Budhathoki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1129
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Budhathoki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1129
File number(s): SYG 2508 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 1 November 2024 Catchwords: MIGRATION – Student visa – genuine temporary entrant criterion – whether the Tribunal failed to engage with the evidence – whether the finding that the applicant did not have strong ties to her home country on the basis of a lack of employment prospects and the applicant’s economic circumstances was illogical – whether finding that the applicant’s courses of study lacked value to her future was illogical – application dismissed Legislation: MigrationAct1958 (Cth) s 359
Migration Regulations 1994 (Cth) Sch 2 cl 500.212
Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
BKTS v Minister for Immigration,Citizenship and Multicultural Affairs [2023] FCA 729
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
BQG21 v Minister for Immigration [2023] FCA 865
BZI17 v Minister for Immigration [2022] FedCFamC2G 717
DVS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 611
Markaj v Minister for Immigration [2020] FCA 1511
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99
Ngatoko v Minister for Immigration [2023] FCA 1165
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417
SZSZQ v Minister for Immigration [2018] FCA 403
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 14 October 2024 Place: Parramatta Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Residency Legal Solicitor for the First Respondent: Mr C Juarez, MinterEllison Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
SYG 2508 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MINA BUDHATHOKI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
1 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to ‘Minister of Immigration and Multicultural Affairs’.
2.The application filed 12 November 2020 is dismissed.
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 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).
REASONS FOR JUDGMENT
JUDGE SKAROS
By application filed on 12 November 2020 and an amended application on 8 April 2022, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 15 October 2020. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) to refuse the applicant a Student (Class TU) (subclass 500) visa (the student visa).
BACKGROUND
The background to the matter is taken from the Court file and the written submissions of the parties. Unless otherwise indicated, it does not appear to be in dispute.
The applicant is a citizen of Nepal. On 24 January 2019, she applied for a student visa on the basis of her enrolment in a Diploma and Advanced Diploma of Leadership and Management at the Australasian International Academy.
On 12 March 2019, the delegate refused to grant the applicant a student visa on the basis that she did not satisfy clause 500.212 of the Migration Regulations 1994 (the Regulations) (genuine temporary entrant criterion).
On 15 October 2020, the applicant appeared at a hearing before the Tribunal to give evidence and present arguments. The Tribunal affirmed the decision under review by way of oral reasons at the hearing. On 10 November 2020, the Tribunal provided a written statement of the decision and reasons.
THE TRIBUNAL’S DECISION
The Tribunal noted that the applicant had arrived in Australia on 6 April 2019 as a dependent on her then husband’s student visa, but that they had since separated, and she was now applying for a student visa in her own name (at [13]).
The Tribunal expressed concerns that the applicant did not have a significant incentive to return to her home country, as she:
(a)maintained daily contact with her family while in Australia (at [20]);
(b)lacked employment upon return to Nepal (at [20]);
(c)had no assets or property in her name in Nepal (at [21]);
(d)had not provided any documentary evidence regarding her family’s economic circumstances, namely pertaining to the family business or any property owned by the family (at [21]); and
(e)earned significantly more in Australia than she was in Nepal, where she was earning at the most the equivalent of $237 per month as a receptionist ([21]-[22]).
The Tribunal did not consider that there was sufficient evidence to demonstrate that the applicant had any particularly strong ties to Australia that would be a strong incentive for her to remain here (at [26]). It also found that she had no military service commitments and no concerns about any political or civil unrest in Nepal (at [24]).
While the Tribunal accepted that “the lack of available similar courses in [the applicant’s] home country [was] a sound reason for not undertaking study of the proposed two courses or similar courses in [her] home country”, it had concerns about the value of the courses to the applicant’s future employment (at [16], [26]).
At the hearing, the Tribunal found that the applicant did not provide an in-depth analysis as to how the courses and subjects were going to assist her and noted that she had confirmed that she had no work experience or qualifications in the healthcare sector (at [31]).The applicant also asserted that she would be undertaking a bachelor’s degree in public health service in Nepal ([32]).
The Tribunal did not consider the courses to have any relevance to her past employment nor to her future employment. Accordingly, it did not consider the leadership and management courses would improve her remuneration if she was working in the healthcare sector in Nepal. It was concerned that she was using the student visa to maintain ongoing residence in Australia and was not satisfied she was a genuine student who genuinely intended to stay in Australia temporarily (at [36], [39]).
