Giri v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1302
•15 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Giri v Minister for Immigration and Citizenship [2025] FedCFamC2G 1302
File number(s): MLG 3341 of 2020 Judgment of: JUDGE JOHNS Date of judgment: 15 August 2025 Catchwords: MIGRATION – judicial review – student visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal failed to comply with section 54 of the Migration Act – whether the Tribunal misconstrued the Regulations – no jurisdictional error found – application dismissed Legislation: Migration Act 1958 (Cth) ss 476(2)(a), 476, 476(4)
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) Division 1 of Part 2 of Schedule 2
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
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Khuna v Minister for Immigration and Border Protection [2015] FCCA 1971
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: 75 Date of hearing: 6 August 2025 Place: Melbourne Applicant: Appeared on his own behalf Solicitor for the First Respondent: Adam Cunynghame, Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3341 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARJUN GIRI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
15 AUGUST 2025
THE COURT ORDERS THAT:
1.The Applicant’s application for judicial review filed on 14 September 2020 is dismissed.
2.The Applicant pay the First Respondent’s costs and disbursements of, and incidental to, the proceeding fixed in the amount of $6,500.00.
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 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 application (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,
(1)allocated to the Court as presently constituted on 14 April 2025,
(2)listed for final hearing on 11 June 2025, and
(3)heard on 6 August 2025 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 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 who arrived in Australia on 21 April 2019 as the holder of a Visitor (Subclass 600) visa (Visitor Visa).[1]
[1] Court Book (CB) 12, 55.
On 30 April 2019, the Applicant lodged an application for a Student Visa.[2] In this application, the Applicant proposed to undertake studies in the following courses:
(a)General English;
(b)IELTS Foundation;
(c)Certificate III in Commercial Cookery;
(d)Certificate IV in Commercial Cookery; and
(e)Diploma of Hospitality Management.[3]
[2] CB 1–17.
[3] CB 55.
The Provider Registration and International Student Management System (PRISMS) data viewed by the Delegate confirmed enrolment, with study commencing from 15 July 2019 and expected to conclude by 16 October 2022.
In support of his application, the Applicant provided a “Statement of Purpose” addressing the Genuine Temporary Entrant (GTE) criterion (GTE Statement).[4] In the GTE Statement, the Applicant:
(1)stated that his intention to apply for a Student Visa “emerged suddenly” after experiencing Australian hospitality culture;
(2)acknowledged that similar courses exist in Nepal, but claimed that Australia offered better practical training;
(3)expressed a desire to return to Nepal after his studies and work in tourism or hospitality; and
(4)stated that he resided with his sister in Melbourne, while his wife and other family remained in Nepal.
[4] CB 19–29.
The Applicant was assisted in his visa application by a registered migration agent, who was nominated as the authorised recipient of departmental correspondence.[5]
[5] CB 40– 2.
On 8 July 2019, the Delegate invited the Applicant to comment pursuant to section 56 of the Act; this led to the identification of adverse information that cast doubt on the Applicant’s genuineness.[6] The Delegate noted that in his application form, the Applicant had listed only one brother under the “non-accompanying member[s] of the family unit” section[7], but in the GTE Statement he mentioned having two brothers living in Nepal and a sister whom he resided with in Australia.[8] The discrepancies raised suspicions about the truthfulness of the information provided by the Applicant.
[6] CB 43–6.
[7] CB 7.
[8] CB 29.
The Applicant responded to the Delegate’s invitation for comment with a “Letter of Apology”.[9] The Applicant explained that he believed only financially supporting family members needed to be listed under that part of his application. Therefore, he had left out his other family members in his application but included them in the accompanying GTE Statement. The Applicant claimed that the oversight was due to negligence rather than an intention to mislead.
[9] CB 47–8.
Decision by the Delegate
On 8 August 2019, the Delegate refused to grant the Applicant a 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).[10] That is, the Delegate was not satisfied that the Applicant was a genuine temporary entrant for stay in Australia.
[10] CB 53–7.
