Panday v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 669
•28 May 2025
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 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 application filed on 17 February 2022, seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 28 January 2022. The Tribunal affirmed a decision dated 20 August 2019 of the Department of Home Affairs (the Department), as delegate for the first 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. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
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.
On 20 August 2019, the Department refused to grant the applicant a Student 500 Visa. The Department was not satisfied that cl 500.212 of Schedule 2 to the Regulations had been met as the Department was not satisfied that the applicant genuinely intended to stay in Australia temporarily (CB 96).
On 10 September 2019, the applicant applied to the Tribunal seeking review of the Department’s decision dated 20 August 2019 (CB 98-99).
On 10 March 2021, the Tribunal affirmed the decision under review (CB 167).
On 23 June 2021, the Federal Circuit Court of Australia (as it was then called) by consent, made orders quashing the decision of the Tribunal dated 10 March 2021, and remitting the matter back to the Tribunal to redetermine according to law. The Court noted that the first respondent conceded that the Tribunal’s decision was affected by jurisdictional error of the kind identified in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99. The Court further noted that the Tribunal had erred in failing to consider corroborative evidence namely a CoE dated 21 January 2021 for a Diploma of Hospitality Management that was cogent and central to the applicant's claims (CB 180).
On 30 June 2021, the Tribunal notified the applicant by email that his case would be reallocated to a Tribunal member for determination (CB 184 – 185).
On 20 August 2021, the applicant provided a copy of his then current CoE to the Tribunal by email (CB 193 -195). The CoE evidenced the following:
(a)enrolment in an Advanced Diploma of Hospitality Management;
(b)course start date of 16 August 2021; and
(c)course end date of 20 May 2022.
On 22 December 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, to complete a ‘response to hearing invitation’ form, and to provide a current CoE, documents evidencing his past studies or work related to past or intended studies in Australia and a written statement addressing the issue of whether he is a genuine applicant for entry and stay as a student. The Tribunal notified the applicant that the documentation should be provided by 21 January 2022 (CB 205–208).
On 27 January 2022, the Tribunal emailed the applicant a copy of his PRISMS report including the CoE which was current at the time, informing the applicant that it may be referred to at the hearing (CB 222–224).
On 28 January 2022, the applicant attended the hearing before the Tribunal to give evidence and present arguments (CB 225 -227).
On the same day of the scheduled hearing 28 January 2022, the Tribunal made an oral decision affirming the Department’s decision dated 20 August 2019 (CB 229–230).
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).
The Tribunal was not satisfied that the applicant intended to stay in Australia temporarily ([63] of the Tribunal Decision). Accordingly, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student ([64] 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 ([65] of the Tribunal Decision).
The Tribunal affirmed the delegate's decision dated 20 August 2019 ([66] of the Tribunal Decision).
PROCEEDINGS BEFORE THIS COURT
Application to the court
The applicant applied to this Court for judicial review on 17 February 2022. He stated that the grounds for his application were (reproduced without alteration):
1. Genuine student as Clause 500.212 doesn’t apply
2. Enrolled in course of study and completed genuinely
3. Working in critical sector helping Australia economically recovery through hospitality sector.
The applicant filed an affidavit in support of his application for judicial review on 17 February 2022. The affidavit attached the decision record evidencing the oral decision made by the Tribunal. The affidavit included the following statements:
1. All the given statements are true in nature.
2. I am the applicant and all details are correct.
On 19 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 by 8 April 2025.
The applicant filed an ‘Outline of Submissions’ on 17 April 2025 at 10am (Outline of Submissions). The document was titled ‘Applicant’s written reply to the Minister’s submissions’.
The applicant also filed a document called ‘Supplementary Written Submissions’ on 17 April 2025 at 2.06 pm (Supplementary Submissions). In this document he set out a number of alleged grounds of jurisdictional error (reproduced without alteration):
Ground 1 – The Tribunal Failed to Properly Consider the Applicant’s CoE
Ground 2 – The Tribunal’s Findings Were Unsupported by the Evidence
Ground 3 – Failure to Properly Apply Direction No. 69
Ground 4 – Supportive Evidence Submitted in 2025
The applicant provided particulars for each of these grounds.
The hearing
On 24 April 2025, the applicant appeared before this Court via video link (at his request). He confirmed that he was able to see and hear well. He was unrepresented. He confirmed that he had received copies of the Court Book and the Minister’s written submissions.