For those reasons, the Tribunal was not satisfied the applicant met cl 500.212 of the Regulations and accordingly, affirmed the decision of the delegate to refuse to grant her a student visa (at [39]-[42]).
APPLICATION TO THIS COURT
The originating application which commenced proceedings in this Court was filed on 12 November 2020.
The applicant ultimately relied on an amended application for judicial review filed on 5 April 2022.
On 24 July 2024, orders made by a Registrar of this Court provided for the applicant to file and serve any amended application, written submissions and any additional evidence on or before 31 July 2024. It also provided for the Minister to file and serve any written submissions and additional evidence on or before 14 August 2024.
In compliance with orders made by a Registrar of this Court, the applicant filed a written outline of submissions on 29 July 2024 and the Minister filed their written outline of submissions and list of authorities on 14 August 2024.
The parties appeared at a hearing before the Court on 14 October 2024. The applicant was represented by Mr Oliver Jones of Counsel and the Minister was represented by Ms Carmen Juarez, a solicitor advocate. The parties relied on their written submissions and expanded upon those submissions orally at the hearing.
The Court Book (CB), which comprised 122 pages, was tendered into evidence.
GROUND OF REVIEW
The amended application contained a single ground of judicial review, with particulars (a)-(n). The ground alleges that:
1.Tribunal made a jurisdictional error in concluding that the applicant did not satisfy the genuine temporary entrant criterion.
Particulars
a)As part of the law of irrationality or legal unreasonableness, illogical reasoning by a decision-maker on the way to a final conclusion may establish jurisdictional error: CGA15 v Minister for Immigration [2019] FCAFC 46; 268 FCR 362 at [58]-[59];
b)In relation to the Tribunal’s duty to give proper consideration to the Applicant’s case, the question of whether the Tribunal has failed to effect active intellectual engagement is a matter of impression in the circumstances of the case, necessitating a qualitative assessment of whether in substance the requisite consideration occurred: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89];
c)Proper consideration requires more than mere acknowledgement of the Applicant’s case and may require the Tribunal to make specific findings of fact with respect to the case: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 289 at [39];
d)Clause 500.212 requires “satisfaction of an overall state of affairs”, being “a genuine applicant for entry and stay as a student”, although cl 500.212(a) requires separate analysis such that if it is not satisfied it is unnecessary to consider the balance of cl 500.212: Dait v Minister for Immigration [2022] FCAFC 25 at [31], [32], [35] and [37];
e)The Tribunal at [16] found in favour of the Applicant that her courses of study were not available in her home country;
f)The Tribunal at [26] found in favour of the Applicant that the Applicant did not have “any particularly strong ties to Australia that would be a strong incentive” for her “to want to remain here”;
g)The Tribunal at [37] found in favour of the Applicant that there was “nothing particularly adverse” in her “immigration history”;
h)The Tribunal at [20] found that the Applicant maintaining daily contact with her family meant she was capable of keeping up her family ties whilst in Australia and those ties therefore “do not represent a strong tie” to the Applicant’s home country. This was illogical or entailed a want of proper consideration as with daily contact the desire to return could be made stronger and therefore represent a strong tie;
i)The Tribunal at [20] found that the Applicant’s lack of employment upon her return to her home country demonstrated a lack of significant ties without effecting proper consideration of the Applicant’s proposed study upon her return;
j)The Tribunal at [21] and [23] found that the Applicant’s economic circumstances did not represent a strong tie to her home country in light of her earnings in Australia and her earnings in her home country before her departure, without having proper regard to the difference in the cost of living and whether the Applicant’s earnings in Nepal would increase once her Bachelor’s Degree was completed as described by the Tribunal at [29];
k)The Tribunal at [26] and [39] found that the lack of value of the Applicant’s courses of study to her future left it concerned that the Applicant was using the student visa to maintain ongoing residence in Australia;
l)In the process of reaching the conclusion referred to in the preceding paragraph, the Tribunal found at [34] that the Applicant does not and will not “hold from the courses … in Australia the sufficient qualifications or knowledge to work in the healthcare sector”. This was illogical or showed a want of proper consideration as the Applicant’s case was that the courses would help her and improve her English, before undertaking a Bachelor’s degree in public service;
m)Likewise, the Tribunal found at [35] and [36] that the Applicant’s proposed Bachelor’s degree would get her employment in the healthcare sector not her courses in Australia, without grappling with the possibility that the courses could provide some assistance, including English language proficiency, and general skills referred to by the Tribunal at [28] and [30];
n)The Tribunal at [36] referred to the Applicant’s employment in the healthcare sector being “a long way off” and “it follows” that the courses of study in Australia would not “have any bearing on [her] remuneration” in that sector. This was illogical or reflected a want of proper consideration as immediate employment was not a necessary element of genuineness nor did increased remuneration need for that purpose to be demonstrated.
