Dhakal v Minister for Immigration and Citizenship
[2025] FedCFamC2G 760
•26 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhakal v Minister for Immigration and Citizenship [2025] FedCFamC2G 760
File number(s): MLG 3511 of 2020 Judgment of: JUDGE JOHNS Date of judgment: 26 May 2025 Catchwords: MIGRATION – judicial review – student visa – whether the Tribunal failed to consider relevant evidence – whether the Tribunal acted unreasonably – procedural fairness – whether weight given to certain evidence reveals jurisdictional error – no jurisdictional error found – application dismissed. Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) cl 500.212 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 14 May 2025 Place: Melbourne Applicant: In person Solicitor for the Respondents: Ms M Popal of HWL Ebsworth ORDERS
MLG 3511 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANISH DHAKAL
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
26 MAY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The Applicant’s application for judicial review filed on 29 September 2020 is 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 JOHNS
INTRODUCTION
Before this Court is an application for judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (as the Minister was then called) (Delegate), to refuse to grant the Applicant a Student (Subclass 500) visa (Student Visa).
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed within the 35-day time period prescribed under the Act.
This matter was heard on 14 May 2025 and proceeded in person at the Court’s Melbourne Registry.
To obtain relief from this Court, the Applicant must show that the Tribunal has fallen into jurisdictional error. For the reasons that follow, this Court has determined that no jurisdictional error arises from the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether the Tribunal committed a jurisdictional error in affirming the decision of the Delegate refusing the Applicant a Student Visa.
The Application for a Visa
The Applicant is a citizen of Nepal. He arrived in Australia on 14 February 2019 as a holder of a Visitor (Subclass 600) visa (Visitor Visa), which had been granted on 15 January 2019.[1] That visa permitted the Applicant to remain in Australia for a period of three months from the date of his arrival.[2]
[1] Court Book (CB) 13, 27 – 29.
[2] CB 27.
Prior to arriving in Australia, the Applicant had completed his secondary education in Nepal and had been employed by AP Construction, where he worked as an accounting and compliance manager from July 2015 until his arrival in Australia.[3]
[3] CB 10 – 11, 43 – 49.
On 10 May 2019, while still holding a valid Visitor Visa, the Applicant lodged an application for a Student Visa.[4] He sought to study at the Royal Gurkhas Institute of Technology (RGIT) in Melbourne:
(a)a Diploma of Leadership and Management, followed by
(b)an Advanced Diploma of Business.[5]
[4] CB 1 – 19.
[5] CB 57 – 58.
In support of his application, the Applicant submitted a statement attesting to being a GTE in which he asserted that he intended to pursue these qualifications to open a business consulting firm in his hometown of Bhairahawa, Nepal.[6] He claimed that the proposed qualifications would equip him with the necessary business, finance, and strategic planning skills that were not otherwise available through Nepalese educational institutions.[7] He further submitted that his studies were part of a long-term career goal and that he would return to Nepal after the completion of his studies.[8]
[6] CB 55 – 64.
[7] Ibid.
[8] Ibid.
Decision by the Delegate
On 12 June 2019, the Delegate refused to grant the Student Visa on the basis that the Applicant did not satisfy cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (GTE Criterion).[9] That is, the Delegate was not satisfied that the Applicant was a genuine temporary entrant for stay in Australia.
[9] CB 77-81.
The Delegate’s reasons for refusing the Student Visa included that the Applicant:
(a)did not show why similar courses were not available in Nepal[10],
(b)had not clearly articulated how his proposed studies would contribute to his future career goals[11],
(c)displayed limited knowledge of his course content or career pathway when he was interviewed by a Departmental officer[12],
(d)had significant family ties in Australia in the form of his sister and brother-in-law which will likely reduce the incentive for him to return to Nepal[13], and
(e)was on a Visitor Visa and his application for a Student Visa was made shortly before that visa’s expiry, indicating a sudden shift in his migration intentions.[14]
[10] CB 79.
[11] CB 80.
[12] Ibid.
[13] n 10.
[14] n 11.
