Khatri v Minister for Immigration and Citizenship
[2025] FedCFamC2G 784
•23 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khatri v Minister for Immigration and Citizenship [2025] FedCFamC2G 784
File number(s): SYG 129 of 2022 Judgment of: JUDGE MARQUARD Date of judgment: 23 June 2025 Catchwords: MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – incorrect information provided by applicant – procedures of Tribunal - unreasonableness - failure to take into account relevant considerations – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 33
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 359, F476
Migration Regulations 1994 (Cth) sch 2
Cases cited: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 71
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541,
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 (2003) 198 ALR 59
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 97 Date of hearing: 12 May 2025 Place: Sydney Counsel for the Applicant: Mr Young Solicitor for the Applicant: Shamser Thapa and Associates Solicitor for the First Respondent: Ms S Lloyd of MinterEllison Lawyers Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 129 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: YAZIV KHATRI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
23 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Citizenship.
2.The name of the Second Respondent is amended to Administrative Review Tribunal.
3.The application filed on 1 February 2022 as amended is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Marquard
OVERVIEW
Before the Court is an originating application filed on 1 February 2022 and an amended application filed on 22 April 2025. The applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) dated 5 January 2022. The Tribunal affirmed a decision dated 7 February 2020 of the Department of Home Affairs (the Department), as delegate of the second respondent to refuse to grant the applicant a Student (Temporary) (class TU) (subclass 500) visa (Student 500 visa).
The applicant has claimed that the Tribunal decision fell into jurisdictional error.
This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
For the reasons that follow, the application is dismissed.
BACKGROUND
The background of the matter is as follows.
The applicant is a citizen of Nepal (Court Book (CB) 48). The applicant first arrived in Australia on 17 June 2017 as the holder of a Student Dependent (Subclass 500) visa. His wife was studying in Australia. They divorced in 2019 (CB 139).
On 11 September 2019, the applicant applied to the Department for the Student 500 Visa (CB 22–37).
On 7 February 2020, the Department refused to grant the applicant a Student 500 Visa. The Department was not satisfied that the applicant met cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), as the Department was not satisfied that the applicant genuinely intended to stay in Australia temporarily (CB 75).
On 18 February 2020, the applicant applied to the Tribunal seeking review of the delegate’s decision (CB 77-78).
On 30 August 2021, the Tribunal wrote to the applicant’s migration agent noting that it was a requirement of the visa that the applicant be enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. The applicant was invited to provide relevant information to satisfy the Tribunal that he met these requirements. An attached questionnaire titled, ‘Request for Student Visa Information under s 359(2) of the Act’ set out specific details about the information requested. The applicant was notified that the Tribunal was required to have regard to the Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student Visa and Student Guardian visa applications’ (Direction No 69), and a copy was provided (CB 96 -111).
On 27 September 2021, the Tribunal invited the applicant to attend a hearing to be conducted by telephone. The applicant was invited to provide any documents to be relied on in support, a completed response to hearing invitation form, a current Confirmation of Enrolment (CoE), documents evidencing his past studies or work related to past or intended studies in Australia. The Tribunal notified the applicant that the documentation should be provided by 5 October 2021 (CB 114–116).
On 1 October 2021, the applicant’s migration agent provided to the Tribunal a hearing response, as completed by the applicant (CB 126).
On 6 October 2021, the applicant’s migration agent provided documents to the Tribunal including submissions, Screenshot from the Commonwealth Courts Portal evidencing divorce (Divorce Screenshot), Nepali Relationship Certificate, Enrolment Letter from Southern Academy for a Diploma of Leadership and Management, Transcript of Results from Southern Academy for Diploma of Leadership and Management , CoE for General English, course date 2 September 2019 and end date of 11 October 2019, CoE for a Diploma of Leadership and Management course commencement date 11 September 2019 and course end date 9 May 2021 and CoE for an Advanced Diploma of Leadership and Management course commencement date 24 May 2021 course end date 22 May 2022 (CB 130 – 155).
On 11 October 2021, the Tribunal invited the applicant to attend a rescheduled hearing (CB 158 – 161).
On the same day of receiving the hearing invitation from the Tribunal, the applicant’s migration agent emailed the Tribunal stating that ‘Our client Mr Yaziv Khatri wants to attend the hearing which is rescheduled for 13/10/2021.All the documents related to this client have already been submitted last week.’(CB 166)
On 13 October 2021, the applicant attended the hearing before the Tribunal to give evidence and present arguments (CB 173 -175).
