Shrestha v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1639
•15 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shrestha v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1639
File number(s): MLG 3735 of 2020 Judgment of: JUDGE FARY Date of judgment: 15 October 2025 Catchwords: MIGRATION – application for review of decision made by Registrar to summarily dismiss judicial review application – review application set aside – application listed for final hearing – Administrative Appeals Tribunal not satisfied applicant met cl 500.211 of the Migration Regulations – whether the Tribunal’s decision was affected by jurisdictional error – no jurisdictional error established – application dismissed. Legislation: Australian Constitution s 75(v)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256
Migration Act 1958 (Cth) ss 47(1), 65(1), 363, 359, 474, 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 21.02
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 3.05, 3.06, Div 1 Pt 3 Sch 2
Federal Circuit Court Rules 2001 (Cth) r 4.11(c)
Migration Regulations 1994 (Cth) cll 500.211 – 500.218, 500.311, reg 2.05(1)
Cases cited: Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93
Carrascalao v Minister for Immigration and Border Protection (2017) 347 ALR 173
Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1478
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177
Elsharkawi v Minister for Immigration and Multicultural Affairs [2025] FCA 293
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172
Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046
Hammouda v Minister for Immigration and Multicultural Affairs [2025] FCA 514
Kaur v Minister for Immigration (2016) 245 FCR 296
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643
Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR (2011) 273 ALR 223
Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
Moussa v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2020] FCA 149
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56
Singh v Minister for Home Affairs (2019) 267 FCR 200
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 513
Virk v Minister for Immigration and Citizenship [2025] FCA 630
WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 75 ALR 630
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of last submission/s: 6 October 2025 Date of hearing: 31 July 2025 and 6 October 2025 Place: Melbourne Applicants: In person Solicitor for the First Respondent: Ms Weir, HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 3735 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KRISHNAMAYA SHRESTHA
First Applicant
MUKESH OJHA
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
15 OCTOBER 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $9,097.93.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FARY:
INTRODUCTION
By way of Application filed on 14 July 2025, the applicants (Applicants) seek review of a decision made by a Registrar of this Court, pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
On 18 June 2025, a Registrar summarily dismissed the Originating Application, which sought judicial review of a decision made by the second respondent (Tribunal) to affirm a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the Applicant a Student (Temporary) (Class TU) (Subclass 500) visa (Visa).
The Application was filed outside of the prescribed seven-day timeframe provided by r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 GFL Rules). As a result, the Applicant requires an extension of time to prosecute her review application (Application).
Since the date of the first hearing, on 1 September 2025, the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 GFL Rules) commenced. As the 2025 GFL Rules are now in force, I am required to apply them and not the 2021 GFL Rules, that were in force at the date of the hearings.
Rule 3.05 of the 2025 GFL Rules provides that for the purposes of subsection 256(1) of the FCFCOA Act, a party may apply to the Court for review of the exercise of a power by a Registrar. Pursuant to r 3.06(1), the application for review must be made within 21 days. Rules 1.15 provides that the Court may extend or shorten a time fixed by these Rules which would include the 21 day period prescribed by r 3.06(1).
The hearing of the Application took place at the Melbourne Registry of the Court on 31 July 2025 (July Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of a Nepali interpreter. I made orders setting aside previous orders made by Judicial Registrar Cummings on 18 June 2025 to summarily dismiss the application and listed the matter for final hearing.[1]
[1] Orders made by Judge Fary on 31 July 2025, Orders 1 and 2.
The hearing of the Application resumed at the Melbourne Registry of the Court on 6 October 2025 (October Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of a Nepali interpreter. At the conclusion of the October Hearing, judgment was reserved.[2]
[2] Orders made by Judge Fary on 6 October 2025, Order 1.
These are the reasons for judgment in relation to the July and October Hearing.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal made a jurisdictional error in determining that the Applicant was not enrolled in a registered course of study as required by cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
BACKGROUND
The Applicants are citizens of Nepal.
