Sapkota v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1237
•5 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sapkota v Minister for Immigration and Citizenship [2025] FedCFamC2G 1237
File number(s): PEG 466 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 August 2025 Catchwords: MIGRATION – decision of the Administrative Appeals Tribunal – Student (Subclass 500) visa – where the applicant accepted that a ground for cancellation of the visa existed – grounds of judicial review have no merit – application dismissed Legislation: Migration Act 1958 (Cth) ss 116(1)(b) , 360, 360A
Migration Regulations 1994 Sch 2
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Division: Division 2 General Federal Law Number of paragraphs: 64 Date of hearing: 24 July 2025 Place: Perth Solicitor for the Applicant: Self-represented litigant ( via AVL) Solicitor for the First Respondent: Ms Ismailjee, Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 466 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RABINDRA SAPKOTA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,500.00.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Review Tribunal (the Tribunal) dated 30 October 2024, affirming a decision of a delegate of the first respondent (the delegate) to cancel the applicant’s Student (Subclass 500) visa (the visa).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant is a citizen of Nepal.
The applicant entered Australia in January 2018 as the holder of a Student (Subclass 500) visa to study a Master’s degree.
In April 2018, the applicant completed an English for Academic Purposes course.
On 9 March 2018, the applicant changed courses from a Master of Business Administration to a Master of Professional Accounting. On 10 December 2018, this course was cancelled due to unsatisfactory course progress.
In 2019, the applicant enrolled in and completed a second English for Academic Purposes course. The applicant again enrolled in a Master of Professional Accounting. On 8 March 2020, this course was cancelled for non-commencement of studies.
The applicant then enrolled in a Graduate Diploma of Management, which he completed on 9 May 2021.
On 14 December 2021, the applicant was granted the visa. The applicant enrolled in a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management. On 15 December 2021, both courses were cancelled due to the non-payment of fees and non-commencement of studies, respectively.
On 16 January 2023, the applicant was notified of, and invited to comment on, a Notice of Intention to Consider Cancellation (NOICC) of his visa. The NOICC identified the applicant had not complied with visa condition 8202 of Sch 8 of the Migration Regulations 1994 (Cth) (the Regulations). Condition 8202(a) required the applicant to be enrolled in a full-time registered course. The NOICC stated that, according to Provider Registration and International Student Management System (PRISMS) records, the applicant was not enrolled in a full-time registered course of study since 15 December 2021, and it invited him to respond within five working days.
On 20 January 2023, the applicant responded to the NOICC. On 10 February 2023, the applicant provided new certificates of enrolment for a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management, as well as further submissions.
On 28 March 2023, the delegate cancelled the applicant’s visa, on the basis that PRISMS records indicated he had not been enrolled in a registered course since 15 December 2021 and therefore had not complied with the requirements of condition 8202(2)(a) from 15 December 2021 to 10 February 2023.
On 4 April 2023, the applicant lodged an application for review with the Tribunal.
On 30 October 2024, the Tribunal affirmed the delegates decision.
THE TRIBUNAL’S DECISION
At [1] – [4], the Tribunal set out the application for review and the background of the matter.
At [5], the Tribunal outlined the evidence the applicant submitted prior to the hearing as follows:
•Department of Home Affairs (the Department) notification and decision record dated 28 March 2023.
•Copy of applicant’s Nepal passport biometric information.
•Employment reference letter from Vici Italian Restaurant dated 20 January 2023 regarding applicant’s position as chef since March 2022.
•Nepal medical reports from 2022 in relation to Ram Prasad Sapkota, the applicant’s grandfather.
•Nepal Death Registration Certificate in the name of Ram Prasad Sapkota.
•Applicant’s written statement headed “Claim the decision is wrong”.
•Nepal medical reports dated 29 April 2024 in relation to Harisharan Sapkota, the applicant’s father.
•Australian medical certificate in the name of the applicant dated 4 September 2024 [the GP letter].
The Tribunal noted that the applicant attended a Tribunal hearing on 5 September 2024. At the Tribunal hearing, it was put the applicant, to which he agreed, that he had not been enrolled for more than 12 months and there had been grounds to cancel his visa [10].