On 5 January 2022, the Tribunal affirmed the decision under review (CB 182).
TRIBUNAL DECISION 5 JANUARY 2022 (CB 182 TO 190)
The Tribunal summarised the background to the proceeding ([2-4] and [12-15] of the Tribunal Decision).
The Tribunal identified that the issue before it to determine was whether the applicant was a genuine temporary entrant as a student, pursuant to cl 500.212 of Schedule 2 to the Regulations ([8] of the Tribunal Decision).
The Tribunal summarised the evidence before it ([15- 17] of the Tribunal Decision).
The Tribunal identified that in considering whether the applicant satisfied cl 500.212 of Schedule 2 to the Regulations, it must have regard to the factors specified in Direction No. 69, ‘Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications’, made under s 499 of the Act (Direction 69) ([10 - 11] of the Tribunal Decision). The Tribunal made the following findings and comments ([34 -42] of the Tribunal Decision):
(a)circumstances in applicant’s home country: the Tribunal considered the applicant's evidence in relation to his circumstances in Nepal ([34-36] and [39-40] of the Tribunal Decision). The Tribunal found that the applicant's family ties to Nepal did not of themselves constitute a strong incentive for him to return to Nepal ([39] of the Tribunal Decision). The Tribunal recorded the applicant’s evidence that he had no assets in Nepal finding that his asset position in Nepal would not incentivise him to return to Nepal ([34] of the Tribunal Decision) and that the applicant did not have any concerns about unrest in Nepal ([35] of the Tribunal Decision).
(b)circumstances in Australia: the Tribunal considered the applicant's evidence regarding his family, community ties and assets in Australia ([34] and [37 – 41] of the Tribunal Decision) The Tribunal recorded that the applicant had once been married and accepted the applicant’s evidence that this marriage had been annulled ([37] of the Tribunal Decision). The Tribunal noted its concerns that the applicant may have been attempting to use the student visa system to prolong his stay in Australia. The Tribunal noted that the applicant had been residing in Australia for four and a half years and had five months left in his studies which was inconsistent with the stay being temporary ([29] and [39] of the Tribunal Decision). The Tribunal recorded the applicant’s evidence that, he had acquired a substantial knowledge of living in Australia, had obtained stable employment where he was valued and could earn a higher level of income than in Nepal ([30-31] and [40-41] of the Tribunal Decision). The Tribunal found that the applicant had a substantial financial incentive to remain in Australia ([32] of the Tribunal Decision). The Tribunal found that the applicant’s circumstances in Australia provided a substantial incentive to remain in Australia ([41] of the Tribunal Decision)
(c)value of the course to the applicant's future: the Tribunal considered the applicant's evidence regarding his plans to open a retail clothing store and re-launch a retail clothing store as part of his family’s business upon returning to Nepal. The Tribunal noted that the applicant had changed his study pathway. The Tribunal considered that based on the applicant’s existing qualifications there would be no restrictions on the applicant’s retail clothing plans. The Tribunal considered that the Advanced Diploma of Leadership would only marginally improve his employment prospects and remuneration in Nepal ([23] of the Tribunal Decision). The Tribunal did not accept the applicant’s evidence that he required these qualifications for his future retail plans and found that the primary purpose of the applicant seeking to undertake these studies was to prolong his stay in Australia as well as to earn a higher level of income ([45] of the Tribunal Decision); and
(d)applicant’s immigration history: the Tribunal recorded the applicant’s immigration history and noted that there was nothing before the Tribunal to indicate that the applicant had experienced any other visa refusals or any immigration issues either in Australia or other countries ([42] of the Tribunal Decision).
The Tribunal noted the applicant’s evidence that he had inadvertently uploaded in error a Statement of Purpose from a friend. The Tribunal recorded its concerns, finding that while it accepted that errors could occur in the uploading of documents, in circumstances where the Statement of Purpose made numerous references to the applicant being an engineer, it should have been readily apparent that this was not the correct document. The Tribunal noted that no attempts had been made by the applicant to remedy the errors complained of contained in that Statement of Purpose ([44] of the Tribunal Decision).
Considering the totality of the evidence and circumstances before it, the Tribunal was not satisfied that the applicant intended to obtain a student visa to study temporarily. The Tribunal found that the primary objective of the applicant obtaining a student visa was to maintain ongoing residence in Australia and to earn a high level of income ([46] of the Tribunal Decision). The Tribunal found that the circumstances of the applicant were consistent with a motivation to remain in Australia on a permanent basis and not a temporary basis ([47] of the Tribunal Decision).