On 24 February 2014, the first applicant (Applicant) arrived in Australia as the holder of a Student (Subclass 573) visa,[3] on the basis of being a dependent spouse of the second applicant. The Applicant held a further Student visa and a Temporary Graduate Skilled (Subclass 485) visa on the same basis.[4]
[3] Court Book (CB) 74-75.
[4] CB 75.
On 26 September 2019, the Applicant applied for the Visa, the subject of these proceedings.[5] The Applicant applied with the intention to undertake a General English, Elementary to Advanced English language course from 4 November 2019 to 20 March 2020.[6]
[5] CB 1.
[6] CB 1-48.
On 18 November 2019, a Delegate of the Minister refused to grant the Visa (Delegate’s Decision) on the basis that the Applicant did not satisfy cl 500.211 of the Regulations.[7] The Delegate further found that the second applicant did not satisfy cl 500.311 of the Regulations.[8]
[7] CB 49-50.
[8] CB 50.
On 22 November 2019, the Applicants applied to the Tribunal.[9]
[9] CB 52-53.
On 9 June 2020, the Tribunal invited the Applicants to provide further information in support of the Application under s 359 of the Migration Act.[10] The Applicants were asked to provide information to satisfy the Tribunal that the Applicant was registered in a course of study and was a genuine applicant for entry and stay as a student in Australia.[11] The Applicants were asked to provide this information by 23 June 2020.[12]
[10] CB 62-63.
[11] CB 62-63.
[12] CB 63.
On 22 June 2020, the Applicants responded to the Tribunal with a completed Student Visa Information form.[13] The form indicated that the Applicant did not hold a current Confirmation of Enrolment (CoE) code and had not completed the General English course that she had previously enrolled in.[14] The Applicant stated that she had not been enrolled since February 2020 due to a medical condition that was “further exaggerated” by the COVID-19 pandemic which prevented her from attending classes.[15]
[13] CB 70.
[14] CB 76.
[15] CB 78.
On 9 September 2020, the Applicants were invited to attend a hearing on 24 September 2020 (Hearing Invitation).[16]
[16] CB 85-87.
On 13 September 2020, the Applicant’s representative (Representative) confirmed that the Applicants would attend the hearing.[17]
[17] CB 88-93.
On 24 September 2020, the Applicants attended the hearing with the assistance of the Representative and a Nepali interpreter.[18] At the conclusion of the hearing, the Tribunal delivered oral reasons for affirming the Delegate’s Decision.[19]
[18] CB 94.
[19] CB 96 and 105.
On 19 October 2020, the Tribunal provided written reasons for the oral decision to the Applicants.[20]
[20] CB 112.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 113 to 115 of the Court Book.
The Tribunal identified the importance of cl 500.211 for maintenance of the Visa. The Tribunal noted that “consideration of the other criteria is predicated on first establishing that the enrolment criteria is met”.[21]
[21] CB 114 [6].
The Tribunal found that the Applicant was not enrolled in a course of study as required by cl 500.211 of the Regulations.[22]
[22] CB 115 [14].
At the hearing, the Applicant indicated that the reason for her non-enrolment was due to various factors, including “family issues, her back problem, COVID-19”.[23] The Tribunal did not accept that the Applicant had a valid excuse for not maintaining enrolment. The Tribunal noted that the Applicant had been “on notice for quite some time” that maintaining enrolment was a requirement of the Visa.[24]
[23] CB 115 [13].
[24] CB 115 [13].
PROCEEDINGS IN THIS COURT
On 20 October 2020, the Application was filed in this Court, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 19 May 2021, Orders were made by Registrar Van Der Westhuizen of this Court for the application be listed for final hearing pursuant to r 4.11(c) of the Federal Circuit Court Rules 2001 (Cth). For the First Respondent to file and serve on or before 4 August 2021: a copy of the Court Book. For the Applicant to file and serve at least 28 days before the hearing: any amended application, any supplementary Court Book and written submissions. For the First Respondent to file and serve at least 14 days before the hearing: written submissions.