When asked why he was not enrolled from December 2021 until January 2023, the applicant responded that he had tried to enrol but was experiencing financial issues [7]. The applicant stated that his grandfather in Nepal, who has since passed away, became ill which affected him as they had a deep connection [7]. The applicant said he could not go back to Nepal at the time of his grandfather’s passing due to his visa conditions [7]. The applicant said his partner, who he came to Australia with, wanted a divorce after two years and because he could not cope with matters, he moved from Sydney to Brisbane [7]. The applicant said his mental health suffered due to his problems [7].
At [8], the Tribunal put to the applicant that while he claims he was unable to study during the relevant period, he was able to work, and a student visa is for the purpose of study. The applicant responded that he only worked 20 hours per week, and claimed he could not focus and could not do anything.
The applicant was invited to comment on any hardship that may occur if his visa was to be cancelled [13]. The applicant referred to problems in his life and having suffered from depression. The applicant said his father cannot support him in Nepal, and he will not be able to get a job.
The Tribunal went on to consider the dispositive issue of whether the ground for the cancellation of the applicant’s visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act) was made out, and if so, whether the visa should be cancelled.
At [18], the Tribunal noted condition 8202 required that the applicant:
•be enrolled in a full-time registered course: 8202(2)(a)
•maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
•has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
•has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course [20]. Accordingly, the applicant had not complied with condition 8202(2)(a) [20].
At [21], the Tribunal summarised the applicants’ reasons as to why he was not enrolled to study during the relevant period as the following:
Due to COVID-19, study difficulties, personal problems in his marriage and concerns about family members in Nepal.
Whilst the Tribunal accepted that the applicant may have experienced challenges in aspects of his life while holding a student visa, there was no evidence the applicant contacted the Department about his situation or sought to regularise his visa status and as a result he was in breach of visa conditions [21].
The Tribunal noted that the applicant submitted the GP Letter which stated “Mr Rabindra Sapkota suffered from adjustment disorder with depression and anxiety symptom for 3 years” [21]. However, the Tribunal raised concerns as the basis for the GP’s finding was unknown to them, and that the GP letter did not state when he saw the applicant, or how the applicant was diagnosed with the disorders [21]. Further, there was no evidence the applicant sought or was given, any treatment for mental health issues when he was not enrolled to study [21].
Therefore, the Tribunal at [22], found that the applicant had not complied with condition 8202 of the visa.
As the Tribunal had concluded that there was non-compliance in the way described in the NOICC, it was necessary to consider whether the visa should be cancelled [23]. The Tribunal had regard to the circumstances of the case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General Visa Cancellation Powers’.
The Tribunal was satisfied that the applicant’s original travel to and stay in Australia was to study [24]. However, the applicant discontinued his studies and was not enrolled from December 2021 for more than 12 months, during that time the applicant was employed [24]. This indicated to the Tribunal that the applicant’s purpose for staying in Australia was no longer for study purposes. Whilst the Tribunal accepted the applicant may wish to achieve further qualifications in Australia, the Tribunal was not satisfied this amounted to a compelling need to remain [25].
There was no evidence before the Tribunal that the applicant had not complied with other conditions of the visa [26].
At [27], the Tribunal accepted that if the applicant’s visa was cancelled, he would have to return to his home country, and that this would affect his study, work and personal life. The Tribunal was satisfied the applicant would suffer a degree of hardship if his visa was cancelled.
At [28], the Tribunal outlined that in the written statement to the Department and to the Tribunal, the applicant claimed:
•He struggled with studying a Master of Professional Accounting and decided to change to a Graduate Diploma of Management.
•When he began the graduate diploma course in 2020, lockdowns due to COVID-19 occurred and he and his wife began having problems.
•He was stressed because of the effects of the pandemic on his family in Nepal and he could not focus on study.
•After he enrolled in a Diploma and Advanced Diploma of Hospitality Management in August 2021, his grandfather in Nepal became ill and was hospitalised.
•His family were pressuring him to resume his relationship with his wife.
