Maharjan (No 2) v MHA

The applicant, Mr. Maharjan, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) which affirmed the refusal to grant him a Student (Temporary) (Class TU) visa as a member of the family unit of a primary visa holder. The application was brought under section 476 of the *Migration Act 1958* (Cth).

The central legal issues before the Federal Circuit and Family Court of Australia were whether the Tribunal had committed jurisdictional error. Specifically, the court considered whether the Tribunal asked itself the wrong question when it concluded it was not satisfied that the applicant was a "genuine applicant for entry and stay as a member of the family unit" because it was not satisfied the applicant intended to stay in Australia temporarily. Further questions included whether the Tribunal failed to take into account the applicant's marriage to the primary visa holder, and whether it took into account an irrelevant consideration by inquiring into the applicant's prior history as a student visa holder in a capacity not as a family unit member.

His Honour Judge Manousaridis found that the Tribunal had not committed jurisdictional error. The Tribunal's assessment of the applicant's intention to stay temporarily was a relevant consideration in determining whether he was a genuine applicant for entry and stay as a member of the family unit. The Tribunal was entitled to consider the applicant's history, including his previous student visa status, as it bore upon his current intentions and the genuineness of his application. The marriage was a factor considered, but the Tribunal was not bound to find it determinative of the genuineness of the applicant's intention to stay temporarily. The court concluded that the Tribunal had asked itself the correct question and had not taken into account irrelevant considerations or failed to consider relevant ones.