The Delegate’s reasons for refusing the Student Visa included that the:
(1)timing of the Applicant’s Student Visa application (lodged shortly after his arrival on a Visitor Visa) suggested an intention to prolong his stay in Australia[11];
(2)Applicant’s personal ties to Nepal (primarily his wife and his family) were not a sufficiently strong incentive for him to return home following the completion of his studies;[12]
(3)Applicant’s claimed career goals (to open a restaurant in Nepal) lacked a credible plan and was inconsistent with the Applicant’s previous study and work experience;[13] and
(4)Applicant had not provided a clear explanation for undertaking the proposed study in Australia rather than in his home country or another country.[14]
[11] CB 56.
[12] CB 55.
[13] n 17.
[14] Ibid.
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 (Cth) s 476(2)(a).
Application to the Tribunal
On 27 August 2019, the Applicant applied to the Tribunal for review of the Delegate’s decision.[16]
[16] CB 58-9.
On 18 April 2020, the Applicant’s representative filed written submissions with the Tribunal, contending that:
(1)the education system in Nepal lacked practical training and comparable Australian qualifications are more valuable;[17]
(2)the Applicant only has one sister residing in Australia and maintains strong family ties in Nepal;[18]
(3)the Applicant had thoroughly researched his proposed course and had genuine post-study plans to return to Nepal and work in hospitality;[19] and
(4)it is not uncommon for students to change their intended course of study.[20]
[17] CB 66-7.
[18] CB 66.
[19] CB 66-7.
[20] CB 68.
The submissions also explained that the Applicant’s initial enrolment at Joan Lawman College in the General English course was cancelled because of medical issues that prevented him from attending classes.[21] Once his health improved, he attempted to re-enrol but was unable to secure a place. As a result, he enrolled in the same course at a different institution instead.
[21] Ibid.
On 12 May 2020, the Tribunal wrote to the Applicant requesting information under s 359 of the Act.[22] The letter invited the Applicant to provide evidence that he was:
(1)enrolled in a registered course of study; and
(2)a genuine applicant for entry and stay as a student, 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).
[22] CB 84.
In response, the Applicant provided a statutory declaration dated 21 May 2020,[23] together with medical evidence including liver ultrasounds, X-rays, and blood tests[24]– presumably in support of the explanation regarding his earlier inability to attend classes. The Applicant also provided updated Confirmation of Enrolments (CoEs) confirming enrolment in:
(a)General English (25 May 2020 – 11 October 2020); [25]
(b)Certificate III in Commercial Cookery (15 November 2020 – 14 November 2021); [26]
(c)Certificate IV in Commercial Cookery (15 December 2021 – 15 September 2022); [27] and
(d)Diploma of Hospitality Management (15 October 2022 – 22 January 2023).[28]
[23] CB 73 – 74.
[24] CB 75 – 81.
[25] Exhibit R2.
[26] CB 72.
[27] CB 70.
[28] CB 71.
On 17 August 2020, the Tribunal invited the Applicant to attend a hearing on 1 September 2020.[29]
[29] CB 94-6.
On 26 August 2020, the Tribunal requested the Applicant provide a completed ‘Request for Student Visa Information’ form (s 359(2) Response).[30]
[30] CB 102.
On 30 August 2020, the Applicant’s representative responded with the completed form attached;[31] a revised form was forwarded 31 August 2020.[32]
[31] CB 103–117, Annexure ‘JH-2’of Exhibit R2.
[32] CB 118–133, Annexure ‘JH-3’of Exhibit R2.
On 1 September 2020, the Applicant attended the scheduled hearing with the assistance of a Nepalese interpreter.[33]
[33] CB 135–137.
On 1 September 2020, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the Student Visa.[34]
[34] CB 139-148.
TRIBUNAL’S DECISION
The Tribunal’s decision is 8 pages long and spans 40 paragraphs. Part of the decision outlines the GTE criterion.