While the Tribunal accepted that the applicant may have had difficulties with his chosen course of study, the Tribunal outlined that it was nevertheless his responsibility, as a student visa holder, to ensure he complies with the conditions of the visa [30]. The Tribunal noted that the applicant was not enrolled for a significant period, during which time he continued to work to support himself [30]. The Tribunal noted that the applicant agreed he had continued to be employed despite not being enrolled to study, but at the same time, he claimed he had not been able to do “anything” [30]. The Tribunal was not satisfied the circumstances in which the ground for cancellation arose were beyond the applicant’s control, or that he was unable to do anything about his lack of enrolment [30].
There was no evidence before the Tribunal that indicated the applicant had not cooperated with the Department, nor was there evidence that there would be any consequential cancellations under s 140 of the Act [31] – [32].
After assessing the applicant’s claims and evidence, the Tribunal concluded that the mandatory legal consequences did not outweigh the other considerations in this case [33].
At [34], the Tribunal was not satisfied that Australia’s non-refoulment obligations would be breached if the visa was cancelled.
The Tribunal noted that the visa was not a permanent visa, and that there were no other relevant matters to be considered in the applicant’s case [36] – [37].
Having considered the applicant’s circumstances individually and cumulatively, and whilst the Tribunal found that some aspects of the applicant’s case weighed somewhat in his favour, such as the degree of hardship, on balance, the Tribunal found that most considerations did not [38]. The Tribunal was not satisfied the issues encountered by the applicant outweighed the grounds for the visa to be cancelled [38].
Accordingly, at [40], the Tribunal affirmed the decision to cancel the applicant’s visa.
GROUNDS OF JUDICIAL REVIEW
The applicant advances three grounds of judicial review contained in an Originating Application filed with the Court on 28 November 2024. They are as follows:
1.That the decision in the contents of the correspondence of Annexure B is unfair and unjust and in that it did not consider the actual events and consequences.
2.That the decision in the contents of the correspondence of Annexure B is unfair and unjust as it did not give appropriate consideration to the evidence of bereavement and depression which ultimately led to the predicament.
3.That the decision in the contents of the correspondence of Annexure B is unfair and unjust as in that it did not consider the universally accepted fact that the Covid-19 pandemic had left millions of people under severe financial stress and mental depression.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not require the assistance of an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been provided to him and that he had read them. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of his case. The applicant told the Court that he did not have a lawyer.
Asked to speak to Ground One of his application for judicial review, the applicant stated he had submitted all his documents to the Tribunal, but the Tribunal made the wrong decision. The applicant was reminded that the Court was undertaking judicial review, not merits review. The applicant was asked if he could identify any legal error in the decision. The applicant had nothing to say.
When asked about Ground Two, the applicant reiterated he had provided the Tribunal with all relevant documents, including documents regarding the death of his grandfather and medical reports about his father. The applicant stated that during COVID, he was unable to find work, yet he needed to support his family in Nepal.
When asked about Ground Three, the applicant confirmed he is still separated from his wife and that he had heard nothing from her for two years.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. The applicant answered that he deeply regretted not fulfilling his visa conditions.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submitted that the applicants’ three grounds of judicial review are not proper grounds of review, and no jurisdictional error is raised in any of the grounds. They rise no higher than emphatic disagreement with the Tribunal’s findings, which were open to it based on the evidence before it and which cannot be said to be illogical, irrational, or unreasonable.
Ground One fails on the facts as the Tribunal did consider the actual events and consequences and the decision record refers to the applicant’s circumstances and the events that occurred during his time in Australia: [21], [25], [27] [30], [38].
As to Ground Two, apart from the GP letter, the applicant did not provide any further evidence relating to his depression: [12], [21]. The applicant was on notice from the delegate’s decision and the Tribunal’s questioning at hearing, that the determinative issue on review would be whether the applicant complied with condition 8202 and if not, whether there were any reasons not to cancel his visa.
