Rayamajhi v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 617

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. This is an application for judicial review, made under s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) (now known as the Administrative Review Tribunal) dated 19 July 2022. The Tribunal reaffirmed the decision of a delegate of the First Respondent refusing to grant the applicants a Student (Temporary) (Class TU) (Subclass 500) visa (temporary student visa) under s 65 of the Act.

1. In November 2013, the applicant, a citizen of Nepal, arrived in Australia as the holder of a temporary student visa.
2. On 13 March 2020, the applicant applied for a further temporary student visa.
3. On 28 September 2021, a delegate of the first respondent refused to grant the applicant a temporary student visa, on the basis that the applicant did not genuinely intend to stay temporarily in Australia.
4. On 13 October 2021, the applicant lodged an application to the Tribunal for review of the delegate's decision.
5. On 31 May 2022, the Tribunal invited the applicant to attend a hearing on 20 June 2022.
6. On 20 June 2022, the applicant appeared before the Tribunal unrepresented to give evidence and present arguments.
7. On 27 April 2021, the Tribunal affirmed the delegate's decision not to grant the applicant a temporary student visa.

1. The Tribunal considered the applicant's study history. The applicant was initially enrolled in an IT course but later switched to a Diploma of Accounting. He completed a Diploma in Accounting in 2014 and a Bachelor of Professional Accounting in 2017. He started a Master of Professional Accounting but was unable to satisfactorily progress in that course and abandoned it in 2019.
2. In late 2019 the applicant made the decision to abandon his Master of Professional Accounting and commence a Certificate IV in Commercial Cookery. He studied between November 2019 and May 2021. He enrolled in a Diploma of Hospitality and Management at the Australian National Institute of Education between May 2021 and November 2021.
3. The applicant completed his Certificate in May 2021 and enrolled in a Diploma of Hospitality Management. He completed that in November 2021. He enrolled in an Advanced Diploma of Hospitality Management in February 2022 at Salisbury College. The applicant was not enrolled in any course between November 2021 and February 2022 and was issued with a fees invoice 8 days after the Tribunal had requested information in relation to his course enrolment. When the AAT's Student Visa Information request was responded to, the applicant did not list when his course at Salisbury was due to begin or finish.
4. The applicant contended he is "seeking higher studies as I want to learn fully the skills in the field of hospitality" and plans to "use my qualification and establish hotel in my own country". The applicant confirmed that he had plans to go back to Nepal to continue the family business with the skills and knowledge he gained from his current study.
5. The Tribunal commented that at the hearing, the applicant was questioned about the course in which he was enrolled and gave extremely vague answers.
6. The Tribunal found that the applicant 'chopped and changed' courses since arriving in Australia and the explanation which the applicant gave in writing for switching from accounting to commercial cookery was false. The Tribunal found that the applicant was financially better off in Australia than he was in Nepal and now has significant connections in Australia.
7. The Tribunal had regard to Direction No 69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act.
8. The Tribunal found it to be difficult to get a sense of what the applicant's living conditions in Nepal were like. He has family there and his father has returned there from driving a taxi in the Middle East. The applicant claims that he intends to return to Nepal in order to take over a hotel which his father has set up.
9. The Tribunal did not accept that the applicant intends genuinely to stay temporarily in Australia based on him reporting a desire to return to Nepal at some time in the future. The Tribunal found that the facts point to a person who is 'putting down roots' in Australia
10. The Tribunal found that the applicant is financially better off in Australia than he was in Nepal and now has significant connections here.
11. The Tribunal also found that the applicant was not a genuine applicant for stay as a student. The Tribunal noted that the applicant's enrolment only occurred after the Tribunal had sent him a letter seeking details about his enrolment, and the applicant was unable to answer some very basic questions about his course
12. The Tribunal stated the evidence suggested that the applicant is not at all engaged in the course in which he is enrolled. This suggests that the purpose of the enrolment is to prolong the applicant's stay in Australia on a student visa rather than provide the applicant with a genuine qualification which he would find useful on his return to his home country.
13. The Tribunal affirmed the decision not to grant the applicant a temporary student visa.