The Delegate concluded that these factors, when taken as a whole, lead to the conclusion that the Applicant did not genuinely intend to stay in Australia temporarily for study purposes.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.[15]
[15] Migration Act 1958, s 476(2)(a).
Application to the Tribunal
On 25 June 2019, the Applicant lodged an application to the Tribunal for review of the Delegate's decision.[16]
[16] CB 82-83.
On 27 April 2020, the Tribunal wrote to the Applicant requesting information under s 359 of the Act. The letter invited the Applicant to provide evidence that he was:
(1)enrolled in a registered course of study; and
(2)a genuine temporary entrant, consistent with the requirements of cl.500.212 of the Regulations and Direction Number 69 – Assessing The Genuine Temporary Entrant Criterion for Student Visa And Student Guardian Visa Applications (Direction 69).[17]
[17] CB 90 – 96.
In response, the Applicant submitted:
(a)a completed Request for Student Visa Information form[18],
(b)a Statement of Attainment confirming completion of units as a part of the Diploma of Leadership and Management[19],
(c)a verification of enrolment in Diploma of Leadership and Management[20],
(d)a statutory declaration reiterating his intention to return to Nepal and establish a business[21],
(e)evidence of financial support from his family, including statutory declarations and bank statements[22], and
(f)submissions in support of his application for review by the Tribunal.[23]
[18] CB 97 – 107.
[19] CB 108.
[20] CB 109.
[21] CB 110 – 116.
[22] CB 110 – 112, 117 – 122.
[23] CB 123 – 126.
On 10 August 2020, the Tribunal invited the Applicant to attend a hearing scheduled for 25 August 2020. Due to COVID-19, the Tribunal advised the Applicant that the hearing would be held by telephone.[24]
[24] CB 129 – 131.
On 14 August 2020, the Applicant confirmed that he, along with his migration agent, would attend the hearing. He indicated that his sister and brother-in-law would provide oral evidence.[25]
[25] CB 139 – 141.
In advance of the hearing, the Applicant’s representative filed with the Tribunal the following further evidence:
(a)a current enrolment letter, filed on 21 August 2020, which confirmed the Applicant’s enrolment in a Diploma of Leadership and Management (scheduled for completion on 12 July 2020) and an Advanced Diploma of Business (scheduled for completion on 9 January 2022)[26],
(b)multiple tax receipts, filed on 21 August 2020, which confirmed payment of the Applicant’s course fees[27], and
(c)bank balance certificate of his brother-in-law, filed on 24 August 2020.[28]
[26] CB 145.
[27] CB 146 – 151.
[28] CB 152-154.
The hearing took place on 25 August 2020. The Applicant appeared with the assistance of his migration agent.[29]
[29] CB 155.
On 25 August 2020, the Tribunal affirmed the Delegate's decision not to grant the Applicant a Student Visa.[30] The Applicant was notified of the Tribunal’s decision on 26 August 2020.[31]
[30] CB 161-168.
[31] CB 158.
TRIBUNAL DECISION
The Tribunal’s decision is 14 pages long and spans 36 paragraphs. Part of the decision outlines Direction Number 69.[32]
[32] CB 169 – 174.
At paragraph 13 of the outline of submissions filed by the First Respondent (Minister) on 15 April 2025, solicitors for the Minister summarised the Tribunal’s decision. The Court has carefully read Tribunal’s reasons and accepts the Minister’s summary as comprehensive, fair and properly referenced. The Court adopts it for the purposes of this judgment (citations omitted):
13. The Tribunal found that:
(a).the applicant arrived in Australia 18 months before the Tribunal decision, and had not returned to his home country since his arrival;
(b).it did not accept the applicant's assertions regarding study in his home country or that overseas candidates are favoured as no supporting evidence had been provided;
(c).the applicant did not have strong economic of financial ties to his home country, that would constitute an incentive to return;
(d).the applicant's family ties in his home country did not constitute an incentive to return when balanced against the applicant's ties in Australia, which included his sister and brother-in-law, which provided an incentive to remain;
(e).the applicant did not undertake any genuine research into his proposed course or education provider as would be expected of a genuine student;
(f).the applicant was enrolled in inexpensive vocational courses that indicated the student visa program was being used to circumvent the migration program;
(g).the applicant failed to establish how his proposed studies would be of value to his stated career plan/goals in the absence of compelling evidence;
(h).the applicant changed his migration intentions while onshore, having arrived on a visitor visa, and did not have a reasonable explanation for this change. This indicated the applicant was not a genuine student;
(i).the applicant's completion of some of his studies did not outweigh the evidence suggesting the applicant was not a genuine temporary entrant.[33]
[33] Minister’s Outline of Submissions filed on 15 April 2025; CB 163 – 168.