With the consent of the first respondent, the Court granted leave for the Supplementary Written Submissions to be taken as an amended application.
With the consent of the first respondent, the Court granted leave for the Outline of Submissions to be taken as submissions in response.
In summary, the following documents were before this Court – the application for judicial review, the supporting affidavit of the applicant filed on 17 February 2022 (read at the hearing), the Outline of Submissions, the Supplementary Written Submissions (taken to be an amended application and referred to in this decision as the amended application), a Court Book (numbering 248 pages and marked as Exhibit R1) filed 27 April 2022, and written submissions of the Minister filed on 15 April 2025.
As the applicant was unrepresented, the Court provided an overview of the processes of the Court. The Court also explained that the issue before the Court was whether the Tribunal had fallen into material jurisdictional error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272. It was explained to the applicant that the Court cannot review the merits of the Tribunal’s decision or decide to grant the applicant a visa.
The Court outlined some of the common categories of jurisdictional error (based on references in Craig v State of South Australia (1995) 184 CLR 163; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [207]-[208]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic). The Court also noted that this list of categories was not exhaustive: Mazimbe v Minister for Immigration and Multicultural Affairs [2023] FedCFamC2G 1227.
New documents provided by the applicant to the Court
In correspondence to the Court dated 7 April 2025, the applicant stated that he wished to submit several documents in support of his case. He said that this was to ‘demonstrate my genuine intentions relevant to the matter’. He attached the following documents:
·email from the applicant to student services dated 6 April 2022 (6 April Email);
·overseas Student Confirmation-of-Enrolment relating to the period 16 August 2021 to 20 May 2022;
·Skills Assessment Result from ‘Vetassess’ dated 5 October 2023 (Skills Assessment Result);
·letter from the Sydney Business and Travel Academy dated 11 March 2025 certifying that the applicant was a full-time student; and
·reference from the head chef of Port Macquarie Golf Club dated 29 March 2025 (Reference).
On 8 April 2025, the Court emailed the applicant and informed him that if he wished to file evidence, it would need to be attached to an affidavit. At the hearing, the applicant was asked if he was planning on filing an affidavit and he said that he was unrepresented and could not produce an affidavit.
The first respondent, in submissions on 15 April 2025, opposed the admission of the 7 April 2025 email, the Skills Assessment Result and the Reference. The first respondent submitted that an application for review is ordinarily confined to the same material that was put before the Tribunal and that fresh material is not admissible on judicial review unless it bears on some jurisdictional error.
The applicant submitted that the documents supported his genuine intention to stay temporarily. He submitted that ‘I am not asking the Court to use new documents to change the facts. I am saying the new documents help show that the Tribunal made a legal mistake by failing to properly consider the evidence that was already in front of it. If the Court looks at the full picture including what I submitted before the hearing it will see that I was genuine and that the Tribunal did not weigh the evidence correctly’. He reiterated at the hearing that the documents supported him ‘as a genuine student’, showing that his study included a Certificate IV, then a diploma, then an advanced diploma then a skills assessment. He submitted that this demonstrated a clear pathway of study (Tp 6.43-44).
In the Supplementary Submissions he argued that:
The documents served on 7 April 2025 (including a skills assessment, employment letter, and certification) are not presented to dispute the merits, but rather to:
•Confirm the Applicant’s consistent pathway in hospitality
•Reinforce that the statements made before the Tribunal were truthful and credible
These documents help support the claim that the Tribunal’s conclusion was not reasonably open on the evidence available at the time.
The Court’s role is to consider whether there is jurisdictional error in the Tribunal Decision. An application for judicial review is limited to the material that was before the Tribunal: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 (SZJMG) at [20].
The 6 April Email was from the applicant to student services at ‘sbta’. The email stated, ‘I have done some commercial cookery and diploma with good results but I didn’t get my visa and AAT refused my visa now I am in court so I am mentally stressed and breakdown so I will not be able to study until I got visa…Hope you will understand my decision’. This email was written on 6 April 2022 and was therefore not before the Tribunal on 28 January 2022. The role of this court is to evaluate whether the Tribunal made an error on the material before it rather than documents produced after the Tribunal hearing.
