Bhandari v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 1087

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bhandari v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1087

File number(s): SYG 2309 of 2020
Judgment of: JUDGE DOUST
Date of judgment: 11 July 2025
Catchwords: MIGRATION – student visa – judicial review – where applicant consented to the Tribunal deciding the application for review without conducting a hearing – whether Tribunal’s invitation to applicant to provide information was liable to mislead the applicant into believing that all information had to be in writing – invitation not likely to mislead applicant – genuine temporary entrant criterion – application dismissed
Legislation:

Migration Act 1958 (Cth) ss 359, 359(2), 359A, 360, 360(2)(b), 360(3), 361(2), 361(2A), 363, 363(1)(b), 363A, 476

Migrations Regulations 1994 (Cth) sch 2 cls 500.211, 500.212, 500.212(a)
Cases cited:

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26

VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123
Division: Division 2 General Federal Law
Number of paragraphs: 88
Date of hearing: 16 April 2025
Place: Sydney
Counsel for the Applicant: Mr J R Young
Solicitor for the Applicant: Mr S Thapa, Shamser Thapa & Associates
Solicitor for the First Respondent: Mr M Wong, HWL Ebsworth Lawyers
The Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 2309 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

SURYA PRASAD BHANDARI

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE DOUST

DATE OF ORDER:

11 JULY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.The application be dismissed.

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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE DOUST:

INTRODUCTION

  1. This is an application for judicial review commenced on 7 October 2020 pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) in respect of a decision of the then Administrative Appeals Tribunal (now Administrative Review Tribunal) (Tribunal) made on 5 September 2020.

  2. The Tribunal affirmed an earlier decision of a delegate of the first respondent, the (then) Minister for Immigration, Citizenship and Multicultural Affairs, now Minister for Immigration and Citizenship (the Minister), to…

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AGLC
Bhandari v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1087
Case
[2025] FedCFamC2G 1087
Decision Date

CaseChat Overview and Summary

In Bhandari v Minister for Immigration and Multicultural Affairs, the applicant, a Nepalese citizen who had resided in Australia for over a decade, sought judicial review of a decision by the Migration Review Tribunal (the Tribunal) to affirm the Minister’s decision to refuse his application for a student visa. The Tribunal had decided the application without a hearing after the applicant had consented to the review being decided on the material before it. The applicant contended that the Tribunal had erred in not adjourning the review to allow him additional time to provide further information and in failing to consider whether the invitation to provide information was misleading.

The central legal issues in the case were whether the Tribunal had erred in declining to exercise its discretion to adjourn the review and whether it had failed to consider whether its invitation to provide information was reasonably likely to mislead the applicant. Specifically, the applicant argued that the Tribunal’s invitation to provide information suggested that all information had to be in writing, which misled him into believing that there was no need for a hearing.

The Court found that the Tribunal had not erred in declining to adjourn the review. There was no evidence that the applicant had been misled by the Tribunal’s invitation to provide information, and it was unlikely that such a claim would have been accepted even if made. The Court held that the invitation to provide information did not objectively suggest that all information had to be in writing, and it was not reasonably likely to mislead a recipient into believing that a hearing was unnecessary. The Tribunal had appropriately exercised its discretion under s 363 of the Migration Act 1958.