Relevant case law
Particulars (a) to (d) set out case law relevant to the jurisdictional error(s) that the applicant seeks to establish. The applicant contends, by reference to the detailed particulars in (h) to (n), that the error was one of legal unreasonableness going to either a finding of fact or want of logic in the Tribunal’s reasoning, and its ultimate conclusion, that the applicant was not a genuine temporary entrant.
In written submissions, the applicant referred to Minister for Immigration v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] where Robertson J stated:
148.In my opinion, the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.
The applicant also relied upon ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47] in which Griffiths, Perry and Bromwich JJ further stated:
47.… Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).
The applicant, by reference to BQG21 v Minister for Immigration [2023] FCA 865 at [29], [39]-[44], and the authorities referred to therein, submitted that another (overlapping) test is the question of whether there was an absence of an “evident or intelligible justification” for the finding or reasoning of the Tribunal.
The applicant also relied on another (overlapping) concept of legal unreasonableness, being that of an “unwarranted assumption”. It was submitted that a finding of fact may be held legally unreasonable on the basis that it concerns human conduct and makes an assumption about that conduct which is not founded in the material before the Tribunal or otherwise supportable: BZI17 v Minister for Immigration [2022] FedCFamC2G 717 at [28]-[34], [48]. It was also submitted that reliance on unwarranted assumptions has sometimes also been characterised as a failure by the decision-maker to consider the applicant’s case or material in support of that case: DVS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 611 at [21], [65].
The Court has also had regard to the principles relevant to the error of “unwarranted assumption” as summarised by Perram J in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [7]-[8], specifically at [8], where his honour stated:
8.Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration and BorderProtection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. In this case, therefore, this means that the question for decision is whether the Tribunal's impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.
The applicant also submitted it was also possible to establish jurisdictional error by reference to allegations of a want of proper, genuine and realistic consideration or active intellectual engagement with the visa applicant’s case: Ngatoko v Minister for Immigration [2023] FCA 1165 at [53], [60] per Feutrill J. The applicant nevertheless acknowledged the note of caution in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [26]:
26.Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision maker's] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
The applicant also referred to the broader notions of jurisdictional error entailing want of proper consideration, including where the decision-maker fails to apply his or her mind to the statutory test, which the applicant submitted is conceptually distinct from misunderstanding or misinterpreting the statutory provisions: SZSZQ v Minister for Immigration [2018] FCA 403 at [69] per Katzmann J and authorities cited therein.
The applicant submitted that the Tribunal may also fail to exercise its jurisdiction by “ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction”. As put in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [54], referring with approval to SZRKT, the Tribunal’s “error in ignoring material may be serious and go to the exercise of the Tribunal’s functions”.
The Court acknowledges, as submitted, that the categories of jurisdictional error, particularly those raised by the applicant, do not travel in “watertight compartments” and, depending on their application, may sometimes overlap: Markaj v Minister for Immigration [2020] FCA 1511 at [27]).
In applying the above principles, it is important to bear in mind that the threshold for finding jurisdictional error on the ground of illogicality, irrationality or legal unreasonableness (or varieties thereof) is a high one and is not a finding to be made lightly: BKTS v Minister for Immigration,Citizenship and Multicultural Affairs [2023] FCA 729 at [45]-[46] (Perry J).
Further, in evaluating whether the Tribunal’s decision was legally unreasonable, the Court must have regard to the terms, scope and policy of the statutory source of the power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9].
The relevant legislative provisions
The Tribunal was required to determine, as required by cl 500.212 of Schedule 2 to the Regulations, whether the applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter;
…
In considering whether the applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 (Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications) (Direction No. 69).
Direction No. 69 provides guidance to decision makers when considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
It states that decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
(a)considering the applicant against all factors specified in this Direction; and
(b)considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
Favourable findings by the Tribunal
Particulars (e) to (g) in the amended application set out the findings made by the Tribunal which were favourable to the applicant. This included that; the applicant’s intended courses of study were not available in her home country; her ties to Australia were not a particularly strong incentive for her to remain in Australia; and she did not have an immigration history of concern.
