Ghale v Minister for Immigration and Citizenship
[2025] FedCFamC2G 729
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ghale v Minister for Immigration and Citizenship [2025] FedCFamC2G 729
File number(s): SYG 310 of 2022 Judgment of: JUDGE CLEARY Date of judgment: 23 May 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) was satisfied – whether applicant genuinely intended to stay temporarily in Australia – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 65, 359, 476
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: AIZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 715
Craig v South Australia (1995) 184 CLR 163
Holani v Minister for Immigration and Multicultural Affairs [1999] FCA 484
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 14 May 2025 Solicitor for the Applicant: In person Solicitor for the Respondents: Mrs J. Schultz ORDERS
SYG 310 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUMAN GHALE
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the amount of $6,100.
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 CLEARY
INTRODUCTION
The applicant has filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). He seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 28 January 2022 which affirmed a decision of a delegate of the first respondent to cancel the applicant’s Student (Temporary) (Class TU) visa (student visa) under s 65 of the Act.
FACTUAL BACKGROUND
On 16 July 2017, the applicant, a citizen of Nepal, first arrived in Australia on a student visa. During his time studying, he completed a Diploma of Network Security and an Advanced Diploma of Network Security.
On 3 September 2019, the applicant applied for another student visa (subclass 500) on the basis that he had enrolled into a Certificate IV in Commercial Cookery and an Advanced Diploma in Hospitality Management.
On 11 February 2020, a delegate of the Minister (delegate) refused to grant the visa on the basis that they believed the applicant was not a genuine temporary entrant, which is a requirement of cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). He stated in his application to the Minister’s department (Department) that his interests had shifted to that of ‘the kitchen and food’.
On 25 February 2020, the applicant lodged and application for review of the delegate’s decision with the Tribunal. Between the application and his hearing, he provided the Tribunal with the following documents:
(a)On 25 February 2020, the same day:
(i)A copy of the delegate’s decision.
(b)On 31 March 2020:
(i)A statement of purpose;
(ii)Payslips from various Australian employers; and
(iii)A copy of his passport with travel stamps.
(c)On 17 September 2021:
(i)A completed Request for Student Visa Information form (in response to a request from the Tribunal on 3 September 2021 in accordance with ss 359(2) of the Act);
(ii)Confirmation of enrolment (CoE) for an Advanced Diploma of Hospitality Management commencing 11 October 2021;
(iii)A letter of enrolment for a Diploma of Hospitality Management; and
(iv)Various attendance certificates.
On 7 October 2021, the Tribunal invited the applicant to appear at a hearing by telephone to give evidence and present arguments.
On 25 October 2021, the applicant appeared before the Tribunal over telephone. The same day as the hearing, the applicant also provided:
(a)A Copy of his certificate of qualification in a Diploma of Hospitality Management; and
(b)Certificate IV in Commercial Cookery with a record of results.
On 28 January 2022, the Tribunal affirmed the delegate’s decision under review.
TRIBUNAL’S DECISION
In its decision, the Tribunal identified that the primary issue before it was whether the applicant was a genuine applicant for entry and stay in Australia as a student in accordance with cl 500.212 of the Regulations.
In its decision, the Tribunal took into consideration the applicant’s previous study history, noting that he did not return home upon completing the two courses he initially set out to do: a Diploma of Network Security and an Advanced Diploma of Network Security. These were both completed by July 2019.
The Tribunal also had regard for the applicant’s written reasons for wanting to complete further study in hospitality, namely the vocational education training (VET) courses, finding it unclear why he required an Advanced Diploma of Hospitality Management when his completed Diploma provided him with the planning skills to operate a business. The Tribunal found that these skills, together with the applicants’ previous qualifications, both employment in kitchens and his Certificate IV in Commercial Cookery, gave him enough skills to “sufficiently qualify” him to commence his own business in Nepal, also noting that if needed, there are business qualifications in Nepal that can help him learn further skills to run a business. The Tribunal, while accepting the applicant’s reasons for studying in Australia, were unsatisfied with his motivations for studying in Australia as opposed to Nepal. The Tribunal recognised the importance of allowing reasonable changes to a career but noted that the applicant wanting to undertake short VET courses was inconsistent with his level of education already completed in Australia, being a Certificate IV, two (2) Diplomas and one (1) Advanced Diploma.
It was also found that if the applicant completed the proposed VET course in Australia following the hearing, it would total his stay in Australia to at least five (5) years, which itself is inconsistent with the applicant’s stay being temporary.
The Tribunal also took the applicant’s observations about potential income upon returning to Nepal with these hospitality qualifications into consideration, finding that this was “merely an aspiration” with no position directly available with secure income.
