Federal Court of Australia

Pandey v Minister for Immigration and Citizenship [2026] FCA 927

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKMAN J:

1    This is an appeal from the judgment and orders of the Federal Circuit and Family Court of Australia made on 29 November 2024 in Pandey v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1292. The primary judge dismissed the application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) with costs.

2    On 9 July 2026, being a week ago, the appellant sent an email to the Court requesting an adjournment due to her medical condition, in that she was experiencing anxiety and depression, and was seeking legal advice. That email attached a letter from the appellant’s general medical practitioner to the effect that the appellant was suffering from depression and anxiety, was seeing a psychologist, and was currently unable to make decisions and attend Court on 15 July 2026. The email also attached a letter from the appellant’s psychologist recommending that the appellant be given one week’s leave from work from 8 to 15 July 2026 inclusive. The Court responded on my behalf to the effect that I would consider any adjournment application at today’s hearing.

3    Today is the last day of the week’s leave which the psychologist recommended. I am not satisfied on the medical evidence that the appellant is so incapacitated today that she is unable to represent herself on the appeal. Nor am I satisfied that the appellant has made sufficient efforts to obtain legal representation, and I note that she was legally represented at the hearing before the primary judge. Accordingly, I refuse the application for an adjournment.

4    On 20 September 2017, the appellant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (visa). She applied for the visa to study a Certificate IV in Ageing Support commencing on 2 October 2017 and with an expected completion date of 31 March 2019. The appellant’s husband also applied for the visa as a member of her family unit, but he is not a party to the appeal.

5     On 22 February 2018, a delegate of the first respondent (the Minister) refused to grant the appellant the visa. The delegate was not satisfied that the appellant genuinely intended to stay in Australia temporarily and therefore found she did not meet the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). On 27 February 2018, the appellant lodged an application for review of the delegate’s decision to the Tribunal.

6    On 8 October 2019, the Tribunal invited the appellant to provide information to satisfy it that she met the requirements for the grant of the visa. In the invitation, the Tribunal explained that it was a requirement of the visa that she be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. The invitation enclosed a copy of Ministerial Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction 69), which the Tribunal explained it was required to have regard to in considering whether she was a genuine applicant for entry and stay as a student.

7    On 22 October 2019, the appellant responded and provided the Tribunal with a completed “Request for Student Visa Information” form, supporting documents, and a confirmation of enrolment (CoE) indicating she was enrolled in a Diploma of Leadership and Management with a commencement date of 22 April 2019 and an anticipated completion date of 18 October 2020.

8    On 27 November 2019, the appellant was invited to attend a hearing on 18 December 2019, which she attended. On 20 December 2019, the Tribunal affirmed the decision under review.

9    The Tribunal identified that the issue before it was whether the appellant was a genuine temporary entrant (as required by cl 500.212(a)). It also recorded that in considering whether cl 500.212(a) was met by the applicant, it was required to have regard to the specified factors in Direction 69.

10    The Tribunal found that the appellant had social, direct family and financial ties to Nepal which would act as an incentive for her to return. However, given the time she had spent in Australia and the intended period of further stay, the Tribunal was not satisfied that there was a significant incentive for her to return to Nepal. The Tribunal also identified that, after being in Australia for over 12 months, the appellant only applied for the visa three days before the expiration of her husband’s Subclass 485 visa. It considered that this strongly suggested that she was using the student visa system to prolong her stay without a genuine intention of being a temporary entrant. Noting that the proposed study would extend the appellant’s stay in Australia until at least October 2020, the Tribunal found that this was not the conduct of a genuine temporary student, but further suggested that the appellant was utilising the student visa to extend her stay in Australia (at [22]).

11    The Tribunal considered the appellant’s evidence as to the value of the course to her future, including remuneration and career prospects in Nepal, to be vague, and placed little weight on it. The Tribunal also gave little weight to what is described as the “curious” letters of offer of future employment in two years’ time (at [19] and [23]). Further, the appellant’s study plan was inconsistent with the plan she had when she initially entered Australia to join her husband (at [24]). The Tribunal was not satisfied that the proposed study would provide the appellant with significant value to her future beyond the qualifications that she already held (at [25]).