Judicial review application and procedural orders

1. On 22 August 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 19 July 2022. The application raises three grounds of review (a fourth ground, ground 3 has been crossed through and deleted). The grounds as written in the application are as follows:

1. Genuine student as clause 500.212 doesn't apply

2. Enrolled in course and genuine student

3. [Deleted]

4. Worked and studied same courses

1. Under the heading 'final orders sought by the applicant' in the application the applicant also states:
   1. I want my visa back.
   2. Mental relief as this is causing serious anxiety.
   3. Cl. 500.211 doesn't apply.
2. On 19 March 2025, a Registrar of this Court made an Order for the filing of any amended application, any affidavit evidence and written submissions by the applicant, and for the filing of any affidavit evidence and submissions by the first respondent. The applicant did not file any documents in accordance with the Order. The first respondent filed written submissions as required by the Order.
3. On 2 April 2025, the proceedings were docketed to me.

1. At the hearing of this matter on 17 April 2025 the applicant was self-represented. Mr James Fyfe of Minter Ellison appeared on behalf of the first respondent.
2. At the commencement of the hearing, I explained to the parties that the Court's role in deciding the case was limited to considering whether the Tribunal had committed a jurisdictional error. I described jurisdictional error as a serious legal error or mistake made by the Tribunal. I also explained the procedure by which the hearing would be undertaken. I then allowed an affidavit by the applicant and a Court Book which contained the Tribunal's decision and documents before the Tribunal to be admitted as evidence.
3. Finally, I invited the parties to make final oral submissions. The applicant briefly addressed the grounds of review, including the matters set out under the heading 'final orders sought by the applicant' in the application. Essentially, the applicant challenged a number of factual findings made by the Tribunal, including the finding that the applicant did not intend to stay temporarily in Australia, and re-iterated the argument contained in his application that neither cl 500.211 or cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2) applied to his case. I told the applicant that the Court could not re-visit any factual findings which the Tribunal had made, and that the Court was not able to re-determine whether or not he was a genuine temporary student, or whether he should be given a temporary student visa. I told the applicant that was the role of the Tribunal.
4. Mr Fyfe also made brief final oral submissions.

1. The Court can only grant relief if it is established that the decision of the Tribunal is affected by jurisdictional error. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 at [32]. It is not the role of the Court to review the merits or factual findings of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 (Wu Shang Liang).

1. In Ground 1 of his application the applicant contended that cl 500.212 of Schedule 2 did not apply to his case in the Tribunal.
2. The applicant's argument is plainly misconceived. As the first respondent correctly submits, cl 500.212 is one of the primary criteria that applicants for student visas must satisfy in order to obtain a temporary student visa. The Tribunal needed to be satisfied that the applicant met the cumulative requirements of cl 500.212(a)-(c) before a temporary student visa could be granted to the applicant. Ultimately, the Tribunal was not satisfied the applicant met the requirements in cl 500.212(a).
3. Ground 1 has no merit, does not establish jurisdictional error, and is therefore rejected.

1. Grounds 2 and 4 in the application do not identify any jurisdictional error on the part of the Tribunal and appear to be no more than a disagreement with the factual findings of the Tribunal's decision.
2. These complaints invite merits review of the Tribunal decision which the Court cannot undertake in applications for judicial review. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the Full Court of the Federal Court described the task of a Court conducting judicial review in the following manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision, nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. The Court accepts the first respondent's submission that the findings made by the Tribunal that the applicant was not a genuine applicant for stay as a student in [44]-[47] were open to the Tribunal on the material before it, and those findings do not reveal the Tribunal has committed any jurisdictional error. Grounds 2 and 4 are rejected.
2. For completeness, the Court has also considered the matters set out under the heading 'final orders sought by the applicant' in the application as further grounds of review. The first two matters do not disclose any arguable grounds of jurisdictional error. The third matter, namely the contention that 'cl 500.211 does not apply' is misconceived. Clause 500.211 contains one of the criteria, namely the requirement that the applicant be enrolled in a course, which must be satisfied in order for the applicant to be granted a temporary student visa.
3. For the reasons outlined above, the applicant has not established that the Tribunal's decision is affected by a jurisdictional error, and no other jurisdictional error is apparent on the face of the decision record.
4. The application is dismissed.

1. The first respondent sought an order that the applicant pay the first respondent's costs in the amount of $5,900. I am also satisfied that the amount sought is fair and reasonable having regard to the nature of the matter. I will make an order in this amount.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.