The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily ([48] of the Tribunal Decision). Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student ([49] of the Tribunal Decision). The Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa had not been met by the applicant ([50] of the Tribunal Decision).
The Tribunal affirmed the delegate's decision dated 7 February 2020 ([51] of the Tribunal Decision).
APPLICATION TO THIS COURT AND HEARING
The applicant applied to this Court for judicial review on 1 February 2022.
The applicant filed an affidavit in support of his application on 1 February 2022. The affidavit attached the Tribunal Decision.
On 25 March 2025, a Registrar of this Court made procedural orders. These included an order for the applicant to file an amended application, additional evidence and submissions on or before 16 April 2025.
On 23 April 2025, the Court at the request of the parties, by consent varied the orders to extend the time for compliance for parties to file documents. This included an order that the applicant file an amended application, additional evidence and submissions by 23 April 2025.
The applicant filed an ‘Outline of Submissions’ on 22 April 2025 (applicant’s Written Submissions).
The applicant also filed an amended application on 22 April 2025. In this document he set out alleged grounds of jurisdictional error (reproduced without alteration):
1)The Second Respondent made jurisdictional error by unreasonably basing its decision on a failure by the Applicant to correct a Statement of Purpose provided to the Delegate and referred to at [21] of the decision at CB 186-187.
2)The Second Respondent made jurisdictional error by ignoring a mandatory relevant consideration in relation to the Applicant's circumstances being the time which had elapsed between the Application for the visa on 11 September 2019, the decision of the Delegate on 7 February 2020 and the date of the AAT decision on 5 January 2022.
3)The Second Respondent made jurisdictional error by failing to have regard to the Applicant's immigration history as required by clause 500.212(a)(ii) of the Migration Regulations 1994.
The applicant provided particulars for each of these grounds in the Written Submissions.
On 12 May 2025, Mr Young of Counsel appeared for the applicant, and Ms Lloyd for the first respondent. Mr Young of Counsel confirmed that his instructing solicitor had received copies of the Court Book and the first respondent’s Written Submissions.
The following documents were before this Court – the initiating application for judicial review, the supporting affidavit of the applicant filed on 1 February 2022 (read at the hearing), amended application for judicial review and applicant’s Written Submissions, a Court Book (numbering 205 pages and marked as Exhibit R1) filed 25 March 2022, and written submissions of the first respondent filed on 7 May 2025.
CONSIDERATION OF CLAIMED GROUNDS OF JURISDICTIONAL ERROR
Role of the Court in judicial review
The applicant has claimed that the Tribunal Decision fell into jurisdictional error. The Court must review the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [17].
The Court cannot review the merits of the Tribunal decision. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 the High Court said at 272:
.. any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
It follows that disagreement with the merits of a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40].
Grounds alleged by the applicant
The applicant has specified three grounds of jurisdictional error in the amended application.
Ground 1
The first ground in the amended application was:
The Second Respondent made jurisdictional error by unreasonably basing its decision on a failure by the Applicant to correct a Statement of Purpose provided to the Delegate and referred to at [21] of the decision at CB 186-187.
The applicant provided particulars of this ground in the Written Submissions as follows (reproduced without alteration):
The Applicant gave evidence to the AAT and accepted that he had made an error in his Statement of Purpose.
The AAT stated at [44] at CB 190 that the Applicant had made no attempt to remedy the Statement of Purpose.
Not only was this unreasonable, it was impossible for the Applicant to comply with what the AAT appears to have expected of him.
There is no capacity in the AAT proceedings or procedures for an Applicant to seek to amend a document which was previously submitted.
If there is an error in such a document the Applicant can concede this either in writing or in oral evidence. However, the original document cannot be changed.
In the applicant’s Written Submissions, the applicant referred to the following statement of the Tribunal in the decision at [22]:
However there was no attempt to correct the statement and the Tribunal is unable to accept his Statement of Purpose as accurate.
The applicant submitted that it was unreasonable for the Tribunal to state at [44] of the Tribunal Decision, that the applicant had made no attempt to remedy the Statement of Purpose as it was impossible for him to do so. It was submitted by Mr Young of Counsel at hearing that the Tribunal was saying that the applicant should somehow have changed the document (Tp 4.27). Mr Young of Counsel submitted that it was impossible for the applicant to comply as there was no procedure at the Tribunal for an applicant to seek to amend a document (Tp 5.5-13). It was contended that the Tribunal ‘held against’ the applicant the fact that he did not change the document (Tp 4.40-42).
