Gurung v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1660
•10 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gurung v Minister for Immigration and Citizenship [2025] FedCFamC2G 1660
File number(s): SYG 1839 of 2021 Judgment of: JUDGE DOUST Date of judgment: 10 October 2025 Catchwords: MIGRATION – Application for student visa – applicant a citizen of Nepal – Tribunal determined applicant did not satisfy criterion in cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – no jurisdictional error identified – application dismissed. Legislation: Migration Act 1958 (Cth) ss 338, 363, 368D, 379G, 476 Migration Regulations 1994 (Cth) cl 500.212 of sch 2 Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 Division: Division 2 General Federal Law Number of paragraphs: 109 Date of hearing: 8 July 2025 Place: Sydney The Applicant: In person, with the assistance of a Nepalese interpreter Solicitor for the First Respondent: Mr J Djasmeini, MinterEllison The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1839 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SOM BAHADUR GURUNG
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
10 OCTOBER 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant to pay the first respondent’s costs.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE DOUST:
INTRODUCTION
The applicant, born 14 April 1990, is a citizen of Nepal who applied for a Student (Temporary) (class TU) (subclass 500) visa (the visa) on 22 August 2019 with the assistance of a registered migration agent, being Mr Bijaya Gurung (the authorised representative). The applicant sought to complete a General English course, a Certificate IV in Commercial Cookery, and a Diploma of Hospitality Management.
On 11 December 2019, a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (now Minister for Immigration and Citizenship (Minister)) refused the visa on the basis that the applicant did not meet the relevant criteria for the grant of the visa (the primary decision).
On 16 December 2019, the applicant applied to the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal (Tribunal)) for review of the primary decision. On 1 September 2021, the Tribunal delivered an oral decision affirming the primary decision not to grant the applicant the visa (the Tribunal’s decision).
On 1 October 2021, the applicant lodged the current application with this Court, seeking orders against the Minister and the Tribunal under s 476 of the Migration Act 1958 (Cth) (the Act) in respect of the Tribunal’s decision (originating application).
In order for the Court to grant the relief sought by the applicant, the Court is required to be satisfied that the Tribunal’s decision involved jurisdictional error.
For the reasons that follow, the Tribunal’s decision did not involve jurisdictional error, and the application must be dismissed with costs.
DOCUMENTS
The Court received into evidence, without objection, an affidavit deposed by the applicant on 20 September 2021, which annexed a copy of the Tribunal’s written reasons dated 30 September 2021.
The Court also received into evidence a court book dated 1 February 2022 which was prepared for hearing by the first respondent in the customary way, which contained documents from the Department of Home Affairs (Department) and the Tribunal, concerning the applicant’s visa application and application for review to the Tribunal.
The Court made orders on 27 May 2025 providing the applicant with an opportunity to file any amended application, and directing the parties to file and serve any evidence to be relied upon, a written outline of submissions, and a list of authorities. The applicant did not file any amended application, evidence, submissions, or authorities, while the first respondent filed an outline of submissions and list of authorities.
OPERATIVE STATUTORY PROVISIONS
Visa Criteria
The matter in issue in the application for review before the Tribunal was whether the applicant satisfied the requirements of cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) (Regulations). That clause provided as follows:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
Provisions governing Tribunal Review
The primary decision to refuse to grant the applicant the visa was a ‘Part 5 – Reviewable Decision’ within the meaning of s 338 of the Act. As such, the provisions in pt 5 of the Act governed the Tribunal’s review of that decision.
Amongst the provisions in pt 5, is s 363 of the Act. That section, as at 30 September 2021, provided as follows:
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c)subject to section 378, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
(2)The Tribunal may combine the reviews of 2 or more Part 5‑reviewable decisions made in respect of the same person.