12    After weighing up all the information before it and the factors as a whole, the Tribunal found that the appellant was unable to satisfy it that she genuinely intended a temporary stay in Australia as a student (at [27]).

13    Given the disparity in economic circumstances between Nepal and Australia and her lack of substantial ties or assets in Nepal, the Tribunal was not satisfied that the appellant had a significant incentive to return (at [28]). The Tribunal was also concerned that her intention to live in Australia might be motivated by factors other than study because she was not able to demonstrate the value of the proposed course to her future (at [29]). Further, the Tribunal gave weight to the evidence that since her arrival, the appellant had not spent any time outside of Australia and found that this indicated she did not have strong personal ties to Nepal. Accordingly, it found her incentive to return to Nepal to be minimal (at [30]).

14    On balance, and in light of its findings, the Tribunal was not satisfied that the appellant’s circumstances were sufficient to demonstrate that she was a genuine temporary entrant (at [31]). Rather, it found that upon the evidence before it, the appellant was using the student visa program as a means of maintaining ongoing residence in Australia (at [34]).

15    The Tribunal concluded that the appellant did not satisfy cl 500.212 (at [35]). Accordingly, it affirmed the decision under review (at [36]–[38]).

16    On 23 January 2020, the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia. That application was amended on 12 June 2024 to include six grounds of review with two particulars (ultimately considered by the primary judge as eight grounds of review). The primary judge dismissed all grounds of review.

17    The six grounds of review and the two particulars (which became grounds 7 and 8) were as follows:

1.    The Second Respondent made a jurisdictional error by failing to provide natural justice and procedural fairness.

2.    The Second Respondent failed to take into account material questions of fact or integers of the claim.

3.    The Second Respondent identified a wrong issue.

4.    The Second Respondent did not adequately disclose determining factors so that the Applicants could make representations regarding them.

5.    The Second Respondent did not give the Applicants a reasonable opportunity to present their case.

6.    The Second Respondent ignored relevant materials submitted in support of his application for merits review and did not give the Applicants opportunity to make their case regarding these documents.

Particulars of jurisdictional error

1.    The following is a non-exhaustive list of issues that could each result in a jurisdictional error:

(a)    By incorrectly considering the Second Applicant’s previous study and current earnings in Australia.

(b)    By placing too much weight on which the visa application was made, without considering or inviting the applicant to provide further evidence of an earlier intention to study.

(c)    By placing too much weight on the First Applicant’s change of course from nursing to management

(d)    By failing to properly consider the First Applicant's ownership of an asset in their home country

(e)    By failing to properly consider offer letters of employment for the First and Second Applicant.

2.    The Second Respondent failed to comply with s 359A, 360, 424(A), 425 of the Migration Act 1958. The decision is therefore affected by jurisdictional error.

18    Grounds 1 and 8 were dealt with together. The primary judge provided a summary of how the argument had unfolded in the appellant’s three sets of written submissions and oral submissions at the hearing (at [45]–[56]). In the primary judge’s view, the appellant was “in no doubt” that the issue on review was whether she satisfied the genuine temporary entrant (GTE) criterion in cl 500.212 and that she came to the hearing on notice of the same by reason of the delegate’s decision (at [82]). Her Honour was also satisfied that this was not a case in which the Tribunal determined the review on issues which had been accepted by the delegate in favour of the appellant and which the appellant could have assumed were not live issues (at [83]). The primary judge considered that the appellant knew that the timing of her visa application and future career plans were matters which the delegate considered to be dispositive and were live issues before the Tribunal (at [84], [86]–[88], and [93]). Her Honour held that the Tribunal was not required to ask specific questions of the appellant about the timing of the visa application (at [88]). The primary judge further held that s 360 of the Act did not require the degree of granularity or particularity alleged by the appellant and that the delegate’s decision had put the appellant on notice of the relevant issues (at [93]–[94]). The primary judge was otherwise not satisfied that the brevity of the hearing was such that the appellant was not provided with a real and meaningful opportunity to give evidence and present arguments or that the allegation of apprehended bias made on this basis was made out in the context of what occurred at the hearing (at [96]–[107]). Her Honour held that the Tribunal complied with its obligations under s 360 of the Migration Act 1958 (Cth) (the Act) (at [107]). Her Honour was also not satisfied, to the extent the ground was “revived” to rely on an alleged breach of ss 359A, 359AA or 368, that the Tribunal failed to comply with these obligations (at [108]–[128]).