The Skills Assessment Result is a confirmation from ‘Vetassess’ that the applicant had successful assessment as a chef (commercial cookery). The assessment was dated 5 October 2023 and was therefore not evidence before the Tribunal on 28 January 2022. Although it may be relevant to the applicant’s skills, it is not relevant to the question of whether the Tribunal decision was affected by jurisdictional error based on the evidence before it at the time.
The Reference is dated 29 March 2025. It is a letter in support of the applicant and refers to his employment as a chef at Port Macquarie Golf Club since 19 August 2024. Although the reference indicates that he is valued by the golf club, it was not evidence before the Tribunal when it considered whether the applicant was a genuine applicant for temporary stay in Australia. The role of this court is to evaluate whether the Tribunal made an error on the material before it and not whether since then the applicant has had a consistent pathway in hospitality.
The Court finds that the 6 April Email, the Skills Assessment Result and the Reference are inadmissible as they post-date the Tribunal Decision: SZJMG at [20], and are new documents submitted for the purpose of challenging the factual findings made by the Tribunal. It is not the role of the court to assess merits of the case: MZXHY v Minister for Immigration and Border Protection [2007] FCA 622 at [8], Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 at [27].
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 ERROR
Legal 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."
Although Wu Shan Liang was a case which considered a decision to refuse a refugee visa, the same principles apply in relation to judicial review of decisions to refuse student visas. It follows that disagreement with the merits of a decision, if any, 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].
Consideration of the grounds of jurisdictional error alleged by the applicant
The applicant has specified three grounds of jurisdictional error in the amended application.
As unrepresented applicants are often unfamiliar with legal principles and methods of legal drafting, the Court considered each of the applicant’s grounds as broadly as possible, and has been alert to legal error, in accordance with the principles set out in the decision in MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 at [100].
After considering each of the grounds, the Court has not identified any jurisdictional error, for the reasons set out below.
Ground 1
The first ground in the amended application was:
The Tribunal failed to properly consider the applicant’s confirmation of enrolment.
The applicant provided particulars of this ground as follows:
Contrary to the First Respondent’s implication in paragraph 2 of its submissions, the Applicant did file a valid Confirmation of Enrolment (CoE) for the Advanced Diploma of Hospitality Management, which was provided to the Tribunal on 20 August 2021 and is recorded in the Court Book at CB 195.
This CoE clearly demonstrated that the Applicant was genuinely enrolled in a course relevant to his prior education, and it was before the Tribunal well in advance of the hearing on 28 January 2022.
The First Respondent later acknowledges the existence of this CoE in paragraph 10 and again in paragraph 24, confirming it is not “new evidence.”
The Applicant submits that the Tribunal erred by failing to meaningfully engage with the substance and weight of this evidence. This failure amounts to a jurisdictional error, consistent with the reasoning in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
The applicant was asked at the hearing if he wished to expand on the particulars provided or provide any further information on this ground. He said that he would prefer to rely on his written submissions.
The first respondent submitted that the CoE (which confirmed that the applicant was enrolled in an Advanced Diploma of Hospitality Management from 16 August 2021 to 20 May 2022) was before the Tribunal. The first respondent submitted that the Tribunal was not required to refer to each piece of evidence in its decision (Tp 12.10-11) and that the Tribunal referred to the PRISMS record, which contained the CoE, at the hearing (Tp 12.15-19). Further, the first respondent contended that the CoE was not corroborative evidence cogent and central to the applicant’s claims (Tp 12.21-22).
In Yusuf, the authority cited by the applicant, the judges explained jurisdictional error:
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law (per McHugh, Gummow and Hayne JJ at [82]).
At [69] the majority in Yusuf found that the Tribunal was required to provide a statement setting out findings on material questions of fact and if matters were not mentioned in the decision, it could demonstrate an error of law, such as failing to take into account relevant considerations.
The CoE was before the Tribunal. On 20 August 2021, the applicant provided a copy of his current CoE to the Tribunal by email (CB 193 and 195). On 27 January 2022, the Tribunal wrote to the applicant attaching a copy of the PRISMS Report including the current CoE (CB 222-224).
The Court is persuaded that the Tribunal considered the CoE and that the contents of the CoE were referred to in the decision, in the way described in Yusuf at [69], indicating it was considered by the Tribunal.
The CoE evidenced the following:
·enrolment in an Advanced Diploma of Hospitality Management;
·course start date of 16 August 2021; and
·course end date of 20 May 2022.