(3) Subject to subsection (4), the Tribunal may, for the purposes of a review:
(a) summon a person to appear before the Tribunal to give evidence;
(b)summon a person to produce to the Tribunal the documents or things referred to in the summons;
(c)require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and
(d) administer an oath or affirmation to a person so appearing.
(4)The Tribunal must not, for the purposes of a review that is being conducted in Australia, summon a person under paragraph (3)(a) or (b) unless the person is in Australia.
Further, s 379G of the Act described the function of an authorised recipient (including the authorised representative in this matter) as follows (as at 30 September 2021):
379G Authorised recipient
(1) If:
(a)a person (the applicant) applies for review of a Part 5‑reviewable decision; and
(b)the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note:If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(1A) For the purposes of subsection (1):
(a)paragraph (1)(a) is taken to also apply to an application for review of a Part 5‑reviewable decision where the application is not properly made under section 347; and
(b)in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not properly made under that section).
(2)If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3)Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
(3A)In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(5)This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
[NB: s 379G(4) was repealed in 2014.]
ISSUES FOR DETERMINATION
The Court’s role is to review the Tribunal’s exercise of power for jurisdictional error.
Jurisdictional error describes a failure, by a person or body given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of a statutory power, where that failure is of such a character as to warrant the conclusion that the purported decision or purported exercise of power lacks the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; fails to observe some applicable requirement of procedural fairness; and in some cases, makes an erroneous finding or reaches a mistaken conclusion: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [2]-[3].
In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: ibid [7].
The originating application contained the following paragraphs in the section provided for the applicant to identify the grounds of the application (reproduced without alteration):
1.On 1 September 2021 the Tribunal gave me oral decision (outcome of review). I am still waiting for the decision of the Tribunal in order to provide particulars.
2.I refute the fact that I applied for student visa to maintain ongoing residence in Australia.
3.I believe that the Department as well as the Tribunal ignored my Genuine Temporary Statement (GTE) which outlines a number of reasons as to why I wish to study and further my education in Australia which is relevant to my future in my home country.
4.There is no adverse information leading the department nor Tribunal to come to a decision that I am not genuine student. I have previously complied with the conditions of my student visa and I have a strong vision and purpose to study for a better future in Nepal and whatever Australian qualifications I achieve such would be significantly valuable in my country of origin where I have worked and I will work again after completing the qualifications.
5.Contrary again to the decision of the Tribunal, the Tribunal decision is unreasonable as there was no information leading the Tribunal to conclude that I do intend genuinely to stay in Australia. Rather I intend genuinely to stay in Australia temporarily until I complete the aimed skills and qualifications.
These grounds are each considered below, following a recitation of the relevant history.
BACKGROUND AND RELEVANT FACTS
Visa history
The applicant first arrived in Australia on 25 August 2018 as a dependant of his then-spouse, who held a student visa (the first visa).
On 22 August 2019, six days prior to the expiry of that visa, the applicant applied for the visa the subject of these proceedings.
The Primary Decision
On 11 December 2019, a delegate from the Department wrote to the applicant, via his authorised representative, informing him that his application for the visa had been refused (refusal letter).
The decision record attached with the refusal letter recorded the delegate’s view that cl 500.212 of sch 2 of the Regulations was not satisfied.
The delegate referred to Ministerial Direction No 69 – Assessing the genuine temporary entrant criterion for Student and Student Guardian visa applications (the Ministerial Direction), which sets out the factors that must be taken into account when assessing the “genuine temporary entrant” criterion for student visa applications. The delegate noted that the Ministerial Direction was made in accordance with s 499 of the Act, and set out a summary of factors to be considered arising from the Ministerial Direction, which relevantly included:
(1)The applicant’s circumstances in their home country;
(2)The applicant’s potential circumstances in Australia;
(3)The value of the course to the applicant’s future; and
(4)The applicant’s immigration history.
The delegate then went on to consider those factors in the applicant’s case.
