s potential circumstances in Australia, which include whether the visa is being used to maintain ongoing residence, and the extent of the applicant’s ties with Australia which would present as a strong incentive to remain in Australia;

(c)    the applicant’s circumstances in their home country, which include whether the applicant has reasonable reasons for not undertaking the study in their home country or region, and the applicant’s ties with Australia which would present as a strong incentive to remain in Australia.

10    It is well established that the Court’s role in judicial review proceedings is to rule on the lawfulness or legality of a decision by reference to the complaints made. The Court does not consider the merits or wisdom of the decision, nor does it remake it: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17] (Allsop CJ, Besanko and O’Callaghan JJ).

11    As the primary judge, observed, disagreement with a decision, even emphatic disagreement, does not give rise to jurisdictional error: PJ at [28], citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

C.    The grounds of appeal advanced by the appellant

C.1.    Overview

12    The appellant advances three interrelated grounds of appeal in his notice of appeal.

13    The appellant did not file any written submissions in support of his grounds of appeal and appeared before me at the hearing of the appeal as a litigant in person with the assistance of an Urdu interpreter.

C.2.    Ground 1: Error in interpretation

14    The first ground is advanced in the following terms, as written:

1.    His Honour's erred in their interpretation of Clause 500.212 in Schedule 2 of the Migration Act 1958 when assessing the jurisdictional error in the tribunal's decision.

15    This ground generally corresponds with ground 2 of the application for judicial review before the primary judge.

16    The appellant was not able to provide any explanation at the hearing of the manner in which the primary judge “erred in their interpretation of Clause 500.212”. When pressed the appellant was only able to say he might have been referring to the errors alleged in ground 2.

17    I am not able to otherwise discern any error in the primary judge’s approach to the interpretation of cl 500.212. The primary judge set out the terms of cl 500.212 in full (at PJ [11]) and noted that the Tribunal had confirmed that it was required to have regard to the Direction in considering whether it was satisfied that the appellant satisfied cl 500.212 (at PJ [12]). In addressing the appellant’s claim that the Tribunal had misinterpreted cl 500.212, the primary judge stated at PJ [44]-[46]:

I accept the Minister’s submissions that the Tribunal did not err in its interpretation or application of this criterion. The Tribunal correctly identified the considerations relevant to determining whether the applicant intended to genuinely stay in Australia temporarily and understood that it was required to consider the factors identified in Ministerial Direction No 69, whilst acknowledging that the Direction was not to be used as a checklist. The Tribunal proceeded to assess the applicant’s evidence to determine whether it was satisfied the applicant intended to remain in Australia temporarily. On the evidence before it, the Tribunal was not satisfied the applicant genuinely intended to stay in Australia temporarily and therefore found that he did not meet the requirements of cl 500.212(a).

I also accept the Minister’s submission that the Tribunal did not make an error of the kind identified in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061. The Tribunal did not make any finding that the applicant intended to stay in Australia for a defined or otherwise finite period. The Tribunal remained focused in its reasons on whether the applicant genuinely intended to remain in Australia temporarily and was not satisfied that the applicant genuinely intended to stay in Australia temporarily. Having considered all relevant factors, the Tribunal found that the applicant’s circumstances were indicative of a person whose primary purpose for seeking the visa was to maintain ongoing residence in Australia.

Having found that the applicant did not meet the genuine temporary entrant criterion, the Tribunal, exercising the relevant powers of the Minister, had no option but to affirm the delegate’s decision. The Tribunal in conducting the review was able to exercise the powers and discretions conferred by the Migration Act on the person who made the reviewable decision: s 349(1) of the Migration Act. This included the power in s 65 of the Migration Act relating to making decisions to grant or refuse to grant visas. Where a decision-maker is not satisfied that all criteria prescribed by the Migration Act or Regulations for the grant of the visa have been satisfied, the decision-maker is required to refuse to grant the visa. It was therefore unnecessary for the Tribunal to consider whether the applicant met the other criteria for the grant of a student visa.

