Gurung v Minister for Immigration and Citizenship [2026] FedCFamC2G 178

1. The respondent pay the applicant's costs fixed at $4,300.

1. The respondent (the Minister) concedes that his decision, made by his delegate on 18 August 2023 (the delegate) is affected by jurisdictional error. In assessing whether the applicant met subclause 500.214(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations), the delegate found the applicant did not have "genuine access" to funds, but did not engage in a genuine and proper consideration of the evidence that was available: Shrestha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 906 (Shrestha).
2. The basis of the delegate's refusal of the visa was a finding that the applicant did not meet cl 500.214 of Schedule 2 to the Migration Regulations. Clause 500.214 requires the applicant to meet certain financial requirements. If an applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in the legislative instrument (cl 500.214(3)-(4)). Relevantly, an applicant must satisfy the Minister that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia (cl 500.214(2)(a)). The Minister must also be satisfied that the applicant will have "genuine access to funds" of the kind mentioned in cl 500.214(2) and (3) (if applicable).

1. In reaching the finding that the applicant did not meet subclause 500.214(4), the delegate did not demonstrate engagement with the applicant's evidence of financial capacity, which he provided under s 6 of Migration (LIN 19/198: Evidence of financial capacity - Subclass 500 Visa and Subclass 590 Visa) Instrument 2019.

1. The applicant's evidence included: the pre-payment of substantial tuition fees (CB 37); the grant of an education loan by a bank to a parent, and related documents, which expressly named the applicant, the specific course of study, the name of the university, and the purpose of the loan for tuition fees, insurance fees and living expenses (CB 62, CB 65); the payment into the parent's bank account of the loan amount (CB 63); and evidence of income from other sources (CB 98, CB110). While the delegate accepted the applicant relied on a loan from a bank to meet his travel expenses, living costs and annual course fees, they placed "more weight" on the absence of any evidence of the applicant's parents' recent income tax returns, finding that the applicant had not demonstrated that he or his parents had sufficient money to make repayments (CB 156). The delegate made no specific reference to such evidence submitted by the applicant in support of his claimed financial capacity and did not otherwise demonstrate engagement with the content of the documents or whether the applicant had genuine access to those funds.
2. This amounts to jurisdictional error of a kind similar to what occurred in Shrestha, where Judge Goodchild characterised the delegate's finding as being based on the absence of evidence of how a lump sum had been accumulated by that applicant's parents and failing to "grapple" with the various financial and other documents the applicant provided to evidence financial capacity and genuine access to funds (at [30] and [47] of Shrestha). Similarly, in this instance, while the delegate was not obliged to expressly refer to every piece of evidence they considered, this decision does not expose a qualitative evaluation of the relevant evidence (see Shrestha at [65]).
3. The failure to genuinely engage with the evidence was material to the decision as a proper consideration of the evidence could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]. Namely, a different decision may have been reached as to whether the applicant met cl 500.214 of Schedule 2 to the Regulations had the material been properly considered.

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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. These brief reasons concern two matters. First, whether I should make the orders proposed by consent of parties, and secondly, the costs order which should be made. In substance, I am satisfied that the consent orders (with agreed notations) should be made and that the costs sought by the applicant, slightly reduced, should be awarded. I set out my understanding of the principles to be applied on both topics.

1. The history of this matter can be briefly stated. An originating application under s 476 of the Migration Act 1958 (Cth) (the Act) was lodged on 12 September 2023 by lawyers on behalf of the applicant, together with a copy of the Tribunal's decision of August 2023. There have been three "hearings" in the Court. The first resulted in an order by Registrar Downing on 14 May 2024, which was made in chambers and without the presence of the parties or their lawyers. The Registrar made what may fairly be described as the usual orders in migration matters, including by providing that:

(1) a final hearing date would later be advised;

(2) within a short time, the Minister file the relevant court book;

(3) 28 days before the final hearing the applicant file written submissions, any amended application and any additional evidence; and

(4) the respondent reply 14 days before the hearing.

1. The matter was then allocated to me, and on 23 December 2025, my chambers advised that the matter would be listed for a callover on 20 January 2026. On 15 January 2026, my chambers also advised the matter would be listed for final hearing on 4 March 2026. The matter was listed for callover on 20 January in the afternoon. That morning, the respondent advised that the parties were negotiating consent orders to remit the matter for reconsideration, and requested that the callover be vacated while the parties confer. I agreed and listed the matter for callover on 27 January 2026, where in substance the parties advised me that there was agreement about the substantive orders, but that there was a dispute about costs which they requested I resolve. On 29 January 2026, a brief hearing was held where I had the benefit of submissions, both written and oral, about the quantum of costs.
2. I then drew the parties' attention to the Migration Proceedings Central Practice Direction of this Court which provides:

11.1 If the parties propose that an order be made by consent, the effect of which is to set aside or vary an order of the decision of the Administrative Review Tribunal or any other Tribunal established under a law of the Commonwealth (Tribunal), they must file the proposed consent order with the Court, together with a notation concisely setting out the matters said to justify the making of the proposed order and giving references to any authorities or statutory provisions relied upon. The proposed order must be signed on behalf of all parties.