The delegate was concerned that the applicant’s intention to live in Australia was motivated by factors other than study, owing to the fact that the applicant did not demonstrate strong ties to his home country. The delegate observed that the applicant was separated, had no dependent children in his home country, and had been unemployed since December 2017. The applicant had not provided any verifiable evidence that he owned any assets or had any other financial or business ties to Nepal, nor any evidence of further study in the decade since he completed his secondary schooling in 2009. While the delegate acknowledged that the applicant’s parents and siblings may act as an incentive to return to Nepal, the delegate found that these family ties did not constitute a strong enough incentive to return to his home country to outweigh the incentive to remain in Australia.
The delegate then had regard to the applicant’s circumstances in Australia, and the genuine temporary entrant statement (GTE Statement) provided by the applicant in support of his visa application. In the GTE Statement, the applicant explained his reasons for seeking to further his education in Australia, including that he wished to study commercial cookery to enable him to continue his career in hospitality. However, the delegate expressed concern that the applicant had not taken any substantive steps to continue such education in Nepal, and was unable to practically identify any differences between studying a similar course in Australia compared to undertaking such study in Nepal. The delegate ultimately concluded that the applicant’s potential circumstances in Australia may act as an incentive for him to remain.
The delegate was not satisfied that the applicant had demonstrated the value of the proposed course/s to his future. In his GTE Statement, the applicant had stated that completing the proposed course in Australia would enable him to start his own restaurant business in Nepal. However, the delegate was concerned that the applicant had not provided any details about why an overseas cooking qualification was required for the applicant to pursue that goal, particularly given the significant financial outlay required for the Australian course. The absence of any details from the applicant about how he intended to start his business left the delegate unsatisfied that the proposed qualifications would be of greater benefit than a similar qualification obtained in the applicant’s home country.
Turning to the applicant’s immigration history, the delegate noted that the applicant had arrived in Australia on the first visa as a subsequent entrant and thereafter submitted the application for this visa. The applicant’s significant change in migration intentions since the first visa caused the delegate concern that the applicant had enrolled in studies to secure a student visa for long term stay in Australia, rather than due to genuine interest in this area of study.
Having weighed the applicant’s immigration history, the value of the course of study, and the applicant’s study history against any countervailing incentives to return to his home country, the delegate was not ultimately satisfied that the applicant intended to remain temporarily as a genuine entrant for study in Australia and refused the visa application.
The Review by the Tribunal
The applicant lodged his application for review with the Tribunal on 16 December 2019 and again listed the authorised representative on the application form (Tribunal application).
On 1 July 2021, the Tribunal wrote to the applicant by email, via the authorised representative, with an invitation to provide information concerning the Tribunal application.
The invitation was contained in an attached letter which stated that it was a requirement of the student visa sought by the applicant that he be both:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
The letter advised the applicant that he would need to provide sufficient information to satisfy the Tribunal that he met both of those visa requirements. It invited him to give to the Tribunal, in writing, all relevant information about the course of study he was undertaking and his entry and stay in Australia as a student. The invitation directed him to provide specific details about the requested information using the “Request for Student Visa Information” form (Request form), to which the invitation provided a link. The invitation also provided the applicant with a copy of the Ministerial Direction. The invitation requested the applicant to provide the information by 15 July 2021.
On 15 July 2021, the authorised representative wrote to the Tribunal on behalf of the applicant. The letter contained a series of submissions in response to the concerns of the delegate raised in the primary decision. It sought to address, inter alia, the post-secondary school period when the applicant had not undertaken any further study, the fact the applicant had no assets in his home country, the reason the applicant wished to undertake study in Australia as opposed to Nepal, the emotional trauma the applicant suffered as a result of the breakdown of his marriage, and his ambition to own a restaurant.