The Tribunal concluded that the Applicant was not a genuine applicant for entry and stay as a student and he did not satisfy the GTE Criterion.[34] Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the student visa.
PROCEEDINGS IN THIS COURT
[34] CB 168.
The application
On 29 September 2020, the Applicant’s then representative, filed an application for judicial review on behalf of the Applicant in the predecessor of this Court. The Applicant seeks an order that the Tribunal’s decision be quashed and the matter remitted for reconsideration according to the law.
In his application, the Applicant submitted that the Tribunal had made an “incorrect assessment of the genuine temporary entrant criteria” and proceeded to reproduce the text of cl.500.212. The Applicant also claimed that the Tribunal had done an “incomplete and incorrect assessment” of the criteria set out in Direction 69. However, no particulars of the grounds of review accompanied the application for review. The applicant did not explain how the GTE Criterion was incorrectly assessed nor how the Direction 69 assessment was incomplete or incorrect.
However, in the accompanying affidavit deposed to 29 September 2020 (2020 Affidavit), the Applicant made further submissions. Relevantly, the Applicant alleged that (reproduced with annexures omitted):
9.Insufficient assessment of Genuine Temporary Entrant Criteria set out in 500.212.
10.The primary decision maker erred in their decision as to the assessment of the applicant’s intent to remain in Australia against the criteria set out in Direction Number 69 – Assessing the Genuine Temporary Criterion For Student Visa and Student Guardian Visa Applications including taking factors into account which are outside the scope of the direction including marital status and whether the applicant has any family in Australia.
11.The Administrative Appeals Tribunal failed to consider additional information provided by the primary applicant in relation to his visa application.
…
17.It appears that the Delegate has gone outside the realms of Direction 69 to assess GTE Criteria. The changes to the applicant’s courses appear to be consistent with the National Code and therefore should not be used against the applicant.
18.Procedural fairness was not followed at the primary level by the Minister and subsequently by the Administrative Appeals Tribunal.
Case management
On 14 October 2020, the Minister filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted that the application failed to articulate or establish any jurisdictional error on the part of the Tribunal.
On 20 July 2021, the Minister filed a bundle of relevant documents (Court Book).
On 12 March 2025, the Applicant’s then representative filed a notice withdrawing from representation.
On 17 March 2025, a Registrar of this Court issued an Order (Registrar’s Order) directing the:
(a)Applicant to file any amended application with proper particulars, written submissions and further evidence by 4 April 2025, and
(b)Minister to file any written submissions and further evidence in reply by 18 April 2025.
On 4 April 2025, the Applicant filed a further affidavit(2025 Affidavit). In the 2025 Affidavit, the Applicant stated that he had married in July 2024 and had relocated to Canberra. He also stated that he had enrolled in a new course of study, a Diploma of Community Services at Key 2 Learning College, which commenced on 23 December 2024 and is expected to conclude on 31 August 2026. He annexed to his affidavit confirmation of enrolment and supporting correspondence from the institution.
Other than the 2025 Affidavit, the Applicant did not file an amended application and nor did he provide further particulars of the grounds for judicial review, despite being invited to do so.
On 15 April 2025, the Minister complied with the Registrar’s Order by filing written submissions and an affidavit of Halen Sassine (of HWL Ebsworth).
Therefore, the materials before the Court are as follows:
(a)the application for judicial review dated 29 September 2020,
(b)the Affidavit filed 29 September 2020 (marked as Exhibit A1),
(c)a Court Book numbering 175 pages (marked as Exhibit R1),
(d)the Affidavit filed 4 April 2025 (marked as ExhibitA2), and
(e)an outline of written submissions filed by the Minister on 15 April 2025.