In the Tribunal Decision, the Tribunal referred to the fact that the applicant was studying at the time of the Tribunal hearing ([31-32], [34-35], [48] and [57] of the Tribunal Decision). The Tribunal also noted that the applicant was ‘presently enrolled’ in an Advanced Diploma of Hospitality Management that commenced in August 2021 and was scheduled to conclude in May 2022 ([48] of the Tribunal Decision). This information was taken from the PRISMS record ([48] of the Tribunal Decision) which contained the CoE (CB 224). These references indicate that the Tribunal considered the CoE and accepted that the applicant was currently enrolled.
The applicant has contended that the Tribunal failed to meaningfully engage with the substance and weight of this evidence.
It is useful here to consider what the mandatory considerations for the Tribunal were. The task of the Tribunal was to consider whether the applicant was a genuine applicant for entry and stay as a student because he intended to stay in Australia temporarily having regard to the applicant’s circumstances, immigration history, record of compliance with visa conditions, stated intention to comply with visa conditions and any other relevant matter: cl 500.212 of Schedule 2 to the Regulations. The Tribunal was required to have regard to the factors outlined in Direction No. 69, ‘Assessing the genuine temporary entrant criterion for student visa and student guardian applications’ issued under s 499 of the Act.
The Tribunal identified the relevant law and principles ([8-11] of the Tribunal Decision).
The Tribunal then considered whether the applicant was a genuine applicant for entry and stay as a student because he intended to stay in Australia temporarily ([12-63] of the Tribunal Decision), having regard to the applicant’s circumstances, including his current study, and a range of other factors as required by cl 500.212 and Direction 69. This included consideration of date of arrival, study history, immigration history, employment history, PRISMS records, travel, community ties in Australia, political and civil unrest in Nepal, ties in Nepal and future plans ([39-61] of the Tribunal Decision).
In the Court’s view, the Tribunal had regard to the various factors set out in cl 500.212 and Direction 69 and completed the task enunciated in Yusuf of setting out findings on questions of fact it considered to be material to the decision and the reasons it had for reaching that decision. ([47-63] of the Tribunal Decision). This included consideration of current study.
It is of course a criterion for the visa that the applicant be currently enrolled: cl 500.211 of Schedule 2 to the Regulations. This clause was not considered separately by the Tribunal as the Department found that the applicant did not meet clause 500.212 only (CB 93-97). Current enrolment of the applicant was not an issue in dispute.
As to whether the Tribunal meaningfully engaged with the CoE in respect of the question of whether the applicant was a genuine applicant for entry and stay as a student, the Court is persuaded that it did so engage. A conclusion that a tribunal has failed to meaningfully or intellectually engage is not one to be lightly made and must be supported by clear evidence: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15 at [47]. The applicant has not provided evidence that the Tribunal did not engage with the evidence in a meaningful way. The Tribunal accepted that the applicant was currently enrolled and referred to this in the Tribunal Decision ([31-32], [34-35], and [57] of the Tribunal Decision). Importantly, the Tribunal referred to his current enrolment in [48] and then went on to discuss the various factors which led it to reach a conclusion that the student visa may be used primarily for ongoing residence.
To the extent that the applicant is claiming that the Tribunal should have given more weight to the CoE, the weight to be attributed was a matter for the Tribunal: NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11]. The decision made was lawfully and reasonably open to the Tribunal. The Tribunal relied on various factors which were logically capable of informing the decision that the Tribunal was not satisfied that the applicant intended to stay temporarily in Australia ([39-62] of the Tribunal Decision).
Ground 1 does not establish jurisdictional error.
Ground 2 and Ground 3
The Court has considered Grounds 2 and 3 together as there are similar particulars.
The second ground in the amended application was:
The Tribunal’s Findings were unsupported by the evidence
The particulars provided stated:
The Tribunal found that the Applicant lacked genuine intention to temporarily stay in Australia, primarily based on concerns about his future plans and migration history (paras 20(b), 20(c), 20(d) of the Respondent’s outline).
The Applicant submits that these findings were not supported by the totality of the evidence:
He had completed a Certificate IV and Diploma in Hospitality, and progressed to an Advanced Diploma, forming a credible academic pathway.
He had submitted a valid CoE and was actively enrolled in his studies.