The authorised representative submitted a completed Request form on behalf of the applicant. The Request form stated that the applicant did not consent to the Tribunal deciding the review without a hearing. Many portions of the Request form displayed very little information, and in response to some questions, no information was provided at all. For example:
(1)The section headed ‘Information about OTHER visas and visa applications’ was left entirely blank. The applicant did not disclose the first visa;
(2)The section headed ‘Information about living expenses in Australia’ was left entirely blank;
(3)The section headed ‘Information about family’, which prompted the applicant to give details of his family members, including their names, country of residence, relationship to the applicant, and date the applicant last saw this person, was not answered. In a section provided for the applicant to give details of contact with family members the authorised representative stated: ‘Family is his hope. He is in regular touch with his parents and siblings visa [sic] phone, viber and facebook’;
(4)The section headed ‘Information about community ties’, which prompted the applicant to provide details of his community ties in both Nepal and Australia, was not answered;
(5)The section headed ‘Information about assets’, was not answered;
(6)In response to a question about the details of the remuneration the applicant expects to receive in his home country using the qualifications from the proposed study, the following sentence was provided in response, ‘The applicant’s preference to operate his own business even if it is of very small scale’; and
(7)The section headed ‘Information about other circumstances’, which queried whether the applicant had any concerns about military service commitments or political or civil unrest in Nepal, was not answered.
The Request form annexed a variety of documents, including:
·Confirmation of enrolment (CoE) documents for each of a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management;
·A sealed copy of a divorce order made by a Registrar of this Court as between the applicant and his ex-spouse, dated 27 August 2019; and
·A statement of service from Araniko Food Lane in Nepal, dated 1 January 2018.
On 26 July 2021, the Tribunal wrote to the applicant (via the authorised representative) attaching an invitation to attend a telephone hearing on 1 September 2021. The invitation asked the applicant to provide certain documents to the Tribunal prior to the hearing, namely, his current CoE, documents showing his past studies in Australia, documents demonstrating work experience relevant to his studies, and a written statement addressing whether the applicant is a genuine applicant for entry and stay as a student, referring to the Ministerial Direction.
The invitation letter advised that the Tribunal would assess whether the applicant was a genuine applicant for entry and stay as a student and attached a copy of the Ministerial Direction.
On 13 August 2021, the applicant sent an email to the Tribunal attaching a ‘Response to hearing invitation form’, indicating that both the applicant and the authorised representative would take part in the hearing scheduled for 1 September 2021.
It does not appear that the applicant sent the Tribunal the requested documents outlined in the hearing invitation. The court book did not contain any such material, and the applicant did not make any claim that he had provided the material.
The hearing proceeded via telephone on 1 September 2021. The applicant was in attendance, with the assistance of a Nepali interpreter, however, the authorised representative did not attend the hearing.
At the hearing, the presiding Tribunal Member delivered an oral statement of reasons affirming the primary decision to refuse the visa. Later that day, the Tribunal sent by email to the applicant (and to the authorised representative) an oral decision (outcome of review) letter (decision letter). The letter attached a single page “Outcome of Review” recording the date, time, and place of the decision, the presiding Tribunal Member, and the fact that the Tribunal affirmed the decision not to grant the applicant the visa. The letter stated:
Under the Migration Act 1958 you may request a written statement of decision and reasons to be provided. Your request must be in writing and received by us within 14 days of the date of your oral decision.
On 3 September 2021, the authorised representative sent an email to the Tribunal requesting a copy of the audio recording of the Tribunal phone hearing. On 15 September 2021, the Tribunal provided an audio file of the hearing to the authorised representative by way of return email.
On 16 September 2021, the applicant sent an email to the Tribunal requesting a written statement of decision, to enable him to lodge an application in this Court.
On 21 September 2021, a registered migration agent (not the authorised representative) sent an email to the Tribunal stating that the applicant had approached their office seeking assistance to request a copy of the written statement of decision.
On 22 September 2021, the applicant sent a further email to the Tribunal again requesting a written statement of decision, to enable him to lodge an application in this Court.