At paragraphs 11 to 14 of the Minister’s outline of submissions filed on 27 May 2025, the solicitor for the Minister summarised the Tribunal’s reasons. The Court has carefully read the Tribunal’s reasons and accept counsel’s summary as comprehensive, fair and properly referenced. The Court adopts it for the purposes of this judgment (citations omitted):
11. With regard to the applicant’s circumstances in his home country, the Tribunal:
(a)found the applicant had not demonstrated that the benefits to be gained by studying the proposed course outweighed the financial outlay, time investment and disruption required to study in Australia,
(b)found the applicant had not established that his family ties in Nepal presented a significant incentive for the applicant to return to his home county, having regard to the applicant’s wife’s presence in Nepal and his proposed stay in Australia until January 2023, and
(c)found the applicant did not have strong economic or financial ties to return to his home country
12.With regard to the applicant’s potential circumstances in Australia, the Tribunal:
(a)had regard to the applicant’s evidence that his sister lived in Australia, and found that his family ties to Australia may constitute a disincentive to return to his home country,
(b)found the applicant did not have an economic incentive to remain in Australia, given his lack of work history, and
(c)was unable to conclude that the applicant had undertaken any genuine research into his proposed course, course content, education provider or educational objectives as would be expected of a genuine student.
13. With regard to the value of the course to the applicant’s future, the Tribunal:
(a)found the applicant’s claim that he wished to pursue hospitality as a career to be vague and lacking substance or detail,
(b)accepted that the applicant’s proposed courses were a progression from his previous study and the knowledge would generally be of benefit to his career. The Tribunal found the benefit did not outweigh the time, expense and disruption required to study in Australia, and
(c)found the applicant had not provided any detailed or compelling evidence as to his career plans and was unable to conclude whether there was any connection between genuine career goals and his current course of study.
14. With regard to the applicant’s immigration history, the Tribunal:
(a)had regard to the evidence that the applicant arrived in Australia on a visitor visa and applied for a student visa very shortly after and found the conduct evidenced the applicant was not a genuine student and an intention to use the student visa program to circumvent the migration program, and
(b)The Tribunal was not satisfied the applicant intended genuinely to stay in Australia temporarily and found he did not meet cl 500.212(a). Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212.
Based on the findings made by the Tribunal, it was not satisfied that the Applicant was a genuine applicant for entry and stay as a student and that he satisfied GTE Criterion. Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the Student Visa.
PROCEEDINGS IN THIS COURT
The application
On 14 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 orders that the decision of the Tribunal be quashed and that it be remitted to be determined according to law.
The Applicant lists three grounds of alleged error. The Applicant’s grounds of review, extracted from his initiating application, are as follows (reproduced without alteration):
1.The delegate failed to take relevant considerations into account.
Particulars
(a)The matters mentioned as being required to be considered in paragraphs 9(b), 9(c) and 14(a)(i) of Direction 69, made pursuant to section 499 of the Migration Act.
(b)S 499(2A) of the Migration Act makes the matters dealt with in Direction No. 69 a relevant consideration in the Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24 sense. That is, in respect of section 499 the word "must" imposes an imperative duty upon the Delegate. With that in mind it is useful to reflect on the matters that the Delegate did not consider. The First Applicant submits there are as follows:
(i)The extent of the applicant personal ties to Nepal, including the fact that he has a career in Nepal upon his return and his extended family.
(ii)Whether there were some economic circumstances which may have acted as an incentive not to return, including relative circumstances in Nepal as compared to Australia. This was required to be considered pursuant to Clause 9(c) of direction No. 69. Had the delegate considered such circumstances it may have concluded that the Applicant may have been more comfortable in Nepal, as compared with Australia, given the evidence of his career as a marketing officer in Nepal.
(iii)In addition, it is submitted that the Applicant explained in details as to why the course that he had chosen to undertake would assist him in his proposed future career with his business. The Applicant submits that the Delegate was required under s 5 of the Migration Act to read with section 55 to have regards to that information. The Applicant contends that it is abundantly clear that the assessment of the value of the course to his future in Nepal indicates that the Delegate had no regard for it or Alternatively its regards is limited. Indeed, the Applicant suggests that the value of the commercial cookery course would appear to be entirely consistent with his proposed future employment. The Delegate bas therefore failed to take relevant considerations into account.