18    This ground does not disclose any error.

C.3.    Ground 2: Relevant and Irrelevant Considerations

19    The second ground is advanced in the following terms, as written:

2.    His Honour's erred in paragraph 33 by stating, "The Tribunal considered the applicant’s evidence and made findings that were open to it on the material before it. The Tribunal was not required to uncritically accept the applicant's evidence as to the value of the course to his future." Contrary to this assertion, the applicant unequivocally satisfied the stipulated criteria of Clause 500.212 in Schedule 2 of the Migration Act 1958. As highlighted by the learned judge(s) in paragraph 27 regarding the interpretation of jurisdictional error, "Jurisdictional error was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81]... ". As a matter of fact, the tribunal ignored relevant material and relied on irrelevant material in rendering its decision, a fact overlooked by His , constituting jurisdictional error.

20    This ground of appeal, read beneficially, largely reflects oral arguments advanced by the appellant before the primary judge in support of his first ground of review alleging that the Tribunal did not have jurisdiction. These arguments were to the effect that (a) the Tribunal did not consider his need to obtain the qualification he was seeking so that he could seek employment in Pakistan, (b) the Tribunal failed to consider his future needs, and (c) there were reasons why he had not been able to return to Pakistan while he was in Australia, as summarised by the primary judge at PJ [29].

C.3.1.    Did the Tribunal ignore relevant material?

21    I address first the contention that the Tribunal ignored relevant material.

22    In the course of his oral submissions at the hearing, the appellant explained that the relevant material ignored by the Tribunal was that the management diploma course he had enrolled in was important for his future career, he had strong family ties in Pakistan, and the reason he had not been able to visit Pakistan more often was that he was studying in Australia.

23    For the reasons that follow at [24] to [29], I do not accept that the Tribunal failed to have regard to the “relevant material” alleged by the appellant, nor that it relied on any “irrelevant material” in making its determination.

Relevance of proposed course of study

24    On the face of its decision record (Decision Record or DR), the Tribunal did consider the relevance of the appellant’s proposed course of study. It made the following findings:

24.    Given the applicant’s study history, the Tribunal is unable to find that the proposed course of study will necessarily add any further value to the applicant’s future that is outweighed by the cost and time commitment required for the current course of study. The Tribunal notes that the applicant has already attained several vocational courses and is not persuaded that the applicant’s current course will therefore increase his practical skill set to any further extent than what the applicant has already achieved.

…

30.    The Tribunal is not satisfied that the applicant has demonstrated any significant research into his education provider that would be consistent with a genuine student seeking to further their study in a foreign country. Further, the Tribunal places weight on the fact that the applicant has, without reasonable explanation, enrolled in numerous lower level vocational courses since being in Australia which are inconsistent with his Bachelor of Science degree obtained before entering Australia…

    …

34.    At the time of decision, the applicant has clearly already attained various vocational level qualification namely, an Advanced Diploma of Tourism Management. He has also attained vocational qualifications in hospitality. The Tribunal finds that objectively, the applicant has more than sufficient skills, knowledge and qualifications to have confidence to embark upon opening his own restaurant in Pakistan.

35.    The Tribunal acknowledges that some value may be obtained by the applicant in completing his vocational course, however, based on the evidence above, the Tribunal cannot be satisfied that this value exceeds the cost of the tuition and living expenses that would be incurred by the applicant while residing in Australia.

36.    The Tribunal is therefore not satisfied based on the evidence, that the proposed further vocational course of study the applicant is currently undertaking is likely to increase his employment prospects and remuneration in his own country, given that the applicant has made only vague assertions about the business he intends to open and from where he will obtain the funding to do.

25    These paragraphs show that the Tribunal had regard to the relevance of the appellant’s proposed course of study to his future employment prospects.

Significance of personal ties

26    As to the significance of the appellant’s personal ties to his home country, the Tribunal did have regard to the extent of the appellant’s family ties to Pakistan at DR [22]. Nonetheless, the Tribunal concluded:

25.    The Tribunal is unable to find that the applicant has significant enough personal ties to his home country such that would motivate him to return there after he completes his studies. The Tribunal bases this finding on the fact that he has only returned home for four weeks over an approximate 12 year period and the Tribunal finds this to be highly indicative of someone who does not intend to stay in Australia temporarily.

27    The finding made by Tribunal, that the appellant’s personal ties with his home country were not significant enough to “motivate him to return there after he had completed his studies” because he had only returned home for four weeks over a period of 12 years, was open to the Tribunal on the available evidence.