On 1 October 2021, the Tribunal sent to the authorised representative, on behalf of the applicant, a letter enclosing the written statement of decision and reasons.
The Tribunal’s Reasons
The Tribunal noted (at [5] of its decision record) that the delegate had refused the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of sch 2 to the Regulations. At [12], the Tribunal noted that an applicant in a matter of this type must establish two things: first, that the applicant is currently enrolled in a registered course of study, and second, that the applicant met the “GTE requirements” at the time of the Tribunal’s decision. The Tribunal had earlier (at [5]) established “the GTE issue” as shorthand for the requirement to satisfy cl 500.212 of sch 2 to the Regulations.
The Tribunal noted (at [13]) that the applicant was currently enrolled in a registered course of study, and accordingly (at [14]) identified that the issue before it was whether the applicant met the GTE requirements.
The Tribunal noted the deficiency in the material provided by the applicant despite his engagement in the review process, and set out the evidence before it in relation to the application for review, including:
·The completed Request form;
·Oral evidence given by the applicant to the Tribunal over a period of around 30 minutes during the hearing, translated by a Nepalese interpreter;
·The Movement Details record;
·A PRISMS record;
·A paper file from the Department which included a copy of the original visa application, some CoEs for courses which the applicant had enrolled in, and the GTE Statement written by the applicant in support of the visa application; and
·The primary decision.
In its reasons, the Tribunal expressed concern that the applicant had not provided the Tribunal with an updated GTE statement in support of his review case, and had lodged a ‘seriously deficient’ Request form (at [22]).
The Tribunal also noted that the CoEs were generated on 13 July 2021, a date two days prior to the lodgement of the completed Request form. The CoEs related to the same two hospitality courses which the applicant had enrolled in in 2019, and which had been cancelled in around January 2020. The Tribunal noted that in the Request form, the applicant conceded that he had in fact not been enrolled in a registered course of study for a period of around 18 months commencing 1 January 2020 (at [23]).
The Tribunal referred to the applicant’s stated future plans outlined in the written submission from the authorised representative dated 15 July 2021 and noted that, while that submission claimed that the applicant had suffered emotional trauma as a result of his divorce, there was no evidence from the applicant that such trauma impacted on his ability to study during the 18-month period in which he was not enrolled in a course of study (at [25]).
The Tribunal expressed concern about the fact that no detail was contained in the Request form about the applicant’s work history in Australia. The Tribunal put this question to the applicant at the hearing, to which the applicant gave oral evidence that he had been working in Australia since his arrival as either a kitchen hand or a casual labourer, for less than 20 hours per week on average (at [32]). The Tribunal had serious concerns regarding the applicant’s failure to be forthcoming with this information and inferred that the applicant had not studied because he had other priorities (at [33]).
Noting the failure of the applicant to complete the portion of the Request form which sought details about the applicant’s family, the Tribunal said that it was left uncertain of the meaning of the applicant’s statement in the Request form that his family is ‘his hope’ (at [34]).
Noting the applicant’s oral evidence that he intended to work in Australia once he had completed the proposed courses, the Tribunal observed that this evidence was incongruent with the applicant’s claim that he is a genuine temporary entrant. The Tribunal concluded that the applicant had enrolled in the courses to improve his forensic position (at [35] to [37]).
Whilst the Tribunal recognised that the applicant’s planned study was supported by his work history as a cook in Nepal, the Tribunal found that the applicant had shown little interest in advancing his career in hospitality since arriving in Australia, and had not re-enrolled in the proposed courses until he was sent the Request form by the Tribunal (at [39]).
The Tribunal remained unconvinced that the applicant intended to use the proposed qualifications to return to Nepal and advance a career in hospitality (at [40]).
The Tribunal concluded that the applicant did not have strong financial or familial ties to Nepal, was unable to find that the applicant had significant incentive to return to Nepal, was concerned that the applicant may have breached the work restrictions on his student visa, and was not satisfied that the completion of the courses would add value to the applicant’s future in Nepal (at [45] to [49]).