1. The parties later provided consent orders and notations to those orders in the following terms:

THE COURT ORDERS BY CONSENT THAT:

1. A writ in the nature of certiorari issue directed to the respondent quashing the decision of the respondent dated 18 August 2023.

2. A writ in the nature of mandamus issue directed to the respondent requiring it to determine the application made to it according to the law.

THE COURT NOTES THAT:

1. The respondent (the Minister) concedes that his decision, made by his delegate on 18 August 2023 (the delegate) is affected by jurisdictional error. In assessing whether the applicant met subclause 500.214(4) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations), the delegate found the applicant did not have "genuine access" to funds, but did not engage in a genuine and proper consideration of the evidence that was available: Shrestha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 906 (Shrestha).

2. The basis of the delegate's refusal of the visa was a finding that the applicant did not meet cl 500.214 of Schedule 2 to the Migration Regulations. Clause 500.214 requires the applicant to meet certain financial requirements. If an applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in the legislative instrument (cl 500.214(3)-(4)). Relevantly, an applicant must satisfy the Minister that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia (cl 500.214(2)(a)). The Minister must also be satisfied that the applicant will have "genuine access to funds" of the kind mentioned in cl 500.214(2) and (3) (if applicable).

3. In reaching the finding that the applicant did not meet subclause 500.214(4), the delegate did not demonstrate engagement with the applicant's evidence of financial capacity, which he provided under s 6 of Migration (LIN 19/198: Evidence of financial capacity - Subclass 500 Visa and Subclass 590 Visa) Instrument 2019.

4. The applicant's evidence included: the pre-payment of substantial tuition fees (CB 37); the grant of an education loan by a bank to a parent, and related documents, which expressly named the applicant, the specific course of study, the name of the university, and the purpose of the loan for tuition fees, insurance fees and living expenses (CB 62, CB 65); the payment into the parent's bank account of the loan amount (CB 63); and evidence of income from other sources (CB 98, CB110). While the delegate accepted the applicant relied on a loan from a bank to meet his travel expenses, living costs and annual course fees, they placed "more weight" on the absence of any evidence of the applicant's parents' recent income tax returns, finding that the applicant had not demonstrated that he or his parents had sufficient money to make repayments (CB 156). The delegate made no specific reference to such evidence submitted by the applicant in support of his claimed financial capacity and did not otherwise demonstrate engagement with the content of the documents or whether the applicant had genuine access to those funds.

5. This amounts to jurisdictional error of a kind similar to what occurred in Shrestha, where Judge Goodchild characterised the delegate's finding as being based on the absence of evidence of how a lump sum had been accumulated by that applicant's parents and failing to "grapple" with the various financial and other documents the applicant provided to evidence financial capacity and genuine access to funds (at [30] and [47] of Shreshtha). Similarly, in this instance, while the delegate was not obliged to expressly refer to every piece of evidence they considered, this decision does not expose a qualitative evaluation of the relevant evidence (see Shrestha at [65]).

6. The failure to genuinely engage with the evidence was material to the decision as a proper consideration of the evidence could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]. Namely, a different decision may have been reached as to whether the applicant met cl 500.214 of Schedule 2 to the Regulations had the material been properly considered.

7. For these reasons, the decision is affected by jurisdictional error. On this basis, the parties respectfully seek for the Court to make the above orders by consent.

1. Two issues arise: when should consent orders be made in migration matters, and what is the requirement for reasons to be given. I deal with these in reverse order by referring to leading statements of the law.

1. In Wainohu v New South Wales [2011] HCA 24, French CJ and Kiefel J said this:

[54] The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom's Constitutional Law, published in 1866, the author said[127]:

"A public statement of the reasons for a judgment is due to the suitors and to the community at large - is essential to the establishment of fixed intelligible rules and for the development of law as a science ... A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it."

That passage was said in the Supreme Court of Victoria to have "general application to all persons exercising judicial functions."[128] Its universality was qualified in Public Service Board of New South Wales v Osmond[129] by Gibbs CJ, who said that there was no "inflexible rule of universal application" that reasons be given for judicial decisions. His Honour, however, accepted that the requirement to give reasons is "an incident of the judicial process"[130].