Summary dismissal proceedings
On 13 May 2025, Orders were made by Registrar Cummings of this Court for the First Respondent’s name be amended to “Minister for Immigration and Multicultural Affairs”. For the Second Respondent’s name be amended to “Administrative Review Tribunal”. For all extant programming orders be vacated. That the Minister provide a copy of the recording of the Tribunal hearing to the Applicant and the Court forthwith. That the Minister file and serve on or before 27 May 2025: written submissions in support of his summary dismissal application and any additional evidence. That the Applicant file and serve on or before 13 June 2025: any amended application, written submissions and any additional evidence. That the Minister’s summary dismissal application be listed for hearing on 17 June 2025.
In the Minister’s submissions filed on 26 May 2025, the Minister sought an Order that the Application be dismissed pursuant to r 13.13(a) of the 2021 GFL Rules on the basis of there being no reasonable prospects of success.
On 17 June 2025, Orders were made by Registrar Cummings of this Court for the First Respondent’s name be amended to “Minister for Immigration and Citizenship”. That judgment of the Minister’s summary dismissal application be reserved. That the matter be adjourned for delivery of judgment on the summary dismissal application on 18 June 2025.
On 18 June 2025, Orders were made by Registrar Cummings of this Court for the Application for judicial review be summary dismissed pursuant to r 13.13(a) of the 2021 GFL Rules with costs (Registrar’s Decision).
On 14 July 2025, the Applicant filed an Application for review of the Registrar’s Decision to summarily dismiss the application.
Final hearing
On 31 July 2025, I made Orders that Orders 1 and 2 of the orders made by Judicial Registrar Cummings on 18 June 2025 be set aside. That the proceeding be listed for final hearing on 6 October 2025 before me. That the Applicants file and serve on or before 8 September 2025: any submissions and any evidence that they seek to rely upon. That the First Respondent file and serve on or before 22 September 2025: any submissions in reply and any evidence that he seeks to rely upon.
This matter was heard on 6 October 2025 for a Hearing before me.
The Applicants relied upon the following documents:
(a)the Application filed 20 October 2020;
(b)Affidavit of the Applicant on 20 October 2020;
(c)Affidavit of the Applicant affirmed 11 July 2025 and filed 14 July 2025 (Applicant’s Affidavit affirmed 11 July 2025); and
(d)the application for review filed 14 July 2025.
The Minister relied upon:
(a)the response, filed 10 April 2025;
(b)outline of submissions filed 26 May 2025;
(c)outline of submissions filed 25 September 2025; and
(d)list of authorities filed 30 September 2025.
Both parties relied on the Court Book.
The Application contains the following grounds of review (Grounds of Review):
1. The tribunal did not try to understand my genuine intentions as explained in my written response submitted to tribunal via form M17 prior to hearing session in item 18 of section 6 where I clearly stated I had my valid COE cancelled due to nonattendance resulted from my medical condition and obtaining another COE was not meaningful as providers were conducting classes online and remotely. (Ground 1).
2. The tribunal failed to realise that if the online study would have been an option in my case then I can always achieve this from my home country spending comparatively much lower cost. It does not serve the purpose for which I was initially enrolled and invested in this course as it loses the effectiveness of learning English language in a predominately English speaking environment like Australia. (Ground 2).
3. The tribunal did not consider the impact of the prevailing pandemic situation and the fact that I was until 20/3/2020 and due to my exaggerated medical condition, deprived me of attending classes as mentioned in item 13 of the AAT decision record. (Ground 3).
4. Item 14 of the tribunal decision record, I do not agree with the tribunal emphasising on holding a valid COE but did not want to understand my reasons for not having a valid COE and reasons beyond my control impacting my enrolment where I had been very regular until my health deteriorated. (Ground 4).