The Tribunal was not ultimately satisfied that the applicant intended genuinely to stay in Australia temporarily, concluded that he did not meet the requirements of the visa contained in cl 500.212 of sch 2 of the Regulations, and affirmed the primary decision not to grant the visa.
CONSIDERATION
At the hearing before this Court, the applicant submitted that a friend of his who is older than him was the person that completed and filed the originating application on his behalf. The applicant went on to allege that he did not sign the originating application but conceded that the signature at the bottom of the originating application was indeed his. He proposed that perhaps he had ‘signed the document without looking at it’. The Court asked the applicant whether he wished to proceed with his application for judicial review to challenge the Tribunal’s decision, and he responded in the affirmative.
The applicant appeared unfamiliar with the contents of the originating application and requested that the interpreter translate to him the grounds articulated in the originating application. However, following this assistance, the applicant confirmed that the grounds set out in the originating application correctly articulated the errors which he says affected the Tribunal’s decision.
During the receipt of evidence, the Court asked the applicant whether he wished his affidavit made 20 September 2021 to be taken into evidence. The applicant stated that the witness to his affidavit was the individual who completed the court forms on behalf of the applicant and was ‘a liar’.
The Court invited the applicant to state, in his own words, what he says is wrong with the Tribunal’s decision.
The applicant commenced by stating that he arrived in Australia in 2018 on a spousal visa, before divorcing his then-spouse, so he decided to apply for a student visa. He stated that he had experience in the hotel industry in Nepal, so thought he would enrol in study in a similar field in Australia. He suggested that his migration agent did not provide him with good advice, and he was not mentally prepared for the visa process because he had only ever been on a spousal visa at that time and had only been in Australia for one year. He submitted that he did not have enough time to prepare his visa application, and as his spousal visa was due to expire in a day or two, his agent submitted the student visa application on his behalf prior to that expiry date.
When asked whether he had any submissions as to the Tribunal’s decision, he stated that he had been in Australia for a year at that point, and the Tribunal had refused his application because they formed the view that he intended to remain permanently in Australia. That submission was of course incorrect; at the time of the Tribunal’s decision the applicant had been in Australia for about three years.
The Court directed the applicant to read (with the assistance of the interpreter) and address the grounds articulated in the originating application, and whether those grounds supported his concerns about the Tribunal’s decision. The Court took the applicant to each of the five paragraphs in the originating application, and in turn, asked the applicant about each of them to ascertain whether he wished to elaborate on them. The applicant’s brief oral submissions are set out below under the relevant paragraph. Following his brief submissions, the Court invited the applicant to peruse the court book and bring to the Court’s attention any documents to which he wished the Court to have particular regard.
The Minister relied upon his written submissions filed with the Court and elaborated on those submissions orally. Those submissions are dealt with under the headings below.
Ground 1
Ground 1 in the originating application provides as follows (as per original):
On 1 September 2021 the Tribunal gave me oral decision (outcome of review). I am still waiting for the decision of the Tribunal in order to provide particulars.
The applicant submitted that he came to Australia to study, but the Tribunal was concerned that he would remain in Australia long term. He stated that he thought he would study English to improve his grasp of the language, before returning to his home country.
The Minister submitted that this does not constitute a proper ground of review which articulates jurisdictional error. That submission is accepted.
The ground as articulated in the application does not identify any error of any type. There was no error in the Tribunal giving its decision orally and later publishing its written reasons. That approach is contemplated in s 368D of the Act.
So far as the applicant sought to contest the Tribunal’s concern that he was not a genuine temporary entrant, he did not identify any jurisdictional error. Rather, he simply asserted that he intended to study and then return to his home country. That question was one for the Tribunal to resolve. It is not the role of this Court to make its own determination on that question on the merits.
