Gautam v Minister for Immigration and Citizenship [2025] FedCFamC2G 1162

1. The first, second and third applicants have filed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). The applicants seek constitutional writ relief against the respondents in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 9 August 2021 which affirmed an earlier decision of a delegate of the first respondent (delegate) not to grant the applicants a Student (Temporary) (Class TU) Subclass 500 visa (temporary student visa).

1. On 11 December 2017, the first applicant arrived in Australia as the holder of a Student (Class TU) (subclass 500) visa, granted to her as a member of the same family unit as the second applicant.
2. On 5 August 2019, the first applicant, lodged an application for a temporary student visa on the basis of her enrolment in English studies, a Certificate IV in Business and a Diploma and Advanced Diploma in Leadership and Management.
3. On 3 October 2019, a delegate refused to grant the first applicant a temporary student visa on the basis that the Applicant did not satisfy cl 500.212 in the Migration Regulations 1994 (Cth) (Regulations).
4. On 14 October 2019, the applicants lodged an application for review of the delegate's decision with the Tribunal.
5. On 23 October 2020, after the delegate's decision was made, the third applicant, the first and second applicant's son, was born.
6. On 1 February 2021, the Tribunal, in accordance with s 359(2) of the Act (s 359 request), invited the applicants to provide a completed request for information addressed under Direction 69.
7. On 10 February 2021, the applicants requested an extension of time to provide information to the Tribunal.
8. On 11 February, the Tribunal granted the extension of time to provide information to 1 March 2021.
9. On 26 February 2021, the applicants responded to the s 359 request, providing information about their case (s 359 response). In their s 359 response the applicants ticked "yes" to the Tribunal "deciding the review without a hearing" (Court Book page 68).
10. On 9 August 2021, the Tribunal affirmed the decision under review refusing to grant the student visas.

1. The Tribunal identified that the main issue for determination was whether the first applicant was a genuine temporary student in Australia pursuant to the requirements of cl 500.212 of the Regulations (GTE issue). The Tribunal acknowledged that in its consideration of the GTE issue, it had to be guided by the factors referred to in Direction 69; 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications' (Direction 69), made under s 499 of the Act.
2. The Tribunal found that the first applicant had not advanced reasonable reasons for undertaking study in her home country. The first applicant informed the Tribunal that there was an Australian Institute in Nepal that offered a similar program, but chose to complete it in Australia because she was "not sure of the quality of the training offered by Nepalese trainers" and as she was "already in Australia... decided to pursue her studies her itself".
3. The Tribunal found it was unclear why the first applicant was unsure of the quality of training on offer by Nepalese trainers. The Tribunal noted the first applicant could not provide any evidence to verify this assertion. In accordance with Direction 69, the Tribunal held that the first applicant had not advanced "reasonable reasons for not undertaking the study in her home country".
4. The Tribunal considered the applicants' circumstances in Australia. It noted that the first applicant advised the Tribunal that upon completion of her Advanced Diploma, she wished to return to Nepal and open a tourist resort.
5. The Tribunal found that the first applicant failed to provide any detail as to community ties in Australia. However, the Tribunal noted that prior to the first applicant leaving her nursing job, her and her husband were earning a dual income of almost $100,000. The Tribunal found this was an incentive to remain in Australia. The Tribunal found the applicant's ties with Australia provide strong incentive to remain in Australia and that she was using the student visa to maintain ongoing residence in Australia .
6. The Tribunal considered the value of the course the first applicant was studying in further detail. The Tribunal noted that her statements in the s 359 response were "general" and "lacked specifics", and that it failed to detail how the course she was studying would benefit her future career endeavours. The Tribunal assessed the value of the first applicant's family assets in Nepal, which were deemed to be of "low value" and did not demonstrate a capacity to fund the business projects as suggested by the first applicant.
7. The Tribunal noted that the first applicant did not provide information of employment upon the completion of her studies in Australia. Thus, the Tribunal was not satisfied the first applicant's Leadership and Management course in Australia was of marginal value to future employment prospects in Nepal.
8. The Tribunal considered the first applicant's immigration history, noting the delegate's findings that the first and second applicant had minimal ties to their home country.
9. The Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily, and thus did not satisfy the criteria in cl 500.212(a) of the Regulations.
10. The Tribunal affirmed the delegate's decision not to grant a temporary student visa.