Furthermore, the Court concluded that the Tribunal had considered the applicant’s claims and evidence, and there was no jurisdictional error in the Tribunal’s process. The Tribunal had invited the applicant to provide further information and had properly considered the material before it in reaching its decision. Therefore, the application for judicial review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The relevant history is set out following.BACKGROUNDThe Applicant’s History and Visa Application The applicant, born 21 April 1981, is a citizen of Nepal who first arrived in Australia on 23 October 2008. Between 2013 and 2019, the applicant held three student visas and was enrolled in seven courses of study. He completed only a single course of study, being a General English course in 2013. On 12 April 2019, the applicant lodged an application for the grant of a fourth student visa for the purpose of undertaking a Diploma of Leadership and Management. On 20 June 2019, the applicant was notified by letter from a delegate of the Minister (the delegate) that his visa application had been refused. The letter annexed a copy of the decision record. The delegate was not satisfied that the criteria for the grant of the visa had been met. The decision record referred to cl 500.212 in sch 2 of the Migrations Regulations 1994 (Cth) (the Regulations), known as the 'genuine temporary entrant criterion' which stipulates the following requirements: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. The delegate also referred to Ministerial direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Direction) which identifies factors that are to be taken into consideration when assessing visa applications of the kind that arise in the current matter. The delegate set out a summary of the factors to be considered arising from the Direction, which include, inter alia:(a)the applicant's circumstance in his home country;(b)the applicant's potential circumstances in Australia;(c)the value of the course to the applicant's future; and(d)the applicant's immigration history. The delegate was not satisfied that the applicant’s ties to Nepal were a strong enough incentive for him to return to Nepal following a stay in Australia for study. Whilst acknowledging the applicant’s family ties to his parents who remained in Nepal, the delegate found that the strength of those ties was outweighed by the lack of evidence of financial ties, employment or assets in his home country. The delegate also found the applicant’s substantial period of residence in Australia outweighed any incentive he had to return to Nepal. The delegate observed that the applicant had not declared any previous employment in Australia or overseas and had not declared any study he had undertaken whilst in Australia. The delegate noted that the applicant was the holder of a student visa which was valid until 15 April 2019 and had lodged a further student visa application which would potentially extend his residence in Australia to over 11 years. The delegate expressed significant concern that the applicant’s circumstances in Australia outweighed the incentive he had to return to Nepal and that he had utilised temporary student visas as a way of maintaining ongoing residence.

Evidence

Evidence Before The Court

For reasons which follow the Tribunal did not err, and the application should be dismissed.EVIDENCE The evidence in respect of the amended application was constituted of a court book (the court book) which was prepared by the first respondent and which contained relevant documents from the files of the Department of Home Affairs concerning the applicant’s visa application and documents from the Tribunal’s file. The court book was received into evidence at the hearing before this Court without objection by the applicant. In addition, the first respondent tendered an additional document entitled “Information for migration review applicants”, which was referred to as having been annexed to a letter dated 11 July 2019 from the Tribunal to the applicant, a copy of which letter appeared in the court book. The document had not been produced in the court book but was received into evidence without objection. The relevant history is set out following.BACKGROUNDThe Applicant’s History and Visa Application The applicant, born 21 April 1981, is a citizen of Nepal who first arrived in Australia on 23 October 2008. Between 2013 and 2019, the applicant held three student visas and was enrolled in seven courses of study. He completed only a single course of study, being a General English course in 2013. On 12 April 2019, the applicant lodged an application for the grant of a fourth student visa for the purpose of undertaking a Diploma of Leadership and Management. On 20 June 2019, the applicant was notified by letter from a delegate of the Minister (the delegate) that his visa application had been refused. The letter annexed a copy of the decision record. The delegate was not satisfied that the criteria for the grant of the visa had been met. The decision record referred to cl 500.212 in sch 2 of the Migrations Regulations 1994 (Cth) (the Regulations), known as the 'genuine temporary entrant criterion' which stipulates the following requirements: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. The delegate also referred to Ministerial direction No 69 - Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Direction) which identifies factors that are to be taken into consideration when assessing visa applications of the kind that arise in the current matter.