He expressed clear intentions to work in the hospitality sector and open a business — consistent with his qualifications.
The Tribunal dismissed these explanations as “vague” without properly evaluating their consistency and credibility, which reflects a misuse of discretion and a failure to apply Direction No. 69 in a lawful manner.
The applicant submitted in the Outline of Submissions that although he does not have strong family ties in Nepal that does not mean that he was dishonest or trying to stay unlawfully. He said that many students study abroad because they do not have strong support in their home country. He said that in Australia he had friends and a job in a regional local community, which was a real commitment to his future. He submitted that the Tribunal did not give proper weight to completing his studies properly and the fact that he said his future plans could change. He submitted that his courses were all logically connected and part of a clear, progressive education path. He said that he explained his plan to open a business but also ‘told the truth that my future may depend on my personal situation which is normal and honest’.
The applicant was asked at the hearing if he wished to provide more detail about the particulars. He said that his visa was refused at the time when he started his commercial cookery course. He said that he did his commercial cookery in ‘the right way’ (Tp 10.36-37) and that he studied for a Diploma in Hospitality which is linked to commercial cookery (Tp 10.38-39). He said that ‘after this’ the Tribunal ‘did not see what I am doing (Tp 10.39-40). And they just decided that I am not a genuine student (Tp 10.40). So doing the commercial cookery, how can everyone say, like, I am not a genuine student (Tp 10.40-41). I am going through the – I am doing everything in the right way (Tp 10.41-42). Everything in my visa conditions like that (Tp 10.42-43).’ He submitted that his future plans were clear and he told the Tribunal about his future plans (Tp 13.45-46).
The third ground was stated in the amended application to be:
Failure to Properly Apply Direction No 69
The particulars provided were:
Direction No. 69, issued under s 499 of the Migration Act, requires decision-makers to consider:
•The value of the course to the applicant’s future
•The relevance of past and present study
•Potential circumstances in Australia and the home country
The Tribunal did not engage meaningfully with the fact that the Applicant’s current course (Advanced Diploma) built upon his past studies in hospitality and aligned with his stated career goals.
Instead, the Tribunal focused disproportionately on perceived weaknesses in the Applicant’s return plans and assumptions about long-term migration intent, contrary to the balance required under Direction No. 69.
This selective or unfair application of a binding Ministerial Direction constitutes jurisdictional error and renders the decision legally flawed.
The applicant was asked at the hearing if he wished to make further submissions in relation to this ground. He said that he would like to rely on his written submissions. The applicant did make some comments that his studies were genuine, and that he had completed his Certificate IV in Commercial Cookery (Tp 13.25-26). He said that after this he was studying for a Diploma in Hospitality Management which related to his course, and he wanted to study for an advanced diploma, which was related to his career as well, as being a chef, he had to work in the kitchen and do ‘management things’, which he needed to learn through study (Tp 13.42-44). He submitted, in his Outline of Submissions, that it was not true that he was using the student visa to stay longer in Australia. He submitted that these are not ‘fake or unnecessary studies. Each course helped me move forward in my career. I was working in hospitality, improving my skills, and applying what I learned. That shows I was here to study and work, not just to stay longer’.
The first respondent submitted that Grounds 2 and 3 took issue with the Tribunal’s findings. It was submitted that the grounds failed on a factual level and invited the Court to engage in impermissible merits review.
Reference was made by the first respondent to [49] of the Tribunal Decision, where the Tribunal set out its reasons for finding that the applicant was not a genuine temporary entrant. It was submitted that the findings of the Tribunal were based on the applicant’s failure to complete the general English course that he was proposing to study when he had a student visa ([49 a] of the Tribunal Decision), that he had completed two courses that he was proposing to study when he applied for his student visa and was proposing to complete an additional course, the Advanced Diploma of Hospitality Management and following that, the Diploma of Leadership Management ([49 b] of the Tribunal Decision). It was submitted that the Tribunal also emphasised that the applicant swapped focus from business to cookery since arriving in Australia ([49 c] of the Tribunal Decision) and had pursued a lower level of study in Australia as he had a bachelor’s degree in Nepal ([49 d] of the Tribunal Decision). Further, there was a six-month gap in the applicant’s study from August 2019 ([49 e] of the Tribunal Decision).
It was submitted by the first respondent that the Tribunal was of the view that the applicant’s plans for his future were vague, and that he had not provided meaningful detail about why he required his current course for these plans.