2.The delegate failed to comply with section 54 of the Migration Act
Particulars
(a)Failure to consider the reasons why the Applicant wanted to study in Australia and why he said that his proposed course of study would assist him in his future employment in Nepal. The Applicant submits paragraph 1 (b)(i), (ii), (iii) of Grounds of Applicant in support of this Ground.
3.The first and second Respondents erred in construing cl. 500.212 (l)(a) of Schedule 2 of the Regulations.
Particulars
(a)The Respondents erred in construing that clause by requiring that the Applicant would leave Australia, or intended to do so, after the completion of the period for which temporary student visa had been granted.
(b)The expression "to…temporarily" was to be construed as being related to the fulfilment of the specific but passing purpose for which the stay in Australia permitted by the visa was intended. Direction No. 69, when read as a whole, indicated the purpose of cl.500.212 (l)(a) is to requires an applicant to have the capacity to undertake the study proposed and to use the time in Australia granted under the visa primarily to undertake study. The Applicant submitted that there was no bias to conclude the Applicant would not make good and proper use of the visa which he had sought, arguing that his study history showed that he had made effective use of his previous student visas. He submits that the observance of the Primary purpose of the visa ought to prevail over other "uses" of the visa, such as looking at future job opportunities
(c)the Applicant submit that any intentions held by the Applicant to attempt to stay lawfully in Australia at the end of his student visa period was not inconsistent with cl500.212 (1)(a)'s requirement that he intend to stay temporarily. In this contention the Applicant refers to Khuna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 where Judge Manousaridis held that an intention to remain in Australia if qualified to do so that the end of a student visa does not necessarily amount to lack of an intention to stay temporarily. The Applicant submits that the Applicant ought to be understood to have indicated that he would only have sought to remain in Australia if he could have do so legally and that his lawful intentions could have been inferred from his visa history and conduct.
Case management
On 2 October 2020, the First Respondent (Minister) filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted that the application invited the Court to undertake a merits review of the Tribunal’s decision and failed to articulate or establish any jurisdictional error on the part of the Tribunal.
On 7 April 2021, a Registrar of this Court issued orders (Registrar’s Order) directing (amongst other things) that:
(1)the Applicant file and serve any amended application, written submissions and further evidence 28 days before the final hearing date; and
(2)the Minister file and serve any written submissions and further evidence 14 days before the final hearing date.
On 26 May 2025 the Minister filed an affidavit deposed by Jeremy Hutton of Sparke Helmore Lawyers which annexed a copy of the Applicant’s:
(1)CoE in General English sent to the Tribunal on 21 May 2020;
(2)s 359(2) Response sent to Tribunal on 30 August 2020; and
(3)revised s359(2) response sent to Tribunal on 31 August 2020.
On 26 May 2025, the Applicant’s lawyer ceased acting for the Applicant through the filing of a Notice of Withdrawal of Lawyer.
The Applicant did not file an amended application nor did he filed any written submissions, despite being invited to do so.
On 27 May 2025, the Minister complied with the Registrar’s Order by filing written submissions.
On 29 May 2025, the Minister filed a bundle of authorities.
On 6 June 2025, and again on 10 June 2025 the matter was adjourned, ultimately, to 6 August 2025.
Therefore, the materials before the Court are as follows:
(a)the application for judicial review filed 15 September 2020;
(b)a Court Book numbering 148 pages filed 21 April 2021 (marked as Exhibit R1);
(c)Affidavit of Jeremy Hutton filed 26 May 2025 (marked as Exhibit R2); and
(d)written submissions filed by the Minister on 27 May 2025.
The judicial review hearing
At the hearing, the Applicant appeared before the Court without legal representation. However, he was assisted by his sister. The Minister was represented by Mr Adam Cunynghame of Sparke Helmore Lawyers.