Decision

Reasons for decision

On 7 September 2020, the Tribunal notified the applicant in a letter sent by email that it had affirmed the decision under review. The notification of decision letter attached a copy of the Tribunal’s decision record (the decision record).The Tribunal’s reasons After setting out the history of the application in the decision record, the Tribunal observed that 13 months had elapsed since the delegate’s decision. The Tribunal also noted that the applicant had been assisted in the review process by a registered migration agent. The Tribunal recorded that due to the length of time that had passed since the delegate’s decision, the Tribunal, appreciating the potential for change in the applicant’s personal circumstances, had written on 8 May 2020 to the applicant requesting further information. The Tribunal expressed its satisfaction that the applicant had been properly invited to provide further information pursuant to s 359(2) of the Act, and noted that the applicant had provided information in response to the Tribunal’s request and had elected to have the matter decided without a hearing. The Tribunal considered whether it should adjourn the review under s 363(1)(b) of the Act to allow the applicant additional time to provide further evidence to support the review application, but concluded that the applicant had a fair opportunity to provide relevant information and declined to exercise its discretion pursuant to s 363(1)(b) of the Act. The Tribunal concluded that the decision under review should be affirmed. After setting out the statutory criteria for the grant of the visa and summarising the Direction the Tribunal considered the applicant’s claims and evidence. The Tribunal expressed concern about the applicant’s limited academic progress over such a lengthy period, and expressed the view that the applicant’s academic progress was not that of a genuine student. The Tribunal considered that the applicant had not provided sufficient information about how the Diploma of Leadership and Management course he proposed to undertake would assist him to obtain employment or operate his own business in Nepal. The Tribunal considered, given the applicant’s lengthy stay in Australia (at that point, 12 years), and his desire to extend that stay, the applicant had a preference to remain in Australia, and considered it reasonable to conclude that the applicant had strong ties to the Australian community. The Tribunal did not consider it had sufficient information about the applicant’s economic circumstances in Australia to conclude that they acted as a significant incentive for him not to return to his home country. The Tribunal was also not satisfied that the applicant’s family ties in Nepal acted as a significant incentive for him to return given the length of time he had been onshore. Ultimately the Tribunal concluded (at [32] – [33]):32.There is not sufficient evidence before the Tribunal, to satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on: the length of time the applicant has been onshore for, now approaching twelve years; the limited academic progress he has made in that time; and the limited detail provided by the applicant in relation to his future goal and how this qualification will specifically assist him in his career. Taken as a whole, the information provided by the applicant in relation to their application raises questions for the Tribunal about the applicant’s true intentions in residing in Australia. The Tribunal considers that the visa is being sought primarily to maintain residence in Australia.33.Having had regard to the applicant’s circumstances, their immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.

Ratio Decidendi

Legal Principle Established

At the hearing on 16 April 2025, the applicant advanced the following grounds of review, which were set out in the amended application (reproduced without alteration):1.The Second Respondent made jurisdictional error in relation to exercise its discretionary powers under section 363 of the Migration Act 1958 in that it failed to exercise such discretionary (sic) reasonably.1A.The Second Respondent made jurisdictional error by failing to consider an exercise of discretion and whether it was reasonably likely that an invitation to provide information at CB 126 was liable to mislead the Applicant into believing that all information had to be in writing.1B.Further or in the alternative to 1 and 1a, the Second Respondent made jurisdictional error by failing to obtain the views of the Applicant as to whether it should adjourn the review pursuant to s 363 of the Migration Act 1958.3.The Second Respondent failed to consider whether in the interest of fairness it should consider the exercise of discretionary powers to obtain information from the Applicant where the Second Respondent considered that the written material provided by the Applicant required elaboration or explanation or further information.CONSIDERATIONGround 1A It is convenient to deal with Ground 1A first. As set out above, Ground 1A appeared in the amended application as follows:1A.The Second Respondent made jurisdictional error by failing to consider an exercise of discretion and whether it was reasonably likely that an invitation to provide information at CB 126 was liable to mislead the Applicant into believing that all information had to be in writing. In the applicant’s oral submissions, it was apparent that the “exercise of discretion” he referred to in the ground was the exercise of the Tribunal’s discretion under s 363 of the Act to adjourn the review. The applicant’s argument was that the Tribunal should have adjourned the review, because it should have considered it likely the applicant was misled by the 8 May 2020 letter into believing that all the information to be given to the Tribunal had to be in writing. The applicant submitted that the invitation to provide information under s 359 of the Act (that is, the invitation passage in the Tribunal’s letter dated 8 May 2020 set out above) was objectively misleading and suggested to a reasonable recipient that all required information was required to be provided in writing. In oral submissions, the applicant contended that this had the consequence of conveying that if the invitation passage in the letter was taken up, there was no point in having a hearing. The submission should be rejected. There was no evidence before the Court from the applicant that he had in fact been misled by the letter. Nor is it likely such a claim would have been accepted if it had been made. The applicant was represented by a migration agent, who it may be assumed was familiar with the Tribunal’s procedures, including the entitlement in s 360 of the Act to be invited to appear before the Tribunal.