Federal Court of Australia

Kunwar v Minister for Immigration and Citizenship [2026] FCA 1289

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The appeal is dismissed.

3.    The Appellant pay the First Respondent’s costs, fixed in the sum of $3,600.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): Kunwar v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 641 (J). The primary judge dismissed an application for review of a decision of the former Administrative Appeals Tribunal, which affirmed a decision not to grant the Appellant a Student (Temporary) (class TU) subclass 500 (Student) visa.

2    For the following reasons, the appeal is dismissed with costs.

background

3    Arrival in Australia (2008): The Appellant is a citizen of Nepal. He first came to Australia in 2008 (J [3]).

4    Application for student visa (Mar 2018): On 19 March 2018, the Appellant applied for a student visa. He stated that he was proposing to study a Bachelor of Accounting.

5    Visa criteria (cls 500.212, 500.214): The criteria for the Student visa were set out in Pt 500 of Sch 2 to the Migration Regulations 1994 (Cth). Within the primary criteria, cl 500.212 set out a genuine temporary entrant requirement. Clause 500.214 set out a genuine access to funds requirement, as follows:

500.214

(1)     The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).

(2)     While the applicant holds the visa, sufficient funds will be available to meet:

(a)     the costs and expenses of the applicant during the applicant’s intended stay in Australia; and

(b)     the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.

(3)     If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

Note    For arrangements for the use of a computer program, see section 495A of the Act.

(4)     The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).

6    Legislative instrument Migration (LIN 19/198: Evidence of financial capacity—Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (Cth) was made under cl 500.214(4).

    Clause 6 of LIN 19/198 set out the evidence of financial capacity that was required for primary applicants for the Student visa.

    Clause 10 of LIN 19/198 specified the permitted forms of evidence of financial capacity (such as money deposit with a financial institution: cl 10(a)).

7    Delegate refuses application (May 2018): On 15 May 2018, a delegate of the First Respondent (the Minister) refused the application. The delegate was not satisfied that the Appellant had provided evidence of sufficient funds to meet their travel expenses, living costs and annual course fees, as required by cl 500.214.

8    Application for merits review (Jun 2018): On 5 June 2018, the Appellant applied to the Tribunal for merits review of the delegate’s decision.

9    On 22 May 2020, the Tribunal invited the Appellant to a telephone hearing on 10 June 2020. The hearing letter requested the Appellant provide certain evidence and information at least 7 days before the hearing day, including:

3.     Either:

•    Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.

OR

•    Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.

10    The Appellant appeared before the Tribunal by telephone on 10 June 2020. He was assisted with an interpreter, although at times he chose to respond in English (Tribunal reasons (AAT) [9]).

11    AAT affirms refusal decision (Jul 2020): On 14 July 2020, the Tribunal affirmed the decision not to grant the Appellant a student visa. The key parts of the Tribunal’s reasons are as follows.

(a)    At the hearing, the Tribunal raised its concern as to the lack of evidence submitted to meet cl 500.214. The Appellant stated that his parents had been and were supporting him. When asked how he receives their financial support, the Appellant said they transfer money into his account, and that he had evidence of the funds transfers to show this. The Tribunal requested evidence of this (AAT [11]).

(b)    On 6 July 2020, the Appellant submitted various documents, including: a bank statement indicating that Hikmat Bahadur Kunwar held an amount equivalent to more than AUD$41,000 in a savings account; a certificate stating that Hikmat Bahadur Kunwar is the Appellant’s father; and a letter of sponsorship from Hikmat Bahadur Kunwar stating that he is sponsoring the Appellant to study (AAT [18]).

(c)    The Tribunal was satisfied that the Appellant had provided evidence of his financial capacity in accordance with LIN 19/198, and that he met cl 500.214(3) (AAT [29]). The Tribunal was satisfied that there were sufficient funds to meet the Appellant’s costs and expenses, within cl 500.214(2) (AAT [31]).

(d)    However, the Tribunal was not satisfied that the Appellant would have genuine access to these funds, as required by cl 500.214(1). Although the Appellant stated that his parents had transferred money into his account, he had not provided evidence of how he had accessed his parents’ funds in the past (which would be indicative of how he would access those funds in the future). Despite the letter of sponsorship from the Appellant’s father, the Tribunal could not be satisfied that the Appellant would have genuine access to funds (AAT [33]-[34]).

12    Application for judicial review (Aug 2020): On 15 August 2020, the Appellant applied to the FCFCOA for judicial review of the Tribunal’s decision. The grounds of review were as follows (particulars omitted):

1.    Both the Administrative Appeals Tribunal (the “AAT”) and the Department of Home Affairs (the “DHA”) denied the Applicant natural justice and/or procedural fairness and erred by failing to consider and give appropriate weight to the facts and evidence in the Applicant’s claims.

2.    The AAT and the DHA have failed to consider relevant considerations.

3.    both the AAT and the DHA applied the guiding policies and procedures inflexibly without having proper regard to the Applicant’s circumstances.

4.    The AAT has considered irrelevant factor.

13    This application was heard on 9 April 2025. The Appellant did not file written submissions.

14    Primary judge dismisses application (May 2025): On 7 May 2025, the primary judge dismissed the application for judicial review.

