Panday v Minister for Immigration and Multicultural Affairs

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Panday v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 669

File number(s): SYG 271 of 2022
Judgment of: JUDGE MARQUARD
Date of judgment: 28 May 2025
Catchwords: MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence- whether findings unsupported by evidence – whether the applicant failed to properly apply the law – no jurisdictional error-application dismissed  
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth) ss 29, 31, 45, 65, 359AA, 476, 499

Migration Regulations 1994 (Cth) cll 500.211, 500.212, 500.215

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163

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

Gupta v Minister for Immigration and Border Protection [2016] FCA 1004

Kopalapilliai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15

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

Mazimbe v Minister for Immigration and Multicultural Affairs [2023] FedCFamC2G 1227

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

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158

MZXHY v Minister for Immigration and Border Protection [2007] FCA 622

NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10.

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law
Number of paragraphs: 131
Date of hearing: 24 April 2025
Place: Sydney
Applicant: The Applicant appeared in person via Webex
Solicitor for the First Respondent: Mr J Djasmeini of MinterEllison for the First Respondent via Webex
Second Respondent: Submitting Appearance Save as to Costs

ORDERS

SYG 271 of 2022

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

MANISH PANDAY

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE MARQUARD

DATE OF ORDER:

28 MAY 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 for judicial review filed on 17 February 2022 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…

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Details
Case
[2025] FedCFamC2G 669
Decision Date

CaseChat Overview and Summary

The applicant, a Nepalese national, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that had dismissed his application for a Student (Temporary) (Class TU) (Subclass 500) visa. The applicant had previously held a Student Dependent visa and subsequently applied for a Student 500 visa on 9 May 2019. The Department of Home Affairs refused his application on 11 June 2019, citing insufficient evidence of health insurance. The applicant appealed to the AAT, which remitted the application to the Department for reconsideration. The Department subsequently raised concerns about the applicant's enrolment history and potential misuse of the student visa system. The AAT ultimately found that the applicant was not a genuine temporary entrant and dismissed his application.

The primary legal issue before the court was whether the AAT had committed jurisdictional error in its decision. The applicant contended that the AAT failed to properly consider certain evidence, made findings unsupported by evidence, and improperly applied the law. The court considered the nature and scope of jurisdictional error, emphasising that it could not review the merits of the AAT's decision but could assess whether the decision-making process was lawful.