Ground 2
Ground 2 in the originating application provides as follows (as per original):
I refute the fact that I applied for student visa to maintain ongoing residence in Australia.
The applicant essentially repeated the brief submission he gave in response to ground 1.
The Minister submitted that this does not constitute a proper ground of review which articulates jurisdictional error.
The Minister’s submission is accepted.
This ground as articulated in the application does not identify any error of any type.
So far as the applicant seeks to contest the Tribunal’s lack of satisfaction that he was a genuine applicant for entry and stay as a student, he has not identified any jurisdictional error. It was for the Tribunal to be satisfied or not as to the applicant’s intentions. It is not the role of this Court to make its own determination of that question on the merits.
Ground 3
Ground 3 in the originating application provides as follows (as per original):
I believe that the Department as well as the Tribunal ignored my Genuine Temporary Statement (GTE) which outlines a number of reasons as to why I wish to study and further my education in Australia which is relevant to my future in my home country.
The applicant did not elaborate on this ground at the hearing.
The applicant identified the undated statement provided to the Department (in about late 2019) as the GTE statement to which ground 3 refers.
That statement, a three-page letter from the applicant, referred to his high school education in Nepal, and his subsequent realisation of the importance of education. It also recounted the applicant’s desire to improve his English skills and undertake study in commercial cookery and hospitality management. In the statement, the applicant claims that completion of the Certificate IV in Commercial Cookery and Diploma of Hospitality Management will open doors for him in his field or assist him to establish his own restaurant or hotel in Nepal.
The applicant goes on in the statement to set out his research about the colleges offering the courses he proposed to study, and identified that the learning approach, affordable fees, and modest class sizes at the Global Institute (where he proposed to study) as among the reasons for his decision to study there.
The applicant stated that he wished to set up his own restaurant business in Nepal to take advantage of the growth in tourism and wished to introduce Australian cuisine there.
He explained how following his divorce, he realised he had fallen behind his peers in terms of his education and qualifications.
The Tribunal did not ignore the applicant’s GTE statement. It referred to the statement at [21] of its reasons and briefly summarised much of its content in that paragraph. The Tribunal also went on at [22] to identify that one of its concerns arose from the fact the applicant had not provided an updated GTE statement to the Tribunal. The Tribunal was not bound to accept the claims made in the applicant’s GTE statement, and it was entitled to determine the weight it accorded the statement and its contents.
Save for the assertion that the Tribunal ignored the statement, the applicant has not explained how the Tribunal erred in any way in connection with it; for example by failing to have regard to any of its content, by failing to address any clearly articulated claim contained within it, or by engaging in illogical or irrational reasoning in respect of the statement.
The applicant has not demonstrated any jurisdictional error by this ground.
Ground 4
Ground 4 in the originating application provides as follows (as per original):
There is no adverse information leading the department nor Tribunal to come to a decision that I am not genuine student. I have previously complied with the conditions of my student visa and I have a strong vision and purpose to study for a better future in Nepal and whatever Australian qualifications I achieve such would be significantly valuable in my country of origin where I have worked and I will work again after completing the qualifications.
The applicant did not elaborate on this ground at the hearing, aside from stating that the submission itself ‘is the fact’.
The first respondent submitted that this ground was misconceived and identified that the Tribunal held concerns arising from three matters, being:
(a)the applicant’s failure to study for 18 months after his initial enrolment;
(b)that the applicant enrolled only after he was invited to provide information to the Tribunal; and
(c)the applicant’s failure to disclose in the Request form that he had been working in Australia since his arrival in the country.
The first respondent submitted that the Tribunal’s findings were reasonably open to it on the basis of the evidence before it.
In reply, the applicant submitted that he was enrolled to study but had to suspend due to the COVID-19 pandemic. The Tribunal considered that explanation, at [29] of its reasons, and rejected it as the applicant had cancelled his enrolments in January 2020.
The applicant’s ground must be rejected.