Judicial review application and procedural orders

1. On 10 September 2021, the applicants filed an application in this Court seeking judicial review of the Tribunal's decision dated 9 August 2021. The application contains four (4) grounds of review, some of which contain particulars. They are (as written):
   1. I FIRMLY BELIEVE THAT THE DICISION TAKEN BY THE RELEVANT DECISION MAKER HAS SOME MISUNDERSTANDING AND OR ERRORS AS SOME OF THE FACTS WERE NOT CONSIDERED OR MISSED OUT.
   2. THE REASONS GIVEN FOR NOT CONSIDERING MY REQUEST HAS SOME MISUNDERSTANDING WHICH IS BECAUSE OF CULTURAL/SOCIAL/FAMILY STRUCTURES ARE DIFFERENT FROM HERE AND BACK HOME (NEPAL).
   3. I FEEL THAT MY APPLICATION SHOULD BE RECONSIDERED AND THE FACTS SHOULD BE CROSS CHECKED WITH THE PROCEDURAL GUIDELINES ACCORDING TO MIGRATION LAW, REGULATION AND POLICIES REQUIRED, BY KEEPING IN MIND THE CULTURAL/SOCIAL UNDERSTANDING.
   4. REASON FOR REFUSAL DUE TO FAILURE TO SATISFY CLAUSE 500.212, WHERE AS THE REALITY IS DIFFERENT AND SHOULD BE CONSIDERED.
2. On 27 February 2025, a Registrar of this Court made an Order for both the applicants and first respondent to file an amended application (if applicable), written submissions and any further evidence in respect to the hearing. The applicants did not file any documents in accordance with this Order. The first respondent filed written submissions as required by the Order.
3. On 1 May 2025, the proceedings were docketed to me and set down before me for final hearing on 17 June 2025.

1. At the hearing of this matter on 17 June 2025, the first applicant was unrepresented. The first applicant was assisted by a Nepali interpreter. Ms Juarez of Mills Oakley appeared on behalf of the first respondent.
2. At the commencement of the hearing on 17 June 2025, I made orders appointing the first applicant as the litigation guardian of the third applicant, who is a minor, and her son.
3. I allowed the Court Book which contained the Tribunal's decision and other documents that were before the Tribunal, together with the applicant's affidavit in support of her application, to be admitted as evidence in the proceedings.
4. I asked the first applicant if she wanted to tender any other documents in support of her case. She told the Court she wanted to tender a document which confirmed she had completed a Bachelor of Business at the Kings Own Institute (KOI) in 2024, but she did not have a copy of it at Court. She said she had sent it to the Department of Home Affairs (Department) by email. In the absence of the document, I told the first applicant I would allow her to tell the Court the dates for the commencement and completion of the course she had undertaken at KOI. Ms Juarez did not object to that course. The first applicant could not recall the commencement and completion dates for her course at KOI. I asked the Ms Juarez if she could get instructions about the dates. I directed the first respondent send an email to the Court and the Applicant after the hearing confirming what the dates were.
5. Shortly after the hearing concluded on 17 June 2025, Mills Oakley, sent the Court and the applicants an email attaching the document the first applicant had sent to the Department confirming her completion of the KOI course in 2024. As I indicated I would do at the hearing, I record from Mills Oakley's email dated 17 June 2025 that the course undertaken by the Applicant at KOI referred to at the hearing commenced on 6 March 2023 and was completed on 25 October 2024.
6. After dealing with the evidence, I invited the parties to make final oral submissions. I took the first applicant through each of the four grounds of review in her application and asked her if she wanted to tell me what she meant by each ground, or why she considered the Tribunal had got it wrong or made a mistake. The first applicant told the Court she did not want to say anything in relation to the four grounds or her case generally.
7. In reply, Ms Juarez addressed the first respondent's written submissions, making brief submissions on each ground in the application.
8. I asked the first applicant if she wanted to say anything in reply to Ms Juarez. The first applicant told the Court she wanted to get her visa back, and that she wanted to go to Nepal to see her family again.
9. I turn now to my consideration of the grounds of review in this matter.

1. To succeed in this application the applicants must prove the Tribunal's committed jurisdictional error, that is, a serious legal error that results in an administrative decision lacking any legal force: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (LPDT). In most cases, the jurisdictional error must also be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32].
2. In deciding this matter, the Court does not consider the merits or the wisdom of the decision; nor does it remake the decision, it merely examines the legality of the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
3. Below I address each of the grounds of judicial review relied upon by the applicant.