The decision record indicates that the Tribunal, in undertaking the evaluative exercise required by Direction No. 69, had regard to the relevant factors pertaining to the applicant’s circumstances in her home country and Australia, the value of the courses to the applicant’s future and the applicant’s immigration history. Some of these factors were found by the Tribunal to be indicative of a genuine intention to temporarily stay in Australia and others were not.
The applicant does not contend any error on the part of the Tribunal by particulars (e) to (g) and no error is apparent in the approach taken by the Tribunal or its findings in respect of those considerations.
The applicant’s circumstances in her home country: personal ties
By particular (h), the applicant takes issue with the Tribunal’s finding at [20] that the applicant has been able to maintain ties with her family in Nepal whilst she has been in Australia and, for this reason, did not have strong personal ties in her home country. The error alleged is one of illogicality (or a want of proper consideration) and the making of an unwarranted assumption. The Tribunal is alleged to have equated daily contact by modern means of communication with an actual presence of the applicant with her family in her home country. It was submitted that in equating them, the Tribunal was making an unwarranted assumption that a long-distance relationship with her family in Nepal was sufficient.
Paragraph 9(b) of Direction No. 69 required the Tribunal to consider the extent of the applicant's personal ties to her home country and whether they would serve as a significant incentive for her return to her home country. The Court is satisfied that the Tribunal properly considered the evidence before it relevant to this factor at [20]. In doing so, the Tribunal found that the applicant had personal ties (family) in Nepal, but it reasoned that those ties did not represent a strong incentive for her to return there as she had been able to maintain contact with her family via modern means of communication. The Court accepts the Minister’s submission that it was open for the Tribunal to make this finding on the evidence before it. The Court does not consider the Tribunal’s reasoning in this regard to be illogical or that, in the process of its reasoning, it had made an assumption that no logical or reasonable decision maker could make.
For these reasons, particular (h) does not establish jurisdictional error.
The applicant’s employment ties in her home and the value of the proposed courses to the applicant’s future.
By particular (i), the applicant takes issue with the Tribunal’s finding at [20] that the applicant’s lack of employment upon return to Nepal demonstrated a lack of significant ties to her home country. The error is said to be a failure to properly consider (or to grapple with) the significance of the applicant’s evidence that she intended to engage in further study at university level upon her return, which would precede employment. In the circumstances, it was contended that the absence of immediate employment could not logically be a matter that weighed against the applicant.
The considerations and findings made by the Tribunal appear to be in the context of the factors set out in Direction No. 69 to which the Tribunal was required to have regard. Paragraph 9(b) required the Tribunal to have regard to whether the applicant’s employment ties in Nepal provided a significant incentive for her to return there. The evidence before the Tribunal was that the applicant did not have employment upon return to Nepal, it was therefore open for it to find that this demonstrated a lack of significant incentive to return there.
As to the applicant’s evidence regarding her intention to engage in further study upon return to Nepal, a fair reading of the Tribunal’s decision demonstrates that the Tribunal understood (and considered) the applicant’s evidence that it was her intention to study a bachelor’s degree in public health service upon return to Nepal. This evidence was considered in the context of paragraph 12 of Direction No. 69 which required the Tribunal to consider the value of the courses that the applicant was seeking to undertake in Australia to her future, including the relevance of the course to her past or proposed future employment in her home country.
At [28] of its decision, the Tribunal expressed concern about whether the applicant’s proposed courses (the Diploma and Advanced Diploma of Leadership and Management) would assist her in obtaining employment in Nepal. At [31] the Tribunal also considered the applicant’s evidence that she wanted to work in the healthcare sector. The Tribunal expressed its concern that the applicant had no work experience or qualification in the healthcare sector, either in Nepal or Australia. After considering the applicant’s evidence that she wished to complete a bachelor’s degree in public health service in Nepal at [32]-[33], the Tribunal found that it was this qualification that would assist the applicant in working in the healthcare sector in Nepal (at [35]). It considered that the applicant’s proposed courses in leadership and management would have minimal relevance to her future employment and was not satisfied that it would provide her with the skills, knowledge and qualifications to work in the healthcare sector (at [36]).