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;[35]
(b)where the decision-maker ignores relevant material;[36]
(c)where the decision-maker relies on irrelevant material;[37]
(d)where the decision-maker fails to follow mandatory procedures;[38]
(e)where the decision-maker shows actual or apprehended bias;[39] and
(f)where the decision is illogical, irrational or unreasonable.[40]
[35] Craig v State of South Australia (1995) 184 CLR 163, 198.
[36] Craig v State of South Australia (1995) 184 CLR 163, 198.
[37] Craig v State of South Australia (1995) 184 CLR 163, 198.
[38] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294, [207]-[208].
[39] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80, [2].
[40] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437, [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.[41]
[41] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
The Applicant’s English was limited. On 3 June 2025, after the Applicant’s lawyer had withdrawn, the Court wrote to the Applicant asking if he required an interpreter. The Applicant did not respond to the request. Nevertheless, based on the Applicant’s limited responses, and the assistance provided by his sister, the Court is confident he 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.[42]
[42] [2019] FCA 600 at [7].
The Minister made submissions consistent with the outline of written submissions filed by the Minister on filed 27 May 2025.
After the Minister made their submissions, the Court invited the Applicant to respond to what the Minister’s representative had said. The Applicant made no submissions in reply.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
In Bhasker v Minister for Immigration and Multicultural Affairs[43] his Honour Judge Fary summarised the role of the Court in judicial review proceedings:
48.Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
49.Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[44]
50.“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[45]
51.The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[46] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error 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”.[47] Different kinds of error may overlap.[48] The categories are not closed.[49] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[50]
52.In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[51] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[52] It has been described as an “undemanding” standard.[53]
[43] [2025] FedCFamC2G 620.
[44] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[45] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [17] (Allson CJ, Besanko and O’Callaghan JJ).
[46] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[47] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152, [3] (‘LPDT’).
[48] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323, [82].
[49] LPDT (n 56) [3].
[50] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, [82].
[51] LPDT (n 56) [7].
[52] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
[53] Nathanson v Minister for Home Affairs (2022) 276 CLR 80, [33] (Kiefel CJ, Keane and Gleeson JJ).
The Court as presently constituted respectfully adopts his Honour’s summary of the task before it.
Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[54]
[54] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, [40].
CONSIDERATION
At the hearing before the Court, the Applicant was invited to make submissions about:
(1)why they believed the Tribunal made a jurisdictional error; and
(2)each of the three grounds of review.
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 invited the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal’s decision.
At the hearing the Applicant was asked what he meant by each of the three grounds of review. Given the application was drafted by his previous lawyers, and his limited English, the Applicant was unable to further explain any of the grounds of review.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. The Court incorporates (without repetition) paragraphs 17 to 32 of the Minister’s outline of submissions.
To the extent the grounds in the Originating Application are directed at the Delegate’s decision, the Court has no jurisdiction to conduct judicial review.[55] However, in fairness to the Applicant, the Court as presently constituted, has decided to substitute “Tribunal” for “Delegate” and treat each ground of a review as a challenge to the decision of the Tribunal.
[55] Migration Act 1958 (Cth) ss 476(2)(a), 476(4).
Ground 1
1.The delegate failed to take relevant considerations into account.
Particulars
(a)The matters mentioned as being required to be considered in paragraphs 9(b), 9(c) and 14(a)(i) of Direction 69, made pursuant to section 499 of the Migration Act.
(b)S 499(2A) of the Migration Act makes the matters dealt with in Direction No. 69 a relevant consideration in the Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24 sense. That is, in respect of section 499 the word "must" imposes an imperative duty upon the Delegate. With that in mind it is useful to reflect on the matters that the Delegate did not consider. The First Applicant submits there are as follows:
(i)The extent of the applicant personal ties to Nepal, including the fact that he has a career in Nepal upon his return and his extended family.