5. It is unfair of the tribunal to not allow me additional time to get enrolled and obtain another COE as I had made it very clear that I am still intending to get the issue sorted and complete the remaining course. (Ground 5).
(Words in bold added, otherwise as written)
APPLICANT’S SUBMISSIONS
The Applicants did not file written submissions in support of their Application.
The second applicant made oral submissions on behalf of the Applicants.
The Applicants applied for an adjournment of the October Hearing before me for a period of four weeks on the basis of a letter from a psychologist concerning a psychological condition suffered by the Applicant. I refused that adjournment application.
In oral submissions in support of Grounds 1 to 4, the second applicant emphasised the effect of COVID-19 on the Applicants’ ability to participate in a course of study. The second applicant accepted that the Applicant was not enrolled in a course of study at the time of the Tribunal hearing. The Applicants submitted that they were not enrolled because of COVID-19. The Applicants intention was to attend hearings in person when COVID-19 ended.
The second applicant made oral submissions in support of Ground 5. The second applicant submitted that the Applicant tried to explain to the Tribunal that she intended to enrol in a course of study but contends that this was not taken into account by the Tribunal. I enquired whether there was an offer of enrolment, to which the Applicants informed me that the enrolment had been cancelled.
RESPONDENT’S SUBMISSIONS
The Minister filed written submissions addressing the grounds raised in the Application pursuant to Orders made by me on 31 July 2025 in respect of this Hearing.
The Minister submits that the onus is on the Applicant to specify all particulars of their claim and to prove that the Tribunal fell into error.[25] The Minister submits that the Applicant fails to establish jurisdictional error in the Tribunal’s Decision.
[25] Singh v Minister for Home Affairs (2019) 267 FCR 200; Minister for Immigration and Citizenship v SZGUR (2011) 273 ALR 223 at [67].
A finding that the decision-maker has failed to engage in an “active intellectual process” is not one that is made lightly and must be supported by clear evidence.[26] The Court is required to assess where the decision-maker has substantially “had regard to” the relevant matter.[27] The Minister notes that reasons must be read “fairly and not in an unduly critical manner”.[28]
[26] Carrascalao v Minister for Immigration and Border Protection (2017) 347 ALR 173 at [48].
[27] Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).
[28] Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).
The required degree of consideration is affected by the centrality of the matter to the issues in question.[29] It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an Applicant in its written reasons.[30] The critical question is the importance of the material to the exercise of the Tribunal’s function and therefore the seriousness of any error.[31]
[29] Singh v Minister for Home Affairs (2019) 267 FCR 200 at [37(1)] (Reeves, O’Callaghan and Thawley JJ).
[30] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALR 630 at [46].
[31] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] (Robertson J).
Grounds 1 to 4
By these grounds, the Applicants allege that the Tribunal failed to consider the Applicant’s genuine intention to study in Australia. The Applicant contends that she did not hold a valid CoE due to a medical condition and classes being held remotely during the COVID-19 pandemic.
The Tribunal found that the Applicant did not have a current enrolment in a registered course of study as required by cl 500.211 of the Regulations. Clause 500.211 does not contain any discretionary element, nor is there a “genuineness” element. The clause merely requires a decision-maker to consider whether the Applicant was enrolled in a registered course at the time of the decision.[32]
[32] Hammouda v Minister for Immigration and Multicultural Affairs [2025] FCA 514 (Hammouda) at [24].
In the circumstances, the Applicant was not enrolled in a registered course and gave evidence to this effect. The Minister submits that the Tribunal has not erred by failing to consider the Applicant’s intentions or her reasons for not holding a current enrolment.
Ground 5
The Applicants allege that the Tribunal acted unreasonably by not giving the Applicant additional time to obtain a valid CoE as her intentions to study were “very clear”.