19    The primary judge dealt with Ground 2 and part of Ground 6 together to the extent that they both contended that there was a failure by the Tribunal to take facts and materials into account (at [129]). Her Honour considered that a fair reading of the Tribunal’s decision revealed that all of the various matters that were said not to have been taken into account were in fact taken into account (at [130]–[137]).

20    As to Ground 3, which evolved to be an argument that the timing of the visa application and the appellant’s job offer in two years’ time were irrelevant considerations, the primary judge disagreed. Her Honour found that the timing of the application was relevant to the factors in Direction 69 and that the complaint about the job offer was only about the way the Tribunal considered it, which was not a basis for judicial review (at [138]–[142]).

21    Ground 4 was identified as being in the “same territory” as Ground 8 and was not dealt with separately (at [143]–[144]).

22    Ground 5 and part of Ground 6 were also dealt with together. To the extent that the reference to “these documents” in Ground 6 was not clarified, her Honour indicated that the Court could not deal with this ground. However, to the extent that this ground could be understood as also being a complaint about s 360 of the Act, her Honour relied on her Honour’s earlier reasons (at [145]–[146]).

23    As for Ground 7, which contained a “non-exhaustive list of issues that could result in jurisdictional error”, the primary judge was not satisfied that any of those matters gave rise to error (at [147]–[154]). Nor was her Honour satisfied that any of the additional grounds not pleaded in the amended application but raised in the written submissions gave rise to error (at [155]–[162]).

24    Accordingly, the primary judge dismissed the application.

25    On 10 August 2021, the appellant filed a notice of appeal advancing six grounds as follows (omitting the particulars):

1.    Her Honour made jurisdictional error by misconstruing clause 500.212 of Schedule 2 of Migration Regulations 1994 and Direction No. 69.

2.    Her Honour made jurisdictional error by failing to consider that the Second Respondent took into consideration irrelevant facts and failed in its statutory task to provide the Applicant with a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review in accordance with s 360 of the Migration Act 1958.

3.    Her Honour made jurisdictional error by making an undue finding that the Second Respondent provided clear particulars to the applicant of the factors which were considered vital and adverse to her review application.

4.    Her Honour made jurisdictional error by making a decision which was unreasonable and irrational.

5.    Her Honour made jurisdictional error by denying natural justice and procedural justice.

6.    Her Honour made jurisdictional error by making a decision which was based on a strongly held view like the Second Respondent rather than making an actual active finding on the claimed grounds of jurisdictional errors.

26    Ground 1, when read with the particulars, appears to be a complaint about the primary judge’s determination of Grounds 2 and 3 in the court below.

27    Particular (a) reflects Ground 3 in the court below and is a complaint about [139]–[141] of the primary judge’s judgment. In those paragraphs, her Honour found that the Tribunal correctly identified the issue before it, being whether the appellant was a GTE by reference to cl 500.212 and Direction 69. There was no appellable error in that finding. The primary judge considered that the timing of the visa application was relevant to considering whether the appellant was seeking to use the visa to maintain ongoing residence. Her Honour also found that the employment offer letter was relevant to whether the course would assist the appellant to obtain employment. Moreover, her Honour identified that the letter of employment was evidence that the appellant provided in order to demonstrate her intention of returning to Nepal after her course, which was also plainly relevant (at [138]–[142]). These factors were explicitly prescribed by Direction 69 as matters to which a decision-maker should have regard in considering the GTE criteria (see cll 9(b) and 12). Accordingly, the primary judge (and by extension the Tribunal) did not misconstrue the Regulations or Direction 69. Properly understood, this is an argument that the primary judge should have made a different finding and, therefore, invites impermissible merits review.