(ii)Whether there were some economic circumstances which may have acted as an incentive not to return, including relative circumstances in Nepal as compared to Australia. This was required to be considered pursuant to Clause 9(c) of direction No. 69. Had the delegate considered such circumstances it may have concluded that the Applicant may have been more comfortable in Nepal, as compared with Australia, given the evidence of his career as a marketing officer in Nepal.
(iii)In addition, it is submitted that the Applicant explained in detail as to why the course that he had chosen to undertake would assist him in his proposed future career with his business. The Applicant submits that the Delegate was required under s 5 of the Migration Act to read with section 55 to have regards to that information. The Applicant contends that it is abundantly clear that the assessment of the value of the course to his future in Nepal indicates that the Delegate had no regard for it or alternatively its regard is limited. Indeed, the Applicant suggests that the value of the commercial cookery course would appear to be entirely consistent with his proposed future employment. The Delegate bas therefore failed to take relevant considerations into account.
By this ground, the Applicant submits that the Tribunal failed to have regard to the relevant matters prescribed by Direction 69, in particular paragraphs 9(a), 9(b) and 14(a)(i), which concern the Applicant’s personal ties in Nepal, economic incentives to return, and the value of the proposed course to the Applicant’s career, respectively.
This ground cannot be made out. The Tribunal explicitly considered the Applicant’s family circumstances in Nepal[56], including the presence of his wife and siblings, but found that they did not constitute a significant incentive to return.[57] The Tribunal also noted the Applicant’s prior employment as a Marketing Officer, which he resigned from prior to travelling to Australia.[58] There is no suggestion in the evidence before this Court that the Applicant claimed to the Tribunal that he would resume that position upon his return to Nepal. In the absence of such evidence, the Tribunal’s finding that the Applicant lacked significant economic or employment ties to Nepal was open on the basis of the materials before it.[59]
[56] CB 144 [17].
[57] CB 145 [19].
[58] CB 143 [13].
[59] CB 145 [21].
As to the value of the proposed course to the Applicant’s career, the Tribunal did consider this matter. It addressed the Applicant’s proposed study in cookery and hospitality but found his stated career aspirations (to work in the hospitality industry in Nepal) to be vague and unsupported by concrete plans, and inconsistent with his prior employment history.[60] The Tribunal was not satisfied that the time, expense and disruption involved in pursuing the course in Australia were justified by the claimed benefit to the Applicant’s future career.[61] These were evaluative findings and do not reveal any jurisdictional error.
[60] CB 146 [26]-[28].
[61] CB 146 [29].
This ground does not reveal any jurisdictional error on the part of the Tribunal. Accordingly, Ground One is dismissed.
Ground 2
2.The delegate failed to comply with section 54 of the Migration Act
Particulars
(a)Failure to consider the reasons why the Applicant wanted to study in Australia and why he said that his proposed course of study would assist him in his future employment in Nepal. The Applicant submits paragraph 1 (b)(i), (ii), (iii) of Grounds of Applicant in support of this Ground.
This ground cannot be made out. The obligation under s 54 of the Act is to consider the information that is before the Tribunal. It is not a requirement to accept the Applicant’s claims at face value. As outlined in the Court’s consideration of Ground One above, the Tribunal did have regard to the Applicant’s claims as to the value of the proposed course to his future career and reasons for studying in Australia.[62] The Tribunal considered those matters but gave little weight to them in light of the Applicant’s vague and unsubstantiated claims. The weight to be given by the Tribunal to particular evidence or claims is a matter for the Tribunal, not this Court.
[62] CB 146-7 [26]-[30].
This ground does not reveal any jurisdictional error. Accordingly, Ground Two is dismissed.
Ground 3
3.The first and second Respondents erred in construing cl. 500.212 (l)(a) of Schedule 2 of the Regulations.
Particulars
(a)The Respondents erred in construing that clause by requiring that the Applicant would leave Australia, or intended to do so, after the completion of the period for which temporary student visa had been granted.