The judicial review hearing
At the hearing, the Applicant appeared before the Court without legal representation. He was assisted by a Nepalese translator. The Minister was represented by HWL Ebsworth and appeared by solicitor, Ms Maryam Popal.
The Court confirmed with the Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
To assist the Applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the Applicant that this Court cannot review the merits of the Tribunal’s decision or grant the Applicant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The Applicant principally elected to conduct the proceedings in this Court in English. However, the explanations provided to the Applicant were, when he required it to be, interpreted. Based on the Applicant’s responses the Court is confident they properly comprehended the scope and purpose of the hearing.
Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on his grounds of review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
Before this Court, the Applicant made submissions in support of the grounds set out in their application. Those submissions are considered below.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 15 April 2015. The Minister also addressed the 2025 Affidavit.
After the Minister made their submissions, the Court invited the Applicant to respond to what the Minister’s representative had said. The Applicant made further submissions also considered below.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the Applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the Applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. ...
3. Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. ... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
CONSIDERATION
At the hearing before the Court, the Applicant was invited to make oral submissions about:
(a)why they believe the Tribunal made a jurisdictional error; and
(b)their grounds for judicial review in their application and the 2020 Affidavit.
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds. To the extent that the Applicant made more general submissions, those submissions largely invited the Court to engage in impermissible merits review of the Delegate’s decision and or the Tribunal’s decision. As this Court explained to the Applicant at the hearing, the Court cannot consider for itself whether the Applicant meets the criteria for a student visa. To the extent that the Applicant’s submissions invite the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal’s decision.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. I incorporate (without repetition) paragraphs 17 to 28 of the Minister’s outline of submissions.
Grounds in application
Ground 1
1.Incorrect assessment of the genuine temporary entrant criteria set out in 500.212
…
During the hearing, the Court asked the Applicant to elaborate what he meant by these grounds.[35] In oral submissions, the Applicant stated that the Tribunal gave inappropriate weight to his family ties in Australia (his sister and brother-in-law) and did not give sufficient weight to his family ties in Nepal. He also submitted that he was a genuine student who had diligently pursued his studies in Australia.[36]
[35] Transcript P-8 at [24].
[36] Transcript P-8 at [46] to P-9 [3].
These submissions largely reflect a disagreement with the Tribunal’s findings. The relevant question is whether or not the Tribunal’s reasoning discloses a jurisdictional error. The Tribunal’s decision did expressly consider the Applicant’s family ties in both Australia and Nepal[37], his education in Australia[38], and his stated goals.[39] The Tribunal did not find the evidence of his ties to Nepal compelling and ultimately concluded that the Applicant’s circumstances suggested an intention to remain in Australia. This was a finding which was open to the Tribunal. Therefore, no jurisdictional error arises, and ground 1 is dismissed.
[37] CB 164 at [17] and CB 165 at [21].
[38] CB 165 – 166.
[39] Ibid.
Ground 2
Incomplete and incorrect assessment of the abovementioned criteria as set out in the Ministerial Direction 69
…
By this ground, the Applicant submits that the Tribunal made an incorrect assessment of Direction 69, which sets out the matters to be considered under cl.500.212. At the hearing, the Court asked the Applicant to elaborate on what he meant by this ground.[40] The Applicant submitted that he was a genuine student and that he had been studying at the time his visa was refused.[41]
[40] Transcript P-10 at [7].
[41] Transcript P-10 at [9]-[11].
Again, this ground represents a disagreement with the Tribunal’s finding as opposed to a clear articulation of any jurisdictional errors in the Tribunal’s decision. A review of the Tribunal’s decision reveals that it cited Direction 69 and considered each of the factors it sets out: the Applicant’s circumstances in his home country, his potential circumstances in Australia, the value of the course to the Applicant’s future, and his immigration history.[42] The Tribunal made findings in respect of each category and gave reasons as to why those findings led to the conclusion that he was not a genuine temporary entrant for the purposes of study in Australia.
[42] CB 164 – 166.
