Rontija v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1099
•9 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rontija v Minister for Immigration and Citizenship [2025] FedCFamC2G 1099
File number(s): SYG 90 of 2022 Judgment of: JUDGE MCCABE Date of judgment: 9 July 2025 Catchwords: MIGRATION – application for judicial review of decision made by Administrative Appeals Tribunal – student visa – whether the Tribunal missed or failed to consider a relevant consideration – no jurisdiction error established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 9 July 2025 Place: Sydney Applicants: The applicants appeared in person Solicitor for the first respondent: Mr M Burnham (Sparke Helmore Lawyers) Second respondent: Submitting appearance, save as to costs ORDERS
SYG 90 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BINA KUMARI PURJA RONTIJA
First Applicant
HARI PRASAD RONTIJA
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
9 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and
Citizenship’.
2.The applicants have leave to amend the application for judicial review filed 25
January 2022 to include seeking a writ of mandamus directed to the Administrative
Review Tribunal.
3.The application for judicial review is dismissed.
4.The applicants pay the first respondent’s fixed costs in the amount of $6,500.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MCCABE:
Ms Bina Rontija is the first applicant in these proceedings. Ms Rontija is challenging a decision of the Administrative Appeals Tribunal made on 14 December 2021. The Tribunal decided to affirm an earlier decision made by a delegate of the minister, who is the first respondent in these proceedings. The delegate had refused the applicant and her husband Student (Temporary) (Class TU) (Subclass 500) visas. Mr Rontija is the second applicant in these proceedings; the outcome of his application is effectively tied to the outcome of his wife. For the purposes of what follows, I will focus on the application of Ms Rontija.
The Tribunal’s decision is reproduced in the court book at pp 126ff.
At the beginning of the hearing, I explained to Ms Rontija the role of the Court in these proceedings. I explained the Court does not have the power to decide whether the applicants should get a visa: the question of whether they should get a visa is a matter for the executive government. I told her I understood that she did not agree with the outcome because she wants a visa. I explained the Court’s job is to scrutinise the Tribunal’s decision and its decision-making process to determine whether any legal errors or mistakes were made that are such the Tribunal ought to be told to go back and do the process again properly and lawfully. The legal errors or mistakes we are looking for are known as jurisdictional errors. The Court can only give a remedy where there is a material jurisdictional error. Again, the Court does not focus on whether it is a good idea that the applicant be given (or not be given) a visa; it is focused on errors in the Tribunal’s decision and decision-making process. I gave Ms Rontija some examples of the sort of error or mistake that might qualify as a jurisdictional error.
I noticed the application for review as filed asked for an order quashing the Tribunal’s decision but it did not also request a writ of mandamus which is a command to the Tribunal to redo the decision. Ms Rontija sought leave to amend the application for review at the start of the hearing and the minister consented to that occurring. I made an order to that effect.
With that said, I heard from Mr Burnham who appeared for the minister. He spoke to the minister’s written submissions that had been provided to the applicants a week ago. The interpreter had gone through those submissions with the applicants immediately prior to the commencement of the hearing.
After I heard from Mr Burnham, I turned to Ms Rontija. We began by going through the grounds of review set out in the application for review.
Ms Rontija said she did not fill out the application for review herself. She was assisted by someone who undertook that task for her.
The application for review identifies three grounds. The first contains a bare statement to the effect that “Cl 500.212 [was] met as I am [a] genuine student”. The clause in question is cl 500.212 of the Migration Regulations 1994 (Cth) which contains some of the criteria applicable to this class of visa. I note the Tribunal’s reasons for decision focused on whether the applicant intended genuinely to stay in Australia temporarily. That temporal requirement is addressed in cl 500.212(a), the administration of which is informed by the Direction No 69, which is a ministerial direction issued pursuant to s 499 of the Migration Act 1958 (Cth). A copy of that ministerial direction was attached to the reasons for decision.
The Tribunal’s conclusion is set out at [50]-[51] of its reasons, which says:
50. Based on what is evidenced of the applicant's circumstances overall, in the absence of any other relevant information, including immigration and study history, circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
51. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
That was the Tribunal’s decision. It is not enough for an applicant to establish they are a genuine student in the sense they have enrolled (or wish to enrol) in a genuine course that they will attend and complete. The Tribunal in its reasons focused on the requirement that the applicant intend genuinely to stay in Australia temporarily. Even an otherwise genuine student will be unable to meet the requirements in cl 500.212 if they are not genuinely intending to stay temporarily.
Recall that the first ground of review refers to “…I am [a] genuine student.” That ground of review is misconceived because it does not actually grapple with the question which had to be decided, nor does it contain any meaningful criticism of the way the Tribunal made the decision. It is simply an expression of disagreement with the outcome. There is no jurisdictional error there.
Turn then to the second ground of review, which refers to the Tribunal neglecting ‘the Covid situation’. I asked Ms Rontija what she meant by this, but she was unable to assist: she said the person who filled out the application for review form had made that criticism.
To the extent the applicants say the Tribunal missed or failed to consider a relevant consideration or submission, this ground cannot be sustained. First, the Tribunal does refer to Covid at several points in its decision: specifically, at [8], [22] and [40]. In the discussion at [40], the Tribunal notes the applicants applied for a student visa in July 2019, while Covid did not become an issue until the end of 2019 at the earliest. The Tribunal noted Covid might have prevented the applicants from travelling to Nepal while travel restrictions remained in force, but it is not apparent how the Tribunal misunderstood or mishandled that concern.
The third ground of review refers to ‘psychological reasons’ being neglected by the Tribunal. I asked Ms Rontija what she meant by that, but she was unable to assist me. I note there is no reference to psychological issues in the materials before the Tribunal that I was able to identify and there is no reason to suppose any submissions were made to the Tribunal about that subject. The Tribunal cannot be criticised for failing to take into account submissions or material that were never provided.
I asked Ms Rontija whether she wanted to say anything else about the Tribunal’s decision using her own words. She was unable to identify any mistake or error in the Tribunal’s decision or in the way in which it had gone about its task. She said the applicants wanted to stay in Australia and were hopeful they could get a visa.
Unfortunately for the applicants, the Court does not have the power to grant a visa. It can only supervise the decision-making process of the executive. The applicants have been unable to identify any errors in that process or in the decision itself. No errors or mistakes are apparent on the face of the Tribunal’s reasons for decision. It appears to have understood and applied the law correctly, it conducted a hearing that was procedurally fair, and made logical findings of fact on the basis of the relevant submissions and material. Its conclusions are valid and legally reasonable and therefore they cannot be disturbed by the Court. It follows the application for judicial review brought by both applicants must be dismissed.
That leaves only the question of costs which I discussed with the parties at the conclusion of the hearing. I explained to the applicants that an order of costs is often (but not inevitably) made against the unsuccessful party in proceedings like these. Mr Burnham asked for costs in a fixed amount of $6,500. He said that amount approximates the amount actually incurred in defending the proceedings, and that was less than the amount indicated on the Court’s scale.
I heard from both applicants about the question of costs. Both of the applicants said the amount sought by the minister was a large amount and they would have trouble paying it. While I accept that may be so, but that is not ordinarily a good reason for not ordering costs. The applicants were unable to point to any other reason why costs should not be imposed in the usual way. I am satisfied the amount sought by the minister is reasonable having regard to the work done on the file and relative to the Court’s scale.
I therefore make an order that the applicants pay the costs of the minister in the fixed amount of $6,500.
I note I have also made an order changing the name of the minister to ‘Minister for Immigration and Citizenship’.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 15 July 2025
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