At the hearing, Mr Young of Counsel made an additional argument, that the applicant had in fact conceded the error by stating at the Tribunal hearing that he had used a template and sent the wrong version (Tp 4.6-8). He said that the applicant also conceded the error in submissions from the representative to the Tribunal in which the representative referred to the applicant ‘uploading the incomplete and wrong SOP’ (CB 137 [32]).
Ms Lloyd for the first respondent submitted that this ground ‘advanced a straw man interpretation of the Tribunal’s reasons (Tp 8.28-30) by impermissibly reading paragraph [44] in isolation, and with an eye finely attuned for error’ ([13] of the first respondent’s Written Submissions). The first respondent argued that it was not obvious from the impugned words in paragraph [44] that the Tribunal assumed that the applicant could have amended the Statement of Purpose. The first respondent argued that a better interpretation was that new correct information was not introduced, written or orally ([14] of the first respondent’s Written Submissions). Ms Lloyd noted that the applicant was represented at the Tribunal hearing and had signed the Statement of Purpose (Tp 8.34-36).
Before considering whether the Tribunal’s approach was unreasonable, the Court has considered whether the applicant’s characterisation of the Tribunal’s findings is accurate. The Court does not accept that it is.
At [21] of the Tribunal Decision, the Tribunal quoted from the Statement of Purpose. At [22] of the Tribunal Decision, the Tribunal pointed out that ‘clearly the applicant had not carefully read the Statement of Purpose’, noting that the information in the statement did not accord with other information provided by the applicant, for example, he did not have engineering qualifications. The Tribunal noted that at the hearing the applicant conceded that he had used a friend’s statement as a template and sent the wrong version ([22] of the Tribunal Decision). The Tribunal then noted that the applicant had made no attempt to correct the statement. The Tribunal did not state that the applicant had made no attempt to provide a new Statement of Purpose, instead it referred to correction of the statement.
The quoted information from the incorrect Statement of Purpose in [21] of the Tribunal Decision contained information relevant to the applicant’s application, for example, construction and engineering companies that the applicant may have been interested in working at. It is reasonable to infer that where the Tribunal states in [22] of the Tribunal Decision that ‘there was no attempt to correct the statement’, that the Tribunal may have expected him to correct information about the companies, and other incorrect content, by providing new information to the Tribunal. It would not have been impossible for him to correct information, as the Tribunal is informal, and procedure is largely within its discretion: s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (as then in force).
The principles of the operation of the AAT were helpfully set out in FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 71 per Murphy, Charlesworth, Snaden JJ at [5]:
Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (as then in force) (AAT Act) required the Tribunal to pursue the objective of providing a mechanism for review that was (among other things) accessible, fair, just, informal and quick and that promoted public trust and confidence in its decision-making. The procedure to be adopted by the Tribunal was otherwise largely within its discretion: AAT Act, s 33. Section 33(1)(b) required that the proceeding be conducted with as little formality and technicality, and with as much expedition as the requirements of the AAT Act and other enactments permitted. The Tribunal was not bound by the rules of evidence but could inform itself on any matter as it thought appropriate: AAT Act, s 33(1)(c). As such, the Tribunal had “considerable latitude” over the procedures it adopted: Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114, Katzmann, Snaden and Raper JJ (at [36]).
The Court is of the view, that at [22] of the Tribunal Decision, the Tribunal was noting that the applicant had not corrected the incorrect information contained in the Statement of Purpose. Further, at [44] of the Tribunal Decision, read in context, the Tribunal again referred to the fact that the information had not been corrected, or remedied. Providing correct information was not impossible to achieve, given that the Tribunal is not bound by formal procedures.
As to the argument presented by Mr Young of Counsel that the applicant had remedied the error by saying at the Tribunal hearing that he had used a template which was a mistake, or because the mistake was referred to in the representative’s submissions, the Court’s view is that this was not the type of remedy being referred to by the Tribunal in [44] of the Tribunal Decision. This would not make sense, as in the same paragraph of the Tribunal Decision, the Tribunal recognised that the applicant had adduced evidence that he had inadvertently uploaded in error a Statement of Purpose. In the Court’s view, when in [44] of the Tribunal Decision, the Tribunal was referring to remedying the errors in the Statement of Purpose, the Tribunal meant that the applicant should have remedied the substantive mistakes in the Statement of Purpose by providing updated correct information.
