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
Gupta v Minister for Immigration and Border Protection [2016] FCA 1004
Kopalapilliai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
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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- Case
- [2025] FedCFamC2G 669
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for 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."