The Minister notes that the legal threshold for unreasonableness is high.[33] The Court’s task is to “rule upon the lawfulness or legality of the decision by reference to the complaints made about it”.[34] Unreasonableness, and the related concepts of irrationality or illogicality, cannot be established if the decision is one upon which reasonable minds may differ.[35]
[33] Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).
[34] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [17] (Allsop CJ, Besanko and O’Callaghan JJ).
[35] Minister for Immigration and Citizenship v Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 at [131], see also [135] (Crennan and Bell JJ).
The Applicant was put on notice of the requirement to be enrolled in a registered course of study as follows:
(a)on 9 June 2020, the Tribunal wrote to the Representative inviting the Applicants to provide information.[36] In their response, the Applicants did not request additional time to provide a CoE. The Applicant merely stated:[37]
[36] CB 62.
[37] CB 78.
I have not been enrolled since 20/3/2020 onward due to my medical condition which was further exaggerated with current pandemic depriving me attending classes. As a result my CoE got canceled. However I am intending to get the issue sorted out and complete the remaining course.
(Words as written)
(b)on 9 September 2020, the Tribunal invited the Applicants to attend a hearing. The Hearing Invitation stated:[38]
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
…
We may also assess whether you are enrolled in a registered course of study. Please note that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the delegate.
(c)in response to the Hearing Invitation, the Minister notes that the Applicants provided a completed Response but no other documents.
[38] CB 86.
In the decision, the Tribunal outlined its correspondence to the Applicant in relation to the requirement that the Applicant hold a valid CoE.[39]
[39] CB 114-115 [7]-[12].
The Tribunal considered the Applicant’s reasons as to why she was not enrolled in a registered course of study.[40] The Applicant’s primary reason was that she did not consider that there was any value in attending online classes. The Applicant did not provide evidence that she was imminently seeking to obtain a CoE. The Minister submits that the Applicant made a “general and vague” statement that she intended to resume studying at an undisclosed time in the future.
[40] CB 115 [13].
The Minister submits that the Tribunal acted reasonably and in accordance with its statutory objectives by refusing to provide the Applicant additional time to provide a valid CoE.
The Minister’s solicitor made oral submissions at the October Hearing expanding upon the written ones.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[41]
[41] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[42] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[43]
[42] Djokovic per Allson CJ, Besanko and O’Callaghan JJ at [17].
[43] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82] (per McHugh, Gummow and Hayne JJ).
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[44] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error 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”.[45] Different kinds of error may overlap.[46] The categories are not closed.[47]
[44] Plaintiff S157/2002.
[45] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[46] Yusuf at [82].
[47] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[48] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[49] It has been described as an “undemanding” standard.[50]
[48] LPDT at [7].
[49] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[50] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Student Visa (Subclass 500)
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Student visa (Subclass 500) are set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations.[51]
[51] See Regulation 2.05(1).
Clause 500.211 of Schedule 2 of the Regulations provides:
a. the applicant is enrolled in a course of study;
b. if the application is made in Australia - the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant's postgraduate thesis;
c. if the applicant is a Foreign Affairs student-the applicant has the support of the Foreign Minister for the grant of the visa;
d. if the applicant is a Defence student-the applicant has the support of the Defence Minister for the grant of the visa.
CONSIDERATION
Grounds 1 to 4
Ground 1 is that:
The tribunal did not try to understand my genuine intentions as explained in my written response submitted to tribunal via form M17 prior to hearing session in item 18 of section 6 where I clearly stated I had my valid COE cancelled due to nonattendance resulted from my medical condition and obtaining another COE was not meaningful as providers were conducting classes online and remotely.
Ground 2 is that:
The tribunal failed to realise that if the online study would have been an option in my case then I can always achieve this from my home country spending comparatively much lower cost. It does not serve the purpose for which I was initially enrolled and invested in this course as it loses the effectiveness of learning English language in a predominately English speaking environment like Australia.