28    Particular (b) reflects Ground 2 (and the related part of Ground 6) in the court below. Contrary to this complaint, the primary judge’s determination about the allegation made by the appellant that the Tribunal failed to consider facts and/or claims (which emerged at the hearing) was open on the basis of the Tribunal’s decision record (eg at [15] and [31], where the Tribunal referred to having considered the appellant’s written responses) and was consistent with authority (see, for example, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]–[47] (French, Sackville and Hely JJ)).

29    Ground 2 contends that the primary judge erred by failing to find that the Tribunal had considered irrelevant facts and failed to comply with s 360. Particular (a) argues the Tribunal prejudged the GTE question such that the hearing was an “empty bare gesture”, and particular (b) contends the primary judge based the decision on an inadequate and procedurally unfair hearing/decision by the Tribunal. This ground also relies on particulars (a) and (b) to Ground 1 of the notice of appeal. These grounds appear to be intended to reflect the argument made by Grounds 1 and 8 in the court below.

30    The primary judge’s determination that the Tribunal complied with the obligation in s 360 and provided the appellant with a “real and meaningful” opportunity (at [99]) does not reveal any appellable error for the following reasons:

(a)    the primary judge was correct to find that the appellant was on notice of the issues for determination before the Tribunal in circumstances where:

(i)    there was not a “new” issue before the Tribunal for determination (and the issues the Tribunal was required to raise were not at the level of granularity asserted by the appellant) (at [83]–[86]; [92]–[93]); and

(ii)    the obligation in s 360 did not extend to requiring the Tribunal to “prompt and stimulate an elaboration which an applicant chooses not to embark on” (at [88]);

(b)    while it can be accepted that the hearing before the Tribunal was brief, as the primary judge explained, that of itself does not reveal error by the Tribunal because there was no “minimum statutory time limit” for a hearing [98]. Moreover, the primary judge had before her Honour a transcript of the Tribunal hearing which she considered revealed that the appellant understood the process, the dispositive issue before the Tribunal, and did not have any difficulty understanding the questions asked of her or in giving her answers (at [99]–[101]); and

(c)    her Honour was also correct to find there was nothing in the evidence before the Court to indicate that the Tribunal was not open to persuasion (at [106]).

31    Ground 3 is not particularised so as to be meaningful. To the extent it also entails a complaint that the primary judge failed to find that the Tribunal complied with its procedural fairness obligations, the matter has already been dealt with above.

32    By Ground 4, the appellant contends the primary judge’s decision was unreasonable and irrational because (as particularised) her Honour failed to “make an active consideration and finding of the issue whether the applicants had a meaningful opportunity to put their case” before the Tribunal. This ground refers to [146] of the primary judge’s judgment (which dealt with a further, unparticularised complaint about a breach of s 360) and also relies on the particulars to Grounds 1 and 2 of the notice of appeal. This complaint cannot succeed against the primary judge’s reasons for judgment which demonstrate a detailed, careful and active consideration of the complaint that the Tribunal had breached the obligation in s 360 of the Act. For the reasons already explained in relation to Ground 2 of the notice of appeal, this ground does not demonstrate any appellable error by the primary judge.

33    Ground 5 (as particularised) contends that the primary judge should have allowed the appellant a further opportunity to elaborate on those aspects of the submissions which the primary judge found to be unclear. This complaint is misguided. The appellant, who was legally represented in the court below, was given numerous opportunities to present her case and was even given leave, at a very belated stage, to raise a previously abandoned argument (at [109]–[113]).

34    Ground 6 contends that the primary judge made a decision “based on a strongly held view like the second respondent” rather than making “an actual active finding on the claimed grounds of jurisdictional error”. This unparticularised claim of bias by the primary judge is wholly unsupported by evidence.

35    Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:    15 July 2026