First, it proceeds on the premise that the Tribunal could only find against the applicant if it had possession of “adverse information”. That was not the case. The question for the Tribunal was whether, having regard to all the material before it, it was persuaded that the applicant satisfied the criteria for the visa. There was no presumption in favour of the applicant that the visa should be granted, which could only be displaced by adverse evidence. If the material before the Tribunal did not satisfy the Tribunal that the applicant satisfied the requirements for the grant of the visa, the Tribunal was bound to reject the application. An insufficiency of evidence or persuasion could properly provide the basis for a refusal, as well as the existence of adverse evidence.
Second, the ground misstates the evidence. As the first respondent observed, there were several matters the Tribunal regarded as adverse to the applicant. In particular, the fact that he had not been enrolled for 18 months following the delegate’s refusal and had only enrolled when the Tribunal requested information from him caused the Tribunal concern about the applicant’s intentions.
Finally, to the extent the applicant’s ground asserts that he complied with his visa conditions, and had a strong vision and purpose, the applicant effectively invites the Court to exercise the Tribunal’s power afresh and come to a different conclusion than the Tribunal did on the evidence. It is not the Court’s role to make an assessment of the merits of his application for the visa. The Court is limited to undertaking a review for the purpose of identifying and correcting error which is jurisdictional in character. The applicant has not identified any such error by the above ground.
Ground 5
Ground 5 in the originating application provides as follows (as per original):
Contrary again to the decision of the Tribunal, the Tribunal decision is unreasonable as there was no information leading the Tribunal to conclude that I do intend genuinely to stay in Australia. Rather I intend genuinely to stay in Australia temporarily until I complete the aimed skills and qualifications.
The applicant did not elaborate on this ground at the hearing, when given an opportunity.
At [42] of its reasons the Tribunal said:
On the evidence led in this case it appears to the Tribunal that the applicant simply wants to remain in Australia for as long as he can.
That conclusion was principally informed by the fact that the applicant had not been enrolled in any course of study for 18 months, between January 2020 and July 2021. The Tribunal rejected the applicant’s explanation for that period as the result of his divorce given that he had enrolled immediately following his divorce in about August 2019 and studied for about five or six months (at [26] to [28]). The Tribunal also rejected the applicant’s explanation that he had cancelled his enrolment due to COVID-19 and observed (at [29]) that the applicant had only enrolled again in July 2021 after receiving the Request form from the Tribunal, which the Tribunal considered had been done for forensic advantage.
The Tribunal’s reasoning about the applicant’s circumstances is set out at [38], where the Tribunal said:
…An applicant for this kind of student visa who without an adequate explanation sits back and waits for 18 months doing nothing to enrol in a registered course or courses of study and engage in productive study, or at least makes a real attempt to do so, treads on thin ice and runs the risk that the Tribunal will find that the applicant is not here to progress academically in order to attain legitimate goals but rather to maintain residency.
Two things followed from the applicant’s unexplained 18-month period without study. First, it showed that the applicant was content to remain in Australia without undertaking study. Second, the applicant’s failure to take the opportunity to undertake the same studies in the past called into question the genuineness of the applicant’s claim that he now wished to undertake that study.
The Tribunal’s concerns were confirmed by the applicant’s evidence (at [35]) that he intended to work in Australia once he completed his courses, which the Tribunal described as “hardly evidence which supports his case that he is a genuine temporary entrant in Australia”.
The Tribunal’s conclusion that the applicant intended to remain in Australia as long as he could was based on the evidence before it about the applicant’s history and employed a line of reasoning which was open to it. It was not unreasonable for the Tribunal to reach the conclusion it did.
The applicant has not identified any jurisdictional error by the above ground.
CONCLUSION
In the absence of jurisdictional error by the Tribunal, the application must be dismissed.
I will order the applicant to pay the first respondent’s costs and give the parties an opportunity to address on the quantum of such order.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 10 October 2025
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