The first respondent submitted that these findings were open to the Tribunal on the evidence. It was submitted that it is a matter for the Tribunal to give weight to evidence and the Tribunal was not required to accept uncritically all claims made.
The Court accepts that the Tribunal correctly applied the law and made findings on evidence as identified in the Tribunal Decision, with reference to the mandatory considerations. The Tribunal identified the law and principles on which it was required to make a decision ([8-11] of the Tribunal Decision) indicating awareness of them.The Tribunal then went on to consider various factors, which generally correspond with factors set out in Direction No. 69, including consideration of date of arrival, study history, immigration history, employment history, PRISMS records, travel, community ties in Australia, political and civil unrest in Nepal, ties in Nepal and future plans ([39-61] of the Tribunal Decision).
Based on these factors, the Tribunal expressed concerns as to whether the applicant might be attempting to use the student visa system to stay in Australia ‘for longer’. This concern was based on evidence of lack of completion of his English course, earlier completion of the two courses he was proposing to study, changing focus of the studies, lower-level study in Australia and the gap in his study in 2018 ([49] of the Tribunal Decision). While the use of the words ‘for longer’ was clumsy, as there is no indication of what the Tribunal means by ‘for longer’ in paragraph [49], the Court accepts that when paragraph [49] is read in the context of the decision in totality, the Tribunal was not satisfied that the applicant had a genuine intention to stay in Australia temporarily (a finding the Tribunal was required to make concerning cl 500.212(a)). In paragraph [63] of the Tribunal Decision, the Tribunal records that it is not satisfied that the applicant intends genuinely to stay temporarily.
The applicant claimed that the Tribunal’s findings relating to future plans were not supported by the ‘totality of the evidence’. The Tribunal considered the evidence of the applicant’s plans for the future ([51-60] of the Tribunal Decision). The Tribunal found that the applicant only had vague plans for his future and had failed to explain in any meaningful detail why the applicant required his current course for his future ([58] of the Tribunal Decision). The Tribunal based this finding on written and oral evidence [51-57]. The evaluation of the evidence, including as to whether the evidence was ‘vague’ and the weight given to this evidence was a matter for the Tribunal. Moreover, the Tribunal’s conclusion that the applicant’s claims were vague was clearly open after consideration of the evidence: Kopalapilliai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.
The applicant also claimed that the Tribunal findings in relation to the immigration history were not supported by the ‘totality of the evidence’. The Tribunal referred to evidence of immigration history ([13-14] of the Tribunal Decision) and noted that the applicant had arrived in Australia on 28 June 2016, had previously been granted one student visa and was ‘now attempting to extend his stay in Australia until approximately May 2023’ ([61] of the Tribunal Decision). The view that the applicant was extending his stay until 2023 was open to the Tribunal, based on the evidence referred to in the Tribunal Decision.
The applicant was concerned that the Tribunal did not give sufficient weight to his study progression. The applicant referred in the Outline of Submissions to the case of Singh v Minister for Immigration [2014] FCCA 2333, which he claimed was authority for the proposition that a student’s plans may change and still be genuine. The Court was unable to locate this case as cited. The Court accepts that a student’s plans may change, and the student may still meet the criteria for the visa. The Court notes, however, that it was a matter for the Tribunal to weigh up the evidence, and the changing nature of the courses studied was one of a number of factors taken into consideration.
The Tribunal considered the applicant’s study progression in some detail [18-19], [22-38], [48- 50]. The Court is persuaded that the Tribunal’s findings were based on evidence, which was set out in [39-61] of the Tribunal Decision. The assessment of the evidence before the Tribunal and the conclusions reached were a matter for the Tribunal, including the evaluation of the study progression. This Court cannot consider the merits of the case, or the weight given by the Tribunal to the evidence before it: NAHI at [11].
In Ground 3, the applicant again claimed that the Tribunal ‘did not engage meaningfully with the fact that the Applicant’s current course (Advanced Diploma) built upon his past studies in hospitality and aligned with his stated career goals.’ The applicant claimed that the Tribunal ‘focused disproportionately on perceived weaknesses in the applicant’s return plans and assumptions about long-term migration intent, contrary to the balance required under Direction No. 69.’