[55] The duty upon judges to give reasons for their decisions has often been linked to the availability of rights of appeal against those decisions[131]. A wider rationale, foreshadowed in the passage quoted from Broom, can be derived from the nature of the judicial function. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd[132], Mahoney JA, after referring to the importance of reasons for decision to the effective exercise of appeal rights, said[133]:

"But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process."

The proposition that the provision of reasons for decision is an aspect of the judicial function has been supported by other decisions of the Supreme Courts of New South Wales, Victoria and Queensland[134].

[56] Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding "which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning."[135] Heydon J in AK v Western Australia[136] described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as "well-established". His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ[137]:

"First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions."

The duty does not apply to every interlocutory decision, however minor. Its content - that is, the content and detail of the reasons to be provided - will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.

[57] The connection between the duty to give reasons and the nature of the judicial power enunciated in Grollo, and the objectives which that duty serves, explained in AK, marks the duty as an incident of the judicial function whether or not the court making the relevant decision is subject to appeal. In the case of the Supreme Court of a State, the duty has a constitutional character. That constitutional character derives from the jurisdiction of this Court under s 73 of the Constitution to hear appeals from all judgments, decrees, orders and sentences of the Supreme Courts of the States.

[58] The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.

1. In the recent decision of LMRD v Minister for Immigration and Citizenship [2025] FCA 1251, Goodman J said this:

[3] ... It is appropriate, despite the orders having been agreed between the applicant and the Minister, that I explain my reasons for making the orders: see, e.g., Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557... at [12] (French J); VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at 326 (Colvin J).

1. The classic statement is indeed that of French J, as his Honour then was, in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557 (Kovalev). His Honour said:

[12] In the Native Title Act 1993 (Cth) specific provision exists for the Court to make orders consistent with the terms of agreements reached between the parties. But the Court must be satisfied that such an order "would be within the power of the Court" and it must appear to the Court to be "appropriate" to make the order (s 87(1)). The Native Title Act in that respect imposes no novel regime for these are matters of which the Court must be satisfied in any order which it is to make whether by consent or otherwise. It is important to stress, as I observed in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (supra) that it is not the function of the court to impede settlement between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the court's jurisdiction and are otherwise unobjectionable. In relation to proposed consent orders and undertakings the Court will not simply substitute its own view of the orders it would have made if those proffered fall within the range of an appropriate disposition of the case. That does not exempt the Court making such an order from ensuring it is within power and that it is appropriate to make the order. In the case of an error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court's specification of the error and its satisfaction that error occurred.

[19] I do not think it necessary that a Judge in making consent orders of this kind should ordinarily elaborate reasons for being satisfied that they are within power and appropriate. I do not propose to do so in this case. I think it sufficient that the Judge be satisfied of the matters which I have referred to earlier and that the terms of the consent order themselves reflect the basis upon which the matter is being remitted to the Tribunal. It may be that parties submitting a consent order in such cases as well as formulating it with the requisite specificity could submit a brief joint memorandum identifying from the record those parts of the decision-maker's decision or process which disclose the conceded error.

1. I directed the parties to provide consent orders with notations complying with the Practice Direction as set out above. They have done so, and I am satisfied that the error indicated is as set out in the notation, and that I should make the orders by consent with the appropriate notations.
2. The broad principles I take from the leading cases and the Practice Direction are as follows.

(a) The functions of this Court in quelling controversies in matters arising before it includes giving effect to terms agreed by parties, which may include orders made by, or undertakings given to, the Court.

(b) Where all active parties are legally represented, the Court will make the orders, without inquiring into their desirability, for example, by conducting a full hearing into the matter, if satisfied it is acting within power and that the orders are appropriately made: Kovalev.

(c) As a final decision of the Court, reasons must be given as to key facts and rules of law, and the exercise of any relevant judicial discretion. Most of, if not all of the Court's reasons may be sufficiently clear from the Practice Direction's requirement set out above of a "notation [to the Court's orders] concisely setting out the matters said to justify the making of the proposed order and giving references to any authorities or statutory provisions relied upon.": see Wainohu v New South Wales [2011] HCA 24 per French CJ and Kiefel J (supra).

(a) The Court's jurisdiction having been regularly invoked under s 476 of the Act, writs of both mandamus and certiorari may be issued. As I said in ASW23 v Minister for Immigration and Citizenship [2026] FedCFamC2G 35:

[46] The jurisdiction under s 476(1) of the Act is "the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution." In turn that confers jurisdiction in matters "in which a writ of Mandamus or prohibition or an injunction is sought". Once jurisdiction is attracted, certiorari may be granted alone, or in combination with other remedies: see my decision in BGJ22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1841 at [19]- [22]. Issuing constitutional writs reminds those bound by them of the nature and provenance of the jurisdiction being exercised.