The Tribunal engaged with the evidence given by the applicant regarding her study intentions in Nepal. The Tribunal was entitled to consider that evidence in the context of the applicant’s employment intentions in her home country and whether the courses she proposed to undertake in Australia would assist her with that employment. The Tribunal’s concern regarding the value of the proposed courses led to it concluding that the applicant was using the student visa to maintain ongoing residence in Australia. The Tribunal’s reasoning and conclusions in this regard, do not disclose a failure to properly consider the evidence. It was open for the Tribunal to make the findings it made on the evidence before it. The weight given to this consideration was a matter for the Tribunal as part of its ultimate balancing exercise. It cannot be said that the findings were illogical or not based on the evidence before the Tribunal.
For these reasons, particular (i) does not establish jurisdictional error.
The applicant’s economic circumstances
By particular (j) the applicant takes issue with the Tribunal’s consideration of the applicant’s economic circumstances at [21] and [22] and the finding that it did not provide a strong incentive to return to Nepal at [23]. The error alleged is one of illogicality or a failure on the part of the Tribunal to engage with the applicant’s circumstances. It was submitted that there would be a substantial difference between the cost of living in Nepal and Australia, with the result that the supposedly higher earnings in Australia, which the Tribunal acknowledged were for living expenses, did not produce a net gain. It was submitted that the applicant had foreshadowed a career path after study in Nepal and it was the earnings of that career path, rather than past employment in Nepal without the benefit of such study, which were ultimately of relevance.
Paragraph 9(c) of Direction No. 69 required the Tribunal to consider the applicant’s economic circumstances and whether they would provide a significant incentive for the applicant not to return to their home country. This factor also provided for the Tribunal to consider the applicant’s economic circumstances relative to their home country and Australia.
A fair reading of the Tribunal’s decision indicates that it had regard to the evidence before it regarding the applicant’s economic circumstances, as required by Direction No. 69. It found that the applicant did not own property or assets. It noted that the applicant’s earnings in Nepal were $237 per month as a receptionist and that her earnings in Australia were $24,000 per annum, which appeared to cover the applicant’s expenses whilst in Australia. Having regard to this evidence, the Tribunal was not convinced that the applicant’s economic circumstances provided a significant incentive for her to return to Nepal after completion of her studies.
The Tribunal considered (and engaged with) the evidence that was presented to it. No evidence or submissions were provided to the Tribunal about the cost of living in Nepal as compared with Australia. Nor did the applicant provide evidence as to the increase in her earning capacity in Nepal following completion of her bachelor’s degree. The applicant was invited to provide evidence relevant to the considerations in Direction No. 69 pursuant to s 359(2) of the MigrationAct1958 (Cth) (CB 64-70) and in the hearing invitation letter (CB 92-94). It was for the applicant to present evidence regarding her comparative economic circumstances in Australia and Nepal, including her earning capacity in Nepal following completion of her degree. No obligation arose on the part of the Tribunal to inform the applicant of any gaps or deficiencies in the evidence pertaining to her economic circumstances.
The Tribunal’s consideration of the evidence was not illogical or unreasonable, and its finding that the applicant’s economic circumstances did not provide a significant incentive to return to Nepal was open to it on the evidence before it.
For these reasons, particular (j) does not establish jurisdictional error.
The value of the proposed course to the applicant’s future
By particulars (k) and (l) the applicant takes issue with the Tribunal’s consideration regarding the value of the courses she proposed to study (the Diploma and Advanced Diploma of Leadership and Management), which it found would not provide her with sufficient qualification or knowledge to work in the healthcare sector. The error alleged is that of illogicality or want of proper consideration on the part of the Tribunal, as the applicant’s case was that the courses would improve her English, after which she would undertake a bachelor’s degree (in healthcare) in Nepal.
On the same basis, by particulars (m) and (n), the applicant takes issue with the Tribunal’s finding that it would be the applicant’s bachelor’s degree that would provide her with employment in the healthcare sector and not the proposed courses in Australia. It is alleged that the Tribunal’s reasons in respect of this finding discloses a failure to grapple with the possibility that the courses could provide some assistance, including English language proficiency and general skills.
In further developing these grounds, it was orally submitted that the applicant’s evidence, which the Tribunal failed to grapple with, was that the proposed study in Australia, which would provide leadership and management skills and improve the applicant’s English language skills, in combination with the proposed study in Nepal, would lead to enhanced career prospects for the applicant in Nepal in the healthcare sector. It was further submitted that the Tribunal’s error was compounded by linking the applicant’s proposed courses of study in Australia to whether it would lead to an increase in her remuneration. It was submitted that the relationship between the proposed study in Australia and future employment in Nepal was not part of the applicant’s case, nor necessary for the genuine temporary entrant criterion.