Ground 2 does not establish a jurisdictional error, and it must be dismissed.
Grounds in 2020 Affidavit
Ground 3
11.The primary decision maker erred in their decision as to the assessment of the applicant’s intent to remain in Australia against the criteria set out in Direction Number 69 – Assessing the Genuine Temporary Criterion For Student Visa and Student Guardian Visa Applications including taking factors into account which are outside the scope of the direction including marital status and whether the applicant has any family in Australia.
By this ground, the Applicant alleges that the Tribunal considered irrelevant matters, specifically his marital status and the fact that he had family in Australia. However, there is no evidence in the Tribunal’s reasoning that it relied on the Applicant’s marital status. The Tribunal did refer to the Applicant’s sister and brother-in-law, but Direction 69 expressly directs the Tribunal to consider an Applicant’s personal ties to Australia, including his family.[43] Accordingly, ground 3 does not establish jurisdictional error.
[43] CB 173 at [11].
Ground 4
12.The Administrative Appeals Tribunal failed to consider additional information provided by the primary applicant in relation to his visa application.
At the hearing, the Court asked the Applicant what “additional information” the Tribunal failed to consider in its decision.[44] In response, the Applicant said:
There was no such additional information, just like my studying. Like I was genuinely studying, so I don’t understand how like they failed to consider that fact that I was regularly attending my college, my – doing my course progress honestly. I fail to understand that.[45]
[44] Transcript P-11 at [7].
[45] Transcript P-11 at [10].
The only material the Applicant identified that the Tribunal allegedly failed to consider was his course attendance and progress. However, those matters were considered in the Tribunal’s reasons.[46] The Tribunal concluded nevertheless that Applicant had not demonstrated how his proposed course would be of value to his stated goals. This finding was after an evaluation of the evidence, not a failure to consider it. No jurisdictional error arises in this ground, and ground 4 is accordingly dismissed.
[46] CB 164 and 168.
Ground 5
17.It appears that the Delegate has gone outside the realms of Direction 69 to assess GTE Criteria. The changes to the applicant’s courses appear to be consistent with the National Code and therefore should not be used against the applicant.
This Court does not have jurisdiction to review the decision of the Delegate. Accordingly, ground 5 is dismissed.
Ground 6
18.Procedural fairness was not followed at the primary level by the Minister and subsequently by the Administrative Appeals Tribunal.
To the extent that this ground relates to the Delegate’s decision, this Court can only review the Tribunal’s decision. At the hearing, the Applicant accepted that he did not know what he meant by this ground as it was not drafted by himself:
HIS HONOUR: I can’t look at what the Minister did or delegate did, but what do you mean, “procedural fairness was not followed” by the Administrative Appeal Tribunal?
MR DHAKAL: No idea
HIS HONOUR: Can I assume you didn’t draft that?
MR DHAKAL: Yes, sir. I didn’t draft that.
HIS HONOUR: Right. Right. And so, you don’t know what it means?
MR DHAKAL: Yes. I don’t understand what it means.[47]
[47] Transcript P-12 at [24]-[35].
The Tribunal issued invitations under s 359 and 360 of the Act. The Applicant responded to those invitations. The Applicant attended the hearing with the assistance of his migration agent and had the opportunity to present his evidence and claims. There is no indication that the Tribunal failed to comply with its obligations under the Act. Accordingly, this ground is dismissed.
Other matters raised before the Court
Before this Court the Applicant made additional submissions based on the 2025 Affidavit, including his marriage, study and employment status.
At the hearing the Minister’s representative submitted that the 2025 Affidavit impermissibly dealt with new evidence about the merits of the application for a student visa.
While I am sympathetic to the Applicant’s circumstances and the life he has established in Australia, this new evidence goes to the merits of the application and is not relevant to the judicial review of the Tribunal’s decision.
These additional matters do not establish jurisdictional error and must be dismissed.
DISPOSITION
For the reasons set out above, this Court is satisfied that the Tribunal’s reasons were not affected by jurisdictional error.
Accordingly, the application for judicial review is dismissed. The Court will hear the parties on costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 26 May 2025
0