15    The Appellant conceded that he did not draft the grounds of review. He was unable to assist the primary judge on why the Tribunal’s decision contained a jurisdictional error. He acknowledged that he had not provided the Tribunal with any information after the hearing that confirmed how he accessed the funds in the bank account. He said he may yet be able to provide that information, but the primary judge stated (correctly, with respect) that this was not relevant to the review of what the Tribunal did when it made its decision (J [12]).

16    The primary judge considered and rejected the Appellant’s grounds of review, concentrating on the alleged errors of the Tribunal (and not the Department).

    Ground 1 ultimately was an impermissible invitation for the FCFCOA to undertake merits review. The Tribunal’s conclusion of fact on whether the Appellant had genuine access to the funds was plainly open to it on the evidence (J [16]). There was no basis for the complaint that the Tribunal had failed to afford procedural fairness (J [17]).

    Ground 2 was rejected for much the same reasons: the Tribunal’s finding was open to it, and there was no failure by it to have regard to relevant considerations (J [20]).

    Ground 3 was misconceived because the Tribunal was not applying “policies and procedures”, but was applying the terms of cl 500.214 and LIN 19/198, a legislative instrument (J [21]). The Appellant’s compliant immigration history was not relevant to whether he met the requirements of cl 500.214. No cultural evidence had been provided to the Tribunal that Nepalese parents would feel obliged to support their children, so the Tribunal could not have erred by failing to consider this matter (J [22]-[23]).

    Ground 4 again revealed no more than a disagreement as to the factual merits of the Tribunal’s decision. The Tribunal’s concern to see evidence of the Appellant obtaining access to the funds was not irrelevant (J [26]).

17    Notice of appeal (May 2025): On 19 May 2025, the Appellant filed a notice of appeal, which contains four grounds of appeal:

1.     The Hon. Federal Circuit and Family Court of Australia judge Hon. McCabe made legal error in dismissing my application for judicial review without consideration of evidence provided.

2.     The Hon. Federal Circuit and Family Court Judge made legal error in his judgement by not considering mistakes made in AAT decision and properly Appl[y]ing criteria prescribed in the rules according to the Migration Regulations 1994 (the Regulations).

3.     The Administrative Appeals Tribunal in its decision did not consider the information provided and made legal error.

4.     Administrative Appeals Tribunal made error Para:29: Did not consider the evidence provided at paragraph:18 and made legal error.

18    The Appellant filed an affidavit dated 16 May 2025 with the notice of appeal. That affidavit does not contain any arguments as to why the Tribunal’s decision was unlawful, or why the decision of the primary judge was incorrect. Instead, after summarising the procedural background, the Appellant states:

11.    I like to request Honourable Federal Court of Australia to consider my circumstance and legal error made by the Honourable Federal Circuit and Family Court of Australia and Administrative Appeals Tribunal to allow my appeal to be heard and decision in my favour.

19    Hearing (Aug 2026): The appeal was heard on 31 August 2026. The Appellant appeared with the assistance of an interpreter. The following exchange occurred:

Judge:    Madam Interpreter, could you please translate this for the appellant. It’s your appeal and you can decide what you want to happen.

Interpreter: Sir, I have submitted everything. That should be in the file.

J:    I haven’t received any submissions. Have you filed any written submissions?

I:    So any documents that I received I have submitted that all. I have not received anything else.

J:    That’s not quite what I was asking. [to the interpreter] Could you please ask, what documents have you filed? … I’m holding up a notice of appeal, so that’s what I’ve seen.

Appellant: And a notice of filing. Some would say a notice of filing.

J:    I also have an affidavit from the appellant dated 16 May 2025.

I:     Yes.

J:    Is there anything else?

A:    No. Sorry. I just have - - -

I:     No that’s all I have for now.

J:     This is your one chance to say anything you want in support of your appeal. Is there anything you want to say?

A:    I have submitted all in the documents, your Honour. That’s all.

J:    Do you mean the two documents we’ve just said? The notice of appeal and the affidavit. Is there anything else?

A:     I got the email but I haven’t, I haven’t noticed anything. I haven’t submitted anything. Just the file, whatever. I have submitted before in 2025. That’s all I have.

J:     Okay. Is there anything you want to say today?

A:     It’s all the file I have submitted. That’s all I will speak of.

J:    Okay. You can say something to the interpreter in your own language if you’d like.

I:     So everything that was required to be submitted was submitted in 2025. After the further email I have not made any submissions in regards to the visa processing and the lodgement. I haven’t submitted anything.

J:     Madam Interpreter, could you please ask the appellant is there anything else you would like to say?