(b) Further, by s 167(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) it is provided that:

If the parties to proceedings in the Federal Circuit and Family Court of Australia (Division 2) have reached agreement about a matter in dispute in the proceedings, the Court or a Judge may, on application by the parties, make an order in the terms of the agreement.

(c) The nature of the jurisdictional error justifying the issuing of constitutional writs is clearly indicated in the notation to the orders - the facts are close to those considered by Judge Goodchild in Srestha (cited above), as is their materiality: each are now clear including to the Minister and his delegates who must re-exercise the relevant statutory functions according to law: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45].

(d) It is thus appropriate to make the orders sought with the notations to the orders. Proceeding in this way rather than requiring a further hearing and submissions also fulfils the overarching purpose of deciding this matter according to law, and as quickly, inexpensively and efficiently as possible.

1. That leaves the question of the appropriate quantum of costs. Having agreed that costs should follow the event and that "scale costs" are appropriate, there are two issues in dispute between the parties on costs. First, is this a matter which has concluded at or before, or alternatively after, "the first court date" for the proceeding, so that Item 1 rather than Item 2 of the Schedule to the relevant part of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules applies were scale costs to be awarded? Second, is this a matter where the 2025 scale of costs applies - for "work done or services performed on or after 1 September 2025", or is it that which applied for a matter which commenced after 1 January 2023? The differences in scale fees under Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) and its predecessor are as follows depending upon the answer to those questions.

Item 1, 2023: $1,675.75

Item 1, 2025: $1,821.21

Item 2, 2023: $4189.38

Item 2, 2025: $4553.02

1. General principles concerning costs in migration matters have recently been stated by a Full Court of the Federal Court in Zhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2026] FCAFC 4 as follows:

[24] ... as to the quantum of costs which should be payable, there is no requirement for this Court to afford any "bias or weighting" to an order for costs in accordance with Pt 2 of Sch 2 to [this Court's] Rules, "such that there must be a 'good reason', 'exceptional circumstances' or a case of 'unusual complexity'" before the Court determines that an order for costs should be made on the basis of any of the subsections of r 22.02(2) of the Rules: FJS18 at [46]. To adopt the words of Burley J in FJS18 at [49], the scale as set out in Pt 2 of Sch 2 to the Rules cannot "be considered to represent an assessment of costs of a migration case of 'average complexity' ... or a 'standard unit equivalent migration proceeding which concludes at a final hearing'", quoting with disapproval SZUVZ v Minister for Immigration and Border Protection [2015] FCCA 2346 at [4] and AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 257 at [4]. At any rate, there is doubt as to whether a Court could assess a case of "average complexity": FJS18 at [49] and CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 at [27].

1. Here, however, the parties, who are legally represented, both agree costs should follow the event and that the migration scale in the Rules should apply, subject to the disagreements just mentioned. Applying the overarching purpose in the Rules, it would be a rare case where I would not make orders giving effect to an agreement by the Minister to pay costs, and this is not one of them. I then turn to the items in the Schedules to the Rules.
2. The 2021 migration scale provisions set out amounts for work done for a proceeding concluded:

(a) at or before the first court date for the proceeding;

(b) after the first court date for the proceeding; and at or before an interlocutory hearing; and

(c) at a final hearing.

1. The recent practice of the Court, begun during COVID, was for the "first court date" in migration matters to take the form of the making of directions by a Judge or Registrar (usually the latter) in chambers without attendance of parties. The 2025 version of the scale provisions refers to a proceeding concluded "after the first court date for the proceeding; or before directions are given under rule 25.10." Under the 2025 Rules, but not the 2021 Rules, there are provisions concerning "first court date and directions" with a note, Number 3, that "[i]t is the Courts practice that, unless otherwise notified to the parties, a first court date is not fixed in a migration proceeding."
2. While the Minister contends that this is a major change, in my opinion, the practice of the Court as reflected in the Rules has not changed in its essentials insofar as, in migration matters, directions are made early on in a proceeding which set out the essential work to be done as far as filing and serving documents goes. As the lawyer for the applicant rightly said, however, much other work is done including analysing the decision made by the Tribunal, taking instructions and conferring with the opponent, following early service of the Court Book by the Minister.
3. Making an order as the Minister proposes - as if the matter had settled at or before the first court date - would not reflect the reality that the case was at the mid-point for a typical migration case, not the very start. Accordingly, I will apply the scale at Item 2 not Item 1.
4. The amounts payable under the former scale and the current scale do not differ much. Given the bulk of the work was done prior to 1 September 2025, I propose to take an approximate mid-point between the two scale amounts so as to resolve this aspect of the matter in accordance with the overarching purpose. I will order the respondent pay the applicant's costs fixed at $4,300.
5. For these reasons, I make the orders set out above.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.