Regarding the income the applicant was earning in Australia, the Tribunal found that the applicant has a “substantial economic incentive to remain in Australia rather than to return home”, as the level of wages in Australia are far higher than Nepal. Upon assessing his financial documentation, the Tribunal found that the applicant’s part-time salary in Australia was equivalent to a full-time position in a 5-star hotel in Nepal.
The Tribunal additionally noted that the applicant is not in any relationship(s) of concern for a successful visa outcome.
The Tribunal also considered the applicant’s personal circumstances in his home country. It was found that his education, together with the support from his family and his family’s assets put him in a good position financially relative to others in Nepal. In considering this, the Tribunal weighed these familial ties with his period of absence from Nepal, ultimately finding that the applicant’s circumstances in Australia (being stable employment and accommodation) did not provide a significant incentive for him to return home, as he had “substantial ties” to Australia through his accommodation, employment and study.
As it was found by the Tribunal that the applicant had “adequate studies” to return to Nepal and develop his own restaurant or seek employment in a kitchen; the Tribunal was not satisfied that the applicant made the application to further his knowledge, rather, that his primary objective in applying for this new visa was to maintain an ongoing residence in Australia.
For these reasons, the Tribunal was not satisfied that the applicant was a genuine applicant for entry under cl 500.212 of the Regulations.
The Tribunal affirmed the decision not to grant the applicant a temporary student visa.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 1 March 2023, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 28 January 2022. The application essentially contains six grounds of review. The first three (as written) are set out under the heading ‘Grounds of Application’ as follows:
1. GENUINE STUDENT AS CLAUSE 500.212 ISN’T APPLICABLE
2. ENROLLED IN COURSE OF STUDY AND COMPLETED GENUINELY
3. WORKED IN TIME OF NEED BY AUSTRALIA IN CRITICAL SECTOR
In the application, under the heading ‘Final orders sought by the applicant/s’, the applicant raised a further three other matters. I will treat these as three further grounds of review. They are as follows:
1 (4). MENTAL SATISFACTION AS THIS IS CAUSING ME LOT OF STRESS
2 (5). I WANT MY STUDENT VISA BACK
3 (6). CL.500.211 DOESN’T APPLY
On 12 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent lodged their written submissions as required by the Order.
On 9 April 2025, the proceedings were docketed to me and set down before me for final hearing on 14 May 2025.
Hearing on 14 May 2025
At the hearing of this matter on 14 May 2025, the applicant was unrepresented. Ms J Shultz of Mills Oakley Lawyers appeared on behalf of the first respondent.
Prior to the hearing commencing, I ensured that the applicant was in possession of a copy of the Court Book and the first respondent’s outline of submissions.
At the commencement of the hearing, I explained to the parties that its role in deciding the case was limited to considering whether the Tribunal had committed a jurisdictional error. I described jurisdictional error as a serious legal error or mistake made by the Tribunal. I also explained the procedure by which the hearing would be undertaken. I then allowed the Court Book (which contained the Tribunal’s decision and other documents that were before the Tribunal) and the applicant’s affidavit in support of his application to be admitted as evidence.
I then invited the parties to make final oral submissions, taking the applicant to each of the of the six (6) grounds of review in his application and asked him if he wanted to make any submission about them. I also asked the applicant to tell me what he considered was wrong with the Tribunal’s decision. The applicant made short submissions on some of the grounds. Ms Shultz made some short submissions in reply.
CONSIDERATION
The Court can only grant relief if it is established that the decision of the Tribunal is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32].
In undertaking its role in judicial review applications, it is not the role of the Court to review the merits or factual findings of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.
Below, I deal with each of the six grounds of review.
Ground 1
In ground 1 the applicant contends that cl 500.212 of Schedule 2 did not apply to his case in the Tribunal.
When asked what he meant by this ground at the hearing, he made a number of submissions about why he wanted to get a visa, which included his goal to obtain employment in a Michelin Star restaurant while he learned about those types of restaurants. When I asked him if he wanted to specifically address his argument about cl 500.212, he said he did not want to say anything further about that.
The applicant’s argument that cl 500.212 of Schedule 2 did not apply to his case in the Tribunal is plainly misconceived. As the first respondent correctly submits, cl 500.212 is one of the primary criteria that applicants for student visas must satisfy in order to obtain a temporary student visa. The Tribunal needed to be satisfied that the applicant met the cumulative requirements of cl 500.212(a)-(c) before a temporary student visa could be granted to the applicant. Ultimately, the Tribunal was not satisfied the applicant met the requirements in cl 500.212(a).
Ground 1 has no merit, does not establish jurisdictional error and is therefore rejected.
Ground 2
Ground 2 is vague and unparticularised. It also appears to misunderstand the regulatory requirements the applicant was supposed to satisfy under cl 500.212.