It is important to note that the Tribunal’s consideration of the value of the applicant’s proposed courses of study was in the context of the matters to which it was required to have regard. Paragraph 12(a), (b) and (c) of Direction No. 69 required the Tribunal to consider whether the courses are consistent with the applicant’s level of education, whether they would assist the applicant in obtaining employment or improve her employment prospects in Nepal, the relevance of the courses to the applicant’s past or proposed future employment in Nepal and the remuneration the applicant could expect to receive in Nepal (compared with Australia) after completing the proposed courses.
At [27], the Tribunal accepted that the applicant’s proposed courses (at the diploma and advanced diploma level) were consistent with her level of education. At [19], the Tribunal recorded that it was the applicant’s intention to do a bachelor’s degree in Nepal.
At [29], the Tribunal expressed concern that the applicant’s description about her proposed employment in Nepal was vague and generalised. At [31], the Tribunal expressed concern that the applicant did not provide any in depth analysis of how the proposed courses would assist her. It also expressed concern about the applicant’s claim that she wanted to work in the healthcare sector, despite not having any work experience or qualifications in that sector either in Nepal or Australia. When the concern was put to the applicant, as set out in [32]-[33], the applicant indicated that she would be completing a bachelor’s degree in Nepal. When pressed further, the applicant said it would be a degree in public health service. When asked why she could not return to Nepal and study the bachelor’s degree rather than studying the proposed leadership and management courses, the applicant said whatever knowledge or qualifications gained from Australia would help her and would also improve her English.
The applicant’s evidence as to the value of the proposed courses of study was considered by the Tribunal at [34]-[36] in the context of the matters set out in Direction No. 69. The Tribunal was not satisfied that the proposed courses of study would provide the applicant with sufficient qualification or knowledge to work in the healthcare sector. It considered that it was the bachelor’s degree that would assist the applicant with employment in the healthcare sector in Nepal and not the diploma and advanced diploma courses. This finding was open to the Tribunal on the evidence before it and cannot be said to lack a logical or rational basis.
Further, the Tribunal did not consider, on the evidence before it, that the proposed courses of study would have any (or minimal) relevance to the applicant’s future employment in the healthcare sector, which it noted “appears to be a long way off”. Nor was the Tribunal satisfied that the proposed courses would have any bearing on the remuneration the applicant expects to earn working in the healthcare sector in Nepal. Having regard to the factors the Tribunal was required to take into account by Direction No. 69, these considerations formed part of the evaluative exercise that the Tribunal was required to undertake. No illogicality, irrationality of unreasonableness is disclosed in the Tribunal’s reasoning in that regard.
At [36], the Tribunal reasoned that the proposed courses of study would not provide the applicant with the “skills, knowledge and qualification” to work in the healthcare sector. It can be reasonably inferred that this encompassed consideration of the English language skills the applicant said she would gain from undertaking the proposed courses of study. The Court accepts, as submitted by the Minister, that the applicant, in responding to the Tribunal’s questions at [31] and [33], did not explain what knowledge she would gain from the proposed courses of study that would be of assistance to her or how improving her English would assist, given her intention to undertake further study, upon return to Nepal. In the context of the Tribunal’s earlier finding that it was the bachelor’s degree that would assist the applicant with employment in the healthcare sector in Nepal, it was open to the Tribunal, for the reasons it gave, not to be satisfied that the applicant’s proposed study in Australia would be of value to her future. The Tribunal’s reasons do not disclose any failure on its part to grapple with the applicant’s evidence. Nor can it be said that the Tribunal’s reasons and conclusions were illogical, irrational or unreasonable.
For these reasons, particulars (k), (l), (m) and (n) do not establish jurisdictional error.
Given its concerns at [39], the Tribunal formed the view that the applicant was using the student visa to maintain ongoing residence in Australia and ultimately concluded, based on its assessment of the factors in Direction No. 69, that it was not satisfied that the applicant genuinely intends to stay in Australia temporarily. This was a conclusion open to the Tribunal based on its assessment of the evidence. No illogicality, let alone extreme illogicality, is identified in the reasons given by the Tribunal in arriving at its conclusion. Nor can it be said that the conclusion arrived at by the Tribunal was so unreasonable that no other reasonable person could have so concluded.
For these reasons, the single ground of judicial review does not disclose jurisdictional error on the part of the Tribunal.
CONCLUSION
As the ground of review does establish jurisdictional error, this application for judicial review must be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 1 November 2024
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