As to the applicant’s submissions that it was legally unreasonable for the Tribunal to take into consideration the failure to remedy the Statement of Purpose, to the extent that these submissions rely on the applicant’s characterisation of [44] of the Tribunal Decision as requiring a new Statement of Purpose to be submitted, the submissions must fail, for the reasons set out above.
To the extent that the applicant contends that it was unreasonable for the Tribunal to take into consideration the applicant’s inattention to the detail of his application and his failure to provide corrected information when he noticed the omissions, the Court does not accept that there was legal unreasonableness amounting to jurisdictional error.
The test of unreasonableness must be ‘necessarily stringent’: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, (SZVFW) 551 [11] (per Kiefel CJ). The characterisation of a decision as legally unreasonable is not easily made out: Djokovic at [33] citing SZVFW, at 551, 564 and 586.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) , 250 [76], the High Court observed ‘unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) per Crennan and Bell JJ at [133] it was stated that ‘the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it’. Their Honours further stated at [135] that:
While there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The majority in SZMDS at [130] stated: ‘Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case’.
The impugned words in [44] of the Tribunal Decision should be read in the context of the reasoning as a whole. The Tribunal made a number of findings ([22 -26] and [28-50] of the Tribunal Decision) based on the applicant’s background and the evidence which was set out in the decision ([11 - 13], [15-21], [25], [27] and [32] of the Tribunal Decision).
The first respondent in submissions has argued that the Tribunal was expressing in [44] of the Tribunal Decision a ‘concern about carelessness’ (Tp 9.24) which was not determinative, and that it was reasonable to take this into consideration (Tp 10.1-3). The Court accepts this as correct. In [44] of the Tribunal Decision, the Tribunal is raising the issue of the applicant’s disregard for the process, in that he provided a Statement of Purpose to the Tribunal that contained incorrect information and subsequently failed to correct this information. At [46], the Tribunal states that ‘based on the above matters the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and it considers the primary objective of the application is to maintain an ongoing residence in Australia and earn a high level of income’. The issue of the Statement of Purpose is only one of ‘the above matters’. The Tribunal also refers to the fact that the course applied for would only marginally improve employment prospects and remuneration in Nepal, course changes and the study of short vocational education training courses, availability of courses in Nepal, length of time in Australia, financial incentives in Australia, personal ties in Nepal and future plans.
It was open to the Tribunal to consider the oversight and inaction relating to the Statement of Purpose when making its findings, in the context of numerous factors considered in reaching those findings. The decision did not lack an evident and intelligible justification: Li [76], and it was open to the Tribunal to engage in the process of reasoning it did on the evidence before it: SZMDS [135].
No jurisdictional error is disclosed in Ground 1.
Ground 2
The second ground in the amended application was:
The Second Respondent made jurisdictional error by ignoring a mandatory relevant consideration in relation to the Applicant's circumstances being the time which had elapsed between the Application for the visa on 11 September 2019, the decision of the Delegate on 7 February 2020 and the date of the AAT decision on 5 January 2022
The applicant provided particulars of this ground in his written submissions as follows (reproduced without alteration):
At [12] at CB 184, the AAT notes that the Applicant came to Australia on 1 June 2017 pursuant to a dependent spouse student visa.
The AAT accepted evidence that his spouse filed for divorce in September 2019 and that it was because of the separation and divorce that the Applicant applied for the visa.
Prior to coming to Australia, the Applicant had completed the courses in Nepal noted at [18] at CB 186.
Given this history it is submitted that the statements that the Applicant has been in Australia for four and a half years and the statement in [42] that the extension of the stay to five years "on student visas" lack context.
The Applicant had not been in Australia for the purpose of his own study prior to the application for a student visa after the separation ending in divorce with his wife.
Under clause 500.212(a) the Applicant's circumstances are a mandatory consideration in determining whether the Applicant intends to stay in Australia temporarily.
The AAT's consideration of the matter ignores the critical circumstances that he came to Australia in 2017, that his wife filed for divorce in 2019 and that he filed for a visa in 2019.
The delays which had subsequently occurred were in the determination process and entirely outside of his control.
It was argued by Mr Young of Counsel at the hearing that at [43] of the Tribunal Decision, the Tribunal did not give actual intellectual consideration to the applicant’s circumstances in relation to his genuine intention to stay temporarily (Tp 6.11-14). Ms Lloyd for the first respondent contended that the Tribunal suggested that the applicant had been in Australia for four and a half years, with a view to extending it to five on student visas and noted that the duration of study is a long period of time, especially for completing an Advanced Diploma of Leadership and Management in circumstances where he already had qualifications in Nepal (Tp 13.19-31). Mr Young of Counsel contended that the reference to four and a half years is misleading because for two years the applicant was dependent on his wife’s student visa and then after application there was a delay before the matter reached the Tribunal (Tp 6.21-40).