Ground 3 is that:
The tribunal did not consider the impact of the prevailing pandemic situation and the fact that I was until 20/3/2020 and due to my exaggerated medical condition, deprived me of attending classes as mentioned in item 13 of the AAT decision record.
Ground 4 is that:
Item 14 of the tribunal decision record, I do not agree with the tribunal emphasising on holding a valid COE but did not want to understand my reasons for not having a valid COE and reasons beyond my control impacting my enrolment where I had been very regular until my health deteriorated.
Grounds 1 to 4 of the Applicants’ Application do not challenge the Tribunal’s finding that the Applicant was not enrolled in a course of study, rather they focus on the Applicant’s reasons for not being enrolled, and alleged failures of the Tribunal in relation to the consideration of those reasons: e.g. “the tribunal did not try to understand my genuine intentions” and that “I had my valid COE cancelled due to nonattendance resulted from my medical condition” (Ground 1), “the Tribunal failed to realise that if the online study would have been an option in my case then I can always achieve this from my home country” (Ground 2); “the tribunal did not consider the impact of the prevailing pandemic” (Ground 3) and “I do not agree with tribunal emphasising on holding a valid COE” (Ground 4).
The criterion set out in cl 500.211(a) of Schedule 2 of the Regulations requires that an applicant for a student visa must be “enrolled in a course of study” at the time of the decision. The difficulty confronting the Applicant was that the requirement of cl 500.211(a) was a mandatory requirement for the grant of a Visa. It is a “binary proposition”. Either the Applicant was enrolled in a course of study or she was not.[52] In circumstances where the Tribunal was not satisfied that the Applicant was enrolled in a course of study, a matter confirmed by the second applicant at the October Hearing before me, there was no decision open to the Tribunal other than to confirm the Delegate’s Decision.[53] In these circumstances, the “issues arising in relation to the decision under review” did not extend beyond the question of enrolment.[54]
[52] Hammouda at [24]-[25].
[53] Kaur v Minister for Immigration (2016) 245 FCR 296 at 303 per Perry J; Moussa v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2020] FCA 149 (Moussa) at [9] per Jagot J; Giri v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1046 at [34]; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 513 at [17]; Elsharkawi v Minister for Immigration and Multicultural Affairs [2025] FCA 293 at [21] per Perry J; and Hammouda at [24]-[25] per Lee J.
[54] Moussa at [9]; Hammouda.
I am not satisfied that jurisdictional error is made out by reference to Grounds 1 to 4.
Ground 5
Ground 5 is that:
It is unfair of the tribunal to not allow me additional time to get enrolled and obtain another COE as I had made it very clear that I am still intending to get the issue sorted and complete the remaining course.
Ground 5 appears to challenge the Tribunal’s failure to exercise a discretion to adjourn the proceeding to give the Applicant time to “get enrolled and obtain another COE”.
Section 363(1)(b) of the Migration Act (in force at the date of the Tribunal’s Decision), for the purpose of a review, the Tribunal “may… (b) adjourn the review from time to time”. This confers both a power and a discretion on the Tribunal. There is a presumption, that “a discretionary power, statutorily conferred, will be exercised reasonably”.[55]
[55] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [47] and [63].
In Minister for Immigration and Border Protection v Pandey,[56] Wigney J summarised the principles relating to legal unreasonableness in the context of decisions made by the Tribunal to refuse adjournment applications by reference to the decision of the High Court in Minister for Immigration and Citizenship v Li[57] and the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh[58] in the following terms:
[56] (2014) 143 ALD 640.
[57] (2013) 249 CLR 332.
[58] (2014) 231 FCR 437.
a. The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
b. Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
c. Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or "plainly unjust": Li at [28], [110]; Singh at [44].
d. In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
e. Regard can also be given to the outcome of the decision: whether the "decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law": Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
f. The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
g. There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
h. The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
i. It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that "enough is enough": Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
j. Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Legal unreasonableness is a “demanding standard” and a court is not entitled to interfere simply because the court disagrees with the decision under review.[59]
[59] Virk v Minister for Immigration and Citizenship [2025] FCA 630 per Hill J held at [31].
