Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This case concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to grant Student visas (Subclass 500) to the applicants, a husband and wife. The primary applicant, a citizen of Nepal, had initially arrived in Australia on a Student visa to undertake tertiary studies. After her enrolment in a Bachelor's degree was cancelled, she applied for a further Student visa, proposing to study different courses. The delegate refused the visa application, finding the applicant was not a genuine temporary entrant and appeared to be using the student visa program to maintain ongoing residence in Australia. The Tribunal affirmed this decision.

The applicants sought judicial review of the Tribunal's decision, raising four grounds of review. These grounds alleged, among other things, that the Tribunal unreasonably refused to grant an adjournment for additional time to submit crucial information, failed to provide written reasons within a specified timeframe, made a legally unreasonable decision, and failed to consider relevant information. The core legal issue before the Tribunal, as identified in its reasons, was whether the applicant met the enrolment requirement for a student visa, specifically cl 500.111 of Schedule 2 to the Migration Regulations 1994, which required the applicant to be enrolled in a course of study at the time of the decision.

Street J found that the Tribunal did not err in its decision. Regarding the first ground, there was no evidence before the Court that the applicants had requested an adjournment to provide a Confirmation of Enrolment (CoE), and the Tribunal was not obligated to afford every opportunity for the applicant to present her best case. The second ground was misconceived as there is no statutory requirement for the Tribunal to provide written reasons within 14 days of an oral decision, and even if there were, the Tribunal had complied with the request. The third ground was dismissed for failing to provide particulars, rendering it a meaningless assertion of jurisdictional error. Finally, concerning the fourth ground, the Tribunal had considered the letter of offer but correctly found it insufficient to satisfy the enrolment requirement, as there was no evidence of acceptance or payment of fees, and the Tribunal had no discretion to waive this mandatory criterion.

The application for judicial review was dismissed.