Ms Lloyd for the first respondent argued that the end date for the Advanced Diploma of Leadership and Management as submitted by the applicant was 22 May 2022, such that it was irrelevant that the visa application and review process was slow, as he intended to study until 22 May 2022 (Tp 12. 41-45) which postdated the Tribunal Decision.
The applicant relied on the decision of Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (Eros) a copy of which was handed up at the hearing. Reference was made by the applicant’s counsel to the statement of Allsop CJ at [13] that cl 500.212 (a) is concerned with the genuine intention as to length of stay and nothing else.
Allsop CJ commented at [14] that the terms and structure of cl 500.212 of Schedule 2 to the Regulations, require a careful treatment of three distinct criteria; the intention concerning length of stay, that is, there is a genuine intention to stay temporarily: (a); that there is an intention to comply with any visa conditions: (b); and any other matter relevant to the subject matter, scope and purpose of the clause and grant of the underlying visa (c). Allsop CJ stated that these three considerations feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student:
The clarity of structure of disaggregated elements to inform one overall evaluation demands separate attention to each element so that appropriate attention is given to relevant considerations, and so that appropriate focus is given to the relevant considerations. [15].
The Court is of the view that the Tribunal gave appropriate ‘separate attention’ (Eros [13-15]) to cl 500.212(a) of Schedule 2 to the Regulations, by giving attention to the relevant considerations, in the sense referred to by Allsop CJ. The Tribunal considered whether the applicant intended genuinely to stay in Australia temporarily by actively intellectually engaging with the applicant’s circumstances. This consideration included the length of time the applicant had been in Australia and wished to remain in Australia and the relevant circumstances in Australia. At [12] of the Tribunal Decision, reference is made to the applicant first coming to Australia on 17 June 2017 on a dependent visa. At [18] of the Tribunal Decision, the Tribunal referred to the applicant’s qualifications and employment in Nepal.
The Tribunal then referred to the applicant’s evidence that he initially came to Australia to support his spouse but was hopeful while in Australia that when she had completed her education, that he would undertake a short course to improve his prospects: [18] of the Tribunal Decision. At [19] and [25] of the Tribunal Decision the Tribunal refers to the divorce in 2019, and that the applicant decided he would like to get an Australian qualification so that his experience in Australia would not be without benefit. In these paragraphs, the Tribunal has engaged with the issue of the applicant’s circumstances in Australia, including the reasons for being in Australia, as part of the consideration of whether he intended genuinely to stay in Australia temporarily.
The Tribunal has also engaged with the issue of time spent in Australia, courses applied for and end date of his courses. The Tribunal noted the dates of the decision of the Department and the application for review at the Tribunal and the Tribunal hearing ([1-4] of the Tribunal Decision). At [13] of the Tribunal Decision, reference is again made to the Student 500 Visa application on 11 September 2019. At [14] of the Tribunal Decision, the Tribunal noted that his courses were expected to conclude in May 2022. In [19] of the Tribunal Decision, the Tribunal also referred to the applicant’s employment in Australia. At [39] of the Tribunal Decision, the Tribunal noted that the applicant had been in Australia for four and a half years and intended to stay for a further five months to complete his course.
In the Court’s view, a reading of the Tribunal Decision as a whole does not reveal that the Tribunal stated or implied that the applicant was in Australia for study the whole time he has been in Australia. The paragraphs cited above indicate that the Tribunal noted that the applicant had come to Australia on a dependent visa in 2017 and that he had divorced in 2019 and then applied for his own student visa. At [14] of the Tribunal Decision, the Tribunal noted that his courses were expected to conclude in May 2022, which it found would ‘extend his stay in Australia for a period of almost five years which is a long period of time and inconsistent with his stay being temporary’. At [12] of the Tribunal Decision, two paragraphs earlier, the Tribunal had referred to the applicant’s visa status as a dependent, it is clear that the Tribunal is stating that after the completion of the dependent visa, he would extend his stay to study, and that the total period of stay, rather than study, would be for almost five years.
The statement by the Tribunal in [43] that ‘the applicant has stayed in Australia for a long period of time’ concerned how long the applicant had been in Australia and was not about the period of study. His length of time in Australia was a circumstance relevant to the consideration of his intention to stay temporarily.