(b)The expression "to…temporarily" was to be construed as being related to the fulfilment of the specific but passing purpose for which the stay in Australia permitted by the visa was intended. Direction No. 69, when read as a whole, indicated the purpose of cl.500.212 (l)(a) is to requires an applicant to have the capacity to undertake the study proposed and to use the time in Australia granted under the visa primarily to undertake study. The Applicant submitted that there was no bias to conclude the Applicant would not make good and proper use of the visa which he had sought, arguing that his study history showed that he had made effective use of his previous student visas. He submits that the observance of the Primary purpose of the visa ought to prevail over other "uses" of the visa, such as looking at future job opportunities
(c)The Applicant submit that any intentions held by the Applicant to attempt to stay lawfully in Australia at the end of his student visa period was not inconsistent with cl500.212 (1)(a)'s requirement that he intend to stay temporarily. In this contention the Applicant refers to Khuna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 where Judge Manousaridis held that an intention to remain in Australia if qualified to do so that the end of a student visa does not necessarily amount to lack of an intention to stay temporarily. The Applicant submits that the Applicant ought to be understood to have indicated that he would only have sought to remain in Australia if he could have do so legally and that his lawful intentions could have been inferred from his visa history and conduct.
By this ground, the Applicant submits that the Tribunal erred in the construction of the GTE Criterion by requiring the Applicant to show an intention to depart Australia immediately after the completion of his proposed course. The Applicant submits that the correct interpretation permits a temporary stay for study purposes, even where the Applicant may subsequently seek to apply for another visa.
Clause 500.212(1)(a) of the Regulations requires the decision-maker to be satisfied that the Applicant “genuinely intends to stay in Australia temporarily.” This assessment is to be made after having regard to all the relevant circumstances, including those outlined in Direction 69.
Despite what this ground might suggest, the Applicant has not previously held a Student Visa. He entered Australia on a Visitor Visa and applied for a Student Visa shortly after. The Tribunal’s assessment was focused on whether the application for a Student Visa was made for the genuine purpose of study or done with the intention of prolonging the Applicant’s stay in Australia by other means.
The Tribunal accepted that the Applicant may have an interest in hospitality and cookery but found that his actions (which included the abrupt change in study plans, insufficient evidence of career planning, vague intentions on his return to Nepal, and insufficient economic ties) undermined the claimed purpose of temporary study. It was on the basis of these factors that the Tribunal concluded that the Applicant did not satisfy the GTE Criterion.
While it is correct to say that an intention to settle in Australia if given the chance does not, in and of itself, negate a genuine temporary purpose,[63] that was not the finding made here. Instead, the Tribunal’s reasons show that it undertook the correct legal test and made the finding that the Applicant did not meet the GTE Criterion on the basis of the material before it. That conclusion was open to the Tribunal.
[63] Khuna v Minister for Immigration and Border Protection [2015] FCCA 1971.
This ground does not disclose any jurisdictional error on the part of the Tribunal. Accordingly, Ground Three is 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 Court orders that the application for judicial review is dismissed.
In its submissions the Minister sought a further order that the “The Applicant pay the First Respondent’s costs fixed in the amount of $6,500.00”.
The Court explained to the Applicant that:
(1)it had not made a decision about his application;
(2)the Minister is seeking costs in the event that it is successful;
(3)in deciding the question of costs, the Court is required to consider:
(a)whether it is appropriate that the Applicant should pay any costs at all, noting that the usual rule in courts in Australia is that an unsuccessful party pays the party/party costs of the successful party; and
(b)if the Court is so satisfied that the Applicant should pay costs, what is the reasonable quantum.
The Court then invited the Applicant to make a submission about costs in the event that he is unsuccessful, and his application is dismissed. The Applicant submitted, if the application were to be dismissed, he was “happy to pay”.
The Court is satisfied that costs ought to follow the event, and that it is appropriate to make an order in the amount sought by the Minister which is below the scale costs[64] and given the amount of work undertaken as evidenced by the court file.
[64] Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2 pt 2 div 1.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 15 August 2025
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