As to Ground Three, there was no requirement for the Tribunal to consider or refer to anything regarding the COVID-19 pandemic in circumstances where the applicant had not provided any evidence of the impact of COVID-19 on his ability to study, beyond the most general of assertions. Further, there is no general duty of the Tribunal to make inquiries as to every aspect of the applicant’s life or rights that may be affected by the cancellation of the visa: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [20], [22].
The Tribunal compiled with its procedural fairness obligations under Pt 5, Div 5 of the Act. The Tribunal properly invited the applicant to attend a hearing in compliance with ss 360 and 360A of the Act, which the applicant attended. The applicant was on notice from the delegate’s decision and the Tribunal’s questioning at the hearing of the determinative issue on review. No breach of s 360 of the Act is apparent. The Tribunal considered the circumstances of the case, the relevant legislative criteria and the applicant’s evidence at hearing and found that the applicant was in breach of condition 8202 of the visa because he was not enrolled in a full-time registered course of study from 15 December 2021 to 10 February 2023. The Tribunal’s finding that the applicant was in breach of condition 8202 was open to it for reasons that it gave, and its reasons had a cogent, intelligible and logical basis.
Under s 116(1) of the Act, the Tribunal may cancel the visa where the applicant has breached condition 8202 of Sch 2 to the Regulations. In the applicant’s case, it was not disputed that the applicant had breached condition 8202, as he had not been enrolled in a registered course of study from 15 December 2021 to 10 February 2023: [20].
Further, the Tribunal considered the reasons for the non-compliance comprehensively from [23] – [37] and exercised rationally the discretion to affirm the delegate’s decision to cancel the visa with cogent reasons which were open to it. The Tribunal’s exercise of its discretion was carried out following its careful consideration that while some factors weighed somewhat in favour of the applicant, on balance, most considerations did not: [38].
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is not disputed by the applicant that a ground for the cancellation of his visa existed, in that he was not enrolled in a registered course of study for more than 12 months. Having found that a ground for the cancellation of the applicant’s visa existed, the Tribunal proceeded in an orthodox manner to consider the various matters required of it as to whether or not the applicant’s visa should in fact be cancelled.
Firstly, the Court is satisfied the Tribunal complied with all relevant procedural fairness requirements. The applicant was invited to attend a hearing, which he did so. The applicant had an opportunity to put those matters that he wished to be taken into consideration to the Tribunal. There is nothing to indicate that the Tribunal overlooked any relevant matter, or took into account any matter that it was not permitted to do so.
There is nothing on the Tribunal’s decision that points towards legal unreasonableness, irrationality, or illogicality. The Court is satisfied that the decision arrived at by the Tribunal was open to it, on the evidence before it, for the reasons it gave.
The Court agrees with the first respondent that the three grounds of judicial review, are nothing more than emphatic disagreement with the Tribunal’s findings and are not proper grounds of judicial review. None of the grounds of judicial review identify any jurisdictional error in the Tribunal’s decision.
Ground One must fail on the facts, as there is nothing to indicate that the Tribunal did not consider each of the matters put forward to it by the applicant. The applicant did not assert to the Court that any particular matter was either overlooked or taken into account. Ground One has no merit.
For similar reasons, Ground Two also has no merit. The applicant did not provide any further evidence as to his depression. The applicant provided no medical or other evidence to refute the delegate’s decision, so as to show that the reasons for his non-compliance with being enrolled in a course of registered study were outside his control.
Ground Three makes reference to the COVID-19 pandemic which left millions of people under severe financial distress and mental depression. This ground makes no reference to any failure of the Tribunal. The Tribunal referred to the COVID-19 pandemic at [28], noting that the lockdown had an impact on his relationship with his wife and that he became stressed because of the impacts of the pandemic on his family in Nepal and was unable to focus on his studies. The Court is satisfied the Tribunal properly took this issue into account and no jurisdictional error arises. Ground Three has no merit.
As the applicant is unrepresented, the Court has carefully perused the relevant Court books, Tribunal decision record and other relevant papers. The Court is unable to ascertain any un-articulated jurisdictional error.
DETERMINATION
In these circumstances, the Court has no option other than to dismiss the application.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 5 August 2025
0
2
2