1. Ground 1 is an unparticularised ground of judicial review. It asserts very generally that the Tribunal erred by failing to consider all of the relevant facts in their decision to affirm the delegate's decision, however, does not particularise any of the facts that the first applicant claims were not considered.
2. It is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [44]- [45] and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (SZGUR).
3. However, it will rarely be appropriate to dismiss a review ground in a migration case for lack of particularisation where, as here, the applicant is appearing on her own behalf: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]. In those circumstance I gave the first applicant an opportunity to explain orally what she meant by this ground. She told the Court she did not want to say anything about this ground (or the other grounds).
4. The first applicant has not been able to identify what she meant by the Tribunal's "misunderstanding", or what "facts" she says were "not considered or missed out" by the Tribunal. Currently as pleaded, ground 1 contains no more than a general disagreement with the Tribunal's findings. Mere disagreement with the Tribunal's findings does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, at [40] per Gleeson CJ and McHugh J; see also Vo v Minister for Home Affairs [2019] FCAFC 108, per Derrington, Banks-Smith and Colvin JJ.
5. Ground 1 does not establish the Tribunal committed jurisdictional error.

1. Ground 2 is also an unparticularised ground of judicial review. It alleges that a "request" was not considered, and this was due to cultural, societal and familial structures being different in Nepal compared to Australia.
2. As outlined above, it is for the first applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal. It is unclear what "request" is being referred to. The Applicant was not able to articulate what she meant by this at the hearing. If it is a reference to the "request" for there to be no oral hearing at the Tribunal, made at Court Book page 68 by the first applicant herself, then that request was accepted by the Tribunal: see Court Book page 160.
3. The difficulty with this ground is that, like ground 1, ground 2 is it unparticularised in that the first applicant does not specify what cultural differences she is referring to, and how they have, in some way, led the Tribunal to commit a jurisdictional error. Again, the onus lays on the applicants, which has not been met in the present case: SZGUR at [67].
4. Ground 2 does not establish the Tribunal committed jurisdictional error.

1. Ground 3 does not identify an arguable ground of judicial review. Like grounds 1 and 2, it is unparticularised in that the applicant does not specify what these cultural differences are and how they have, in some way, led the Tribunal to commit jurisdictional error. The Applicant has failed to make out this ground.
2. If this ground is a complaint about a lack of procedural fairness, then I agree with the submissions of the first respondent that a review of the decision of the Tribunal does not reveal any denial of procedural fairness. The applicants consented to the Tribunal determining the review without holding a hearing, and therefore were disentitled from having a hearing: see s 360(2)(b) of the Act. The Request for Student Visa Information form was clear, the first "Note" in that document stated (emphasis in original) (Court Book page 68):

Note: If you consent to us deciding your review without a hearing:

• You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.

1. Further, it is clear the applicants provided documentary evidence to the Tribunal, which the Tribunal expressly considered throughout in reaching its decision. The Tribunal's approach was unobjectionable. No jurisdictional error is established by ground 3.
2. Ground 3 is dismissed.

1. Ground 4 does not particularise an arguable ground of judicial review. It merely contains a disagreement with the Tribunal's conclusion that the applicant failed to satisfy the criteria in clause 500.212. In essence it seeks merits review of the Tribunal decision, which is not permitted in applications to this Court under s 476 of the Act: see Djokovic.
2. The Tribunal identified the relevant genuine temporary entrant criteria was that set out in cl 500.212 of the Regulations. The Tribunal also made it clear that it must also have regard to Direction 69 when considering the criteria in cl 500.212: see paragraph [21] of its decision. The leading authority on the correct approach to Direction 69 is Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 (Kaur) at [13]-[15] per Middleton J.
3. In Kaur Middleton J said:
   1. In discussing Direction 69, in Kaur v Minister for Home Affairs [2019] FCA 2026 Steward J said at [30] and [31]:

[30] Then, for the purpose of applying those factors, the Minister has made a Direction which the Tribunal must apply. The direction he has made here is that the contents of Direction No. 69 should be used as a 'guide' in applying the four factors. For that purpose, the Minister has only directed that the factors identified in the Direction should be considered, not that they must be considered. He has also expressly directed that the factors should not be treated as a 'checklist'; rather they are to guide a decision-maker 'when considering the applicant's circumstances as a whole'. In other words, a decision-maker is not required to check each identified factor in the Direction. In my view, this language is inconsistent with the first appellant's contention that every factor must be considered as a mandatory consideration. It is also inconsistent with the function and purpose of Direction No. 69 as a guide to assist in applying cl 500.212.