Decision-makers commonly express their reasons sequentially but that does not mean that they decide each factual issue in isolation from the others: Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 (2003) 198 ALR 59 (S20/2002) at [14] per Gleeson CJ. His Honour stated that ‘ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything’ [14]. This reflects the need to read a decision-maker's reasons as a whole, as referred to by Nicholas, Yates and Griffiths JJ, as an ‘underlying principle’: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 (Baker) at [44].
The statement in [43] of the Tribunal Decision ‘despite protestation that he wants to return home he has extended the stay here to four and a half years with a view of extending it to five years on student visas’ concerned extension of the stay for purposes of a student visa, but did not imply that he had been studying the entire time he had been in Australia. The statement must be read in the context of the Tribunal Decision as a whole and the references to the applicant’s visa status as a dependant, and his divorce [12-14] and [18-19] of the Tribunal Decision. Information about the time he wished to stay in Australia and the total length of time was relevant to the consideration of his intention to stay temporarily.
In the final sentence of [43] of the Tribunal Decision the Tribunal stated, ‘the Tribunal notes that the duration of study is a long period of time especially for the purposes of completing a Diploma and Advanced Diploma of Leadership and Management in circumstances where he already has a Bachelor of Business Studies back in Nepal and he has completed a management course’. Mr Young of Counsel contends that the word ‘completing’ was misleading as it suggested that he had been studying for the entire time (Tp 6.21-25). In the Court’s view, this sentence does not imply that the applicant was studying for that entire period. When the decision is read as a whole, it appears that the Tribunal has taken the view that the duration of study, which is the period of time from 2019 to 2022, is a long period of time, especially when taking into consideration prior studies. This was a view that was open to the Tribunal, and it was also relevant to the question of intention to stay temporarily.
It is true, as contended by Counsel for the applicant, that there were delays in the process of review such that although the applicant applied for review with the Tribunal in February 2020 the matter was decided by the Tribunal in January 2022. It is also true that this factor was outside of the control of the applicant. The applicant applied for a visa to study for an Advanced Diploma in Leadership and Management which would conclude in May 2022 (CB 155). It was open to the Tribunal to take into consideration the length of time the applicant intended to stay in Australia, which was until May 2022 and even though there was a delay between the application for review and determination by the Tribunal, it was not relevant to the length of time the applicant intended to stay in Australia or actually stayed, as the date of the Tribunal decision was prior to the end date of his course.
Ground 2 does not disclose jurisdictional error.
Ground 3
The third ground in the amended application was:
The Second Respondent made jurisdictional error by failing to have regard to the Applicant's immigration history as required by clause 500.212(a)(ii) of the Migration Regulations 1994
The applicant provided particulars of this ground in his written submissions as follows (reproduced without alteration):
As noted above at [42], the AAT noted that the Applicant had not identified visa refusals or cancellations in his response. He further noted that there was nothing before the AAT of a negative nature concerning the Applicant.
It is submitted it is not sufficient to comply with the mandatory statutory consideration of having regard to the Applicant's immigration history in determining whether the Applicant intends genuinely to stay in Australia temporarily.
This would require at the very least that the AAT consider the visas with which the Applicant had previously been issued in Australia and consider whether given those matters that the Applicant's sworn evidence that he intended to stay in Australia temporarily should be accepted.
It is not enough it is submitted to merely state to the Applicant that there was nothing before the AAT, visa refusals or immigration issues.
To frame the matter in that way is to consider the mandatory statutory consideration as being either neutral or negative for an Applicant. It must also be considered in the context of whether it is favorable to an Applicant.
At the hearing it was argued by Mr Young of Counsel that the Tribunal failed to consider that the applicant had been in Australia since 2017, and ‘for circumstances mainly beyond his control’ and as he had complied with visa conditions, it was more likely that he genuinely intended to stay temporarily (Tp 7.31-45). It was contended that each of the considerations found in paragraph 14 of Direction 69 were not considered by the Tribunal.
The first respondent submitted that this ground failed on its facts, as the applicant’s immigration history was considered by the Tribunal. Further, Ms Lloyd argued at the hearing that the applicant was not required to consider each element of paragraph 14 of Direction 69 separately, but in any event, this is what the Tribunal had done.
As referred to earlier, a Court should read a decision-maker’s reasons as a whole: Baker at [44]. The Court is satisfied, on a reading of the Tribunal Decision in totality, that the Tribunal considered the applicant’s immigration history favourably in its assessment of whether the applicant had a genuine intention to stay temporarily.
