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

In the case of Karki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicants, citizens of Nepal, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming a delegate’s refusal of a Student (Temporary) (Class TU) subclass 500 visa to the primary applicant. The primary applicant had been in Australia since 2007, initially on a student visa, and applied for the visa in March 2017. The delegate refused the visa on the basis that the primary applicant did not satisfy the genuine temporary entrant criterion under clause 500.212(a) of the Migration Regulations 1994. The applicants challenged this decision before the AAT, which upheld the delegate’s decision, and subsequently sought judicial review in the Federal Court of Australia. The applicants argued that the AAT erred in its consideration of the primary applicant’s immigration history and study history.

The primary legal issue before the court was whether the AAT had made a jurisdictional error in its consideration of the primary applicant’s immigration history and study history, in failing to have regard to the relevant provisions of the Migration Regulations and the Migration (Designated Unlawful Non-citizens) Determination 2018 (Cth) (MD69). Specifically, the applicants contended that the AAT had adopted its own test of “genuine student” rather than applying the criteria set out in regulation 500.212. The applicants further argued that the AAT failed to properly consider the primary applicant’s immigration history, including her previous visa applications and compliance with visa conditions, as well as her study history.

The court found that Ground 1 of the application was not made out, as the AAT had properly considered the primary applicant’s immigration history and study history in accordance with the relevant legal provisions. The court noted that the AAT had considered the primary applicant’s previous visa applications and compliance with visa conditions, as well as her study history, and found that she had breached condition 8202 of her visa and had been in Australia for 11 years, using her student visa to maintain residence. The court held that the AAT’s consideration of these matters was not irrelevant, as required by clause 500.212(a)(iv) of the Migration Regulations and paragraph 16 of MD69.

In conclusion, the court found that while some of the applicants’ grounds of review had been made out, the AAT’s decision would not be set aside. Instead, the matter would be remitted to the AAT for reconsideration in light of the court’s findings. The Minister would be required to pay the applicants’ costs of the proceeding.