I:     Nothing further. I have submitted the documents. The same one is from 2025 and this one. I’ve submitted it all.

consideration

Two general comments

20    As the Appellant does not have a lawyer acting for him in this appeal, I begin with two general comments.

21    Court asks only whether the Tribunal decision was lawful: First, as explained to the Appellant at the hearing, the Court in judicial review proceedings does not determine whether the Tribunal’s decision was correct on the merits. Instead, the only issue is whether the Tribunal’s decision was lawfully made. The specific issue before the primary judge was whether the Tribunal’s decision contained a serious legal error, called a “jurisdictional error”. On appeal, this Court asks whether the primary judge was correct to find that the Tribunal’s decision did not contain any jurisdictional error: see DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 at [63] (Rangiah J, with Reeves and Bromwich JJ agreeing); CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [3] (the Court).

22    Duty to make sure Court’s processes are fair: The second general point is that a judge has a duty to ensure that a hearing is fair to all parties (that is, both appellants and respondents). If a party does not have a lawyer, the judge may tell them about the practices and procedures of the Court, as relevant, to try to ensure a fair hearing. However, the judge does not give legal or tactical advice to a party who does not have a lawyer, because the judge must be impartial. See generally NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court), and Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court).

23    Importantly, this duty is to ensure that the Court’s processes are fair: the Court must apply the law as it is, and cannot simply make orders to achieve a result that the Court thinks is “fair”. But I will consider whether any argument of substance arises squarely from the materials: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]-[10] (Colvin J); BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531 at [35], [38] (Wheelahan J).

24    Appellant’s arguments: The Appellant’s arguments can be considered with these principles in mind.

25    The Appellant’s first three grounds of appeal make general assertions of error, without providing any details of what is said to constitute the error.

    Grounds of appeal 1 and 2 assert that the primary judge did not consider the evidence provided, did not consider the mistakes in the Tribunal’s decision, and did not properly apply the criteria in the Regulations. However, the notice of appeal does not explain what evidence was not considered, what mistakes by the Tribunal were overlooked, or what criteria were misapplied.

    Similarly, ground of appeal 3 contends that the Tribunal made a legal error by not considering the information provided. However, the notice of appeal does not explain what information was overlooked.

26    As set out above, the Appellant at the hearing relied on what was contained in his notice of appeal and his affidavit, and did not seek to add to what was in these documents.

27    I am satisfied that the Tribunal considered the correct question (relevantly, did the Appellant meet the criteria in cl 500.214), and considered all of the information provided by the Appellant that was relevant to those criteria. The Tribunal was not satisfied that the Appellant had “genuine access” to the funds in his father’s bank account, because there was no evidence of him obtaining access to those funds in the past. It was open to the Tribunal to consider that, given the Appellant claimed that he had obtained access to those funds in the past and would be able to obtain access to them in the future, the Appellant should be able to provide evidence that he had obtained access to the funds in the past. The Tribunal had asked for this evidence at the hearing, and the Appellant said he could and would provide the evidence. But he did not.

28    Ground of appeal 4 contends that the Tribunal made an error in AAT [29] by not considering the evidence at AAT [18].

    AAT [18] summarises the evidence provided by the Appellant after the Tribunal hearing. AAT [29] actually makes a finding in the Appellant’s favour; namely, that he had provided evidence of funds that met the requirements of s 10 of LIN 19/198 (a money deposit with a financial institution).

    The Tribunal’s negative finding is in AAT [33], which finds that the Appellant had not provided evidence that showed he had “genuine access” to these funds, within cl 500.214(1). The Tribunal plainly did consider the Appellant’s evidence (summarised in AAT [18]) in making this finding, including the father’s letter of sponsorship, but decided that this evidence did not satisfy the Tribunal that the Appellant had genuine access to the funds. There was no failure to consider evidence by the Tribunal.

29    No other obvious error: Finally, given that the Appellant is legally unrepresented, I have considered whether the decision of the primary judge (and of the Tribunal) contains any other self-evident legal error: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); BNM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1433 at [23] (Colvin J); DRY18 v Minister for Immigration and Citizenship [2026] FCA 1077 at [30] (Needham J). I am satisfied that neither decision contains any obvious legal error.

conclusion

30    The appeal must therefore be dismissed.

31    Costs: The usual position is that the unsuccessful party pay the legal costs of the successful party. A person’s financial capacity to pay costs is not relevant to whether costs should be awarded: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25], [35] (the Court).

32    The Minister seeks costs in a fixed sum of $3,600. In the case of proceedings to challenge migration decisions, the Federal Court Rules 2011 (Cth) set out an amount that may be claimed if an appeal is discontinued before hearing (currently $5,648), and a higher amount that may be claimed if an appeal is dismissed after hearing (currently $8,907): see Rules r 40.43, Sch 3 items 15.1 and 15.2. I am satisfied that the amount sought by the Minister is reasonable and proportionate, having regard to the nature and complexity of this appeal: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at [18] (Kenny J).

33    At the hearing, the Appellant asked whether it was possible for him to pay any costs in instalments. As explained to him at the hearing, the Court’s role is to determine whether costs are payable and (if appropriate) the amount. The Court’s order creates a debt owing by the Appellant to the First Respondent. It is a matter for the First Respondent how it seeks to recover this debt: Webb v Australian Information Commissioner [2026] FCA 678 at [24] (Needham J). It can be expected that the First Respondent, as a model litigant, would enforce its legal rights in a reasonable manner.

Associate:

Dated:    3 September 2026