Maharjan v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 792

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Maharjan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 792

File number(s): MLG 4542 of 2019
Judgment of: JUDGE FARY
Date of judgment: 2 June 2025
Catchwords: MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not satisfy cl 500.212(a) of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to mandatory relevant considerations and the applicant’s immigration history – found no jurisdictional error on behalf of the Tribunal – application dismissed.
Legislation:

Australian Constitution s75(v)

Migration Act 1958 (Cth) s 47(1), s 65(1), s 476, s 499

Migration Regulations 1994 (Cth) cl 500.211, cl 500.212 – cl 500.218
Cases cited:

BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 542

CED15 v Minister for Immigration and Border Protection [2018] FCA 451

Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 83 AAR 226

ETA067 v The Republic of Nauru (2018) 360 ALR 228

Services and Multicultural Affairs (2020) 83 AAR 226

Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385

Kaur v Minister for Home Affairs [2019] FCA 2026

Kaur v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670

Kumar v Minister of Immigration and Border Protection (2020) 274 FCR 646

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1

Nathanson v Minister for Home Affairs (2022) 276 CLR 80

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 328

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593

Division: Division 2 General Federal Law
Number of paragraphs: 126
Date of last submission/s: 19 May 2025
Date of hearing: 26 May 2025   
Place: Melbourne
Counsel for the Applicants: Mr J R Young
Solicitor for the Applicants: Mr Pokharel, Proficient Legal
Counsel for the First Respondent: Mr Sypott
Solicitor for the First Respondent: Mr Michelon. Australian Government Solicitor
Solicitor for the Second Respondent: Submitting notice, save as to costs

ORDERS

MLG 4542 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

KARUNA MAHARJAN

First Applicant

DHARMA MAHARJAN

Second Applicant

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AGLC
Maharjan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 792
Case
[2025] FedCFamC2G 792
Decision Date

CaseChat Overview and Summary

Maharjan v Minister for Immigration and Multicultural Affairs involved a student visa applicant who sought judicial review of the Administrative Appeals Tribunal's (AAT) decision to affirm the Minister's refusal to grant her a student visa. The applicant contended that the AAT had failed to properly consider her immigration history and other relevant factors. The primary legal issue before the court was whether the AAT had erred by not providing genuine consideration to the mandatory relevant considerations and the applicant's immigration history when deciding if she was a genuine applicant for a student visa under cl 500.212 of the Migration Regulations 1994.

The court examined the AAT's decision and found that it had properly considered the relevant criteria outlined in cl 500.212 of the Regulations. The AAT had considered the applicant's immigration history, her intentions to stay in Australia temporarily, and other relevant matters, such as her economic circumstances in Australia and Nepal. The court was satisfied that the AAT had not erred in its consideration of these factors and had reached a reasonable conclusion based on the evidence presented. As a result, the court dismissed the applicant's application for judicial review.

In conclusion, the court found no jurisdictional error on the part of the AAT and dismissed the applicant's application for judicial review. The decision of the AAT affirming the Minister's refusal to grant the student visa was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 2 December 2019, the Tribunal affirmed the decision under review.[11][11] CB 214-226.TRIBUNAL’S DECISION The Tribunal’s Decision is at 214 to 220 of the Court Book. The Tribunal first outlined the background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [7]. The Tribunal noted that the central issue was whether the Applicant intended genuinely to stay in Australia temporarily as required by cl 500.212(a) of the Regulations. The Tribunal found that the Applicant was using the student visa program to extend her stay in Australia, with particular findings as follows:[12](a)The Applicant has been Australia since 2009 and has completed only 4 out of the 14 courses in which she had been enrolled; (b)The Applicant has only recently expressed an interest in nursing and her interest in this field was formed after the death of her brother which was sincere;(c)The “difficulties” in the Applicant’s future intention to qualify and return to work in Nepal were the amount of further time it would take for her to be fully qualified, and the commensurate incentives she had to remain in Australia;(d)The Tribunal found it difficult to accept that at the end of 13 years of study in Australia, the Applicants had only visited Nepal three or four times. While the Tribunal accepted that there is a demand for nurses in Nepal, the Tribunal considered the earning potential in Australia, the demand for nurses in Australia and the fact that she had coped with the Australian cost of living for 10 years. The Tribunal was not persuaded that the opportunities and economic circumstances for her in Nepal outweighed those opportunities and circumstances in Australia;(e)The Tribunal also noted that the Applicant initially came to Australia to study in a culinary field, switched to studying accounting and management; and took the opportunity to be sponsored for a subclass 457 visa, a pathway to permanent residency. When she was unsuccessful in obtaining a subclass 457 visa, the Applicant pursued nursing studies for personal and employment reasons; and(f)The Applicant’s husband was in Australia and provided her with a level of family comfort and incentive to remain.[12] CB 214-200. The Tribunal found that the Applicant did not meet cl 500.212(a) of the Regulations. The second applicant did not satisfy cl 500.311 of the Regulations. The Tribunal upheld the decision of the Delegate.[13][13] CB 220.PROCEEDINGS IN THIS COURT The Application was filed in this Court on 19 December 2019, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act. On 8 April 2020, Orders were made by Registrar Carlton of this Court for the Applicants to file: written submissions, any amended application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence. That the directions hearing listed on 8 April 2020 be vacated.

Ratio Decidendi

Legal Principle Established

The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cl 500.211 to 500.218 in Schedule 2 of the Regulations.CONSIDERATIONGround 6 Ground 6 is that:The Second Respondent made jurisdictional error by failing to have regard to mandatory relevant considerations being the Applicants’ immigration history and in particular level of compliance with previous visas and the Applicants’ significant land holdings in Nepal. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied. Clause 500.211 of Schedule 2 of the Regulations provides:a. the applicant is enrolled in a course of study;b. if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;c. if the applicant is a Foreign Affairs student-the applicant has the support of the Foreign Minister for the grant of the visa;d. if the applicant is a Defence student-the applicant has the support of the Defence Minister for the grant of the visa. Clause 500.212 of Schedule 2 of the Regulations provides: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; andiv.any other relevant matter; andb. 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); andii.the applicant’s stated intention to comply with any conditions to which the visa may be subject; andc. because of any other relevant matter. In Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 83 AAR 226, Allsop CJ stated (at [8] and [9]):It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: "a genuine applicant for entry and stay as a student". This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause.The expression is followed by the word "because" and a list of various matters in subcll (a)(i)-(iv), (b)(i)-(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise. That said the width of subcll (a)(iv) and (c) are to be recognised: that is "any other relevant matter". Such a wide frame of reference is, of course, limited by reference to the subject matter, scope and purpose of cl 500.212: Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 at 505.