The court examined the AAT's decision and found that it had appropriately considered the evidence and applied the relevant legal criteria. The AAT had considered the applicant's family ties, financial situation, and immigration history in determining his eligibility for the visa. The court held that the AAT's findings were supported by the evidence and that there was no jurisdictional error in the decision. The applicant's claims of error were without merit, and the court dismissed his application for judicial review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the application is dismissed.BACKGROUND The applicant is a citizen of Nepal (Court Book (CB) 39). He first arrived in Australia on 28 June 2016 as the holder of a Student Dependent (Subclass 573) visa as his wife was studying in Australia. They divorced in 2017, and he was granted a student visa of his own on 12 April 2018 (CB 63). On 9 May 2019, the applicant applied to the Department for the Student 500 Visa which was the subject of review at the Tribunal (CB 22–39). The applicant listed his educational background in the application (CB 29). On 9 May 2019, the same day that the applicant lodged his visa application, the Department acknowledged the application and invited the applicant to log in to his Departmental account to view the documents required for his application (CB 41=42). On 11 June 2019, the delegate of the Department refused to grant the applicant the Student 500 Visa (CB 48 - 49). The Department was not satisfied that the applicant met cl 500.215 of Schedule 2 to the MigrationRegulations1994 (Cth) (Regulations) (CB 49) in that he did not provide evidence of health insurance. On 1 July 2019, the applicant applied to the Tribunal for review of the delegate's decision (CB 50 -51). On 12 July 2019, the Tribunal remitted the application back to the Department for reconsideration with a direction that the applicant met cl 500.215 (CB 60- 61) as he had provided appropriate evidence (CB 61). On 17 July 2019, the Department wrote to the applicant inviting him to comment on Provider Registration and International Student Management System (PRISMS) records that had been received by the Department (CB 63). The Department noted that the applicant had not studied from 13 August 2018 to 4 February 2019 and that he had a Confirmation of Enrolment (CoE) cancelled on 11 July 2019, which was his last day of study. In the invitation to comment on adverse information the delegate stated the following:I have given consideration to your study history in Australia, including the identified gap in PRISMS. Based on departmental investigations, it would appear you may be utilising the Student Visa Program as a means to prolong your stay in Australia and you may not be a genuine temporary entrant as defined in regulation 500.212. Take this as an opportunity to comment on this adverse information. The Department notified the applicant that any response provided must be within 28 days after it had been deemed he had received the letter (CB 64). On 14 August 2019, the applicant responded to the Department’s letter by email and attached the following (CB 67):(a)CoE (CB 85-86);(b)Letters of Offer from Canterbury Business College to study Certificate IV in Commercial Cookery and a Diploma of Hospitality Management (CB 69- 84); and(c)Genuine Temporary Entrant Statement (CB 87). In this statement he said that he was a genuine student who took general English then ‘continued for technical course which will help me at work and shape my future’. He noted that it was difficult to get a place at Canterbury Business College. He said that he was working as a cook to enhance his skills for his return to Nepal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 12 April 2022, the Tribunal published a copy of the written record of the oral decision (CB 231 -239).TRIBUNAL DECISION 28 JANUARY 2022 (CB 231 TO 239) The Tribunal summarised the background to the proceeding ([3-6] of the Tribunal Decision). The Tribunal identified that the issue for determination was whether the applicant was a genuine temporary entrant as a student, pursuant to cl 500.212 of Schedule 2 to the Regulations ([8-9] and [17] of the Tribunal Decision). The Tribunal noted that it put the PRISMS record to the applicant pursuant to s 359AA of the Act ([22] of the Tribunal Decision) and advised the applicant that it was open to him to seek additional time to comment or respond to the information. The applicant confirmed to the Tribunal that he was content to respond at the hearing ([25] of the Tribunal Decision). The Tribunal recorded the applicant’s responses to the questions it put to the applicant ([26- 46] 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 ([10] of the Tribunal Decision). The Tribunal made the following findings and comments:(a)circumstances in applicant’s home country: the Tribunal considered the applicant's evidence in relation to his circumstances in Nepal ([39] – [43] 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 ([47] of the Tribunal Decision);(b)potential circumstances in Australia: the Tribunal considered the applicant's evidence regarding his family, community ties and assets in Australia ([44] – [46] of Tribunal Decision) as well as the information on the PRISMS record ([48] of the Tribunal Decision). The Tribunal recorded its concerns that the applicant may have been attempting to use the student visa system to prolong his stay in Australia ([49] and [62] of the Tribunal Decision) and justified its concerns by outlining the relevant evidence ([49] of the Tribunal Decision). The Tribunal noted that it accepted the applicant’s explanation for the cancellation of his enrolment in July 2019 in the courses ([50] of the Tribunal Decision). The Tribunal found that the applicant’s family ties to Australia did not of themselves constitute a strong incentive for him to remain in Australia ([62] of 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 restaurant in Pokhara, Nepal focused on tourism ([51 - 57] of the Tribunal Decision). The Tribunal found his evidence to be vague and recorded that the applicant was unable to expound upon his evidence in any meaningful detail as to the benefit of the current course to his future plans ([58] of the Tribunal Decision). The Tribunal recorded that based on its earlier findings as to the difficulties it had with the applicant’s evidence, that it placed little weight on the applicant’s projected cash flow of achieving a revenue of AUD $70,000 to AUD $80,000 per year upon his return to Nepal ([60] of the Tribunal Decision); and(d)applicant’s immigration history: the Tribunal summarised the applicant’s immigration history ([61] of the Tribunal Decision).

Ratio Decidendi

Legal Principle Established

A copy of the CoE provided by the applicant on 8 April 2025 is found at (CB 195) and documents from the Sydney Business and Travel Academy at (CB 130 to 134). There was no need for another copy of the CoE or the certification from Sydney Business and Travel Academy to be admitted into evidence as the information contained therein was already in evidence.CONSIDERATION OF CLAIMED GROUNDS OF JURISDICTIONAL ERRORLegal Principles The Tribunal was required to consider whether the applicant met the legislative criteria for a Student (Temporary) (Class TU) (Subclass 500) visa. Section 29(1) of the Migration Act 1958 (Cth) (Act) gives the Minister or its delegate power to grant a non-citizen a visa to travel to and enter or remain in Australia. A non-citizen must apply for a visa of a particular class: s 45 of the Act. Regulations prescribe the criteria for classes of visas: ss 31(1) and 31(3) of the Act. The Minister considers whether an application is valid and then grants a visa if satisfied that criteria identified in s 65(1)(a) of the Act are met. This includes criteria prescribed by the Act or Regulations: s 65(1)(a)(ii) of the Act. The criteria for the visa applied for by the applicant are set out in Clause 500.2 of the Schedule to the Regulations. Clause 500.212 requires that the applicant is a genuine applicant for entry and stay as a student, having regard to various factors. The applicant has claimed that the Tribunal Decision fell into jurisdictional error. The function of this Court is to review the Tribunal Decision and determine whether there is jurisdictional error in the Tribunal Decision. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 the plurality of the High Court explained jurisdictional error at [3] (footnotes omitted):Because an express or implied condition of a statutory conferral of decision-making can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed.. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness. The Court must review the lawfulness or legality of the Tribunal decision by reference to the applicant's complaints about the decision: Djokovic at [17]. It is well-established that the Court cannot review the merits of the Tribunal decision. In Wu Shan Liang 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."