The Court found earlier that the Tribunal did refer specifically to the applicant’s current course and past studies, as well as his future ([51- 60] of the Tribunal Decision). Direction no 69 requires that the Tribunal have regard to factors but does not specify the weight to be given to the various factors. To the extent that the applicant is complaining that the Tribunal gave disproportionate focus to the perceived weakness of his future plans or migration intentions, it was a matter for the Tribunal to weigh up the evidence before it: NAHI [11].
The applicant contended that the Tribunal failed to properly consider Direction No. 69. The applicant referenced the requirement to consider the value of the course to the applicant’s future. The Court notes that the value of the course to the applicant’s future was considered by the Tribunal ([51-60] of the Tribunal Decision). The applicant also referred to past and present study. The Court has found earlier that the Tribunal considered past and present study. The applicant also referred to potential circumstances in Australia and the home country. The Tribunal referred to this evidence in respect of employment in Australia ([21] of the Tribunal Decision) and Nepal ([34] of the Tribunal Decision), courses in Nepal ([39 - 40] of the Tribunal Decision), family in Nepal ([41] of the Tribunal Decision), community ties([42] of the Tribunal Decision), travel to Nepal, property owned by him and his family, military service, political and civil unrest ([43] of the Tribunal Decision), family in Australia ([44] of the Tribunal Decision), community ties in Australia ([45] of the Tribunal Decision) and property in Australia ([46] of the Tribunal Decision).
In short, the Tribunal had regard to the factors specified in Direction No. 69. It appears that the key concern of the applicant was how the Tribunal evaluated the evidence and the weight given to various factors. These were matters for the Tribunal. The Court cannot engage in impermissible merits review Wu Shang Liang at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
To the extent that the applicant is claiming that the decision is illogical or irrational, the Court has considered the relevant legal principles in Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130] (SZMDS) at [130], [133] and [135] per Crennan and Bell JJ:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[133] However, 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.
…
[135] …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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. ...
The Tribunal noted concerns that the applicant was attempting to use the student visa system to ‘stay longer in Australia’ based on his failure to complete an English course, adding two courses to the original courses he had studies, changing the focus of his course, pursuing lower-level study in Australia and having a gap in study ([49] of the Tribunal Decision). After considering his future plans in some detail, the Tribunal found that the applicant’s evidence of future plans was vague and that he had failed to explain in meaningful detail why he required his current course for his future plans ([58] of the Tribunal Decision). The Tribunal considered the length of time in Australia and that the applicant did not have strong incentives to return to Nepal in reaching a decision that it was not satisfied that the applicant genuinely intended to stay temporarily in Australia ([62] of the Tribunal Decision). The Court is satisfied that it was open to the Tribunal to engage in the process of reasoning which it did engage and make the findings it made on the evidence before it: SZMDS [133]. It could not be said that the ‘reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision’: SZMDS [135].
No jurisdictional error is revealed in Grounds 2 and 3.
Ground 4
The fourth ground was stated in the amended application to be:
Supportive Evidence Submitted in 2025
The particulars provided were:
The Applicant acknowledges that new evidence is ordinarily inadmissible in judicial
review unless it bears upon jurisdictional error.
The documents served on 7 April 2025 (including a skills assessment, employment
letter, and certification) are not presented to dispute the merits, but rather to:
Confirm the Applicant’s consistent pathway in hospitality
Reinforce that the statements made before the Tribunal were truthful and credible
These documents help support the claim that the Tribunal’s conclusion was not reasonably open on the evidence available at the time.
The statements made under the heading of Ground 4 were in fact not particulars of grounds of error but rather were submissions about whether new documents should be admitted into evidence. The Court’s findings on the documents are found earlier in this judgment.
No jurisdictional error is revealed in Ground 4.
Grounds in the originating application
The applicant referred in his application to the following as grounds of jurisdictional error:
1. Genuine student as Clause 500.212 doesn’t apply
2. Enrolled in course of study and completed genuinely
3. Working in critical sector helping Australia economically recovery through hospitality sector.
Although the applicant later filed submissions which have been taken by this Court to comprise an amended application, the Court has also considered the grounds specified in the originating application. The applicant was unrepresented and may not have understood that his later submissions would supersede the grounds specified in his originating application.
In respect of ground 1, the first respondent submitted that the ground was unparticularised and misconceived. While the ground was unparticularised, as the applicant was unrepresented, the Court has interpreted the ground broadly, in the context of his submissions.