The test for legal unreasonableness is assessed at the time of the decision and on the basis of circumstances known to the decision maker.[60]
[60] Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26]; DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 per Kiefel CJ, Gageler, Gordon and Steward JJ at [21].
In Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[61] (Bhandari), and Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs,[62] the Tribunal was found to have acted unreasonably in failing to give the Applicant more time in which to satisfy the enrolment criterion. In Bhandari, the applicant had received an unconditional letter of offer for a place in a course of study that she intended to accept.
[61] [2022] FCA 93.
[62] [2024] FCA 1478.
The Tribunal’s Decision to proceed to hear the Application for review in circumstances where the Applicant did not appear must be considered against the following background facts:
(a)On 18 November 2019, the Delegate refused to grant a Visa on the ground that the Applicant did not satisfy cl 500.211 of Schedule 2 of the Regulations.
(b)On 9 June 2020, the Tribunal invited the Applicants to provide information in support of their application. The invitation specifically provided:[63]
[63] CB 62.
As you have applied for the visa on the basis of undertaking a course of study in Australia it is a requirement of the visa that you be enrolled in a registered course of study and a genuine applicant for entry and stay as a student. Accordingly, you need to provide sufficient information to satisfy us that you meet both of these visa requirements.
(c)The Applicant responded:[64]
[64] CB 78.
I have not been enrolled since 20/3/2020 onward due to my medical condition which was further exaggerated with current pandemic depriving me attending classes. As a result my CoE got canceled (sic). However I am intending to get the issue sorted out and complete the remaining course.
(d)On 9 September 2020, the Tribunal invited the Applicant to appear before it to give evidence and present arguments. The invitation specifically requested:[65]
A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
(e)In response to the hearing invitation, the Applicants provided a completed Response to the hearing invitation form and no other documents.
(f)On 16 October 2020, the Tribunal hearing took place. There was no evidence before the Tribunal that the Applicant would enrol in a course of study in the near future;[66] to the contrary, the evidence suggested that the Applicant did not intend to seek enrolment until face to face classes resumed – a matter that was unknown at the date of the hearing. The Tribunal concluded on the basis of the evidence before it that “this COVID situation might be ongoing for quite some time”.[67]
(g)The Tribunal’s Decision provided:[68]
In her evidence today she suggested that the reason for her non-enrolment was a number of matters, including family issues, her back problem, COVID-19. But what also came through was she did not see there was any value in attending online classes. She has been unable to have face to face, as I understand her evidence was that she was unable to enrol in any face to face classes and attend a campus due to COVID-19.The difficulty with that response is that this COVID situation might be ongoing for quite some time. So, I don’t accept any of those reasons provide any excuse for not maintaining a current enrolment and not being enrolled, especially in light of the fact that the applicant has been on notice for quite some time that this was a requirement.
[65] CB 86.
[66] Compare Bhandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 93 and Chikweu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1478.
[67] A matter of some prescience, although in determining unreasonableness, my consideration is confined to matters that were known to the Tribunal at the time of the decision.
[68] At [13].
Given the circumstances that are set out above, the contention that the Tribunal’s decision not to adjourn did not lack an evident or intelligible justification. The evident justification was that the Applicant was on notice of the importance of enrolment, had ample opportunity to address the question of enrolment, and did not intend to do so in the near future.
I am not satisfied that jurisdictional error is made out by reference to Ground 5.
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[69] the Application for review must be dismissed.
[69] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $9,097.93 being the scale amount.[70] I am satisfied that costs ought to follow the event,[71] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the Court file.[72]
[70] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025. Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172 (Gehlert).
[71] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[72] Compare Gehlert.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 15 October 2025
0
34
7