[31] In my view, the factors in Direction No. 69 which a decision-maker must take into account are those which have been the subject of substantial, clearly articulated claims made by the visa applicant. A failure to consider and engage with such claims may well constitute jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ., at [95] per Hayne J.; Navoto v Minister for Home Affairs [2019] FCAFC 135; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at 172-176 [75]- [81] per Griffiths J. Alternatively, a failure to consider a claim engaging a factor listed in Direction No. 69 that is apparent on the face of the material before the Tribunal and which clearly emerged from that material, may also constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 17 [55] and 22 [68] per Black C.J., French and Selway JJ.; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at 509 [18] per Collier, McKerracher and Banks-Smith JJ."

1. There may be some question whether the approach adopted in [31] by Steward J is in fact correct. A different approach to the construction of Direction 69 was taken by SC Derrington J in Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1861 at [22], having regard to the differences between Direction 69 and its predecessor, Direction No. 53:

"The text of Direction 69 differs in some minor respects from that of Direction 53. In particular, Direction 53 used language in terms that a decision maker 'must have regard to [the relevant factor or factors]' (emphasis added). Direction 69 replaces 'must' with 'should'. It was not suggested that this made any material change to the substance of the Direction, at least to the extent of lessening the strength of the Direction. Indeed, that it is unlikely that any such change was intended might be discerned from the Preamble, where the previous wording in Direction 53 to the effect that 'factors should be considered' is replaced in Direction 69 with the 'factors that require consideration'"

(emphasis added).

1. It is unnecessary for me to decide this difference. However, it seems to me that the appropriate approach to the Direction 69 is that taken by Steward J. In my view, the change of wording from "must" to "should" cannot be ignored. Further, the words of the preamble that the Direction "provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d" do not imply that the factors are mandatory considerations, but rather that the Direction indicates what factors are likely to and might require consideration in any given case. As Steward J points out, the decision-maker must only engage with the factors if they are the subject of clearly articulated claims, or they arise clearly on the material.

1. On a fair reading of its decision, the Tribunal followed the approach approved by Middleton J in Kaur and considered all of the circumstances and all of the applicant's claims against each of the relevant factors under Direction No 69: see paragraph [21] and following of the Tribunal decision.
2. Ground 4 does not establish the Tribunal committed jurisdictional error.

Third applicant: a minor child born after the delegate's decision

1. The first respondent seeks an order that application by the third applicant be dismissed for want of jurisdiction.
2. The third applicant was born after the date of the delegate's decision. Therefore, it is submitted by the first respondent, the Tribunal did not have jurisdiction to hear and determine the third applicant's visa application when it was considering the application for review lodged by the first and second applicants. It is submitted there was no "Part 5-reviewable decision" made in respect of the third applicant: see Minister for Home Affairs v CLR15 [2019] FCAFC 45; (2019) 268 FCR 339 (CLR15) at [34]-[41] per Moshinsky, Charlesworth and Lee JJ.
3. While CLR15 considered the situation regarding a "Part 7-reviewble decision", I agree that the decision in CLR15 is equally applicable to the legislative scheme in respect of Part 5-reviewable decisions, such as in the present case.
4. I accept that no decision has been made in relation to the third applicant over which either the Tribunal had jurisdiction to consider, or which this Court had jurisdiction to consider under 476 of the Act. For this reason, this Court does not have jurisdiction to determine any purported claim by the third applicant.

1. For the reasons outlined above, the applicants have not established that the Tribunal's decision is affected by jurisdictional error. Nor have I discerned any jurisdictional error from my own reading of the decision.
2. The application is dismissed.

1. The first respondent has sought an order that the first and second applicant pay the first respondent's costs in the amount of $6,100. The amount sought is less than the scale amount set out in Schedule 1 of the Rules. The Court considers the amount sought for costs by the first respondent to be fair and reasonable given the nature of these types of matters. I will make an order in this amount.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.