At [9] of the Tribunal Decision, the Tribunal reproduced cl 500.212 of Schedule 2 to the Regulations. At [10], the Tribunal outlined what it needed to consider in order to be satisfied that the applicant met cl 500.212(a) of Schedule 2 to the Regulations. This included consideration of Direction 69 ([10] of the Tribunal Decision). At the second dot point in [10] the Tribunal refers to ‘the applicant’s immigration history including previous applications for an Australia visa or other visas to other countries, and previous travel to Australia or other countries’ which is taken from Direction 69. The Court is therefore satisfied that the Tribunal was aware of what it needed to consider as this was set out in the decision.
In [17- 47] of the Tribunal Decision, the Tribunal set out evidence, discussion and findings on matters which generally corresponded with the factors set out in Direction 69. The Court is persuaded that the Tribunal considered, in these paragraphs, whether the applicant intended genuinely to stay in Australia temporarily having regard to the applicant’s circumstances, immigration history and relevant matters as required in cl 500.212(a) of Schedule 2 to the Regulations. Specifically, this included consideration of the immigration history.
To the extent that the applicant is claiming that the applicant’s status as a dependent, the review process and the pandemic were not taken into consideration, the Court is satisfied that they were taken into consideration. The Tribunal summarised the background to the proceeding ([2- 4] and [12-15] of the Tribunal Decision). At [12] of the Tribunal Decision, the Tribunal noted that the applicant came to Australia on a student dependent visa on 17 June 2017 to accompany his wife who was studying in Australia (also referred to in [18] of the Tribunal Decision). The Tribunal referred to the application for the Student 500 Visa in [13]. At [33], the Tribunal referred to the applicant’s travel history and also noted that for a substantial part of his stay there had been travel restrictions due to the COVID-19 pandemic and stated that it made no adverse findings in relation to instances of travel back to Nepal.
The Tribunal then referred to the absence of information about visa refusals or cancellations in [42], stating there was nothing before it to indicate that the applicant had experienced any other visa refusals or any immigration issues in or out of Australia.
The Court is satisfied that in [42] the Tribunal accepted that the evidence established that the applicant had had a favourable immigration history, which is inferred from the words ‘there is nothing before the Tribunal to indicate that the applicant has experienced any other visa refusals or any immigration issues either in or outside Australia’. In the Court’s view, the Tribunal is accepting that the applicant had complied with visa conditions by stating there were no ‘immigration issues’ and there had been no refusals, a finding which is inherently positive. The Court is satisfied that the Tribunal complied with Direction 69 by considering travel and immigration history including previous visas, noting of course that factors in the Direction are not to be used as a checklist:
1.…The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion (Part 2 of Direction No 69)
The Tribunal commented on various factors which it considered ([19-45] of the Tribunal Decision) and this included [42] of the Tribunal Decision. Decision-makers commonly express their reasons sequentially but that does not mean that they decide each factual issue in isolation from the others: S20/2002 at [14] per Gleeson CJ.
The Court is satisfied that the Tribunal took the favourable immigration history into consideration as it is specifically mentioned in [42] of the Tribunal Decision. Furthermore, the Tribunal had referred to the provisions relevant to its considerations and then went on to make findings which generally corresponded with Direction 69. As to the weight it gave to this evidence, this was a matter for the Tribunal: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7].
Ground 3 does not reveal jurisdictional error.
AMENDMENTS IMPACTING ON FIRST AND SECOND RESPONDENTS
The Act was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (ART) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Consequential Act).
This judgment relates to a decision of the Tribunal which predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal's decision (or as at the date of any relevant matter referenced in this judgment).
The Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party in pending proceedings. Item 25 of the Consequential Act relates to any proceeding in a court that is not finalised before the transition time and provides that proceedings continue in accordance with the new law.
In the circumstances, this Court will make an order substituting the ART as the second respondent in this proceeding.
Following the commencement of the Administrative Arrangements Order signed by the Governor-General of the Commonwealth of Australia on 13 May 2025 which altered the legislation administered by Ministers of State administering Departments of State, the name of the first respondent is to be amended to 'Minister for Immigration and Citizenship'.
In these circumstances the Court will make an order substituting the Minister of Immigration and Citizenship as the first respondent in this proceeding.
CONCLUSION
As none of the grounds raised by the applicant establish jurisdictional error, it follows that the application for judicial review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 23 June 2025
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