The first respondent has taken Ground 1 to mean that the applicant is suggesting that Clause 500.212 does not apply to him. The first respondent submitted that cl 500.212 of Schedule 2 to the Regulations applies to the applicant as he was a primary applicant for a student visa. Clause 500.212 does apply to the applicant as contended by the first respondent.
Alternatively, the applicant may have been arguing that he was in fact a genuine student and the Tribunal was incorrect in finding that he did not meet cl 500.212 of Schedule 2 to the Regulations.
The first respondent submitted that although the applicant may disagree with the weight afforded to his evidence, that was a matter for the Tribunal: NAHI [11] per Gray, Tamberlin and Lander JJ. This is a well-established principle. If the applicant is contending, in ground 1, that the Tribunal should have found that he was a genuine student, this is an invitation for the Court to engage in impermissible merits review: Wu Shan Liang per Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ.
The first respondent submitted that grounds 2 and 3 in the application reiterated the reasons for seeking a student visa and did not articulate any jurisdictional error in the Tribunal’s decision.
To the extent that ground 2 related to the applicant’s contention that his enrolment and previous study was not considered by the Tribunal, the Court has found earlier that the Tribunal did consider his enrolment and previous study and the weight to be attributed to these factors was a matter for the Tribunal. As submitted by the first respondent, the ground indicates disagreement with the Tribunal's decision and comprised an invitation for the Court to engage in impermissible merits review: Wu Shan Liang [272] per Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ.
To the extent that in ground 3 the applicant is contending that the Tribunal did not take into consideration the fact that he was working in a critical sector, the Court notes that the type of employment (whether an area of need in Australia) is not a mandatory consideration: cl 500.212 of Schedule 2 to the Regulations, or as a factor to be considered pursuant to Direction 69. It was not cogent evidence providing substantial support to the issue before the Tribunal: Minister for Immigration and Border Protection v SZMTA and Another (Matter No s 36 of 2018) (2019) 363 ALR 599 at [13].
In his application, the applicant sought the following ‘orders’:
1. I want my student visa back.
2. Mental relief as this has caused serious problems.
3. Cl. 500.211 doesn’t apply.
It was submitted by the first respondent that proposed orders 1 and 2 consist of a complaint that the student wanted his visa and that this would provide mental relief. The first respondent submitted that the task of the Court is to rule on lawfulness of the Tribunal Decision by reference to complaints made, rather than merits or wisdom of the decision: Djokovic at [17]. It is correct that the role of this Court is to determine whether there is jurisdictional error in the Tribunal decision and not to determine whether a visa should be granted and the Court accepts that the orders sought, do not establish jurisdictional error.
To the extent that the applicant in grounds 1 and 2 of the application and the proposed orders contend that the Tribunal did not perform its statutory task, there is nothing in the Tribunal Decision to indicate that this was the case. As referred to earlier in this judgment, the Tribunal articulated the relevant law, referred to the evidence in some detail, and provided reasons for its findings. Although the applicant may disagree with the outcome, the Court cannot engage in impermissible merits review Wu Shang Liang at [272] per Brennan CJ, Toohey, McHugh, Gummow JJ.
As to the question of whether cl 500.211 of Schedule 2 to the Regulations applies, an applicant must meet cl 500.211 as well as cl 500.212 of Schedule 2 to the Regulations. The Tribunal did not consider cl 500.211 as this clause was not in dispute.
The grounds in the application do not reveal jurisdictional error.
AMENDMENTS TO THE MIGRATION ACT 1958 (CTH)
The Act was amended on 14 October 2024 after 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) (the Consequential Act).
This judgment concerns a decision of the former Administrative Appeals Tribunal. References in this decision to the Act are to the Act at the time of the Tribunal's decision, unless otherwise stated.
Pursuant to Item 10 of Schedule 16 of the Consequential Act, the ART is substituted as a party in all pending proceedings. Item 25 further provides that pending proceedings are to continue under the new legislative regime.
In the circumstances, this Court has made an order substituting the ART as the second respondent in this proceeding.
On 13 May 2025 by Administrative Arrangements Order the Act is to be administered by the Department of Home Affairs. The newly named portfolio of Department of Immigration and Citizenship forms part of the Department of Home Affairs.
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 one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.
Associate:
Dated: 28 May 2025
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