Reasons for limited return trips to Pakistan

28    As to the contention that the appellant’s study commitments precluded him from returning to Pakistan for more than a four week visit in September 2013 since arriving in Australia in December 2007, the Tribunal noted:

13.    The Delegate’s decision record reveals that the applicant has demonstrated an unremarkable study progression in Australia over a period of approximately 6 years. The Delegate contended that an examination of the PRISMS system revealed that the applicant has several cancelled COSs, with some cancellations being as a consequence of non commencement of studies and unsatisfactory course progress. The applicant contended that this was due to come colleges in which he was enrolled ceasing to exist. The Tribunal has some difficulty accepting that assertion.

14.    After 6 years of study in Australia, the only course actually completed by the applicant is a Diploma of Marketing, which the applicant contended is of no use to him here or in Pakistan. His contended that this is due to MBAs being popular in Pakistan after he completed his Diploma, so he could not compete in the market in Pakistan with a Diploma of Marketing qualification.

15.    Further, in 2017, the applicant enrolled in an Advanced Diploma of Leadership and Management which he did not complete.

29    The Tribunal placed significant weight on the limited return visits that the appellant had made to Pakistan since his arrival in Australia in 2007 in concluding that it was not satisfied that the appellant had satisfied the genuine temporary stay criteria in Australia in cl 500.212 of the Regulations. The appellant’s limited and inconsistent approach to his studies in Australia, as found by the Tribunal, do not provide a compelling or plausible basis to suggest that the Tribunal was required to take his study commitments into account in determining the relevance and weight it gave to his single four week return trip to Pakistan since his arrival in Australia.

C.3.2.    Did the Tribunal take into account irrelevant matters?

30    The appellant was asked, but was not able to identify, any irrelevant matter that the Tribunal had taken into account in making its decision.

31    Nor am I able to discern from the Decision Record, that the Tribunal had regard to any matter that was not relevant to a consideration of whether the appellant genuinely intended to stay in Australia temporarily, having regard to the factors identified in cl 500.212 in the context of the guidance provided by the Direction.

C.3.3.    No jurisdictional error is established

32    Given the Tribunal did not fail to have regard to the “relevant material” alleged by the appellant, nor did it rely on any “irrelevant material” in making its determination, it must follow that this ground of appeal has not been established. There was no error by the primary judge in rejecting this challenge to the decision of the Tribunal.

C.4.    Ground 3: Error of fact

33    The third ground is advanced in the following terms, as written:

3.    His Honour's asserted in paragraph 42 of the decision, "This appears to be a bare assertion that the applicant believes he met the criteria for a student visa, and not an assertion of jurisdictional error in the Tribunal decision." However, His Honour's overlooked and neglected the veracity that it was not a mere assertion but an established fact that the applicant fulfilled the criteria for a student visa. If His Honour's construed it as a bare assertion, then they committed a jurisdictional error in making such determination.

34    This ground of appeal proceeds on the mistaken assumption that the criteria for a student visa are limited to proof of enrolment in a course and satisfactory financial arrangements. It was by reference to those considerations that the appellant submitted at the hearing of the appeal that he had established that he had fulfilled the criteria for the Student TU Visa.

35    The primary judge correctly recognised, however, that the claim that the appellant had “fulfilled the criteria for a student visa” could not be an established fact. It could only have been an assertion, not least because by reason of cl 500.212, the Tribunal had to determine whether it was satisfied that the appellant genuinely intended to stay in Australia temporarily. A failure to have regard to an established material fact may give rise to a jurisdictional error. A decision not to accept a bare assertion by an applicant that a mandatory subjective criterion has been satisfied, does not establish jurisdictional error. The criterion in cl 500.212 is subjective because it requires the Tribunal to engage in a qualitative exercise in which it is required to have regard to and weigh multiple identified factors to determine whether an applicant genuinely intends to stay in Australia temporarily.

36    No jurisdictional error is established by this ground.

D.    Disposition

37    For the foregoing reasons, the notice of appeal is to be dismissed and the appellant is to pay the costs of the Minister.

38    The Minister seeks an order that the appellant pay his costs fixed in the amount of $4,000. I am satisfied that an order should be made in those terms. The amount is significantly less than the amount that item 15.2 of Sch 3 to the Federal Court Rules 2011 (Cth) provides can be claimed in a short form bill for an application involving a migration decision dismissed after hearing and is otherwise reasonable and proportionate to the nature and complexity of the appeal.

Associate:

Dated:    21 October 2026