When asked what he wanted to say about this ground of review the applicant told me that he had genuinely completed two courses, a Diploma in Hospitality Management and a Certificate IV in Commercial Cookery, both from Sydney Business & Travel Academy. He referred the Court to documents which showed he had completed these courses, which were contained in the Court Book at pages 120-123. He submitted that these documents showed that he genuinely competed these courses.
As Ms Schultz submitted in reply on behalf of the first respondent, whether the applicant was enrolled in a course of study was not in issue before the Tribunal. Neither was his progress as a student, or whether he had “genuinely” completed the course. Rather, the Tribunal had to be satisfied that the applicant genuinely intended to stay in Australia temporarily as required by cl 500.212.
I agree with the first respondent’s submission on ground 2. The Tribunal at [46] found that the applicant had completed both the Diploma in Hospitality Management and a Certificate IV in Commercial Cookery at Sydney Business & Travel Academy. Thus, there was no issue before the Tribunal about whether the applicant had completed these courses, or genuinely completed them.
Ground 2 does not identify any jurisdictional error on the part of the Tribunal and is dismissed.
Ground 3
Ground 3 is vague and unparticularised and does not allege an arguable material Jurisdictional error.
The applicant was unable to articulate this ground any further during the course of the hearing. Neither the ground as written or the matters raised orally by the applicant at the hearing on this ground identify any arguable jurisdictional error committed by the Tribunal. The failure to particularise a ground of review is a sufficient basis to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], per Gilmour J, and in this Court, AIZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 715 at [26].
Further, the first respondent submits that ground 3 of the application appears to be a submission based on compassionate grounds. However, as the first respondent submits, the Court has no discretion to grant relief on compassionate grounds: Holani v Minister for Immigration and Multicultural Affairs [1999] FCA 484 at [12] per Madgwick J. I agree with this submission.
Ground 3 does not establish the Tribunal committed jurisdictional error.
Ground 4
I have treated ground 1 under the heading ‘Final orders sought by the applicant/s’ as a ground of review in this application, and I dealt with it at the hearing as ground 4 of this application.
Ground 4 is vague and unparticularised and does not allege an arguable material Jurisdictional error. When I asked the applicant at the hearing to tell me what he meant by this ground he said that the stress he was referring to in this ground was the stress he was suffering during his stay in Australia while he was undergoing medical treatment. The applicant did not articulate this ground any further than that. Neither the ground as written or the matters raised orally by the applicant at the hearing on this ground identify any arguable jurisdictional error committed by the Tribunal. For this reason, ground 4 is dismissed.
Ground 5
I have treated ground 2 under the heading ‘Final orders sought by the applicant/s’ as a ground of review in this application, and I dealt with it at the hearing as ground 5 of this application.
In this ground the applicant simply states, “I want my student visa back”. I asked the applicant at the hearing what he meant by this ground of review. The applicant told me in response that he has always been a genuine student and that it was his intention to pursue work in the hospitality sector and work full time if he got his visa back. Neither the ground as written or the matters raised orally by the applicant at the hearing on this ground identify any arguable jurisdictional error committed by the Tribunal. Ground 5 is dismissed.
Ground 6
I have treated ground 3 under the heading ‘Final orders sought by the applicant/s’ as a ground of review in this application, and I dealt with it at the hearing as ground 6 of this application.
Ground 6 simply states that “cl 500.211 does not apply”. I asked the applicant at the hearing what he meant by this ground of review. The applicant told me, in response, that he was close to 30 years of age, and he needed to choose a career so that he could look after himself and his partner. I asked the applicant if he specifically wanted to address what he meant by the statement in ground 6, which states that “cl 500.211 does not apply”. The applicant told me that he did not want to say anything about that.
Ms Schultz addressed ground 6 at the hearing. The first respondent submitted that ground 6, as pleaded, was incorrect as a matter of law. The first respondent submitted that the applicant had to satisfy at least one of the criteria in cl 500.211 to be eligible for student visa, therefore cl 500.211 was relevant (or did apply) to the applicant’s visa application and review in the Tribunal. The applicant satisfied the first criteria in cl 500.211(a), namely he was “enrolled in a course of study”. The first respondent also submitted that the issue of whether he had been enrolled in the course of study, and thus satisfied cl 500.211(a), was not in dispute before the Tribunal because he satisfied that criterion.
I accept the first respondent’s submissions on ground 6. Ground 6 does not establish that the Tribunal committed jurisdictional error
For the reasons outlined above, the applicant has not established that the Tribunal’s decision is vitiated by jurisdictional error, nor have I discerned any jurisdictional error from its own review of the decision.
The amended application is dismissed.
COSTS
The first respondent has sought an order that the applicant pay the first respondent’s costs in the amount of $6,100. The amount sought is fair and reasonable given the nature of these types of matters. I will make an order for the first respondent’s costs in this amount.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 23 May 2025
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